Allison v Jenkins

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 05 June 1907
• Court: Court of Appeal (Ireland)
• Docket Number: (1902. No. 477.)
• Date: 05 June 1907

Allison

and

Jenkins.

M. R.

Appeal.

(1902. No. 477.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1907.

Costs — Taxation — Action founded on salvage claim involving questions of contribution by numerous parties — Motion for judgment — Instructions for brief — Number of counsel — Fees — Registration as lis pendens — Gen. Ord LXV., R. 65.

Held, by the Master of the Rolls, that the Taxing Master had underestimated the importance and difficulties of the case, particularly in its early stages, and that the circumstance that the labour and attention expended in the initiation of the proceedings, which enabled the case to be ultimately dealt with on a motion for judgment, ought not to be used as a reason for minimising the solicitors' remuneration. Accordingly, the Master of the Rolls referred all the above-mentioned items back to the Taxing Master for re-consideration.

Held, by the Court of Appeal, that the allowance of fees in excess of the scale showed that the Taxing Master had appreciated the magnitude of the case, and, except as to the fee to counsel to draft reply and the registration of the action as a lis pendens (both of which the Court of Appeal allowed), that there was no error in principle; and the remaining items objected to being within the discretion of the Taxing Master, the Court of Appeal (reversing the decision of the Master of the Rolls as to them) held, that the taxation should stand.

Motion on behalf of the plaintiff to review taxation of the plaintiff's costs in respect of items disallowed.

The plaintiff (1) brought an action against Anna Eliza Jenkins and several others, to enforce contribution from them towards the payment of arrears of head-rent and costs paid by her to the landlords, in order to save certain lands, known as the Bundoran estate, in which the plaintiff and the defendants were interested from eviction. The plaintiff was one of a large number of tenants holding property under sub-fee-farm grants, subject to a fee-farm rent of £868 6s. 2d. This rent had been let run into arrear, and in order to save the whole from eviction she paid the amount due to the head landlords.

The property was held under fee-farm grant of 1855, made by Trinity College to Thomas Connolly. The estate had been sold in lots in the Landed Estates Court, and six lots were made primarily liable to the head-rent in certain proportions, and were bound to indemnify the remaining lots accordingly. The principal questions to be determined in the action were as to the method and principle on which the liability of the defendants to contribute was to be ascertained, and the extent of that liability determined, and as to the incidence of costs on the different parties interested.

The Master of the Rolls (Sir A. M. Porter), on motion by the plaintiff for judgment, decided that the plaintiff was entitled to contribution on the principle of salvage, and that the owners of the lots should contribute according to the value of the lots at the date when the salvage payments were made, and not according to the net profit rent at the time of purchase, nor according to the present

value of the lots (1); and an inquiry at Chambers was directed, to ascertain the contribution payable by each person interested on this basis. It came on again for argument before the Master of the Rolls on March 16th, 1904, as regards the incidence of costs on the different classes of defendants, and a special order was made by him in reference to costs (2).

The principal items which were the subject of discussion appeared in part II. of the bill of costs.

Items 25-34 were for instructions for case for counsel to advise plaintiff as to the proceedings to be taken, having regard to the various defences, and to settle replies to defences, if necessary.

These included £5 5s. for instructions, £5 5s. fee paid to junior counsel, 6s. 8d. for attendance on him, and £5 19s. 2d. for copies of documents. The Taxing Officer disallowed these items.

In his report he stated as follows:— “I cannot allow these items as against the defendants. No reply was, in fact, delivered, and instead of a reply counsel drafted a notice of motion for judgment against all the defendants. This is a purely formal matter, and counsel are not, as a rule, allowed a fee for drafting such a notice. I have very carefully considered the matter in this case, and I see no reason to depart from the ordinary rule. I have therefore, disallowed these items.”

Item 85 was a fee of £15 15s. paid to senior counsel to advise proofs. The Taxing Officer deducted £9 9s. from this item. The plaintiff objected, and contended that the Master had no discretion to make such deduction. Senior counsel was sent, in addition to the case for proofs, all the defences, two cases which had already been submitted to junior counsel, and the documents referred to in the correspondence, amounting to about 1000 folios. The Taxing Officer held that in this case a fee of £15 15s. for direction of proofs was an unreasonable and extravagant fee, particularly having regard to the facts he called attention to in giving his decision on item 25, viz., that no reply was filed, and that two defences which were filed were withdrawn, and that counsel had drawn the notice of motion for judgment on admissions, and consequently that the plaintiff's solicitor knew the case would not be

seriously contested by the defendants. He therefore came to the conclusion that a fee of £6 6s. for directing proofs was reasonable and proper.

Item 145 was a sum of £225 charged for instructions for brief on the motion for judgment, including attendances in endeavouring to obtain copy of rental, searching for conveyances to the purchasers of thirty-nine lots, perusing conveyances containing over 700 folios, and the original deeds, attendances, searching for certificates and orders in the Land Judge's and Chancery Offices, also at the Receivers' and Valuation Offices, identifying seven lots, correspondence, &c., perusing documents containing over 5000 folios, and tracing title of thirty-nine owners from 1869 to 1903.

The Taxing Officer allowed £50. The plaintiff, in her objections, contended that she was entitled to an allowance for the work under Order LXV., Rule 65 (3), under the special circumstances of the case, the importance of the matter, and the amount (£40,000) involved.

Items 158 to 165 comprised the costs of a third counsel and the fees paid to him. The Taxing Officer held that he would only allow two counsel, as the case was decided on motion for judgment on admissions and in default of defence, and he was satisfied on the facts before him, that there was no very special circumstance in the case requiring the attendance of a third counsel. The Taxing Officer allowed a senior and junior counsel, but refused to allow the costs of a second senior.

Items 275 to 282, amounting to £52 14s., were instructions for notice, pursuant to the Chief Clerk's ruling, for service on the several defendants, calling on them, if they wished to object, to file affidavits in support of such objection; also for preparation of schedule to be laid before the Chief Clerk on the adjourned summons, including extracts from the affidavits of acreage, &c., and also intricate calculations which occupied the solicitor and two assistants for two days. The notice was intricate, and involved calculations on different bases, drafting sixteen copies, &c. The Taxing Officer allowed £13 13s. in respect of these items, holding that this sum adequately remunerated the solicitor for the work done. It appeared that in addition to this the solicitor was allowed £10 for perusal of affidavits. Item 379 was a fee of £3 3s. for instructions for brief on further consideration. The Taxing Officer disallowed the item, and held that the fee was not chargeable under the Schedule of fees at present in force. Items 426 to 429 were charges incurred in registering the action as lis pendens against the defendant, Sarah Treanor, and against nineteen other defendants. The Taxing Officer disallowed all the items, inasmuch as the action was not registered as lis pendens against all the defendants, and was apparently only registered against one defendant (1), and at a very late period after the order on further consideration, and also on the ground that no urgent necessity to register it as lis pendens. As to part I. of the bill of costs, item 337 was a charge of £21 0s. 2d., paid to Mr. Hicks, a surveyor, for expenses in visiting the Bundoran estate, and making a report. He was engaged for seven or eight days. The Taxing Officer reduced the amount claimed by £6 2s. 8d. Item 640 of part I. was a charge of £2 19s. 8d. for wide-line copy draft statement of claim for settlement by senior counsel (179 folios). The Taxing Officer disallowed the amount on the ground that it was not properly chargeable against the defendants.

Herbert Wilson, K.C., and Denning, in support of the objections to taxation:—

This was a case of great difficulty and importance, requiring the greatest attention and trouble and preparation on the part of the solicitors to bring it to a successful conclusion. The Taxing Officer failed to appreciate the magnitude and complexity of the case, or the nature of the questions involved. His decision was not based on a thorough examination of the nature of the case. He has erred in a matter of principle. That being so, the Court will interfere: Barry v. Spaight (2); Maconchy N. Bank of New Zealand (3); Robb v. Connor (4); Dyott v. Reade (5).

Item 145 is a charge of £225 on instructions for brief on...