014-NLR-NLR-V-10-LE-MESURIER-v.-THE-ATTORNEY-GENERAL.pdf
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Present: Mr, Justice Wendt and Mr. Justice Middleton.LE MESURIER u. THE ATTORNEY-GENERAL.D. C., Kandyi 12,998.
[The Dehigama Case.]
1906.
December 17.
Costs, taxation of—Grown Counsel appearing for the Crown—Fees notactually paid—Expenses of Crdwn Counsel—Proctor, recognitionof appearanceof—Objection to taxationofcosts—Expenses of
witnesses notcalled—-Materiality—Taxingofficer—CivilProcedure
Code, ss. 27 and 208.
Where theAttorney-General employsCrownCounsel to appear
on behalf of the Crown and disburses nothing, and incurs no debtby wayof fees,he is not entitled' to chargetheoppositeparty such
fees as he might reasonably have had to pay for the services of aprivate advocate hadhe chosentoengageone,but the Crown is
entitled •to recover travelling expenses and battapayableto such
Crow.n Counsel.
A successful partyis entitledtorecoverfromthe opposite party
not only the expenses of witnesses who have been actually calledat thehearing,but also the expenses ofallmaterialwitnesses
whom it was necessary to bring. Whether suchwitnesses were
material or not must be decided by the taxing officer.
A party who has recognized the appearance of a proctora s
representing anotherparty tothesuitcannotafterwards object
to the taxation of costs due to such proctor on the ground that hehad no authority to appear.
A
PPEAL from an order of the District Judge (J. H. de Saram,Esq.) overruling objections raised by the plaintiff to certain
items in the defendant's bill of costs.
The ^material facts and arguments sufficiently appear in thejudgments.
H. J. C. Pereira (with him F. M. de Saram),_ for the plaintiff,appellant.
Fernando, G.C., for. the defendant, respondent.
Cur, adv. vuIt.
1906.
December
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17th December, 1906. Wendt J.—
This is an appeal against the District Judge's ruling in review ofhis Secretary's taxation of costs. The plaintiff's action was dis-missed, and he was condemned in the defendant’s costs. Thedefendant (who is the Attorney-General sued on behalf of the Crown)brought in a bill made up of counsel's fees Rs. 892.50, proctor’sfees and stamps. Rs. 1,961.95, and batta to witnesses Rs. 2,392.81,total Rs. 5,247.26, which the Secretary on taxation cut down toRs. 4,835.71. This taxation the learned District Judge affirmed.Certain of the objections taken in the Court below were not pressedbefore us.1
.1 proceed to deal with the objections which appellant's counselargued. The objection to the sum of Rs. 168 charged as Mr. Bawa'sfee6 was not pressed, his receipt for Rs. 105 having been put in.For the same reason Rs. 52.50, being fee for Mr. Fernando at the. first trial, was conceded. But exception was taken to the followingcharges for Mr. Fernando, viz., retainer Rs. 21, advising defenceRs. 21, and consultation Rs. 21, brief fee (second trial) Rs. 105, andrefreshes for 16 days Rs. 504, on the ground that they had notbeen paid to Mr. Fernando, and were therefor© not expenses neces-sarily incurred by defendant within the meaning of section 203 ofthe Civil Procedure Code.
The facts material to this objection, as agreed upon by counselon both sides, were as follows: Mr. Fernando was one of the CrownCounsel, paid an annual salary by the Crown, and appeared in thecase as part of his official duties. None of the fees in question werepaid to him. When the Attorney-General succeeds in any actionand obtains an order for costs against his opponent, those costs aretaxed, including fees for the appearance of Crown Counsel, and ifthe taxed costs are recovered, they are paid to the particular CrownCounsel for whose services they were taxed. If those costs are notrecovered, or if the Attorney-General is not awarded costs, theCrown Counsel gets northing for his services beyond his regularofficial salary. The question then is, whether in a case in which hehas disbursed nothing, and incurred no debt for fees to counsel, theAttorney-General is entitled to charge his adversary such foes as he« might reasonably have had to pay for the services of a private advo-cate had he chosen to engage one. After much consideration I amunable to* see how such fees could be brought within the category of*■' expenses necessarily incurred.” Assuming that the liability of alitigant to pay his counsel (where such counsel has not insisted onpayment in advance) is an ” expense,” the1 facts before us show that
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there is no such liability on the part of the Attorney-General towards l»o#.Crown Counsel. The risk of recovery from the opposite party, fleceOT6tr 17 •which ought to be and generally is the risk of the client, becomes Wrndt J.the risk of the advocate when bis client is the Attorney-General.
It is unnecessary to enlarge upon the unwholesome effect whichsuch a form of " payment by results " must have on the practi-tioner—the inducement which it offers the advocate of the Crownfor striving unduly to secure an order for costs. Still, if the practiceto allow the taxation of such costs had received judicial recognitionfor many years, I should have hesitated to say that.nothing short ofa legislative enactment could have imposed a liability on the un-successful litigant to pay such fees. The defendant has, however,not been able to show that this Court has ever recognized thepractice relied on. To my own knowledge that practice has existedfor at least twenty-five years, but its legality has never, so far as Iam aware, been brought to the test of a legal decision. In 1890,when the Civil Procedure Code defined what could be recovered byway of “ costs, ” no exception was made in favour of the Attorney-General or the Crown. The order of the Supreme Court, dated1st September, 1895, directed the Registrar, in taxing advocates’fees, to require the production of a- receipt from the advocateengaged. Here, again, no exception was made. Our Registrarinformed the District Judge that he was accustomed to dispensewith such receipt in the case of Crown Counsel, “ because he knewit was not in their power to furnish it at that stage/' It is notsuggested that the Court was ever apprized of this variation, andI do not think that, now we are asked to pronounce as to its validity,we can support it. An alteration in the destination of these fees,when recovered, might perhaps have obviated the objection totheir allowance. I do not see that any exception could be taken tothe practice of the Crown paying yearly salaries to counsel for doingits work in Coiyt; and it would be reasonable enough- that theCrown, when successful should recoup itself by recovering from itsopponent a fair fee for the work done. But in such a case the feemust go to the Crown, and not directly into the pocket of theadvocate engaged in the case.
For these reasons the charge of Rs. 672 as Mr. Fernando's feesmust bo struck out of the bill. Bull I agree with my brother Middle-ton in thinking that the Crown is entitled to recover the travellingexpenses and batta, which (as I understand) it would in any casehave to pay Crown Counsel. These were omitted from’ the bill,but I think it only reasonable to allow the defendant an opportunityof bringing them in if he so desires.
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1906. As to the objection that Mr. Borrett, the Crown Proctor, couldDecember J7. tax no costa, because Mr. Siebel had originally been the proctor onWbndt J. the record and had been irregularly changed, all that need be saidis that the plaintiff condoned the irregularity, and has all alongrecognized Mr. Borrett as representing, the Crown. . The objectionwas therefore properly overruled by the District Judge. .
As regards batta for witnesses, appellant’s counsel, in the courseof his argument, took exception to the number of days for whichthe allowance had been made, but upon our expressing the viewthat the allowance did not seem excessive, in view of the distanceto be travelled to and from the Court, he very fairly withdrew thatobjection. The objection that remained, and which appellantspressed, was to the taxation of batta for six witnesses, who, thoughin attendance, had not been examined. Plaintiff had called twenty-eight witnesses, and defendant twenty-one. For nineteen of them,as well as for the six not examined, batta was allowed. It is notdenied that this is a charge for an out-of-pocket expense, whichthe defendant has in fact disbursed. The objection then comes tothis: that, whereas defendant ultimately examined only twenty-onewitnesses, his having six others in attendance was unreasonable.According to the old Rules of Court (Rules of 1833, section 1, rules23, 40) the charge* for witnesses was only disallowed if the witnesseshad, in the opinion of the Court, been summoned “ unnecessarily. ”Section 208 of the Code amounts to the same thing. The DistrictJudge did not think the six witnesses in question were unnecessary;
. on the contrary, he states that “ it was not suggested by plaintiffthat defendant summoned more witnesses than were necessary,merely for the purpose of swelling costs. The nature of tbe casef was such that it was necessary for the defendant to summon a largenumber of witnesses, though in the end he found it unnecessary toproduce all of them. I think, therefore, that the objection fails.The appellant then succeeds only as to the Rs. 672, counsel’s fees.This charge was made in accordance with the existing practice, andalthough we have now pronounced it untenable, I do not, think weought to cast the defendant in costs. The order in appeal will bevaried by reducing defendant’s bill by Rs. 672. The record will besent back for defendant to supplement his bill-by adding chargesfor the batta and travelling expenses of Crown Counsel, whichwill be taxed by the Secretary after notice to plaintiff. *'No costsof the appeal.
Middleton J.—
This was an appeal from an order of the District Judge heting inreview of the taxation of the costs by the Secretary of the District
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Court. Some six objections were raised in the District Court, but
before us the first and fourth and part of the third were abandoned, and
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it was ultimately stated by counsel for the appellant that he only Middlbtohdesired to contend for the general principles of taxation which he hadsupported, and which had been in discussion before the District Judge.
The first objection urged was that Proctor Borrett was not theproctor on the record, but Proctor Siebel, and that two proctorscannot appear in one case. Assuming for the sake of argument thatMr. Siebel had not been removed under section 27 of the Civil Proce-dure Code, the plaintiff has acted ever since Mr. Borrett came intothe case as if he recognized him as the proctor in the case, and itwas only on taxation of costs that the point was raised. The plain-tiff has throughout the case led the defendant to believe that heacknowledged Mr. Borrett as the proctor on the record and to act onthat belief, and I think that he cannot now be heard to say thathe is not. On this point I think, therefore, that the District Judgewas right in holding that the plaintiff was estopped from raising thequestion of the proctor's status. It is not therefore necessary todeal with the Attorney-General's alleged privileges as to the appoint-ment and removal of proctors under section 27 raised by counselfor the respondent. As regards the third objection, that theAttorney-General is not entitled to tax the costs of advocates’ fees notpaid by him to the Crown Counsel appearing for him against an un-successful opponent, I find myself unable to accede to the affirmativeof this proposition, supported on the ground of immemorial custom,by the learned counsel for the respondent. So far as I can gather,the Attorney-General, in respect to the taxation of costs, is put in nobetter position that an ordinary litigant under the Civil ProcedureCode. By section 208 are included under the denomination of coststhe whole of the expenses necessarily incurred by either party onaccount of the potion and in enforcing the decree. I therefore hesi-tate to say that a fee which the party has not paid to an advocateis an expense necessarily incurred. It is neither an expense nor is itincurred in the sense that the Attorney-General is bound to pay it.As a matter of fact no fees are paid to Crown Counsel, as a generalrule, by the Attorney-General, the Crown Counsel having to wait-till they have been recovered under the system of custom which hasprevailed. I am not prepared to hold that the so-called immemorial,custom 6an impose a legal obligation to pay money. In my viewwithout legislative sanction this custom cannot be supported, andthe Attorney-General would only be entitled to recover such costsas he *necessarily incurred, which would, in my opinion, include thebatta and travelling expenses of Crown Counsel.
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1900* X was inclined during the hearing to think that the Attorney -December 17. Qenera[ might fairly charge the Crown Counsel's salary as part ofMh>x>xjston his necessary expenses, but I think that the argument of counselfor the appellant that such salary would be paid in any event, andthat it covers the performance of a number of other duties, nega-tives the theory of its being an expense necessarily incurred for anyparticular litigation. The Minute of the Supreme Court is a mostreasonable one for the guidance of its Registrar; but I fail to seehow any exception in favour of the Attorney-General can be extract-ed from it. The taxing officer would therefore, in my opinion, bewrong in including the items objected to by the appellant, unlessit was established to his satisfaction that they had actually beenpaid to the advocates and were necessary. As regards the objectiontaken to the payment of witnesses under their specified classes, thecounsel for the appellant reduced his objection to a request for ourdecision of the question whether the plaintiff was bound to pay forwitnesses who had not given evidence and whose materiality is notshown. My view is that if a claim is made for the expenses of awitness not called, the objection should be made to the taxing officer,who should thereupon inquire whether he was a material witnesswhom it was necessary to bring, but whom it became unnecessaryto call. The taxing officer can be satisfied on this point' generallyby a statement of the proctor appearing on the other side. If thewitness's materiality is not established to the satisfaction of thetaxing officer, he will not allow his costs; if it is established, then hiscosts should be taxed, the test being the-materiality of the witness'sevidence to the case to be established by the party bringing him.If this was done by the Secretary of the District Court—and it isriot suggested that it was not—it is not necessary to send the caseback for re-taxation. I agree to the order proposed by my brotherWeDdt.
Order varied.
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