DE KRETSER J.—Wijesekera v. The Assistant Government Agent, Matara. 429
4944Present: de Kretser J.WIJESEKERA v. THE ASSISTANT GOVERNMENT AGENT,
In re An Application to revise a Bill of Costs—S.C. Application
Costs—Taxation of costs in application for Writ of Mandamus—Discretion oftaxing officer—Costs actually incurred.
The table of costs given in the schedule to the Civil Procedure Code4pes not apply to proceedings under section 42 of the Courts Ordinance.
In suph proceedings the taxing officer should, as a rule, allow such costs as have beenactusSly incurred unless they have been unreasonably or unnecessarily incurred.
HIS was an application to revise a bill of costs taxed by theRegistrar of the Supreme Court.
T.S. Fernando, G.G., for petitioner.
Cyril E. S. Perera for respondent.
Cur adv. vvlt.
July 10, 1944. de Kretser J.—
The petitioner moves to have the Bill of Costs taxed by the Registrarof the Supreme Court reviewed. The items objected to are the costsallowed to senior and junior Counsel for brief fee and refreshers. It isadmitted that if senior Counsel’s fee is allowed, then junior Counsel’s feemust also be allowed. Crown Counsel could only suggest a comparativelysmall reduction. In my opinion the amount is not excessive and theapplication must therefore be dismissed with costs, which I shall fixat Rs. 52.50.
Crown Counsel’s main object was to question the principle on whichthe Registrar taxed the Bill, and to elicit an opinion from this Court asto how bills of this nature should be taxed. The only authority referredto was the case of Pelpola v. Goonesinghe1. Soertsz A.C.J. was in thatcase requested by the parties to fix the amount which he thought reason-able and he fixed the full amount paid to Counsel for reasons given by himthen, which apply with even greater force to the present case in whichimportant questions of law arose. Crown Counsel says the Registrarhas taken this case as indicating that in every case the full amountpaid to Counsel should be allowed and he contends that the Registrarshould in the proper ease cut down extravagant expenditure. Counselagree that the taxing officer has a discretion.
Speaking for myself, I find it difficult to lay down any positive rules.Soertsz A.C.J. has indicated that one matter to be borne in mind by thetaxing officer is the unusual nature of the proceedings and the importanceof the issues involved. There being no rule laid down by law limitingexpenses which a party may incur, it would -prima. facie be right to allowhim all such costs as the taxing officer thinks have been really incurred.But undoubtedly this rule must be subject to qualification. A party
1 40 A.. L. B. 415.
HE ARNE 3.—Abdeen and Johara.
cannot be allowed to incur such extravagant expenses as the taxing officerbelieves to have been needlessly incurred. There is also the fact to beborne in mind that, the general policy of our law is not to allow a partywhatever expenses he has incurred, but to keep such expenses within,certain bounds. In ordinary civil cases the Legislature has devised ascheme of classes both for the purposes of stamping and of taxation.But this scheme does not apply to proceedings such as we are nowconcerned with.
In the Annual Practice for 1942 page 1523 I find it stated that thediscretion of the taxing officer must be based upon proper materials,must be in fact exercised, and exercised fairly and reasonably. Taxa-tion is a question of giving and taking., and, in reviewing, that excellentrule is not to be lost sight of. The Court will not vary the taxationexcept on very strong grounds unless it has been exercised on wrongprinciples or by reason of wrong considerations.
The conclusion of the matter seems to be that in proceedings such asthese the costs actually incurred should be allowed unless they havebeen incurred unnecessarily or unreasonably. As stated before theapplication is refused with costs.
WIJESEKERA v. THE ASSISTANT GOVERNMENT AGENT, MATARA