The Gazette 1987

GAZETTE

MARCH 1987

refused to make the conditional order absolute and the Prosecutors appealed to the Supreme Court. The Supreme Court rejected the view of the High Court that Order 99 Rule 15(e) con- ferred on the Taxing Master the power to tax without any Court order, as between Solicitor and client in addition to the juris- diction which he had to tax bills referred under the 1849 Act. The Court noted that the jurisdiction of the Rules Committee was found in Section 36 of the Courts of Justice Act 1924 and that the Eighth Schedule of the Courts (Supplemental Provisions) Act of 1961 provided for the jurisdiction of the Taxing Master. Referring to East Donegal Co-Operative - v- The Attorney-General (1970) IR 317 and City View Press Ltd. and Another -v- An Chomhairle Oiliuna and Others (1980) IR 381 the Court held that while the powers duties and functions of the Taxing Master might be changed or extended by statute and perhaps by rule of Court, the authority to do so by rule of Court must derive from the statute which creates the rule making authority. There was no such enabling pro- vision in section 36 of the 1924 Act. The Court noted that the combined effect of Sections 2 and 6 of the 1849 Act in respect of a Bill of Costs for Solicitor and Client charges duly delivered would appear to be that: (1) The Solicitor cannot lawfully sue for one month after delivery. (2) The client has a period of twelve months within which to demand and obtain taxation. After the expiry of twelve months or after payment of the amount of the bill, then the Court may, if the special circumstances of the case appear to require the same, refer the bill to tax- ation, provided the application to the Court is made within twelve calendar months after payment. After the expiry of the latter period, there is no statutory power to refer for taxation. The Prosecutors appeal was allowed. The State (Gallagher Shatter) -v- de Valera, Supreme Court, 20 December 1984 (per McCarthy J.), (1986) ILRM 3. John Buckley Requirement of Superior Court Rules The Plaintiff's father engaged the Defendants to bring proceedings on behalf of the Plaintiff who was under age at the time, for damages for injuries sus- tained in a motor accident. The Plaintiff came of age during the course of the proceedings. The Defendant had advised the Plaintiff's father and later the Plaintiff herself that over and above the party and party costs which he would recover from the other side there would be certain Solicitor and Client costs payable by the Plaintiff. The proceedings were settled for the sum of £19,000. When the Defendant received the settlement cheque he deducted £1,500 in respect of such costs and sent on the balance of £17,500 to the Plaintiff. The Defendant (3) (4) COSTS Solicitor and Client Bill -

Client credit for the sum received for party and party costs. Accordingly in Cobett -v- Wood (1908) 2 KB 4 20 it was decided in this Court that a bill not containing the items allowed on taxation between party and party was not a sufficient bill within the Solicitors A c t ." The Court held that the bill furnished in this case by the Defendants was not such a bill as constituted a bona fide compliance with the 1 8 49 Act and accordingly the provisions of Section 2 limiting the reference to taxation to twelve months from the delivery of the bill did not apply. Neither did the provisions of Section 6 apply as no bill as was envisaged by Section 2 had been paid by the Plaintiff. The Court accordingly directed the Defendant to furnish to the Plaintiff a detailed Bill of Costs and that on such Bill being delivered it would be open to the Plaintiff to have the Bill referred to taxation. Orla Smyth -v- William J. Montgomery The High Court (per Blayney J.) 7 July 1986. John Buckley J. J. Murphy and Company Limited was engaged in the warehousing of spirits and beers which were liable to excise duty when delivered from a warehouse. By Deed of Bond executed under seal the defendant bound itself to pay to the Minister for Finance on behalf of the Revenue Com- missioners the sum of £1.4 million con- ditional upon the failure of J. J. Murphy and Company Limited to pay the excise duties chargeable in respect of spirits delivered from bonded warehouses on which duty was not paid on delivery but was deferred for a period certain by agreement with the Revenue Commissioners. The defendant entered into a similar bond in respect of excise duty on beer. Subsequently the Revenue Commissioners demanded payment of, and obtained judgment in the High Court for, the full sum of £504,416 being the total amount due in respect of the spirits and beer. The accuracy of the total was not in dispute. Section 24 of the Excise Collection and Management Act, 1841 (4 Vict. cap. 20) provides inter alia that all goods and com- modities in respect of which any excise duty is imposed by law, and all materials for producing such goods and commodities, in the custody or possession of the person carrying on such trade, or in the custody or possession of any factor, agent or other person in trust for or for the use of the person carrying on such trade, shall be chargeable with all excise duties which, during the time of such custody or possession shall have become chargeable or be in arrears or owing from the person carrying on such trade; and shall be subject to all penalties and forfeitures which during any such custody or possession shall be or shall have been incurred by the person carrying on such trade and all such goods and materials shall remain liable to all such duties, penalties and forfeitures; and it should be lawful to levy thereon such duties, penalties and forfeitures, and for that GUARANTEE Bond — Rights of Surety — ObUgetione of Creditor — Terms of Contrect

claimed that at the time of the settlement the Plaintiff had agreed to this figure of £ 1,500 for Solicitor and Client costs but the Plaintiff denied this. The Plaintiff sought particulars of the fees in July 1984 from the Defendant who declined to furnish parti- culars unless the Plaintiff agreed to pay the fees payable to the Legal Costs Accountant for preparing the bill. After the intervention of the Law Society the Plaintiff furnished in September 1984, a document stated to be "a Bill of professional fees, outlay and V.A.T. Orla Smyth in account with Thomas Montgomery & Son." The Law Society advised the Plaintiff that she could either have this bill taxed or could insist on being furnished with an itemised Bill of Costs and if she decided on the latter course she could not be billed with the fees due to the Legal Costs Accountant. After an interval of a little over a year the Plaintiff's father wrote on her behalf seeking an itemised bill and the Defendant again sought payment of the Legal Costs Accountant's fees. On 16 April 1986 the Plaintiff signed a requisition to tax under Order 90 Rule 15(e) of the Rules of the Superior Courts 1962 but no taxation could take place without an order of the Court in view of the decision of the Supreme Court in the State (Gallagher Shatter) -v- De Valera (1986) ILRM.3, The Plaintiff issued a Special Summons seeking an order pursuant to Section 2 of the Attorneys and Solicitors (Ireland) Act 1849 referring the Bill to taxation and seeking the furnishing of a detailed Bill of Costs for taxation. The Court accepted the Plaintiff's evidence that she had been advised that she would be liable for Solicitor and Client costs up to a maximum of £1,500 but had not agreed to pay the sum of £1,500. The Court rejected the Defendants argument that the Plaintiff was not entitled to the Order because twelve months had elapsed since the delivery of the bill in September 1984 and payment of the £ 1,500 several months earlier. The Court referred to the requirements of the Superior Court Rules, Order 99 Rule 30(5) which provided that: 1. The Solicitor cannot lawfully sue for one month after delivery. 2. The Client has a period of twelve months within which to demand and obtain taxation. 3. After the expiry of twelve months or after payment of the amount of the bill, then the Court may, if the special circum- stances of the case appear to require the same, refer the bill to taxation, provided the application to the Court is made within twelve calendar months after payment. 4. After the expiration of the latter period, there is no statutory power to refer for taxation, and noted the view of Buckley L. J. in the case of re Osborne and Osborne (1913) 3 KB 862 where he stated " a Solicitor's bill against his client for costs in an action in which party and party costs are recoverable against the opposite party ought to contain the whole bill of the fees, charges and disbursements in reference to the business to which it relates and not merely a bill of the extra costs chargeable as between Solicitor and Client . . . a Solicitor should deliver a bill of the whole costs giving his

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