Gibbs v Gibbs

[1952] 1 All ER 942

(Judgment by: Havers J) Court:
Probate, Divorce and Admiralty Division

Judge:
Havers J

Judgment date: 10 March 1952


Judgment by:
Havers J

This is a summons by the petitioning husband in a suit for divorce to show cause why the decision of Mr Registrar Long on the objections to his taxation of the petitioner's bill of costs should not be reversed. Though the summons was in the name of the petitioner, he, being an assisted person under the Legal Aid and Advice Act, 1949, was not financially interested in the result. The persons really interested were the solicitors who had acted for him under the provisions of the Act. I adjourned this summons into open court because it seemed to me to raise questions of general interest to solicitors who act for assisted persons under the provisions of the Legal Aid and Advice Act, 1949. As there was nobody concerned to put before me any argument on the other side, I thought it right to direct that the papers in the suit be sent to the Queen's Proctor so that I might have the benefit of any argument which counsel on his behalf thought right to present to the court.

The petition was heard on 22 June 1951, and a decree nisi was then granted to the petitioner, the court exercising its discretion in his favour. The decree nisi contained a direction that the costs of the petitioner be taxed as between solicitor and client in accordance with the provisions of sched III to the Act of 1949. In due course the solicitors for the petitioner lodged a bill of costs for taxation with Mr Registrar Long. The learned registrar taxed off £6 5s 8d from the total costs as mentioned in the bill of £35 17s 10d. The total bill as taxed, including disbursements, was £63 13s 9d

Section 1 of the Legal Aid and Advice Act, 1949, provides:


"(5) Legal aid shall consist of representation, on the terms provided for by this Part of this Act, by a solicitor and so far as necessary by counsel (including all such assistance as is usually given by solicitor or counsel in the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings) ... (7) Save as expressly provided by this Part of this Act or by regulations made thereunder,--(a) the fact that the services of counsel or a solicitor are given by way of legal aid shall not affect the relationship between or rights of counsel, solicitor and client or any privilege arising out of such relationship; and (b) the rights conferred by this Part of this Act on a person receiving legal aid shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised."

Section 2 deals with the financial conditions of legal aid, and sub-s (2) provides:


"Where a person receives legal aid in connection with any proceedings--(a) the expenses incurred in connection with the proceedings, so far as they would ordinarily be paid in the first instance by or on behalf of the solicitor acting for him, shall be so paid except in the case of those paid direct from the legal aid fund as provided by this Part of this Act; (b) his solicitor and counsel shall not take any payment in respect of the legal aid except such payment as is directed by this Part of this Act to be made out of the legal aid fund."

That is an important provision because, if any costs are incurred which are not allowed on taxation, the solicitor cannot recover them from any source. The sub-section continues:


"(c) he [the assisted person] may be required to make a contribution to the legal aid fund in respect of the sums payable thereout on his account; (d) any sums recovered by virtue of an order or agreement for costs made in his favour with respect to the proceedings shall be paid to the legal aid fund; (e) his liability by virtue of an order for costs made against him with respect to the proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute."

Section 3 provides that the assisted person may be called on to make contributions to the fund. Section 4 deals with the assessment of disposable capital and income and of maximum contribution. Section 6 deals with solicitors and counsel who act for assisted persons under the provisions of the Act, and s 6(1) provides:


"Panels of solicitors and barristers willing to act for persons receiving legal aid shall be prepared and maintained, and there may be separate panels for different purposes, for different courts and for different districts."

Sub-section (2) says that solicitors or barristers may have their names on the appropriate panel. Sub-sections (4), (5) and (6) provide:


"(4) Where a person is entitled to receive legal aid, the solicitor to act for him and, if the case requires counsel, his counsel shall be selected from the appropriate panel, and he shall be entitled to make the selection himself ... [subject to certain provisos]. (5) Subject to this Part of this Act, a solicitor who has acted for a person receiving legal aid shall be paid for so acting out of the legal aid fund, and any fees paid to counsel for so acting shall also be paid out of that fund. (6) The sums payable under the last foregoing sub-section to a solicitor or counsel shall not exceed those allowed under sched. III to this Act."

That, again, is an important provision for the purposes of the case with which I am now dealing. Schedule III to the Act deals with remuneration of persons giving legal aid under Part I. By para 1(1):


"The sums allowed to counsel in connection with proceedings in the House of Lords or the Supreme Court shall be eighty-five per cent. of the amount allowed on taxation of the costs: Provided that this sub-paragraph shall not apply in relation to proceedings in the High Court in a matrimonial cause, where the solicitor is one employed for a salary to act in connection with matrimonial causes."

That proviso has no application to this case. Paragraph 2(1) provides:


"The sums allowed to a solicitor in connection with proceedings in the House of Lords or the Supreme Court shall be the full amount allowed on taxation of the costs on account of disbursements and eighty-five per cent. of the amount so allowed on account of profit costs: Provided that so much of this sub-paragraph as relates to profit costs shall not apply to a solicitor employed for a salary to act in connection with matrimonial causes".

The relevant paragraph for the purposes of the question which I have to determine is para 4(1):


"Subject to the last foregoing paragraph [that is, para. 3, which has no application to the facts of this case] costs shall be taxed for the purposes of this schedule according to the ordinary rules applicable on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested: Provided that no question shall be raised as to the propriety of any act for which prior approval was obtained as required by regulations."

The only other matter to which I need refer is reg 18(3) of the Legal Aid (General) Regulations, 1950 (SI, 1950, No 1359), which were made pursuant to a power contained in the Act, which is in these terms:


"Any order for the payment of the costs of any proceedings to which an assisted person is a party shall include a direction that his costs are (in addition to any other direction as to taxation contained in the order) to be taxed as between solicitor and client in accordance with the provisions of sched. III to the Act."

As I have already said, the decree which the petitioner obtained in this court did contain such a direction.

Counsel for the Queen's Proctor submitted to me that in para 4(1) of sched III to the Act of 1949 stress should be laid on the words "according to the ordinary rules applicable on a taxation as between solicitor and client". He submitted that, in view of those words, when the taxing master was called on to tax a bill his mind should not be coloured by the fact that the litigant was an assisted person or by the fact that the fund out of which the costs were to be paid substantially consisted of moneys provided by Parliament. I accept that argument, and I think that these words are important. I ought to refer also to r 66 of the Matrimonial Causes Rules, 1950 (SI, 1650, No 1940), which provides:


"(1) Every bill of costs shall be referred to a registrar for taxation and may be taxed by him or such other taxing officer as the president may appoint ... (3) In any cause or matter to which these rules apply the costs allowed to solicitors and the taxation of such costs shall, except where these rules otherwise provide, be in accordance with the provisions of Ord. 65 of the Rules of the Supreme Court so far as the same are applicable."

The rules have not otherwise provided, so that the costs allowed to solicitors and the taxation of such costs are to be in accordance with the provisions of RSC, Ord 65, in matrimonial suits. Counsel for the Queen's Proctor submitted, therefore, that on a taxation of a bill of costs under the provisions of sched III to the Act of 1949 the governing regulation was RSC, Ord 65, r 27(29), which is in these terms:


"On every taxation the taxing master shall allow all such costs, charges and expenses, as shall appear to him to have been necessary or proper for the attainment of justice or for the defending the rights of any party, but save as against the party who incurred the same no costs shall be allowed which appear to the taxing master to have been incurred or increased through over-caution, negligence or mistake or by payment of special fees to counsel or special charges or expenses to witnesses or other persons, or by other unusual expenses."

Though the question which I have to determine lies within a very short compass, counsel for the Queen's Proctor was good enough to provide me with the historical background relating to orders for costs generally and to the different classifications which have grown up on taxations as between solicitor and client. Before 1873 the common law courts had no power to award anything except party and party costs. Counsel referred me to the Annual Practice, 1951, p 1498n.


"Solicitor and Clients Costs. The High Court of Justice has, as the Court of Chancery formerly had, a general and discretionary power in matters of equitable jurisdiction to give to a successful party costs as between solicitor and client; but quaere, whether the power exists in matters of common law jurisdiction."

The case there cited was Andrews v Barnes, which shows the origin of the jurisdiction to award costs as between solicitor and client. The headnote reads:


"The Court of Chancery formerly had, and the High Court of Justice now has in matters of equitable jurisdiction, a general discretionery power to give costs as between solicitor and client. Whether the High Court has the same power in matters of common law jurisdiction, quaere."

Fry LJ who delivered the judgment of the Court of Appeal, examined the old jurisdiction of the Lord Chancellor, and said (39 ChD 138):


"The jurisdiction of the Lord Chancellor in costs was essentially different from that at common law. 'The giving of costs in equity,' said LORD HARDWICKE in Jones v. Coxeter 'is entirely discretionary, and is not at all conformable to the rule at law.' 'Courts of equity,' said the same great judge in another case, 'have in all cases done it' (i.e., dealt with costs) 'not from any authority' (i.e., as we understand, from any statutory or delegated authority)--'but from conscience and arbitrio boni viri, as to the satisfaction on one side or other on account of vexation': Burford Corpn. v. Lenthall (2 Atk. 551)."

Then he makes an examination of the older general orders of the court and shows the various phrases which have been used in reference to costs. He said (ibid, 140):


"The general jurisdiction of the Court of Chancery in this respect is stated with great clearness by the lords justices in the case of Mordue v. Palmer. In the course of a Chancery suit a reference was made to arbitration, which ordered that the costs should be in the discretion of the arbitrator. He awarded them as between solicitor and client, and the Court of Appeal held that as the reference was in Chancery the arbitrator had power so to do. 'The common law courts,' said MELLISH, L.J. (6 Ch. App. 32), 'have no power to give costs between solicitor and client, and therefore, when there is a reference, the arbitrator cannot give any other than costs between party and party. But it is otherwise with courts of equity; and I therefore think that, when a reference as to costs is made by a court of equity, the court gives the arbitrator jurisdiction to award costs as between solicitor and client if he shall think fit'."

The practice in this Division has been to award costs as between party and party only. I was referred to Allen v Allen and D'Arcy which showed that there was some difference between a taxation between party and party in this Division in a matrimonial suit and that of a taxation between party and party in a common law cause. The headnote is:


"Costs of wife in a matrimonial suit are taxed as between party and party, but not in all respects on the same principles as a taxation at common law between party and party. Thus, though certain issues may have been found against the wife, whose costs are being taxed, the expenses incurred by them will be allowed unless the registrar should think that they were wantonly and vexatiously raised. Expense of witnesses to prove the circumstances of a plea not in issue, if such circumstances have a bearing on other parts of the case in issue, may be allowed; and a reasonable amount of expense incurred in investigating and acquiring information as to the circumstances of the case should be allowed."

The Judge Ordinary (Sir Cresswell Cresswell) said (2 Sw & Tr 110):


"This taxation must certainly be reviewed. The question of the principle on which costs are to be taxed in matrimonial suits has not yet been settled, but I apprehend that I must adopt, as far as I can, the principles on which the Ecclesiastical Courts proceeded. I am informed that the principle of taxation in those courts was as between party and party; but that term had a very different construction from that put upon it in common law courts, because there they only allow the costs of such issues as are found for the persons who are to receive costs. I think that the only limit which can with propriety be put upon the allowance of the costs of the different issues raised in this court is this: where the taxing officer is satisfied that an issue has been vexatiously and improperly put on the record, so as to occasion a wanton and unnecessary increase in the amount of costs, he is not to allow the costs of that issue."

It was pointed out that, notwithstanding that, a solicitor who appeared for a wife in a matrimonial suit and was awarded party and party costs might nevertheless be entitled at common law to recover extra costs incurred beyond those which were allowed on a party and party taxation. The authority for that proposition is Ottaway v Hamilton. It is enough for me to read the headnote, which is in these terms:


"A solicitor employed by a wife to take proceedings against her husband to obtain a divorce on the ground of cruelty and adultery, may use the husband for 'extra costs,' i.e., costs reasonably incurred by him beyond the costs taxed and allowed as between party and party. His common law right to sue the husband as for 'necessaries' supplied to the wife, is not to be limited to the statutable rights and remedies for costs given to the wife under the Divorce Acts."

I need not trouble with whatever the position was in the early days because the governing rule which applies to every taxation today is RSC, Ord 65, r 27(29). That rule has been the subject of judicial consideration and interpretation in the courts, and I was referred to a number of authorities in which this took place. One of them was McIver & Co Ltd v Tate Steamers Ltd in the Court of Appeal which was heard soon after the new rule, which was introduced in 1902 and is now RSC, Ord 65, r 27(29), came into operation. The headnote is:


"Rule 10 of the Rules of the Supreme Court, January, 1902, applies to taxation of costs both as between party and party and as between solicitor and client. In an action upon a charterparty a witness, whose evidence was essential to the plaintiffs' case, was examined in London before the trial of the action. The plaintiffs' solicitor from Liverpool attended at the examination for the purpose of instructing counsel. The plaintiffs having succeeded in the action, upon the taxation of costs between party and party, the taxing master allowed in respect of the solicitor's attendance as aforesaid an amount exceeding two guineas, the maximum allowance for such an attendance specified in Appendix N to Ord. 65, No. 147. HELD, that the taxing master had power to make the allowance which he made in the exercise of the discretion given to him by r. 10 of the Rules of the Supreme Court, January, 1902."

Mathew LJ says ([1902] 2 KB 187):


"But it is argued that under the rules the master had no discretion to allow these costs. According to the practice as to taxation of costs between party and party prior to the rules of January, 1902, the scale given in Appendix N was no doubt binding on the master, and this allowance could not have been made. But, on consideration of the objections to this rule, it was thought desirable to modify it to some extent, and accordingly the new r. 10 of the Rules of the Supreme Court, January, 1902, was made, by which it is provided that 'regulation 29 of Ord. 65, r. 27, is hereby annulled and the following regulation is substituted therefor'."

He sets out the new rule, and continues (ibid, 188):


"We are asked to construe this rule as meaning that the taxing master shall allow no costs, charges or expenses beyond those provided for by the scale given in Appendix N. The new regulation was framed with full knowledge of the terms of the old regulations and of the scale, and it cannot, I think, be doubted that it ought to be construed according to its terms, namely, as giving the master on 'every taxation' discretion to allow such costs, charges, and expenses as appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party, subject to the exceptions mentioned in the latter part of the rule. In this case there appears to be no reason for suggesting that the allowance made was not perfectly reasonable, and it comes within the plain terms of the rule. For these reasons I think the appeal must be dismissed."

The other case to which I was referred was Re Ermen. That really followed the decision of the Court of Appeal to which I have just referred. The headnote to that case is:


"Under r. 8 of Ord. 65, and r. 10 of January, 1902 (which is the new sub-r. 29 of r. 27 of the same order), the discretion of the taxing officer is no longer limited to the maximum fee prescribed by Appendix N;, but under these regulations he has now on every taxation a two-fold discretion--first, in ordinary cases, the discretion conferred on him by Appendix N, and, in addition to that, a general discretion in special cases to allow all such costs, charges, and expenses as appear to him to have been necessary or proper for the attainment of justice, or for defending the rights of any party. The Practice Notes of the Masters of Hilary Sittings, 1902--known as the 'Blue Book'--though framed and issued by them under the power conferred on them by sub-r. 37 of r. 27 of Ord. 65, have no statutory authority, and do not abrogate or fetter the discretion given them by the Rules of the Supreme Court. They merely define the practice which, as a general rule, should be followed by the masters on taxations."

In his judgment Farwell J says ([1903] 2 Ch 160):


"In this case the learned registrar, after consulting the taxing masters in London, was of opinion that he had no discretion to allow more than the maximum of £1 1s. prescribed by Appendix N, No. 65, or by the Blue Book; although, if he had had such a discretion, he considered that the fee of £5 5s. claimed was proper and reasonable, and ought to be allowed. In my opinion, on the construction of the rules, apart from any question of authority, the learned registrar and the taxing masters have not taken the right view. Now Ord. 65, r. 8, is a rule of old standing, and contains negative words: 'In causes and matters commenced after these rules come into operation, solicitors shall be entitled to charge and be allowed the fees set forth in the column headed "Lower Scale" in Appendix N in all causes and matters, and no higher fees shall be allowed in any case, except such as are by this order otherwise provided for.' Turning on to find what are 'otherwise provided for,' I find a fasciculus of sub-clauses headed 'Special allowances and general regulations,' fifty-eight in number, contained in r. 27. One of those sub-rules is No. 29. In the old rules which were in force before January, 1902, sub-r. 29 was expressed in the negative. There was, first, r. 8, with the negative words: '(No higher fees shall be allowed in any case except such as are by this order otherwise provided for'; and then the old sub-r. 29, which said: 'As to costs to be paid or borne by another party, no costs are to be allowed which do not appear to the taxing officer to have been necessary or proper,' and so on. But in January of last year it was thought fit to alter that sub-rule and to put it into an affirmative form. I think it is fair to infer that when eminent persons like the Rule Committee alter the phraseology of a rule they intend to alter the substance also. When you are dealing with a set of sub-rules under the head 'Special allowances and general regulations,' which involve or may involve an exception to the negative words in r. 8, 'No higher fees shall be allowed, etc.,' and you find only a negative sub-rule that such and such a thing shall not be allowed, it is impossible to hold (and in fact the contrary was held) that under those regulations the maximum limit fixed in Appendix N can be exceeded. But when those negative words in the sub-rule are altered into the affirmative, and become an express power or direction that 'on every taxation the taxing master shall allow all such costs, charges and expenses, as shall appear to him to have been necessary or proper for the attainment of justice,' and so on, then, having regard to the collocation in which you find them, it appears to me that the Rule Committee did intend to give the general discretion which the words import."

Then he says he considers he is bound by the decision of the Court of Appeal in McIver & Co Ltd v Tate Steamers Ltd.

Counsel for the Queen's Proctor put before me a classification of the various methods of taxation of costs. His classification consisted of six different classes. His first class was a taxation as between solicitor and own client, that is to say, where the costs are payable by a client to his solicitor. His second class was a taxation as between solicitor and client where the costs are payable out of a fund wholly owned by the party. His third class was a taxation as between solicitor and client under RSC, Ord 22, r 14(11). His fourth class was a taxation as between solicitor and client where the costs are payable out of a common fund. His fifth class was a taxation as between solicitor and client where the costs are payable out of a fund in which the party has no interest. I think he ought to add, to complete that, "or where the costs are payable by one party to another". The sixth class was a taxation of costs as between party and party.

Dealing first with his first class, that is to say taxation between solicitor and own client, counsel called my attention to an unreported case which appears in Lord Atkin's Encyclopaedia of Court Forms And Precedents In Civil Proceedings, vol 7, p 215, note (z), and from which it appears that some judges, at any rate, disapprove of the phrase "solicitor and own client". The note is in these terms:


"The expression 'solicitor and own client' has been disapproved by judges. It is more accurate to direct taxation on the footing of an indemnity."

The case cited is Price v Midland etc, Cleaning Co Ltd. With regard to counsel's second class of taxation as between solicitor and client--where the costs are payable out of fund wholly owned by the party--he said, and I think rightly, that there is no practical difference between classes one and two. He referred to the passage in Seton's Judgments And Orders, 7th ed, vol 1, at p 244. The note is:


"When costs are directed to be taxed as between solicitor and client, it does not necessarily mean that all costs which the solicitor is entitled to against his client are to be allowed, but the allowance will vary according to the circumstances of the case; regard being had to the position of the parties, and the fund out of which the costs are to be paid; and a distinction is made; first, where such costs are payable out of a fund belonging to other parties; secondly, where such costs are payable out of a common fund, in which the party has only a limited interest; and, thirdly, where such costs are payable out of a fund belonging exclusively to the party himself."

There is a passage in very similar terms in Daniell's Chancery Practice, 8th ed, vol 2, at p 1078. Both these classes are really taxation on an indemnity basis and neither has any application to this case.

Counsel's third class was taxation as between solicitor and client under RSC, Ord 22, r 14(11), which is in these terms:


"The costs of the plaintiff or if more than one of all the plaintiffs in any such cause or matter or incident to the claims therein or consequent thereon shall be taxed by the taxing master, or, if such cause or matter is proceeding in a district registry by the district registrar, as between party and party and as between solicitor and client, and the taxing master or district registrar shall certify the respective amounts of the party and party and solicitor and client costs, and the difference (if any) and the proportion of such difference (if any) payable respectively by any adult party to the cause or matter and by or out of the moneys of any party who is an infant or person of unsound mind, and no costs other than those so certified shall be payable to the solicitor for any plaintiff in the cause or matter."

I was referred to the decision of Denning J in Goodwin v Storrar. The headnote to that case reads:


"The words 'costs as between solicitor and client' in R.S.C., Ord. 22, r. 14(11), which provides for the taxation of the costs of the plaintiff in any cause or matter, mean the costs which a client ought properly to pay to his own solitor. Where therefore a consent order was made in favour of the plaintiffs in an action brought by personal representatives under the Law Reform (Miscellaneous Provisions) Act, 1934, and the Fatal Accidents Act, and a provision was included that the defendant should pay to the plaintiffs' solicitors the costs of the action as between solicitor and client to be taxed:--HELD, that the plaintiffs' solicitors were entitled to be paid such costs as were found by the taxing master to be properly payable to them by their own clients. Giles v. Randall considered and distinguished."

That was a case in which infants were concerned, and, therefore, the rule applied. Denning J gave the following judgment in open court ([1947] 1 All ER 204):


"The words 'taxation as between solicitor and client' have two meanings. One meaning, which I will refer to as meaning (A), is an inquiry as to the costs which a client ought properly to pay to his own solicitor, as distinct from 'taxation as between party and party,' which is an inquiry as to the costs which he should recover from the opposite side. The distinction is based on common sense, for if a client authorises his solicitor to incur an unusual or unnecessary expense, it is only right that the client should reimburse his own solicitor for it, but it does not follow that he should be able to recover it from the opposite side. The other meaning of 'taxation as between solicitor and client,' which I will refer to as meaning (B), is an inquiry as to the costs to be paid to the solicitor out of a common fund in which the client and others are interested, and is substantially a taxation as between party and party, but on a more generous scale. When meaning (B) is used, a different form of words is needed to describe an inquiry as to the costs which a client ought properly to pay his own solicitor, and that is then described as a 'taxation as between solicitor and own client' ... In my opinion, in R.S.C., Ord. 22, r. 14(11), the words are used in meaning (A). The rule is designed to protect widows and children in accident cases by disentitling solicitors from deducting from the compensation a lump sum for their costs and by subjecting their claim for costs to taxation, i.e., to an inquiry in every case as to the costs properly payable to them. If meaning (A) is given, that result is achieved, but if meaning (B) is given, the effect of the sub-rule, expecially the concluding words thereof, would mean that the solicitor would be deprived of costs properly payable to him. In the present case, for instance, the solicitors would have to pay the fee of £11 for the second leading counsel out of their own pockets, although the expenditure had been authorised by the plaintiffs and proved, in fact, greatly to the benefit of the estate and the children. I reject an interpretation of the sub-rule which leads to such a result. If I am right in thinking that in the sub-rule the words are used in meaning (A), it shows that it is a valid meaning to be attached to them in any legal document, and this enables me to distinguish Giles v. Randall. The court in that case recognised that meaning (A) was the ordinary meaning, but felt compelled to give the words the meaning (B) because the was the technical meaning, and where words in a legal document have a technical meaning, it is the technical meaning that should be received. Now that a rule of the Supreme Court has been made, in which are used the word in meaning (A), it follows that meaning (A) at the present day is, not only the ordinary meaning, but also a valid technical meaning, and that there is no reason why in construing a legal document that meaning should not ordinarily be given. In the order as to costs in this case, therefore, there is no reason why I should not adopt meaning (A), when that appears to be the meaning intended by the parties, as I think it is. In view of this development it may be that Giles v. Randall would be decided differently at the present day. At the instance of the parties and with their consent, I have seen the senior taxing master and he tells me that the practice in cases under R.S.C., Ord. 22, r. 14, is to tax according to meaning (A), i.e., to ascertain the costs properly payable by the client to the solicitor. In Giles v. Randall, it is to be noticed that the Court of Appeal were much influenced by the practice of the taxing office. I would hesitate long before I disturbed the present practice. I decline to do so. I hold that the taxation of this bill by the senior taxing master of this court was on the correct principles and I do not interfere with it."

Counsel for the petitioner submitted to me that the position of a solicitor who is acting for an assisted person under the Legal Aid and Advice Act, 1949, is very analogous to that of a solicitor who is acting for a widow and infant in a case to which RSC, Ord 22, r 14(11), applies. He invited me, therefore, to put on the words in sched III to the Legal Aid and Advice Act, 1949, an interpretation similar to that which Denning J put on the words in RSC, Ord 22, r 14(11). I am unable to accept that argument for two reasons. First, the order in question has no application to the facts of the present case, and, secondly, the order uses the words "as between solicitor and client", whereas in sched III to the Legal Aid and Advice Act, 1949, the words are different. They are: "according to the ordinary rules applicable on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested". The case, however, is of assistance to me because Denning J deals with the position where there is a taxation out of a common fund in which the client and others are interested, which is the precise method of taxation referred to in the Act of 1949. The interpretation put by Denning J on those words is that it is substantially a taxation as between party and party, but on a more generous scale.

I pass by for the moment counsel for the Queen's Proctor's fourth class, because that is the one which applies to the facts of this case and I shall have to refer to it hereafter. His fifth class was a taxation as between solicitor and client where the costs are payable out of a fund in which the party has no interest, with my suggested addition of the words "or where the costs are payable by one party to another". Under his fifth class my attention was called to Giles v Randall. This decision of the Court of Appeal is the leading authority on RSC, Ord 65, r 27(29). The headnote sets out the terms of sub-r (29) and then goes on to say:


"An action was settled upon the terms that judgment should be entered for the plaintiff against the defendant for a sum of money 'with costs as between solicitor and client to be taxed (if necessary).' The judgment was accordingly drawn up to that effect. The taxing master taxed the costs upon the footing that the second part of sub-r. 29 applied, and he disallowed or reduced in amount a large number of items, stating in effect that a taxation of costs as between solicitor and client, where the costs were to be paid by one party to another party, was stricter than a taxation as between solicitor and client where the costs were to be paid by the client to his solicitor and gave little more than a taxation as between party and party:--HELD, that the second part of sub-r. 29, from the words 'but save as against the party who incurred the same,' applied to all taxations except a taxation as between a solicitor and his own client, and that, having regard to the above distinction in taxations as between solicitor and client, the taxing master had taxed the costs on the proper principle."

Buckley LJ said this ([1915] 1 KB 295):


"There are three modes of taxation as between solicitor and client. The first is where a client is taxing his own solicitor's bill of costs, commonly called taxation as between solicitor and own client. The second is where the costs are to be paid out of a common fund in which the client and others are interested. This case does not come within either of those two classes. The third is where the costs are payable by one party to another or out of a fund in which the party entitled to the costs has no interest. The present case falls within this last mentioned class. The plaintiff was to have her costs as between solicitor and client to be paid by the defendant. A practice has grown up, which I must say I regret, of differentiating between taxation of costs as between solicitor and client and as between solicitor and own client. In the former case the taxation is substantially a party and party taxation on a more generous scale."

I call attention to those words. Buckley LJ continued:


"In the latter case there is an ascertainment and allowance of the charges properly payable by the client to his solicitor. That distinction is too firmly established for this court to interfere with it, though it may be a matter proper to be considered by the Rule Committee. I have no doubt that litigants who stipulate for and by agreement are to receive costs as between solicitor and client often intend to get an indemnity in respect of costs. The taxing master has taxed the costs upon the footing that the latter part of r. 27(29) of Ord. 65 applies. The history of that sub-rule is this. As the sub-rule stood before the alteration in 1902 it was negative in form and was confined to costs as between party and party. It ran thus: 'As to costs to be paid or borne by another party, no costs are to be allowed which do not appear to the taxing officer to have been necessary or proper for the attainment of justice or defending the rights of the party, or which appear to the taxing officer to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party.' In January, 1902, this sub-rule was so altered as that the first part was reproduced in an affirmative instead of a negative for and was made to extend to every taxation. It now runs thus: 'On every taxation the taxing master shall allow all such costs, charges, and expenses as shall appear to him to have been necessary or proper for the attainment of justice or for defending the rights of any party.' So far the new sub-rule was silent as to the costs dealt with in the latter part of the old sub-rule, namely, costs incurred through over-caution, etc. Those costs are remitted to the latter part of the new sub-rule, which runs thus: 'But save as against the party who incurred the same no costs shall be allowed which appear to the taxing master to have been incurred or increased through over-caution, negligence, or mistake, or by payment of special fees to counsel or special charges or expenses to witnesses or other persons, or by other unusual expenses.' Here I find picked up and reproduced in negative words the latter part of the old sub-rule. The meaning is this. The earlier part of the new sub-rule says that the taxing master shall allow a certain class of costs. The latter part says that, except in one particular case, certain costs which were formerly to be disallowed are still to be disallowed. The excepted case is that of taxation of costs as between a solicitor and his own client. This part of the sub-rule in effect provides that as between solicitor and own client those costs may be allowed, but that in all other cases they shall not. The other cases include taxation as between solicitor and client as distinguished from taxation as between solicitor and own client. Accordingly upon such a taxation as this the costs described in the latter part of sub-r. 29 are not to be allowed. The taxing master in this case has proceeded upon that footing. He says that 'the taxation in the case of No. 3, which is the one that applies to this action, is the strictest and in effect gives little more than a taxation as between party and party, except that any necessary letters to and attendances on the client are allowed'. That is not very well expressed. 'Necessary letters to and attendances on the client' are allowed as between party and party; the letters and attendances there referred to must be letters and attendances beyond those that would be allowed as between party and party. The taxing master has taxed this bill of costs on the footing that the latter part of sub-r. 29 applies. For the reasons I have given I think that he was right. Except upon a taxation as between solicitor and own client such costs as there mentioned are not to be allowed. That is the only question of principle argued before us. This court does not interfere on questions of quantum."

Pickford LJ delivered judgment to the same effect.

The first thing to be observed is that Buckley LJ there set out that there were three modes of taxation as between solicitor and client, and he described each of those modes. He obviously recognises and approves those three modes of taxation. I have no doubt that when the draftsman of the Legal Aid and Advice Act, 1949, drafted para 4 of sched III, he must have been well aware of these three modes of taxation, and that they were recognised by the courts and had been approved by the Court of Appeal in Giles v Randall. Now, that case decided that on a taxation as between solicitor and client RSC, Ord 65, r 27(29), applied to every taxation, and, except in one case, the latter part of the sub-rule also applied, the exception being in a case where the taxation was between solicitor and own client. But it is to be observed that Buckley LJ referred to the observations of the taxing master dealing with necessary letters to and attendance on the client. He did indicate that on a taxation as between solicitor and client there may be other items allowable which would not be allowable on a taxation as between party and party. The other matter of importance from the point of view of the question which I have to determine is contained in the words of Buckley LJ where he regrets the practice of differentiation between taxation as between solicitor and client and taxation as between solicitor and own client, and he then goes on to say (ibid, 295):


"In the former case the taxation is substantially a party and party taxation on a more generous scale."

There, he uses the smae language as that used by Denning J in Goodwin v Storrar.

I was also referred to Frankenburg v Famous Lasky Film Service Ltd. The material passage which was cited to me was a passage from the judgment of Lord Hanworth MR ([1931] 1 Ch 436):


"It appears to me that that case [Pêcheries Ostendaises (Soc. Anon.) v. Merchants' Marine Insurance Co.] is abundant authority for allowing, as the registrar has allowed, these costs before action. It is to be observed that in the Pecheries Ostendaises case the plaintiff's bill of costs which were to be paid was taxed on the basis of party and party, and that in the present case the costs are to be taxed on the basis of solicitor and client, but the difference between party and party and solicitor and client costs is undoubtedly this, that the solicitor and client costs are intended to embrace a more generous allowance for the actual costs which have been incurred by the plaintiff. It appears to us, therefore, that these costs incurred before action are costs which may be fairly attributable to the conduct of the defendants and thus within the costs which it was contemplated would have to be paid by the defendants."

The sixth class to which counsel for the Queen's Proctor referred was a taxation as between party and party, and he referred me to one case, Pêcheries Ostendaises (Soc Anon) v Merchants' Marine Insurance Co. Atkin LJ says ([1928] 1 KB 762):


"The other matter that arises is as to the costs incurred before the action was commenced. That has nothing to do with the stay of proceedings, but it is a pure question whether or not the costs incurred before the writ was issued are costs which the plaintiffs can recover under an order for the costs of the action. Upon that question it appears to me to be very important to bear in mind that the taxing masters have got to apply the words of Ord. 65, r. 27(29). That rule is the guiding rule in the taxation of costs. It is intended to sum up generally the principles upon which costs are awarded; and I cannot help thinking that if that rule were really rigorously applied by everybody--and by 'rigorously applied' I mean applied in all cases and giving full effect to the width of its language--there would be many fewer complaints by successful litigants than there are at the present moment. It is a rule which is intended to give to the successful litigant a full indemnity for all costs reasonably incurred by him in relation to the action. It says in terms that the taxing master is to allow 'all such costs, charges and expenses, as shall appear to him to have been necessary or proper for the attainment of justice.' That is the whole principle that the taxing master has got to apply."

I come now to class four in counsel's classification which is a taxation as between solicitor and client where costs are payable out of a common fund, which is the basis provided in para 4(1) of sched III to the Act of 1949. I was referred to two cases dealing with this classification. The first was Re Joint Stock Trust & Finance Corpn Ltd. The object of citing this report was to show that there was authority for the proposition that on a taxation as between solicitor and client where the costs were payable out of a common fund, the taxing master could properly allow items which would not be allowable on a taxation as between party and party. The headnote to that case reads as follows:


"Costs--Taxation--Solicitor and client--Costs payable out of common fund--Transcript of shorthand writer's notes of misfeasance proceedings--Costs incurred through over-caution ... or other unusual expenses--Ord. 65, r. 27(29). Summons to review taken out by the applicant in certain misfeasance proceedings in which judgment was given by EADY, J., on Feb. 1, 1912. At that time the judgment was irrecoverable, but in the year 1921 after leave had been given to proceed on the judgment, and a subsequent summons issued to compromise, a sum of £25,000 became divisible amongst the debenture holders of the Selected Gold Mines of Australia Limited. Party and party costs of the compromise were taxed and paid. In these costs a transcript of the whole of the misfeasance proceedings was included, but disallowed. Subsequently the applicant, who was also the applicant on the misfeasance and the compromise summons, brought in a solicitor and client bill of costs payable out of the fund as directed by the order sanctioning the compromise. The taxing master disallowed these costs on the ground that the same were incurred through over-caution. HELD, that in the circumstances the transcript was necessary and the costs thereof should be allowed."

Eve J in his judgment said (137 LT 631):


"I think the objection ought to be allowed. It is no reflection on the taxing master that he should have construed the language of P. O. LAWRENCE, J., as he has done. He regards the matter as concluded by what the learned judge said. I do not think it is. The applicant incurred these costs for the benefit of a body of debenture holders of whom she was one, and I regard the learned judge's statement as a reservation in her favour. Undoubtedly there were grounds for treating the matter as concluded, but, on the other hand, the language of the learned judge implies some reservation, and the only point to which it could relate was the point whether as between solicitor and client this item, disallowed as between party and party, could be allowed. These transcripts were made for the benefit of all the parties concerned in obtaining payment of the fund now in court, and, in my opinion, were useful, if not absolutely necessary to that end. I think, therefore, the item--not a very serious one in amount--ought to be allowed in the applicant's costs."

The other authority to which I was referred was the recent decision of Roxburgh J in Reed v Gray, which is of great assistance to me in deciding the question which I have to decide. The headnote is:


"A solicitor brought an action for specific performance of a contract to sell to him certain land. By his defence the defendant alleged that the sale was not genuine, but was the outcome of an unlawful conspiracy to defraud and deprive him of the real value of the premises. The case came to trial, but the defence collapsed, and the court ordered that the costs of the plaintiff be referred to the taxing master to tax as between solicitor and client. HELD: under the order for taxation it was the duty of the taxing master (as on a taxation as between party and party) to adopt as his norm or standard the directions in R.S.C., Ord. 65, r. 27(29), but at the same time to make more generous allowances than he would in a taxation as between party and party; there was no basis for the view that, under the order made, the taxing master should tax the costs as between party and party, allowing on a more generous scale only the costs of certain letters and attendances; but the order could not be construed as an order for taxation as between solicitor and own client."

The learned judge, after dealing with the facts of the case, said this ([1952] 1 All ER 242):


"The case came to trial, was part heard, and then the defence collapsed. Having regard to all the circumstances, I thought that, in the exercise of the discretion which I considered myself to have on the authority of Andrews v. Barnes, I ought to award the plaintiff costs as between solicitor and client, and, accordingly, I made, on Nov. 16, 1950, an order that it be referred to the taxing master to tax as between solicitor and client the costs of the plaintiff of this action other than certain costs. What is the true construction of that order? On this point Giles v. Randall is the leading case and R.S.C., Ord. 65, r. 27(29), is the relevant sub-rule ... In Giles v. Randall the plaintiff brought an action against the defendant to recover damages for breach of promise of marriage. When the case was in the day's list for hearing terms were agreed and indorsed on counsel's briefs 'that judgment should be entered for the plaintiff for £500 with costs as between solicitor and client to be taxed (if necessary),' and, accordingly, the judgment as drawn up stated that 'it is adjudged that the plaintiff recover against the defendant 500 and her costs as between solicitor and client to be taxed (if necessary).' The plaintiff's bill of costs was taxed, and the taxing master disallowed or reduced in amount a large number of items therein, such as charges for instructions for briefs and counsel's fees. The plaintiff carried in objections to the disallowances before the taxing master, which, so far as material, were as follows: 'The plaintiff objects generally to taxation and to the disallowance of the items hereinafter mentioned on the grounds: (1) Such taxation was conducted upon the basis of a party and party taxation. (2) It ought to have been conducted upon the basis of a taxation as between solicitor and client where the costs are to be paid by the client, because the terms of the settlement of the action were that the plaintiff was to receive £500 damages clear, and all the costs for which she was liable to her solicitor were to be paid by the defendant.' The taxing master in his answer thereto (so far as material) said: 'It is well settled that there are various forms of taxation as between solicitor and client. No. 1. Where the costs are payable by the client to his solicitor or where the costs are payable out of a fund belonging entirely to the party. No. 2. Where the costs are payable out of a general or common fund. No. 3. Where the costs are payable out of a fund which belongs to other parties and in which the party has no interest or where the costs are payable by one party to another. The taxation in the case of No. 3, which is the one that applies to this action, is the strictest and in effect gives little more than a taxation as between party and party, except that any necessary letters to and attendances on the client are allowed.' These last words, which, it is to be observed, are derived from the taxing master's answers to objections and not from any judgment of any member of the court, are the linchpin of the case which I am now trying, and it is also to be observed that they purport, not to set out a norm or standard of taxation, but to state in summary form the result of a taxation on what the taxing master calls a No. 3 basis. I desire to emphasise that. I cannot believe that the taxing master in that case was ignorant of r. 27(29), or failed to realise that that was the sub-rule which supplied the norm or standard for taxations as between solicitor and client. I think he was merely stating what in his experience was the general effect of a taxation so conducted. It is noted that he used the words 'in effect', and he does not say 'gives no more than'. He says 'gives little more than'. BUCKLEY, L.J., adopts the classification into three classes indicated by the taxing master."

Roxburgh J then reads the passage ([1915] 1 KB 295) that I have already referred to in Giles v Randall, and continues (ibid):


"That reinforces my conclusion that the taxing master knew perfectly well that it was that sub-rule which supplied the norm or standard for taxation, and that the paragraph to which I have referred was not intended by him to be substituted for the norm or standard, but was intended to state a broad summary of the results as he had experienced them. BUCKLEY, L.J., proceeds to discuss the sub-rule and then he says ([1915] 1 K.B. 296): 'The latter part [of the sub-rule] says that, except in one particular case, certain costs which were formerly to be disallowed are still to be disallowed. The excepted case is that of taxation of costs as between a solicitor and his own client. This part of the sub-rule in effect provides that as between solicitor and own client those costs may be allowed, but that in all other cases they shall not. The other cases include taxation as between solicitor and client as distinguished from taxation as between solicitor and own client. Accordingly upon such a taxation as this the costs described in the latter part of sub-r. 29 are not to be allowed. The taxing master in this case has proceeded upon that footing. He says that "the taxation in the case of No. 3, which is the one that applies to this action, is the strictest and in effect gives little more than a taxation as between party and party, except that any necessary letters to and attendances on the client are allowed." That is not very well expressed. "Necessary letters to and attendances on the client" are allowed as between party and party; the letters and attendances there referred to must be letters and attendances beyond those that would be allowed as between party and party. The taxing master has taxed this bill of costs on the footing that the latter part of sub-r. 29 applies. For the reasons I have given I think that he was right. Except upon a taxation as between solicitor and own client such costs as there mentioned are not to be allowed. That is the only question of principle argued before us'. PICKFORD, L.J., agreed. He regretted that he felt bound to affirm the decision, and said that logically costs as between solicitor and client could mean only one thing, viz., such costs as were properly chargeable between a solicitor and his client and were properly payable by the client to his solicitor, but he agreed that the sub-rule did apply to a solicitor and client taxation. He made no reference to the paragraph in the taxing master's answers to which I have referred. That case, in my judgment, decided one thing quite clearly, i.e., that the latter part of the sub-rule applies to a solicitor and client taxation with the inevitable corollary that a solicitor and client taxation cannot be assimilated to, or cannot be made identical with, a solicitor and own client taxation. In my judgment, it decided nothing else. Counsel for the defendant suggested that, as BUCKLEY, L.J., referred to the particular paragraph in the taxing master's answer and criticised it in one respect only, I ought to infer that he impliedly approved it in all other respects. First, I do not think that it was ever intended to be a pronouncement of a norm or standard. Secondly, I do not think that BUCKLEY, L.J., did approve it in all other respects, because it is not really consistent with what he himself has said. He said that in the former case, i.e., the solicitor and client taxation, the taxation is substantially a party and party taxation on a more generous scale. That must be so, because the whole of sub-r. (29) applies equally to both a party and party taxation and to a solicitor and client taxation. Therefore, the characteristics of the items which can properly be allowed must be the same in both classes of taxation. The only scope for difference is that the allowances should be on a more generous scale in one class of taxation than in the other. There is, in my judgment, no possible ground for thinking that BUCKLEY, L.J., thought that the only things that could be treated more generously were certain letters and attendances to the exclusion, for example, of counsel's fees."

He then deals with the items of counsel's fees, and he says (ibid, 245):


"For my part, I do not think that BUCKLEY, L.J., by his reference to this particular passage and his criticism of it in one respect only, intended to imply that it was to be read as a limitation on the generality of his own phrase, which is 'that a solicitor and client taxation is substantially a party and party taxation on a more generous basis.' If, contrary to my view, BUCKLEY, L.J., did intend to make that implication, it was plainly obiter dictum. He himself says that the only point of principle decided in the case was whether or not the sub-rule applied to a solicitor and client taxation. This point had no relevance to the decision of that point of principle and PICKFORD, L.J., does not refer to the taxing master's words at all. Therefore, I am not prepared to accept the view that those words have been put forward by anybody, by the taxing master in that case or by the court, as a norm or standard for a solicitor and client taxation. In my judgment, the duty of a taxing master is to approach both classes of taxation, both party and party and solicitor and client taxation, with his mind on the sub-rule, which is his proper norm or standard, but, at the same time, he is to make more generous allowances in taxing as between solicitor and client because, though the sub-rule prevents him from fully achieving the intention clearly expressed by the direction in the order, i.e., to allow all that a solicitor can properly claim against a client, it is his duty to carry out that intention so far as permissible."

I respectfully adopt that passage in the judgment of Roxburgh J because, in my view, it is equally applicable to a taxation under para 4 of sched III to the Legal Aid and Advice Act, 1949. The only distinction between that case and a taxation under the Legal Aid and Advice Act is that Roxburgh J was dealing with case No 3 in Giles v Randall, whereas the taxation under sched III would be a taxation under case No 2 in Giles v Randall, that is, where costs are payable out of a common fund. For convenience, I adopt the classification which was made in Giles v Randall and approved by the Court of Appeal. I assume that the taxing master, in dealing with case No 2, would make more generous allowance than he would in dealing with a case under No 3. I do not profess to know the precise difference between them. I assume that it is well-known to the taxing master and that it would be on a more generous footing, whereas, of course, compared with No 1, which is on an indemnity basis, a taxation on the basis of case No 2 would obviously be less generous.

Roxburgh J went on (ibid, 245):


"In his reply, counsel for the plaintiff referred me to a passage in Frankenburg v. Famous Lasky Film Service Ltd., in the Court of Appeal, which appears to me to embody the same principle. LORD HANWORTH, M.R., said ([1931] 1 Ch. 436): '... the difference between party and party and solicitor and client costs is undoubtedly this, that the solicitor and client costs are intended to embrace a more generous allowance for the actual costs which have been incurred by the plaintiff." Counsel asks me to go further and to hold that in the present case the order should be construed as though it had directed a solicitor and own client taxation, or, in other words, an indemnity. He says that because Andrews v. Barnes was the case on which I relied as giving me jurisdiction to make the order which I made. It is undeniably true that FRY, L.J., delivering the judgment of the court in Andrews v. Barnes, refers to indemnity. He says (39 Ch.D. 140): '... various circumstances have been stated as influencing the discretion of the court--in some cases to vindicate the honour and justice of the court, and in Palmer v. Walesby on the ground of the right of the applicant to indemnity, the reason assigned by KAY, J., for awarding them in the present case.' I cannot accept that submission. In my judgment, this order is not to be construed differently from any other order for solicitor and client costs merely because I thought I found my jurisdiction to make it in Andrews v. Barnes."

I, again, respectfully agree with what Roxburgh J says there. He continues (ibid):


"Counsel for the plaintiff further says that Goodwin v. Storrar is an authority for the proposition that an order for solicitor and client costs ought now to be construed as though it were an order for solicitor and own client costs. There is no doubt that Goodwin v. Storrar has not previously been taken into account in carrying out taxations as between solicitor and client in the Chancery Division. It is a decision of DENNING, J. The plaintiffs were personal representatives of a man and his wife who were killed as a result of an explosion at a munition works, and they brought an action against the defendant claiming damages under the Law Reform (Miscellaneous Provisions) Act, 1934, and a sum under the Fatal Accidents Act for the benefit of the two children of the deceased. The action was settled on the terms that £250 was to be paid in respect of each of the deceased under the Law Reform (Miscellaneous Provisions) Act, 1934, and £1,750 under the Fatal Accidents Act. The settlement was embodied in a consent order approved by the court, which contained the following provision as to costs ... On taxation, the taxing master taxed the costs on the basis that under Ord. 22, r. 14(11), the plaintiffs' solicitors were entitled to be paid such costs as they would be properly entitled to receive from their own clients. The defendant applied for a review."

Roxburgh J then cites the passage which I have already read from the judgment of Denning J ([1947] 1 All ER 204), and goes on (ibid, 246):


"Order 22, r. 14, has no application to the action with which I am concerned, but Ord. 65, r. 27(29), has and still stands. Giles v. Randall decided that that sub-rule applies to my order, for, indeed, there is no ground of distinction known to me, other than that with which I have already dealt, between the order in Giles v. Randall and the present order. Accordingly, my order cannot be construed as directing a solicitor and own client taxation because so to construe it would be to hold that the sub-rule did not apply to it. But I find in DENNING, J's., decision support for what I have myself already said about the duty of a taxing master in a solicitor and client taxation."

Those are the authorities to which I have been referred. As I have already said, I have no doubt that when the draftsman came to draft para 4(1) of sched III he must have been well aware of RSC, Ord 65, r 27(29), and of the decisions of the court that that was the governing regulation which applied to every taxation, not only as between party and party, but also as between solicitor and client, and that the latter part of that sub-rule applied to taxations as between solicitor and client with the one exception where the taxation was as between solicitor and own client. The draftsman must also have been well aware of the classification of the three different methods of taxation as between solicitor and client which had been discussed in Giles v Randall and there recognised and adopted by the Court of Appeal. I have no doubt that with that knowledge Parliament deliberately selected class 2 of the methods of taxation referred to in Giles v Randall as being the appropriate method of taxation of a bill of costs in a case where a litigant had been assisted under the Act of 1949. The question, therefore, which I have to decide, is the principle which the learned registrar ought to adopt in taxing a solicitor's bill of costs, having regard to RSC, Ord 65, r 27(29), and to sched III of the Act and bearing in mind the various authorities which I have already cited.

In my view, the principle which the taxing master ought to adopt is as follows: (i) Under the order for taxation it is the duty of the taxing master on a taxation as between party and party to adopt as his normal standard the direction in RSC, Ord 65, r 27(29). (ii) At the same time he should make more generous allowances than he would on a taxation as between party and party. In making more generous allowances the taxing master, in my judgment, is permitted, not only to allow items which can be properly included on a party and party taxation at a higher figure than that at which they would be allowed on a party and party taxation, but also to allow additional items which would not be allowed on a taxation as between party and party. The taxing master has, of course, a very wide discretion. (iii) The order in my judgment cannot be construed as an order for taxation as between solicitor and own client. I have adopted the language of Roxburgh J in Reed v Gray. As I have already pointed out, it seems to me that the only difference between the two cases is that he was dealing with a taxation on a No 3 basis whereas I have to deal with a taxation on a No 2 basis.

I come now to the facts of this particular case. The solicitors for the petitioner carried in a bill of costs in which their total for items of costs was £35 17s 10d. The amount taxed off by the learned registrar was £6 5s 8d leaving a balance of £29 12s 2d, to which had to be added the fifty per cent authorised increase, which amounted to £14 16s 1d, making a total of £44 8s 3d, to which had to be added the disbursements £17 13s 6d making a total of £62 1s 9d which with the taxing fee of £1 12s totalled £63 13s 9d The learned registrar had disallowed a considerable number of items and had made reductions in others. Accordingly, objections numbering twenty to the taxation by the learned registrar were carried in. The grounds of objections were:


"The grounds for the objections to the disallowance of these items are that: (i) They were properly incurred in connection with the conduct of these proceedings (ii) That the costs are to be taxed on a solicitor and client basis where the costs are payable out of a common fund. Mr. ERIC SACHS, Q.C., in his book on Legal Aid defines the basis of taxation at pp. 136 and 137 as follows: The solicitor and client basis referred to in sched. III of the Legal Aid and Advice Act, 1949, is a little less stern than the party and party basis the total allowed being normally about fifteen per cent. higher where costs are taxed on the footing that they are to be paid out of a common fund. This results in part through additional items being allowed and in part through discretionary items being allowed at a higher figure."

There was an additional objection carried in to the last item which was


"Petitioner's fee for attendance in court and expenses. The disallowance of this item is objected to on the grounds that the petitioner is entitled to charge his expenses for attending court."

Counsel was not able to cite any authority for the passage in Mr Sachs' book that the result of the taxation was normally about fifteen per cent higher where costs are taxed on the footing that they are to be paid out of the common fund. I myself am not aware of the precise way in which the different modes of taxation are worked out and I prefer to express no opinion about it. I read this objection to mean this, that the solicitor is arguing that a taxation as between solicitor and client when costs come out of a common fund is entitled to embrace a more generous allowance than on a taxation as between party and party, and that generosity can extend, not only to increasing the amounts of items, but also to allowing additional items beyond those which would be allowed on a taxation as between party and party. If so, leaving out for the moment the precise percentage of increase, it seems to me to embody the true principle which I have been endeavouring to state.

The learned registrar made some observations. He says:


"My answer is applicable to all objections. This is a solicitor and client bill and not a solicitor and own client bill. I can well understand the difficulty in which solicitors who undertake legal aid cases find themselves. They really, perhaps not unreasonably, desire an indemnity as to costs, however incurred. My own view is that the legislature would have said so had they so intended. I understand that the solicitor is not allowed to recover any sum from the client and in some ways this seems a logical outcome of the proposal for legal aid. But it opens the door to the abuse of a privilege not so much by the solicitor as by the client. I should be very grateful for a ruling."

I agree with the learned registrar that this is a taxation as between solicitor and client out of a common fund and not a taxation as between solicitor and own client. However, the learned registrar disallowed or reduced these twenty items and it seems to me clear that he cannot have accepted the objection which was put forward on behalf of the petitioner to which I have already referred, namely, that there ought to be a more generous allowance than on a taxation as between party and party. I think the proper inference I ought to draw is that the learned registrar declined to accept that basis of taxation, and it seems to me to follow that he must have adopted a standard of taxation which was less generous than that which the petitioner's solicitors were inviting him to adopt. If so, it seems to me that he failed to apply the right principle and, as his answer applied to all the objections, it, therefore, vitiates all the items disallowed which are affected by these objections.I have to consider now the detailed items in the bill. I am going to refer to them by the numbers in the objections. The first two items raised were negotiations between the petitioner's solicitors and the respondent's solicitors in regard to interim custody and access to the child of the marriage and for maintenance for the child. A small charge was made in the bill for both those items and they have both been disallowed by the learned registrar. In my view, negotiations between solicitors with reference to the interim custody of or access to the child or the maintenance of the child pending the hearing of the suit fall within the class which would be allowable on a party and party taxation and, of course, would be allowable on a solicitor and client taxation, and, if my view is correct, a more generous allowance should be made than would be made in a party and party taxation. I think the registrar was clearly wrong in disallowing those items. I can deal with items 3, 4, 6, 7, 9, 10, 11, 13, 14, 16, 17, together. They all really refer to letters from the petitioner's solicitor to the respondent's solicitors enclosing a weekly sum of 10s on account of maintenance of the child. Those items seem to me to fall within the category of permitted items as to which the learned registrar should exercise his discretion. In an ordinary case where a solicitor is merely acting as a post office of for the purpose of sending a letter enclosing 10s I should myself find it very difficult to see any valid ground on which such items could be justified, but there might be special cases where it could be properly held desirable or necessary that direct communication should not be made by one spouse to another and in such cases the items might possibly be justified. These are, therefore, matters which, in my view, the learned registrar could allow in the exercise of his discretion if he thought it right to do so in the circumstances of this particular case.

There are one or two other items to which I ought to refer. Item 5 was a charge for writing to the petitioner informing him of the refusal to reduce his legal aid contributions. Apparently an effort was made to persuade either the National Assistance Board or the area legal aid committee to reduce the contributions which had been fixed at the time when the certificate was granted to the petitioner. As counsel for the Queen's Proctor pointed out, there is no power to do that unless under the rules there has been an alteration in the circumstances and that did not seem to be suggested here. Unless there were an alteration in the circumstances, or events had happened which would entitle the petitioner under the rules to apply for a variation of the amount of the contributions which had been fixed, that item would seem to be an item which could not be justified. Objection No 8 is: "Writing petitioner reporting case set down for trial". That, again, appears to me to be an item which falls within the category of a permitted item, but one in which the learned registrar ought to exercise his discretion in every case. It is to be observed that later on in the bill there are charges for "Attending clerk of the rules and fixing case for hearing" and then giving notice to the petitioner. No doubt, the learned registrar would take that into account and consider whether in view of that item the other item was an item which he, in the exercise of his discretion, thought he ought or ought not to allow. Item 12 is: "Writing respondent's solicitors, informing them that the date to be inserted in the summons for maintenance when the payments were to be increased was 4 January 1952. Enclosing 10s PO on account of maintenance of the child". There, again, that seems to be an item which falls within the category of permitted items and one on which the learned registrar should exercise his discretion. Item No 15 was: "Writing petitioner informing him of result of hearing of maintenance application and as to payment of costs". It seems to me that that clearly falls within the category of permitted items.

Item 19 was instructions for brief which was reduced by the learned registrar from ten guineas to seven guineas. It is the practice of the court never to review a case where the only question is quantum and that practice applies to this Division as well as to all the other Divisions of the court. Counsel for the petitioner contended before me that the fee which was actually allowed was really the fee which was applicable on a party and party taxation and that on a solicitor and client taxation a more generous figure ought to have been allowed. If the basis on which the learned registrar proceeded was that, then I should think he was clearly wrong and that this matter could and should go back to him for re-consideration. I have, however, no material on which I can attempt to decide whether seven guineas is the usual charge for a party and party taxation. However, on this matter, I follow Roxburgh J in the case of Reed v Gray to which I have already referred where he deals with the somewhat similar problems in that case. An objection was put before him that all the questions which he had to decide were questions of quantum and the learned judge said ([1952] 1 All ER 248):


"I do not agree. The question is not the quantum, but from what point of view does one approach the ascertainment of the quantum? If one approaches it from a wrong point of view, the quantum must necessarily be vitiated."

As I have already said, I think the learned registrar did approach these items from the wrong point of view, and, therefore, this item, together with the other, should go back to him for re-consideration in the light of the judgment which I have delivered. The last objection was No 20: "Petitioner's fee for attendance in court and expenses". In my view, that is a permissible item. I was referred by counsel for the Queen's Proctor to Harbin v Gordon which concerned the allowance for the plaintiff's travelling and hotel expenses. Buckley LJ said ([1914] 2 KB 586):


"The plaintiff, as a party litigant, was not entitled to any allowance, but as a witness he was entitled to an allowance like any other witness, and none the less because he was also a party litigant. If he had not been a party litigant, but an ordinary witness, the taxing master would have been entitled to require evidence that the amount had been paid before he included it in his allocatur for recovery from the defendant. The whole question is whether, when he is a party litigant, the taxing master is not also entitled to be satisfied that the amount has been paid or that the plaintiff knows that it is going to be recovered for him from the defendant. In my opinion he is so entitled."

In my view, that is the true basis on which this point should be settled, and as in this case, and, indeed, in every petition for divorce, the petitioner is a necessary witness (unless the leave of the court has been obtained to give his evidence by affidavit), it is, in my view, normally permissible and the learned registrar in his discretion should grant a proper fee in respect of it.

I have now reviewed the whole of the items, and, accordingly, I direct that the bill of costs be referred back to the learned registrar for him to re-consider it in the light of my judgment. There is one small matter in regard to the petitioner's fee for attendance in court and expenses. I think the learned registrar might properly require, if he thought fit to do so, that there should be some voucher produced to him at the time of taxation to show that this amount has been paid to the petitioner.

Order accordingly.