The Gazette 1955-58

settlement of Mrs. Kitchen's claim. When the company sent £100 to the R.A.F. Association to be used for Mrs. Kitchen's benefit (less the five guineas deducted for the solicitors) there was careful non-disclosure to Mrs. Kitchen of the source of the money. If the appellants were acting as solicitors for Mrs. Kitchen then what was the effect of the con cealment of this payment? They clearly should have informed Mrs. Kitchen. The necessary con sequence was the concealment from Mrs. Kitchen also of the real effect of their having thrown away any case that she might have possessed under the Fatal Accidents Act in the previous May. Did that concealment amount to fraud? There was here no finding and no justification of any finding of dishonesty as that word was ordinarily understood, but it was now clear that the word " fraud " in the section was not limited to the same significance as " deceit", and it was equally clear that no degree of moral turpitude was a necessary ingredient to the fraud. In this case, assuming that Mrs. Kitchen was their client, she was entitled to rely upon them to look after her interests, and it was in breach of that confidence that they did what they did in October and November. His Lordship had come to the conclusion that there was just enough established by Mrs. Kitchen to enable her to say that there was concealment by fraud..which. deprived the solicitors of the right to set up the defence of the Statute of Limitations. (Kitchen v. Donald Darlington and Nice—" The Times ", znd April, 1958). Counsels' fees disallowed in taxation. Appeal on matter ofprinciple. . Oh 23rd April, 1956, trustees of a will took out an originating summons to obtain directions en abling them to widen the range of investments of the trust moneys. The Attorney-General, representing the charity beneficially interested under the will, was the only respondent. The matter came before Roxburgh J., in chambers on 4th June, 1956, and after an hour's hearing the judge stood the summons over. On 29th October, 1956, the matter came before Vaisey, J., and took some twelve minutes. Counsel's opinion was obtained in November, 1956. On i3thMay, 1957, the matter was heard in chambers before Wynn Parry, J., and an order was obtained in which a direction for taxation of the trustees' costs was given in the form of the Practice Direction dated zyth October, 1953 ( (1953) i W.L.R. 1365). On taxation the fee which the trustees had paid to counsel in respect of the hearing before Roxburgh, J., of £16 55. was taxed down to £11 ; the fee of £i i paid to counsel on the hearing before Vaisey, J.,

was taxed taxed down to £5 los.; that paid for the opinion of counsel was taxed from £11 to £5 ios., and the fee paid on the final hearing before Wynn Parry, J. (which was to different counsel as the other counsel had taken silk more than a year before), of £16 55. was taxed down to £5 ios. Objections were taken on behalf of the trustees that, having regard to s. 30 (2) of the Trustee Act, 1925, and the Practice Direction, the master should have allowed the trustees all expenses properly incurred in relation to the proceedings and no item should have been, disallowed. In his reply the master stated that it would be wrong to allow higher fees than those he had allowed to be paid out on the trust fund, that those allowed were fair and reasonable in the circumstances, and that those charged were excessive and should only be paid under R.S.C., Ord. 65, r. 27 (29), if at all, by the trustees personally and not out of the trust fund. The trustees now sought an order that their objections be allowed. Danckwerts, J., said that the trustees had rightly contended that the distinction between a trustee and a person instructing his own counsel and solicitor was that the latter might pay whatever he liked; but in the case of a trustee, he must use his judgment to try and save the estate money which should not be unnceessarily paid out. It was quite wrong ±o._lo.ok at the event afterwards and, counsel's fees having been incurred and having been demanded by counsel's clerk on the basis that that fee was asked for having regard to the complexity of the matter and the standing of counsel in question, to say that counsel has been paid too much. It would undo the whole effect which was intended by the Practice Direction if the master were entitled to tax fees to counsel, or other expenses that had been paid in good faith by the trustees, on the basis that they were payable by them. The trustees could not get out of paying them merely because the master thought that counsel might have been paid a somewhat smaller sum. It was a wrong adoption of the standard laid down by Ord. 65, r. 27 (29), which did not really apply in this case; it was not a case of undue generosity—the standard was whether it was proper or improper. In those circumstances, therefore, it was plain that the taxing master went wrong in principle, and that his order must be set aside, and the items actually paid by the trustees in good faith must be allowed. Objections allowed. (In re Grimthorpe, deceased—The Solicitors' Journal, March 2 9th, 1958) and ([1958] I.W.L.R. 381.). EXAMINATIONS—CHANGE OF DATE THE date of the ist and 2nd Irish Examinations has been changed to the 4th day of July, 1958. Last day 107