DALTON J.—Tissera v. Ramaswamy CHettiar.
1934Present: Dalton and Drieberg JJ.
TISSERA et al. v. RAMASWAMY CHETTIAR.
Application to revise Bill of Costs in D. C. Chilaw, 8,880.
Costs—Taxation of costs in appeal—Attendance of proctor on counsel—Attendance of proctor in Court of Appeal—Fees for more than twocounsel—Proportion of fee as between senior and junior counsel.
In the taxation of a bill of costs incurred in the Supreme Court inappeal, the charge allowed to a proctor for attending on counsel foradvice on the case is limited to one attendance. The charge allowedfor attendance in the Court of Appeal is similarly limited to one.
The mere fact that an argument has taken two days or mare is noground for allowing more than one consultation with counsel to becharged. No charge is allowed for written instructions given to counsel.
As a general rule, fees should not be allowed for more than two counsel,the proportion of fee as between senior and junior counsel being onehalf.
PPLICATION to revise the taxation by the Registrar of the SupremeCourt of a bill of costs.
F. N. Gratiaen, for plaintiff.
S’. W. Jayasuriya (with him Kottegoda), for defendants.
Cur. adv. vult. '
July 9, 1934. Dalton J.—
These two applications have been made to revise the taxation by theRegistrar of this Court of the bill of the successful appellants (defendantsin the action) in the Court of Appeal. The plaintiff appeals against theallowance of certain items by the taxing officer, the defendants appealagainst certain items in the bill which have been disallowed by him.
DALTON J.—Tissera v. Ramaswamy Chettiar.38i
It appears that there were three actions in the District Court, Nos. 8,811-8,812, and 8,880. They were heard together and seem to have takensome time to conclude, the record being a voluminous one. Three appeals(S. C. Nos. 28, 29, and 30) followed therein to this Court. The appeal inS. C. No. 28 (D. C. No. 8,811) was then heard, it being agreed that theappeals in the other two cases should abide the result in S. C. No. 28.In that appeal the District Judge’s order was set aside, and the caseremitted to him, the appellants (defendants) being declared entitled to thecosts of the appeal. The hearing of the appeal took ten days, April 3. 4,
5, 7, 10, 11, and 12 and May 15, 16, and 17, 1933. The appellants thenpresented a bill in respect of their costs in the appeal, amounting to thesum of Rs. 3,166.25. This bill the taxing officer allowed in the sum ofRs. 885.50, disallowing items in the sum of Rs. 2,280.75 in all.
It will be convenient first to deal with the appeal of the plaintiff, exceptin so far as both appeals refer to the same items in the bill. Plaintiff’sappeal applies to four heads of charges that have been allowed by thetaxing officer.
The first head deals with attendances of proctor on counsel and attend-ances of the proctor in Court. Five attendances on counsel are chargedfor prior to the hearing of the appeal, and 18 on counsel after theappeal was listed for hearing. These 23 attendances are charged at Rs. 10each, amounting to Rs. 230. In addition, 10 attendances of the proctorin Court are also charged at Rs. 10 each. The taxing officer allowed onlyone attendance on counsel, i.e., for attendance prior to the listing of theappeal. He points out that the item in the tariff, under which this chargecomes, is as follows:—“Instructing advocate to make or oppose any 'special motion, or for advice on appellants’ or respondent’s case.” Theredoes not appear to havs been any special motion, and hence the chargecomes under the latter part, for advice bn appellants’ case, for v/hich thetariff provides a single fee. One charge of Rs. 10 only was allowed. Thedefendants appealed from this conclusion, urging that the 23 attendancesshould be allowed, but counsel’s argument was based rather upon theweight of the case than on the provisions of the tariff. He failed to showthe taxing officer was wrong in this instance.
The taxing officer, however, allowed 10 attendances of the proctor inCourt, one for every day on which the appeal was heard, Rs. 100 in all.and the plaintiff appeals from this allowance. There appears to be nomeans of checking whether the proctor did in fact attend the Court onthose ten days, no official note being made of such attendance, but theplaintiff objects that the tariff provides for only one attendance in Court,assuming of course that he in fact did attend Court. I think the SupremeCourt tariff is clear on this point, it is different from the District Courttariff, which provides for attending Court, either with or without advocateif the case is adjourned, postponed, or struck off. There are no suchprovisions in the Supreme Court tariff, and counsel for defendants failedto satisfy me that the items as allowed come within the terms of the tariff.The item of Rs. 100 allowed for attendances in. Court must therefore bereduced to Rs. 10, one attendance in Court being allowed.
The second head of charges objected to by plaintiff relates to consulta-tion fees for senior counsel. The defendants have charged in their Bill
384DALTON J.—Tissera v. Ramasxvamy Chetttar.
for 23 consultations at Rs. 31.50 each. The taxing officer allowed 10consultations, taxing the sum of Rs. 409.50 off this item. The plaintiffappeals, urging that as a general rule one consultation alone should beallowed. The defendants appeal, urging that the 23 consultations chargedshould stand.
The question of consultation fees has already been the matter of decisionby this Court (Adaikappa Chettiar v. Thos Cook & Sonx). There a questionarose whether the taxing officer was empowered under the tariff to allowa fee for a second consultation. It was held that on special applicationbeing made he could do so, if he thought fit. Defendants’ counsel seeksto justify 23 consultations, but has failed to advance any ground thatsupports such a charge. There is some little reason for thinking thatthis extraordinary charge for consultations is an attempt to increasecounsel’s brief fee as a result of the decision in the case I have referred to.The Court there pointed out the necessity for a revision of the tariff, butany attempt to increase the brief fee must be by proper methods, and notas appears to have been done in this bill. Defendants’ appeal in respectof this item must fail. To return to plaintiff’s appeal against the 10consultations allowed, it seems that the taxing officer has in fact exercisedno discretion at all. The reasons he gives are as follows:—“ The argu-ment took ten days. The appellant (defendants) therefore is not entitledto charge for more than 10 consultations, i.e.} for one consultation beforeeach day of argument. I accordingly allow Rs. 315, i.e., at the rate ofRs. 31.50 a day for ten days, and disallow Rs. 409.50.”
The fact that an argument may last two or more days of itself in no way■supports the position taken up that more than one consultation wasnecessary. The mere fact that the hearing of the appeal took more than•one day is no reason for having consultations day by day (see In re Anglo-Austrian Printing & Publishing Union9). Counsel has, in my opinion,shown no sufficient ground why even a second consultation was neces-sary after the first day. There is a general reference to the unusuallength of the case and of the evidence, but I can find nothing thereto support a charge for a second consultation. The usual practice inEngland is that the costs of one consultation between senior and juniorcounsel are allowed as between party and party, and I see no reasonin local conditions why that practice should not be followed here.(Annual Practice 1934, p. 1497; Halsbury’s Laws of England (2nd ed.),Vol. IL, p. 550; and see also Hill v. Peel3). 1 have therefore come to theconclusion that the taxing officer was wrong in allowing 10 consultationsas he did. As I have pointed out, he exercised no discretion at all in thematter. The plaintiff’s appeal in respect of this item must therefore beallowed, and in place of the sum of Rs. 315, one consultation fee will beallowed at Rs. 31.50.
The third head of charges objected to by plaintiff relates to consultation-fees for second counsel. As in the case of senior counsel, defendants havecharged for 23 consultations and the taxing offic'er has allowed 10 atRs. 21, allowing a sum of Rs. 215 in respect of this item. There is anerror of Rs. 5 in his calculation. The reasons I have already given for» 38 N. L. R. 20.* (1894) 2 Ch. at p. 627.
3 L. R. 5 C. P. at p. 182.
' DALTON J.—Tissera v. Ramaswamy Chettiar.
riismitming defendants’ appeal in respect of the second head already dealtwith and for allowing plaintiff’s appeal apply in the case of this thirdhead also, and I hold accordingly. In place therefore of the sum of Rs. 215allowed by the taxing officer, one consultation will be allowed at Rs. 21.
The fourth and last item against which plaintiff appeals is the sum ofRs. 24 charged in the bill for stamps on bill of costs. The taxing officerhas allowed this item to stand. More than one-sixth of the amount ofthe bill having been disallowed, under the provisions of section 216 of theCode, the taxing officer disallowed the costs of taxation, but he has notincluded the stamps on the bill as part of those costs. It has alreadybeen held in Adaikappa Chettiar v. Thos. Cook & Son (supra) that thestamps on the bill are part of the expenses of taxation. Defendants’counsel agrees that the taxing officer was wrong in allowing this itemto stand, and plaintiff’s appeal in respect of it will be allowed. Theitem of Rs. 24 in the bill is therefore disallowed.
I come now to defendants’ appeal, some particulars of which I havealready dealt with.
The third, fourth, fifth, and sixth items in their bill, drawing briefs foradvocates, copies, copies of pleadings, evidence, documents, &c.,have been disallowed by the taxing officer. By the term " brief ”, counselstates, he refers to counsel’s written instructions. The term is, however,generally somewhat loosely applied in Ceylon, in the Court of Appeal atany rate, to the copy of the proceedings in the lower Court obtained fromthe Registry for the use of counsel on the appeal. The taxing officerpoints out that all necessary copies for the parties are made in the Registry,the only charge allowed being in practice the stamp duty paid on thetypewritten copies so obtained. It is of course the duty of the proctorconcerned to point out to the Registrar what portions of the proceedingsor documents he requires for the appeal. The taxing officer has dis-allowed the large sums charged under these heads in defendant’s bill,amounting in all to Rs. 1,155, allowing only the stamp duty on the type-written copies made in the Registry. Counsel has not satisfied methat he was wrong in doing so, or that the charges made in respect of theseitems in the bill were in any way justified.
The defendants then urged that the taxing officer was wrong in allowingtwo counsel only. They charged in fact for four counsel in their bill,but I understand counsel did not seriously urge they were entitled to doso. He did urge, however, that three should have been allowed owing tothe case being such a heavy one. He referred us to the decision inKirkwood v. Webster1 where Fry J. disagreed with the taxing officer andallowed the costs of the third counsel. He of course states his reasonswhy he did so. The bill in question there was, however, in respect of thecosts in the original Court. On this point it is pointed out in Halsbury’sLaws of England, Vol. II., p. 552, that on the hearing of a caw in theHouse of Lords or Court of Appeal, in the absence of special circumstances,the costs of a third counsel are usually disallowed. In the AnnualPractice 1934, p. 1496, the general rule is that no more than two counselshould be allowed except in a case of special complication, and it is added,
> (1S78) 9 Ch. D. 239.
MAARTENSZ A.J.—Banda v. Gomis Appu.
perhaps wisely, that length must not be treated as equivalent to complica-tion. The taxing officer in his reasons for allowing two counsel onlypoints out that it has been the practice in the Registry for years not toallow fees for more than two counsel. Allowing that there may on rareoccasions be exceptions to that rule of practice, Mr. Jayasuriya has notsatisfied me that the case in question was one in which, so far as the Courtof Appeal was concerned, “ it was essentially necessary for the purpose ofdoing justice that three counsel should be employed ”, nor do I see anyreason for interfering with the taxing officer’s discretion that has beenexercised here.
The last question raised was as to the proportion that senior counsel’sbrief fee should bear to that allowed to junior counsel. The rate allowedis half, but counsel urged it should be two-thirds. The rate allowed is.
I think, in conformity with the usual practice in these Courts, and I seeno reasons to disagree with the taxing officer on this point.
In the result the appeal of the plaintiff will be allowed to the extentI have denoted and the appeal of the defendants dismissed.
The plaintiff will be entitled to the costs in respect of his appeal and tosuch further costs (if any) as the appeal of the defendants has caused,to him.
Drieberc J.—I agree.
TISSERA et al. v. RAMASWAMY CHETTIAR