R v Browne

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 09 May 1907
• Court: King's Bench Division (Ireland)
• Date: 09 May 1907

The King (at the Prosecution of James Kennedy and Others)

and

Cyril E. Browne, Auditor of the Local Government Board (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1907.

District Council — Labourers Acts — Contracts — Employment of solicitors — Audit — Local Government Board Auditor — Surcharge — Illegal or unfounded payments — The making, or authorizing the making, Of payments — Negligence or misconduct — Persons accounting — Local Government (Ireland) Act, 1871, s. 12 — Local Government (Ireland) Act, 1902, s. 20.

Held, that there was nothing in the action of the council in employing their solicitors for the work in question to render the payment illegal or unfounded within the meaning of sect. 12 of the Local Government (Ireland) Act, 1871.

Held, also, that, so far as the councillors, who were merely parties to the resolution authorizing the employment of the solicitors, were concerned, there was no making, or authorizing the making, of a payment within the meaning of section 12 of the Local Government (Ireland) Act, 1871.

Held, also, that the employment of the solicitors was not negligence or misconduct within the meaning of section 20 of the Local Government (Ireland) Act, 1902.

Held, also (per Gibson and Kenny, JJ.), that the members who passed the resolution were “persons accounting,” within the meaning of section 20 of the Local Government (Ireland) Act, 1902.

Motion to make absolute a conditional order for a writ of certiorari obtained by the prosecutors, James Kennedy, W. Harding, J. Lynch (Barntick), D. O'Brien, J. Brennan, M. Lynch, P. Skehan, P. B. Sweeney, P. M'Donnell, T. Roughan, P. Flynn, J. Lynch (Kilcolumb), J. Frost (Tiermaclane), James Mungovan, T. Frost, T. Considine, T. Hannon, and T. M'Mahon, to bring up to be quashed disallowances and surcharges, dated the 12th February, 1907, made by the defendant, Cyril E. Browne, an auditor of the Local Government Board, in his audit of the accounts of the Rural District Council of Ennis, together with the reasons for such disallowances against the prosecutors of the sums of £60 12s. and £7 4s., being portions of the sums paid to the solicitors of the council on foot of two bills of costs for work done under the Labourers Acts. Under the Ennis Rural District Labourers Order, 1903, the Rural District Council of Ennis caused advertisements to be published, inviting tenders for the building of twenty-eight labourers' cottages, and for the fencing of ninety plots acquired by them under the Order. There were separate tenders for the building of each cottage and the fencing of each plot, and such as were considered suitable were adopted at meetings of the council. The amount of the contract prices to be paid by the council for this work amounted to the full sum of £4274 12s. At a meeting of the council, held on the 12th October, 1904, at which James Kennedy, the first-named prosecutor, was chairman and the other prosecutors attended, the following resolution was adopted unanimously:— “That the council's solicitor prepare, with the least possible delay, bonds for the contractors for the building of the cottages and the fencing of plots of land under the above Order.” The description “bonds” was intended to include the agreements for the carrying out of the work in connection with the building of the cottages, as well as the bonds and warrants in connection with the same. In pursuance of instructions following on this resolution, the council's solicitor did prepare and did have properly executed 113 sets of agreements, bonds, and warrants, for the building of the cottages and the erection of the fences. Mr. F. F. Cullinan, solicitor, Ennis, acted as solicitor for the council until the 19th July, 1905, when he resigned, and Mr. John B. Lynch was thereupon appointed solicitor to the council, and had since acted in that capacity. Mr. Cullinan prepared a form of agreement for the building of the cottages, and another form of agreement for the erection of fences, which he had printed at his own expense, leaving the necessary blanks for the names of the contractor and his sureties, &c., so as to adapt them to each particular contract. After the preparation and execution of the several agreements, bonds, and warrants, the respective solicitors furnished bills of costs to the council, which included charges, in the case of each cottage and fence, of two guineas in respect of the agreements, bonds, and warrants. The council, in the proper form, referred the two bills of costs for taxation to the Masters of the High Court, and instructed an independent solicitor, Mr. Frederick G. Kerin, of Ennis, to attend on the taxation of the two bills of costs on their behalf. The two bills of costs were taxed by Master Tandy, Mr. Kerin attending, and by two certificates dated respectively the 29th March, 1905, and 9th February, 1906, the Master certified that the sums of £725 6s. 10d. and £110 14s. 2d. were due by the council on foot of the two respective bills of costs. The two respective bills of costs were paid on the 12th April, 1905, and the 14th February, 1906, respectively.

When the accounts of the council came to be audited by Mr. Browne, he disallowed two sums of £60 12s. and £7 4s., made up of a disallowance of 12s. each on the 101 agreements contained in the first bill of costs, and 12s. each on the twelve agreements contained in the second bill of costs.

The following are copies of the certificates of surcharge:—

“Paying Order No. 31 (Loans Account).

“The bill of costs paid on 12th April, 1905, to Mr. F. Cullinan, solicitor, includes 101 items of £2 2s. each, for the preparation and execution of contractors' agreements, bonds, and warrants. The duty, so far as concerns the agreements, consisted merely in filling the blanks on printed forms. Following the judgment of Mr. Justice Kenny (in Athlone No. 2 R. D. C. v. Roscommon County Council (1)), who laid down that when once a form of contract had been settled by a legal hand, no further professional aid whatever was necessary for the purpose of filling in the blanks on the printed forms, it is clear that the employment of a solicitor to perform this purely clerical duty is unnecessary, and the payment therefor unfounded. I allow on each item of £2 2s. a sum of £1 10s. for the costs in connexion with the bond and warrant of attorney, and I hereby strike out and disallow the sum of 12s. on each of the 101 items of £2 2s., being a total amount of £60 12s. (sixty pounds, twelve shillings), and I surcharge with the said sum of £60 12s. Messrs. James Kennedy, J.P., W. Harding, J. Lynch, Barntick; D. O'Brien, J. Brennan M. Lynch, P. Skehan, P. B. Sweeney, P. M'Donnell, T. Roughan, P. Flynn, J. Lynch, Kilcolumb; J. Frost, Tiermaclane; James Mungovan, T. Frost, T. Considine, T. Hannon, and J. M'Mahon, who authorized the said employment, and I certify the said sum to be jointly and severally due by them.

“Cyril E. Browne, Auditor.

“12th, February, 1907.

“Note.—In estimating the proportion of the comprehensive charge of £2 2s., which might be set down as costs in connexion with the warrant, I have followed the charges in a taxed bill of costs recently inspected by me.

“C. E. B. 12/2/'O7.”

“Paying Order 87 (Loans Account).

“The bill of costs paid to Mr. J. B. Lynch, solicitor, on the 14th February, 1906, includes twelve items of £2 2s. each, for the preparation and execution of contractors' agreements, bonds, and warrants. I strike out and disallow as unfounded the sum of 12s. on each of these twelve items, being the proportion of said items chargeable for the agreements in each case, being a total of £7 4s. (seven pounds, four shillings), and I surcharge with the said sum of £7 4s. Messrs. J. Kennedy, J.P., W. Harding, J. Lynch, Barntick; D. O'Brien, J. Brennan, M. Lynch, P. Skehan, P. B. Sweeney, P. M'Donnell, T. Roughan, P. Flynn, J. Lynch, Kilcolumb; J. Frost, Tiermaclane; James Mungovan, T. Frost, T. Considine, T. Hannon, and J. M'Mahon, who authorized the employment of the solicitor in this connexion, and I certify the same to be jointly and severally due by them.

“Cyril E. Browne, Auditor.

“12th, February, 1907.

“Note—My reasons for this surcharge are the same as those fully specified in a certificate of surcharge in a similar case written on folio 11 of the ledger.

“C. E. B. 12/2/'O7.”

The persons so surcharged were the members of the council who were present at the meeting of the 12th October, 1904, and they were so surcharged because the auditor held that they had authorized the employment of the solicitors, which he regarded as unnecessary, as the work was purely clerical. James Kennedy in his affidavit said when he and the other councillors directed the employment of their solicitor for the performance of the work “we considered that it was necessary for the due protection of the interests of the ratepayers to have the agreement prepared in each case with great care and particularity, and in such a manner that it would be possible to enforce against any defaulting contractor and his sureties the legal liabilities that it was intended that they should incur in case of default by such contractor, and we are still of that opinion, and we then thought and still think that we would have incurred a very great risk if we entrusted the carrying out of this work to any other person than our solicitor, and that the assumption by our clerk of the performance of the duty of filling up of blank forms of agreement might lead to very serious miscarriages in the case of defaults in the case of the said contractors or any of them.”

The affidavit further stated that the Taxing Master took into account the number of the agreements and the fact that they were in the same form generally, and the sum allowed for the bonds, warrants, and agreements was measured in...