DALTON A.C.J.—Adaikappa Chettiar v. Thos. Cook & Son.
More than one question is raised that is of considerable importance to aparty that is successful in his suit, and also in a lesser degree to the legalprofession.
The action was one that involved a claim for the sum of Rs. 170,000, andthe hearing of argument on appeal in the Supreme Court is stated to havetaken eleven days. The plaintiff thereafter appealed to the PrivyCouncil, but his appeal was dismissed, with costs taxed at £828. 8s. 7d.Defendant’s bill of costs again the plaintiff in the Supreme Courtamounted to the sum of Rs. 10,546.75, but was taxed at Rs. 2,317.75, theamount of Rs. 8,229 being disallowed by the taxing officer.
The first question arising for decision is the number of counsel to beallowed. The first day of argument was November 25 for which Rs. 840is charged as brief fee for senior counsel, and Rs. 420 for junior counsel.The taxing officer has allowed these items in the sum of Rs. 105 andRs. 52.50 respectively. In his reasons for allowing only these sums hestates that the highest charge allowed in the scale of fees by which he isgoverned is Rs. 105 and that a junior’s brief fee as a rule is half the feeallowed to the senior.
With regard to this item, Mr. Hayley urges that the taxing officer isgiven a general discretion to allow even more than the maximum providedin the tariff in proper cases where the proceedings are very voluminous orunusually important or difficult. As against this, Mr. Gratiaen arguesthat, under the tariff, the taxing officer was correct in so far as he held hewas bound by the amount in the tariff, but that he was wrong in allowinga brief fee for more than one advocate.
The tariff of advocates fees in appeal in the Supreme Court is set out inschedule III. to the Civil Procedure Code. With respect to the number ofcounsel allowed, I see in the tariff no such limitation as that suggested byMr. Gratiaen. The inclusion in the tariff of a consultation fee necessarilyimplies the engagement of at least two counsel, otherwise there would beno need to provide for such a fee. The term “ consultation ” as usedhere, it has been held, is one to which the correct legal significance mustbe given, and signifies a meeting of two or more counsel with the proctor.(Dawbaren v. Ryoll ’.) The provision of an item for brief fee in the tariff,it is suggested in somewhat bald terms, implies only one brief and there-fore only one counsel, or otherwise only one fee that can be taxed, butthat is a suggestion which in my opinion has very little to support it.The limitation on the number of counsel allowed in the District Court hasnot been enacted in the Supreme Court tariff, and the latter tariff in myopinion provides for consultation fees and brief fees to be taxed for morethan one counsel if necessary. The number of counsel for whom costs areto be allowed is a matter within the discretion of the taxing officer unlessthe Court has made any order governing the point in the case underconsideration. It is to be observed that under the General Rules for theregulation of proctors’ fees in the Supreme and District Courts of 1846,there is a note to the effect that, even at that date, fees for two advocateswere allowed in certain cases in the Supreme Court which then, as now,
»17 N. L. R. 216.
22DALTON A.C.J.—Adatfcappa Chettiar v. Thos. Cook & Son.
was the Court of Appeal. There is no reason to think that the draftsmanof the Code in 1889 sought to restrict the allowance of fees in the AppealCourt to one advocate.
With regard to the amount of the brief fee I think the taxing officer isbound by the limits imposed in the tariff. As against this view, it wasstrongly urged that in view of . the terms of the last provision in the tariffhe has a general discretion in proper cases, for example such as might bespecially voluminous or difficult, to allow a brief fee exceeding themaximum laid down in the tariff. The proviso relied on is set out asfollows:—
The Registrar may allow any charges or fees not specially provided
for, as he shall deem reasonable, on special application being made,subject to an appeal to the Court.
The argument advanced by Mr. Hayley on this point is that thisprovision is controlled by the general words used in section 208 of theCode, which sets out what expenses are included under the denominationof costs and does not bind down the taxing officer in any way to the feesmentioned in the tariff. In support of this he refers to the Englishpractice. He points out that there the discretion of the taxing officer isnot limited to the maximum fees prescribed by Appendix N. as providedby Order LXV., rule 8, in view of the fact that, apart from the provisionsof that rule, a subsequent provision contained in rule 27, regulation 29,confers on him a general discretion in special cases to allow all such costs,charges, and expenses as appear to him to have been necessary or properfor the attainment of justice, or for defending the rights of any party.It is pointed out in In re Ermen; Tatham v. Ermen* the taxing officerunder these provisions has a twofold discretion—one, an ordinary discretionto be exercised within the limits of a maximum and minimum prescribedin Appendix N., and another, a general discretion under regulation 29without such limits, to be exercised in exceptional cases.
Rule 27, regulation 29, has been further explained in Societe AnonymePecheries Ostendaises v. Merchants’ Marine Insurance Company'. AtkinL.J. there describes this rule, which seems to have been enacted in thepresent form for the first time in 1902, as the guiding rule in the taxationof costs, and as intended to sum up generally the principles upon whichcosts are awarded. He is clearly referring to regulation 29, from thewords he uses, for they are not appropriate to rule 27 as a whole. Hestates it is intended to give to the successful litigant a full indemnity forall costs reasonably incurred in relation to the action. The wholeprinciple that the taxing officer is to apply is to allow “ all such costs,charges, and expenses as shall appear to him to have been necessary andproper for the attainment of justice ”.
I have specially referred to these two cases from those cited because Ithink they more clearly show the great contrast between the provisions ofthe English rules and what is provided in our section 208 and the proviso Ihave set out from the tariff. I regret I am quite unable to read into theproviso, when read either alone or in conjunction with section 208, anysuch extensive intention or principles as regulation 29 has been held to> (1903) 2 Ch. 163.= (1928) 1 K. B. 760.
DALTON A.CJ.—Adaikappa Chettiar v. Thos. Cook & Son. 23
contain. The words we are asked to construe ate brief and, so it seems tome, plain and explicit, and allow a discretion in the Registrar to allow anycharges or fees for which the tariff does not provide, and no more. Itmight be pertinent to add here that under the English rules the taxingofficer is as a rule nowhere limited to any maximum amount that may beallowed for the fee on brief.
The result then on this question relating to the brief fee is that twocounsel will be allowed and the amount taxed by the Registrar for seniorand junior counsel’s fees will stand. As regards the quantum of the feesallowed, to counsel it has been held that the Court will not generallyinterfere with the discretion of the taxing officer, and in my opinion noground has been shown for interfering here.
The next question raised concerns the allowance of a brief fee where theargument was resumed after the first day. The taxing officer on thetaxation of this bill pointed out when objection was taken to these itemsthat there is no provision in the scale of charges in the Appeal Court fora brief-fee for the second or any subsequent day of argument. He addshowever that it has been the practice in the Registry to follow the scaleof charges to be paid to advocates in the District Court and to allow foreach such day half the fee allowed for the first day. In accordance withthis practice he allowed Rs. 52.50 to senior counsel and half that amount tojunior counsel. Mr. Hayley urged, in respect of these items also, theRegistrar had a general discretion to tax at a higher figure than that setout in the scale followed by the taxing officer. Mr. Gratiaen for theplaintiff urged that these items should be disallowed in toto, as not beingprovided for or authorized. In my opinion his contention must be upheld.
As I have alrady stated, in my opinion, the taxing officer has in nocase the general discretion for which Mr. Hayley contends. Thatsufficiently answers his argument raised on this question.
In support of his contention that these items must be wholly disallowed,Mr. Gratiaen first of all relies upon the absence of any provision in theSupreme Court tariff for any brief fee where the argument is resumed.He concedes that the proviso may contain authority for the taxing officerto allow a refresher fee properly so called in special cases, such for instancein the rare case of the Court of Appeal allowing further evidence to betaken, since it is a matter not specially provided for in the tariff. In thisconnection he has referred us to the English practice upon which he reliesto support his argument, from which it would appear that the term“ refresher ”, which as used in Ceylon may be said to be equivalent to thewords “ brief fee where +rail or argument is resumed ” used in the DistrictCourt tariff, has reference as a general rule only to an allowance or anaddition day by day of a certain sum paid on trials where evidence is led*and has no application to hearings in the Court of Appeal where no oralevidence is taken. For this reason there is necessarily no provision, heargues, for “ refreshers ” in the Court of Appeal as there is in the DistrictCourt traiff. There is further no provision in the tariff for augmentingthe brief fee such as exists under the English rules. So far as the Courtof Appeal is concerned (the practice in the House of Lords and the Privy-Council does not appear to be the same), when deciding the amount of thefee on the brief, the solicitor is. generally in a position to know how long
DALTON A.C.J.—Adaikappa Chettiar v. Thos. Cook & Son.
the case is likely to last, and must calculate the fee accordingly. If in anydifficult case, a longer time is taken in the argument than was expectedapplication can be made to the master, not for a refresher, but for anenhancement of the brief fee, on the footing that there had been a mis-calculation by the solicitor at the inception when the fee was marked.Such an application however, the taxing officer would be extremelyunwilling to grant without very clear proof that any miscalculation hadbeen made. (Easton v. London Joint Stock Bank.')
In seeking to make use of the English practice for the purpose of helpingone to arrive at the powers of the taxing officer under our Code, one has toremember that as regards the brief fee the tariff fixes a maximum amountto which the taxing officer may go. He has, as I have pointed out, nogeneral discretion to exceed that amount. Under the English rules, evenwhere maximum fees are fixed in the case of refresher fees, under hisgeneral discretion the taxing master is not limited to the maximum.(Cavendish v. Strutt)3. Further, the English practice of allowing in anappropriate case an enhancement of the original fee on the footing of amiscalculation by the solicitor can have no place here since, whateverbrief fee the proctor may pay, the taxing officer is bound here as he is notbound under the English Rules. However that may be, I can find noroom under the tariff for advocates fees as framed for the Appeal Courthere for the allowance of a brief fee where the argument continues overfrom the first day. The fee allowed is a brief only, and it seems to methat no further brief fee where the argument is resumed on a second orsubsequent day is contemplated in the Supreme Court . It is specificallyprovided for in the District Court tariff and I think intentionally omittedfrom the Supreme Court tariff. It is to be noted that the proviso at theend of each tariff is practically in the same terms. Having regard to thelimited powers of the proviso I think the taxing officer has no power totax any further sum when the argument in the Supreme Court goes overa second or subsequent days. A refresher strictly so called where, forexample, evidence is led in the Appeal Court is on a different footing.This is not such a case. The tariff of 1844 provided for a-fee larger thanthe ordinary brief fee allowed if the proceedings were very voluminous orunsually important or difficult, but that provision was out of thetariff of 1889, possibly because the maximum of the ordinary brief feewas at that time enhanced and the maximum was then consideredsufficient for all cases. Any suggestion that any larger fee could now beallowed in voluminous or important or difficult cases seems to me to-bequite inconsistent with the deliberate deletion from the tariff of an earlierprovision for such a larger fee. It is certainly a matter for considerationhowever whether the Registrar should not again be given power to tax ahigher fee in very voluminous or important cases; otherwise, on occasiona sucessful party may well complain that he has not been indemnifiedfor all costs reasonably incurred by him in respect of the action (vide AtkinL.J. in Pecheries Ostendaises v. Merchants’ Marine Insurance Company3).
I have come to the conclusion that these items to which Mr. Gratiaenhas taken objection must be disallowed for the reason I have stated. Ii (1888) 38 Ch. D. 25.= {1904) 1 Cli. 584.
» (1928) 1 K. B. at p. 762.
DALTON A.CJ.—Adaikappa Chettiar v. Thos. Cook & Son.
have come to this conclusion with some little hesitation, as I would liketo have heard something of the practice onathis point in the House ofLords and the Privy Council which might possibly have been helpful. Itmay undoubtedly work a hardship in this instance, but the Registrar hasI think no power to allow on an adjourned argument in the Court ofAppeal a fee which he admits he has imported from the District Courttariff. Mr. Gratiaen’s contention on this point, therefore, must beupheld.
The next items with which the appeals deal are the consultation feesallowed. I have already dealt with the number of counsel allowed, andas regards the first consultation and the fees taxed for both senior andjunior counsel Mr. Gratiaen’s objection must be 'overruled. His furthercontention also that the subsequent consultations that have been allowedshould be taxed off on the ground that the taxing officer under the tariffcould only allow one such fee must be over-ruled. I think under theproviso to the tariff the Registrar can allow for further consultations, onspecial application being made. They are clearly fees within thecontemplation of the tariff, and the allowance of more than oneconsultation fee is, I think, a matter for the taxing officer’s discretion, asis the amount of the fees to be allowed (Re-Harrison1), within the limitsof the tariff.
The next item which is objected to by Mr. Gratiaen is a sum of Rs. 123,the amount of stamps on an affidavit which was allowed by the taxingofficer. I think this sum was properly allowed. The defendant-appellantwas wise I think in being ready with this evidence in view of the learnedtrial Judge's finding relating to the alleged or suggested omission of someimportant words from a power of attorney, and the evidence would quitepossibly have been admitted but for counsel for respondent admittingthat on this particular point the trial Judge was wrong. The objectionmust be overruled.
A similar amount, being the stamp duty payable on the bill of costs wasobjected to by Mr. Hayley as being no part of the costs of taxation.Section 216 of the Civil Procedure Code provides that if more than one-sixth of the amount of any bill of costs is disallowed by the taxing officer,the proctor shall bear the expense of taxation. What proctor is referredto, it is suggested, is not clear as the section now stands. Sections 215and 216 have been taken from the General Rules of 1846 regulatingproctors’ fees and there they are clearly to be read together. The latterpart has however now been incorporated separately as section 216 intothe portion of the Code dealing with costs generally, and “ any bill ofcosts ” as therein now mentioned would seem to have been given a widermeaning than in the old rules. In any case, however, the substantialquestion on this point argued before us was whether or not the stamp onthe bill came within the term “ expense of taxation It is a sum that hasto be paid in order to have the bill taxed, and that being so it certainlyseems to me to be part of the expense of taxation, Mr. Hayley’s objectiontherefore to this sum being disallowed as part of the expenses of taxationmust be overruled.
1 S3 Ch. D. 52.
DRIEBERG J.—Adaikappa Chettiar v. Thos. Cook & Son.
With these conclusions on the matters raised on the review by eitherparty, the bill will be referred back to the taxing officer to arrive at theamount to be now allowed.
Under all the circumstances, each side being in part successful on theirappeals, I think they should each bear their own costs of the appeals.
Drieberg J.—
The defendants have brought up in review the taxation by theRegistrar of their bill of costs of a successful appeal by them. The contestis mainly regarding counsel’s fees. The bill amounted in the agregate toRs. 10,546.75 and was taxed at Rs. 2,317.15; the disallowance wasmainly in counsel’s fees, those of senior counsel being reduced fromRs. 6,163.50 to Rs. 797.50, and in the case of junior counsel fromRs. 3,192.00 to Rs. 483. It is contended for the plaintiff that counsel’sfees should be limited to one counsel only, and should be as follows:—Retainer, Rs. 10.50; Consultation fee, Rs. 31.50; Brief fee, Rs. 105,amounting in all to Rs. 147, and that all other items should be disallowed.
Dealing with fees for senior counsel, the following items have to beconsidered:—
Retainer: The defendants charged Rs. 21 but this was reduced toRs. 10.50.
Consultation fees : The defendants claimed Rs. 315 paid for two consult-ations before the hearing, and another fee of Rs. 157.50 for aconsultation after the hearing began. The appeal was listed tobe mentioned on two occasions, August 19 and October 30, 1929,and Rs. 315 was entered in the bill as fees for counsel on eachoccasion. Apparently the case was listed on those days for thepurpose of fixing a day for the hearing of the appeal which wasbegun on November 25, 1929. The Registrar allowed Rs. 31.50for each attendance.
Brief fee and refreshers: Counsel was paid Rs. 840 as brief fee for thefirst day of argument and Rs. 420 for each further day. TheRegistrar allowed Rs. 105 as brief fee and Rs. 52.50 for eachadditional day.
Whether only the items and the amounts stated as contended on behalfof the plaintiff should be allowed depends on the interpretation of theprovision in Schedule III., that the Registrar may allow any charges orfees not specially provided for, as he shall deem reasonable, on specialapplication being made, subject to an appeal to the Court. Section 208of the Civil Procedure Code states what comes under the denomination ofcosts, and among these there are fees of advocates and proctors. ScheduleIII. to the Civil Procedure Code, which deals with advocates’ fees inappeal, provides for five items of this nature: Retainer; Consultationfees; Making or opposing any special motion; Brief fee; drawing, perusing,settling, and signing any application or petition. For each of these,except the retainer, it fixes a minimum and a maximum amount. Theseare the items specially provided for, and it is not possible to allow forthem any amount in excess of that fixed by the schedule. We werereferred to several English cases on the provisions regarding costs in therules and Orders; the great discretion and latitude allowed by Order
DRIEBERG J.—Adaikappa Chettiar v. Thos. Cook & Son.
LXV., rule 27, regulation 29, and the recognition of the previouslyexisting practice in regulation 30 of the same rule and Order, make itdifficult, if not impossible, to derive any help from these cases. But wherea definite provision is made for any item of work and the charge fixed, asin Order LXV., rule 27, regulation 48, which provides for refreshers inmatters to be tried upon viva voce evidence, questions regarding the mat-ters which fall within that provision are decided according to the usualrules for the interpretation of statutory enactments. In Walker v. TheCrystal Palace District Gas Company% which was a question arisingunder Order LXV., rule 27, regulation 48, regarding the computationof refreshers where the hearing occupied on the first and the secondday a little over five hours, Denman J. said, "“Costs are the creationof statute, and the Court or the master is bound by the Act orrules laying down the cases in which particular costs are to be-allowed. Order LXV., rule 27 (48), is the rule which gives the masterhis authority; and, looking at that rule with these considerations, wemust see that it is so construed as not to bind unsuccessful parties to thepayment of larger costs than those sanctioned by legislative enactment orrule.” Thus in the case of the retainer the fee is limited by the scheduleto Rs. 10.50, and nothing more could be allowed.
Regarding the fees for three consultations—the provisions in the scheduleis “ Consultation fee, Rs. 10.50 to Rs. 31.50 ”. Does this limit the feeson this account to one consultation only, or does it merely fix the chargefor a consultation? It appears to me that there is no good reason forthe former view. The number of consultations necessary would dependon the nature of the case, and a consultation may become necessary asthe result of something which occurs during the hearing of the appeal.The right to charge for more than one consultation in a case before theCourt of Appeal has been recognized (Wegmann v. Corcoran, Witt andCompany *). I see no reason to question the discretion of the Registrar inallowing the fee for the second consultation.
The fee for two attendances of counsel, on August 19 and October 30, •when the appeal was listed to be mentioned, is one which can be rightlybrought within the further provision in the schedule. The attenance ofcounsel was necessary and it is a charge not specially provided for in theschedule.
I will deal with the question of the brief fee and the refreshers together.The Code does not use the word “ refresher ”. In the schedule ofadvocates’ fees in District Courts there is a provision for a fee rangingfrom Rs. 21 to Rs. 105, according to the class of the case, for “ Brief feeon trial or argument”; and a fee of Rs. 10.50 to Rs. 31.50 for “Brief feewhen trial or argument is resumed ”. In the Supreme Court there is onlythe provision “Brief fee, Rs. 21 to Rs. 105”. Is this merely a provisionfor one brief fee, and is it possible to say that the brief fee for the adjournedargument is a matter not specially provided for and therefore one whichthe Registrar can allow on special application being made? It appears tome that the schedule intended to restrict the charge to one fee only. Theschedule of fees in the District Court uses the words “ brief fee ” for thefee paid for the first day of argument as well as for the fee paid for the
i ll»m) n q -QC.L. li. 13 Cli. Div. G.6.
DRIEBERG J.—Asiriwatkan v. Mudalihamy.
succeeding days. The allowance of one charge for brief fee, the same inamount as that allowed in the District Court for the first day, suggeststhat it was intended to make provision for one brief fee only and excludebrief fees for the adjourned hearing. The practice in England beforethe introduction of the rules and orders of the Supreme Court of 1883affords some help on this point. In Harrison v. Wearing *, Jessel M.R.explained the principle on which refreshers were allowed in some Courtsand not in others. It depended on whether the evidence intended to beused was oral or written. Where the evidence was oral, the solicitor onone side could-not know how many witnesses would be called on the other,and he could not mark one fee on the brief when he could not form anopinion of the duration of the case; it was otherwise when the evidencewas written, for he could estimate how long the case would last and markthe brief accordingly. In fixing one brief fee only for the argument inappeal, but providing for refreshers in the District Courts the Code hasapparently followed this practice. The fees for refreshers should there-fore be disallowed and the brief fee limited to Rs. 105.
The plaintiff objects to the allowance of any fees for junior counsel onthe ground that the schedule provides for fees for one counsel only. Thereis nothing in the schedule expressly limiting the fees to those of onecounsel, while on the other hand the provision for a fee for consultationimplies the engagement of two counsel. It has been held that the word“ consultation ”, as distinguished from “ conference ”, means a meeting oftwo or more counsel with a proctor (Dawbareti v. Ryoll'"). The Registrarwas right in allowing fees for junior counsel, but not of course for refreshers.
I agree with the Chief Justice that the item of Rs. 123, stamps on theaffidavit the defendant sought to use, should be allowed, that thedefendant’s costs of taxation should be disallowed, and that among suchcosts should be included the charge for Rs. 123 for stamps on the bill of costs.
I agree with the order as to the costs of this appeal.