The Gazette 1955-58

such costs are to be taxed on a solicitor and client basis should lead to any different result. I feel it right to say that I have some difficulty in seeing why it is for the party objecting to the allowance of the usual costs to show that the allowance will give more than an indemnity. Section 5 of the Solicitors Act, 1870 provided, as I have indicated above, that a client who has entered into such an agreement shall not be entitled to recover from any other person more than the amount payable by the client to his own attorney under the agreement. It would seem to me and I think I need put it no further than this, that the section is, at least, open to the interpretation that the onus lies upon the party seeking to recover costs, in such circumstances, to show that the costs claimed are not more than the amount payable by the client to his own attorney and that accordingly it is not for the party objecting to the allowance of the usual costs, to have to prove that the allowance will give more than an indemnity. It would certainly seem more reasonable to ask the party who has all the facts, figures and materials at his disposal to provide the necessary information (White v. Dublin Corporation (1955) 89 I.L.T.R. 144). NOTE : The above mentioned case although heard by Mr. Justice Budd in 1952 was not reported until 1955, and there does not appear to be any subsequent report of the substantive point involved, viz. : the onus of proof where a client a successful litigant who employs a salaried solicitor claims full party and party costs. If this point is brought before the courts for a decision, Section 59 of the Solicitors Act, 1954, and regulation 7 (b) of the Solicitors Act, 1954, Professional Practice, Conduct and Discipline Regulations, 1955, will be relevant. This regulation provides that a solicitor shall not agree to share with any person not being either a solicitor qualified to practise or a duly qualified legal agent in another country his profit costs in respect of any business either contentious or non-contentious but goes on to say that a solicitor who is employed full time in consideration of a salary to do the legal work exclusively of an employer who is not a solicitor may agree with such employer to set off profit costs received in respect of contentious business from the opponents of such employer the costs paid to him as the solicitor for such employer by third parties in respect of non-contentious business against (i) the salary so paid or payable to him and (2) the reasonable office expenses incurred by such employer in connection with such solicitor (and to the extent of such salary and expenses). 43>

KaVe come to" any other conclusion but that it was signed, he would have no case. Now it is not suggested that any intimation was conveyed to him at the time -when the certificate was taken out and it is a curious feature of the case that no demand was made for payment of the costs until January, 1952.. The plaintiff himself swears that he did not know the certificate was signed and I do not see any reason to disbelieve him. It seems to me in any event in all the circum stances that the plaintiff's attitude was excusable, and that he was genuinely taken by surprise when the demand for costs was actually made. Apart from the explanations put forward to excuse the plaintiff's delay I have, however, also to be satisfied that the plaintiff genuinely intended to appeal and held to that intention all along. The fact that Counsel was retained to argue the case before the Taxing Master shows that the Plaintiff had serious intentions in contesting the point. This motion was brought within a reasonable time after the refusal of the defendants to extend the time and the position is that if I refuse to extend the time for a review of taxation the result may be that the plaintiffs will have to pay to the defendants a substantial sum in respect of a portion of the costs in respect of which he may be shown to have no legal liability to pay. On the other hand if I do extend the time it will enable the is>,ue to be determined according to law and no real hardship will be done to the defendants in that they will only suffer a delay. The defendants can scarcely suggest that there is any gre?* urgency about the matter since they allowed six months to elapse before applying for the costs. While it was objected before me that the proper evidence necessary to make the correct calculations was not adduced by the plaintiff, it was not at any time suggested that the case before the Taxing Master had proceeded on any other basis but that the solicitor conducting the proceedings on behalf of the Corporation was remunerated by way of salary and this appears to have been accepted as common case. Party and party costs are of course given in the character of an indemnity but are not a complete indemnity. If the costs awarded in an action are to be taxed however on a solicitor and client basis they obviously come closer to that position. If the fact that an agreement exists between the successful litigant in an action and his solicitor affects the amount of the party and party costs ultimately payable by the unsuccessful party, there does not seem to be any reason why the fact that