Weerasekere v. Peiris.
1933Present: Dalton A.C.J. and Koch A.J.
WEERASEKERE v. PEIRIS.
169—D. C. (Inty.) Colombo, 34,065.
rCosts—Taxation of bill—Omission of item—Application to tax supplementary
bilU-Correction of mistake—Civil Procedure Code, s. 189.
Where in a bill of costs presented for taxation an item was accidentallyomitted, application may be made to Court to correct the mistakeand for an order on the taxing officer to tax a supplementary bill.
HIS was an application to revise the taxation of a supplementarybill of costs.
1 1 Motara Cases 114.
250DALTON A.CJ.—'Weerasekere v. Peiris.
Gratiaen, for defendant, petitioner.
Choksy (with him D. W. Fernando), for plaintiff, respondent.
August 21,1933. Dalton A.C.J.—
This application by the defendant arises out of the taxation of asupplementary bill of costs in a partition action, and is made to thisCourt under the provisions of section 214 of the Civil Procedure Code.The case had gone in appeal to the Privy Council, plaintiff being successfulthere. He was allowed costs, and costs also incidental to his applicationfor leave to appeal. The plaintiff presented a bill to the Registrar fortaxation in respect of these latter costs, and this bill was taxed on April10th last in the sum of Rs. 444.. That amount was paid by defendant.Thereafter, on April 26, plaintiff’s proctor submitted a supplementarybill in respect of an item of costs which was incidental to his applicationfor leave to appeal, which item had been inadvertently omitted fromthe first bill. This supplementary bill was taxed in the sum of Rs. 341,35on May 25. It is now objected by defendant that plaintiff was precludedby his first bill, duly taxed, from making any further claim for costs,and that the taxing officer had no power to tax the supplementarybill, since he had concluded his duty in the matter after taxing thefirst bill.
Plaintiff has satisfactorily explained how the item came to be omittedfrom the first bill. The item represented the amount paid to the Regis-trar for typewritten copies of the proceedings to be sent to England forthe purpose of the appeal to the Privy Council, under the provisions ofrule 8 (a) of the Order regulating the procedure under the Appeals (PrivyCouncil) Ordinance, 1909 (Supreme Court Handbook, p. 105). Thissum was paid to the Registrar by the plaintiff personally, and was notentered in his proctor’s books, in the plaintiff’s ledger account. Conse-quently, when the proctor made up the original bill from the ledgeraccount, the item was accidentally omitted. Mr. Gratiaen fully acceptsthe proctor’s explanation as to how the omission occurred and concedesthat the amount, if inserted in the original bill, would have to be paidby defendant, but he argues that plaintiff is bound by the amount of theoriginal taxed bill.
There is authority, in my opinion, covering such a case as this in theauthority cited by Mr. Choksy. In Chessum & Sons v. Gordon1 judgmentwas entered for the plaintiffs for an amount found to be due by a referee,with costs to be taxed. The costs were taxed, the taxing master’scertificate was given, and the defendant paid to the plaintiffs the amountof the judgment and the taxed costs. Subsequently the plaintiffs dis-covered that the amount of the fees of the referee had been omittedfrom the bill of costs carried in for taxation. Plaintiffs then took out asummons before the Judge at Chambers asking that, notwithstandingthe certificate of taxation of the plaintiff’s costs in the action, thedefendant should be ordered to pay to the plaintiffs the sum of £160.11s. 8d.
1 (1901) 1 Q. R. 094.
DALTON A.C.J.—Weerasekere v. Peiris.
paid to the special referee as his fees, or such amount as might be allowedas a proper payment, on the ground that such item was by error notincluded amongst the payments made by the plaintiffs in their bill ofcosts lodged for taxation. Order XXVIII., r. 11, provides that “ clericalmistakes in judgments or orders, or errors arising therein from anyaccidental slip or omission may at any time be corrected by the Courtor a Judge on motion or summons without an appeal ”. Day J. made anorder referring the fees to the taxing master for taxation, and for amend-ment of his certificate if necessary, on the ground that there had been amistake in not including the referee’s fees. The defendant appealedagainst this order.
On the appeal, the argument addressed to the Court was similar to theargument addressed to us, in that it was argued that the original taxationwas conclusive of the matter, for it proceeded upon a bill of costs lodgedby the plaintiffs and the taxation was correct. There was further noslip or omission in the certificate of taxation, which carried out thetaxing officer’s intention.
The Master of the Rolls pointed out that there was no doubt thataccording to the justice of the case the plaintiffs ought to be paid the sumlater claimed, or whatever might be allowed on taxation, adding it wassatisfactory no technical rule stood in the way of the Court to make anorder to that effect. He held the omission of the item of £160. 11s. 8d.from the bill of costs carried in for taxation was “ an accidental slip oromission ” within the meaning of the rule and the error in the judgmentcan therefore be corrected “at any time”. The error may be correctedeven after the judgment has been drawn up and entered.
The provisions of Order XXVIII., r. 11, are very similar to the provisionsof section 189 of the Civil Procedure Code, as amended by Ordinance No. 26of 1930, the amendment being probably based upon the rule and makinguse of exactly the same terms. There is no doubt that the error in thebill originally presented for taxation was due to “ an accidental slip oromission ” which has been fully explained.
Applying the authority cited and bringing the matter within theprovisions of section 189 of the Code, the plaintiff should first haveapplied to the Court to correct the mistake, and should not have askedthe taxing officer to tax a supplementary bill. It is however highlyprobable the Court would have referred the item to the taxing officerfor taxation, and thereafter have amended the order accordingly.Defendant further cannot complain that the wrong procedure wasadopted, since he received notice of taxation of the plaintiff’s supple-mentary bill, was not present, and raised no objection thereto. Hecannot say he has not received notice of the proposed amendment.
Mr. Gratiaen referred to other authorities which lay down the generalrule on taxation, that under the Solicitors Act, 1843, a solicitor mustabide by his bill as delivered. This rule however is subject to variousqualifications and apparently does not apply to a bill carried in fortaxation between parties. (Annual Practice, 1933, p. 2279).
For the reasons I have given, the appeal must be dismissed, no pre-judice having been caused to the defendant by the adoption of the wrong
252KOCH A.P.J.—Seneviratne v. Bodia.
procedure. The amendment in the original taxation will now be madeto regularize the position by the addition of the sum of the item omittedin accordance with the taxation of May 25.
The appeal is dismissed with costs.
Koch A.J.—I agree.
WEERASEKERE v. PEIRIS