The Gazette 1990

GAZETTE

A PRIL 1990

they had done that then quite clearly prima facie they would have incurred liability to their solicitor for the costs of the proceedings. But Mr Quinn submits that on the particular facts Bradleys never had any liability to their solicitors. Mr Quinn submits that Messrs Bradleys at no time had any liability to their solicitors. The main reason advanced for this is that the Taxing Master was entitled to infer from the fact that Lloyd's agreed to pay Messrs Bradleys costs, and agreed to pay them on a solicitor and client basis, that Bradleys prima facie liability was excluded. The principle is not in dispute; Mr Quinn accepted that this is so only if there is an agreement that under no circumstances whatever is the client to be responsible to the solicitors for their costs. The case Mr Quinn has to make is that I must infer that under no circumstances were Bradleys in their capacity as clients to be responsible to their solicitors for costs. Two grounds are advanced for that case: 1. Lloyds agreed to pay the costs on a solicitor and client basis, and 2. The real clients were not Bradleys but were in fact Lloyds. In regard to the second matter, the party to the litigation was Bradley & Sons and it may be that in addition to them being instructed by themselves they were also being instructed by Lloyds. But that would not entitle me to infer that Bradleys (as clients) were not to be under any liability to Bradleys (as solicitors) for the costs incurred. Prima facie they were liable. The real question is whether I should infer from the fact Lloyds agreed to pay Bradleys costs on a solicitor and client basis that Bradleys were to have no libaility in regard to costs. The situation is unusual in that Bradleys had two roles but I have to consider it on the basis of a position as if they had retained another firm of solicitors to act for them. Assuming that Lloyds had agreed to pay these costs on a solicitor and client basis, it seems to me that there would be nothing in such an agreement which would exclude the primary liability of Messrs Bradleys to pay the costs of the solicitor acting for them. That is shown by Lewis -v- Averay (No. 2).

Solicitors costs J. J. Bourke, Inspector f Taxes -v- W. G. Bradley & Son. Counsel's Note of the Judgment of Blayney J., delivered on 26 January, 1990. Our correspondent from W. G. Bradley & Sons, Solicitors, who has brought the following case to the Gazette's attention notes that he understands that this case is of primary importance to solicitors for the following reasons: (a) It acknowledges that a solicitor acting in his own cause can recover his/her costs from the losing party. It establishes that an agreement by a solicitor's client to pay the solicitor's costs does not prejudice recovery of those costs from the losing party. This appears to be the first case to consider a situation where the costs of a successful party are paid in the first instance by a non-party to the proceedings. (b) (c)

whether the items in the Bill are reasonable if I should come to the conclusion that the Respondents are entitled to their costs from the Revenue. This case falls to be decided in relation to the third issue, that is Item C. One starts with the prima facie position that a party repre- sented by a solicitor in litigation is responsible for the costs of that solicitor even if he has been retained by a third party to act on the client's behalf. The fact that he acts means that the client becomes liable. As has been set out in a number of the cases cited to me by Mr. McDonald, the party to the litigation, even though his solicitor is retained by someone else, is still the party liable because he will be personally liable for the costs of the other side should he lose; while, if he is successful, the costs of the solicitor acting for him are prima facie recoverable from the other side. (See for example Lewis -v- Averay (No. 2) [1972] 2 All E.R.229.) There the Automobile Association instructed solicitors to act on behalf of a party who wished to appeal a case which had gone against him. Thp appeal was successful and the appellant was given an order for his costs. It was held that costs were incurred by the appellant even though the solicitors were instructed by the Automobile Association. However, Mr Quinn says that in the present case the situation on the facts is that Messrs Bradley & Sons, in their capacity as a party to the litigation, did not incur any liability to their solicitors. I have to look at the position as if Messrs Bradleys had instructed a different firm of solicitors to act for them. If

This is an interesting and unusual case. I have to start with some basic facts. Firstly, there is the fact that in the case stated and on the appeal to the High Court Lardner J. granted an order for costs in favour of Bradleys, the respondents on that appeal. Bradleys were re- spondents and also acted as the solicitors for the respondents but it is accepted by counsel on both sides that the fact that Messrs Bradleys were acting as solicitors does not alter the position in any way. It follows that the position in law would have been exactly the same if Bradleys had retained a different firm of solicitors to act for them. Secondly, it seems to me that, prima facie, Bradleys were liable to the solicitors retained by them for the costs of the proceedings. The prima facie position is that Bradleys, by virtue of the order for costs in their favour, would be entitled to recover their costs from the appellant. What are the normal require- ments which have to be satisfied in order that a party recover their costs? They are set out by Walsh J. in Attorney Genera! (McGarry) - v- S/igo County Council, Supreme Court, unreported, 5th May 1989,* at page 2 of the Transcript of his judgment as follows: "A. That the Court has made an Order for costs in favour of the party; B. That the matters claimed had been properly incurred; and C. That the party in question is under legal liability to pay them." The requirement at A is fulfilled in this case. As to B, that is a matter for the Taxing Master to decide

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