Harrison v Tew
| Jurisdiction | England & Wales |
| Judge | Lord Bridge of Harwich,Lord Ackner,Lord Oliver of Aylmerton,Lord Jauncey of Tullichettle,Lord Lowry |
| Judgment Date | 25 January 1990 |
| Judgment citation (vLex) | [1990] UKHL J0125-1 |
| Date | 25 January 1990 |
| Court | House of Lords |
[1990] UKHL J0125-1
Lord Bridge of Harwich
Lord Ackner
Lord Oliver of Aylmerton
Lord Jauncey of Tullichettle
Lord Lowry
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
For the reasons contained in the speech to be delivered by my noble and learned friend Lord Lowry, I agree that this appeal should be dismissed.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Lowry. I agree with it and for the reasons he gives I would dismiss the appeal.
My Lords,
This is an appeal by leave of the Court of Appeal from an order of that court (Dillon L.J. and Sir Frederick Lawton, Nicholls L.J. dissenting) dated 6 July 1987 [1989] Q.B. 307 allowing an appeal by the defendant Geoffrey Herbert Tew ("the respondent") from an order of Sir Neil Lawson sitting as a judge of the High Court in the Queen's Bench Division dated 2 December 1986, whereby he dismissed an appeal by the respondent from an order of Master Creightmore dated 15 March 1984 that 10 bills of costs delivered by the respondent to the first appellant should be referred to a taxing master to be taxed.
The question for decision is whether section 70(4) of the Solicitors Act 1974 ("the Act of 1974") precludes an application for taxation of a solicitor's bill of costs by the party chargeable after the expiration of 12 months from the payment of the bill or whether, notwithstanding the wording of that subsection, the court has an inherent jurisdiction to order taxation.
Section 70 of the Act, so far as material, provides:
"(1) Where before the expiration of one month from the delivery of a solicitor's bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be taxed and that no action be commenced on the bill until the taxation is completed.
(2) Where no such application is made before the expiration of the period mentioned in subsection (1), then, on an application being made by the solicitor or, subject to subsections (3) and (4), by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order -
( a) that the bill be taxed; and
( b) that no action be commenced on the bill, and that any action already commenced be stayed, until the taxation is completed.
(3) Where an application under subsection (2) is made by the party chargeable with the bill -
( a) after the expiration of 12 months from the delivery of the bill, or
( b) after a judgment has been obtained for the recovery of the costs covered by the bill, or
( c) after the bill has been paid, but before the expiration of 12 months from the payment of the bill,
no order shall be made except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the court may think fit.
(4) The power to order taxation conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.
…."
The respondent submits that this section covers the entire field and comprehensively regulates all applications for taxation by the party chargeable, whereas the appellants contend that, as between a solicitor and his client, the court retains at common law an inherent jurisdiction to order taxation even though the period fixed by section 70(4) has expired.
The relevant facts, which are more fully set out by Dillon L.J. in his judgment ( [1989] Q.B. 307, 314-315), can for the purpose of this appeal be shortly stated. In the 1970's the first appellant engaged in a number of transactions mainly consisting of sales, purchases and mortgages of land, in some of which the other appellants appear to have had an interest. The respondent, who had known him for many years, delivered the 10 bills of costs between October 1977 and May 1981 and payment was effected by means of deductions from sums of money representing the proceeds of various sales standing to the first appellant's credit in the clients' account of the respondent. The application for taxation of the bills was made on 17 November 1983, more than 12 months after the last such deduction. A preliminary argument for the appellants that those deductions did not constitute "payment" under section 70(4) (which was not needed before the master and the judge, since they were in favour of the appellants on the main point) was, for the reasons contained in the judgment of Dillon L.J., unanimously decided by the Court of Appeal in the respondent's favour and has not been revived before your Lordships.
My Lords, having regard to the subject of the appeal, the commencement of Sir Frederick Lawton's judgment in the Court of Appeal [1989] Q.B. 307, 335-336 provides an appropriate introduction to the enquiry. He said:
"Ever since the late Middle Ages the courts have exercised a disciplinary jurisdiction over attornies and solicitors as officers of the court: see Holdsworth, A History of English Law, 3rd ed. (1923), vol. III, p. 392. By the beginning of the 17th century the behaviour of some attornies and solicitors was such that Parliament decided to impose some degree of regulation of them. It did so by the statute 3 Jac. 1, c. 7. The mischief which Parliament wanted to regulate was identified:
'For that through the abuse of sundry attornies and solicitors by charging their clients with excessive fees and other unnecessary demands, such as were not, nor ought by them to have been employed or demanded, whereby the subjects grow to be overmuch burdened.'
It was enacted that attornies and solicitors should obtain a ticket (i.e. a receipt) for any fees paid to specified third parties and render a true bill to their clients. This statute seems to be the origin of the modern practice of delivering bills of costs."
The first important provision in the legislative history of statutes relating to taxation of costs (which is admirably traced by Dillon L.J. in his judgment) is an Act of 1729 (2 Geo. 2. c. 23), the main provisions of which are helpfully described by Nicholls L.J. at [1989] Q.B. 307, 326. Section 23 prohibited the commencement of an action by an attorney or solicitor for the recovery of certain fees until one month after the delivery of a bill. That section also provided for the reference of bills for taxation upon the application of the party chargeable without the need for a payment into court and upon an undertaking by that party to pay the sum found due on taxation. Section 23 applied only to "fees, charges or disbursements at law, or in equity", which was interpreted as applying only to costs in some proceeding in a court of law or equity or some proceeding with a view to such a suit. Moreover, it contained no time limit or cut-off date for taxation applications. Before the Act of 1729, the courts had exercised inherent jurisdiction over solicitors as officers of the court to direct taxation of their bills on the application of their clients, but the practice was to require the client seeking taxation to bring the amount of the disputed bill into court.
The Solicitors Act 1843 was a consolidating and amending Act which repealed the Act of 1729. The difficulties arising from the phrase "fees, charges or disbursements at law, or in equity" were got over by the use of the wider phrase "any fees, charges, or disbursements for any business done" in section 37, which also repeated the former provision that a solicitor could not sue for his costs until after the expiration of one month from the delivery of his bill. It gave the court power to order taxation but also provided that, on an application made after a verdict should have been obtained or a writ of enquiry executed in any action for the recovery by the solicitor of his demand for costs, or after the expiration of twelve months from the delivery of the bill, the court should only direct taxation of the bill if special circumstances were proved to the satisfaction of the court. Section 39 provided that, where a trustee, executor or administrator was chargeable with a solicitor's bill, taxation of the bill might be ordered on the application of a beneficiary interested in the trust property. Section 41 provided that the payment of the bill should not preclude the bill being referred by the court for taxation, if special circumstances should appear to the court to require the same, "provided the application for such reference be made within 12 calendar months after payment." This proviso to section 41 of the Act of 1843 is the origin of the time limit imposed by section 70(4) of the Act of 1974, with which this appeal is concerned.
The Act of 1843 was superseded by the Solicitors Act 1932, which in turn was replaced by the Solicitors Act 1957. The relevant provisions of the Act of 1932 were sections 65, 66 and 67, and they do not differ materially from the relevant provisions in the Act of 1957 which are as follows:
"68(1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor until one month after a bill thereof has been delivered in accordance with the requirements set out in the next following subsection: …
69(1) On the application, made within one month of the delivery of a...
To continue reading
Request your trial
-
R (J) v Enfield London Borough Council
...of the general law.” A case where, as a matter of construction, the statute was held wholly to displace the common law is Harrison v Tew [1990] 2 AC 523. In the course of his judgment, Lord Lowry, with whose judgment the rest of their Lordships agreed, said this: “One must distinguish betwe......
-
L v The Human Fertilisation & Embryology Authority and Another
...a statutory one (see for example Laker Airways v Dep of Trade [1977] QB 643 at 719 / 721, A v Liverpool City Council [1982] AC 363 and Harrison v Tew [1990] 2 AC 525). In this context it is not only the 1990 Act that supports this conclusion, because it is also supported by (a) the exclusi......
-
Carolyn Gibbs v Lakeside Developments Ltd
...may have: Official Custodian for Charities v Parway Estates Development Ltd [1985] Ch 151; Harrison v Tew [1989] QB 307, (affirmed [1990] 2 AC 523). Ms Gibbs did not apply for relief against forfeiture until 21 October 2011, nearly one and a half years after the landlords had recovered po......
-
Re Collins & Aikman Europe SA and Others
...than negative." That reference to a distinction between "positive" and "negative" statutory provision was repeated in Harrison –v—Tew [1990] 2 A.C. 523 at 536 where Lord Lowry said:- "One must distinguish between affirmative and negative provisions: the common law can co-exist with a statut......
-
Legal Profession
...and, if so, to what extent, is to order the bill to be taxed (see Harrison v Tew[1989] 1 QB 307, affirmed by the House of Lords [1990] 2 AC 523). What was criticised in Wee Soon Kim Anthony v Law Society of Singapore was not so much the reference to the taxation outcome but the equiparation......