Re A Solicitor. Re A Taxation of Costs
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE PARKER |
| Judgment Date | 22 April 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0422-2 |
| Date | 22 April 1955 |
| Court | Court of Appeal |
[1955] EWCA Civ J0422-2
Lord Justice Denning
Lord Justice Parkers and
Mr. Justice Roxburgh
In The Supreme Court of Judicature
Court of Appeal
Sir HARTLEY SHAWCROSS. Q.C. and Mr. COLIN DUNCAN (instructed Messrs. Bull & Bull) appeared on behalf of the Appellants.
MR. MAURICE LYELL, Q. C. and MR. JOHN SHAW (instructed by Messrs. Forsyte, Kerman Phillips) appeared on behalf of the Respondents.
The facts of this case are fully set out la the judgment of Mr. justice Gerrard which is reported in 1955, 2 Weekly Law Reports, at page 281, and I need not repeat them again. They raise important questions about solicitors costs.
There is a great difference for solicitors between "contentious business" and "non-contentious business". A bill for contentious business must be made out item by item, with a separate charge against each item; but a bill for non-contentious business can be charged by a lump sum. The difference in the method of charging leads to a difference in the amount which the solicitor receives. Non-contentious business is, I believe, more remunerative than contentious business.
Although the difference is so important to solicitors, there is no clear guidance to be found anywhere to enable the profession to distinguish between contentious business and non-contentious business. The solicitors Act, 1932 evades the issue. In Section 81 it says, what is obvious, that "contentious business" includes business in Court, and that "non-contentious business" includes conveyancing business: but this does not help to decide difficult cases, Mie section does not say what "contentious business" means or what "non-contentious business" means.
We are thus left to find out for ourselves. sir Hartley Shuwcross asked us to draw a clear line for the guidance of the profession. We should have liked to accede to his request if we could. It seems to me if a clear line is to be drawn there is only one possible place for it, namely, the issue of the writ or other originating process in the Courts of Law. All business before that date could be said to be non-contentious, and all business afterwards to beContentious. It would be very convenient if we could draw that line, but I do not thick we are at liberty to do so, for the simple reason that it la not the line drawn by parliament. The statutory distinction depends on the nature of the business - contentious or non-contentious - not on the time at which it is done.
Let me test the position by taking a case where a client asks his solicitor to bring an action. The solicitor thereupon instructs counsel to draft the writ and the statement of claim to be served with it, if the action goes for trial, the costs of that work are recoverable as costs in the action. They are not disallowed simply because the work was done before the writ was issued. It is clearly contentious business. Now suppose that in that very case the solicitor had to take statements from witnesses so as to enable counsel to settle the statement of claim. If the action goes for trial, the cost of that is ark would also be recoverable as costs in the action, see pecheries Ostendaises v. Merchants Marine Insurance, reported in 1928, 1 King's Bench Division, at page 750, and Frankenberg v. famous Lasky Films, reported in 1951, 1 Chancery Division, at page 428. It would also be contentious business.
Now suppose that after the solicitor had done all that work, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different character simply because the case was settled? Surely not. If it is contentious business when the case goes for trial, it is also contentious business when the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business; nor should it alter the method or amount of the solicitor's charges. He should get the same reward for the same work, no matter whether the casegoes for trial or is settled the moment before writ issued or the moment after it.
So far there is no difficulty; but suppose that a solicitor asks counsel to advise on the prospects of success before he instructs him to settle the writ. Would the case to advise be contentious business or not? I can well see that in many cases a case to advise on the clients rights would be non-contentious business, see the opinion of Mr. R.S. Wright (afterwards Mr. Justice Wright) dated 13th January, 1888, published in the Law Society's Digest (1923 Edition), and also the case of In re. R.P. Morgan, reported in 1915, 1 Chancery Division, at page 182. But there are some cases where a case to advise may be contentious business. The Taxing Masters in their practice notes say that "a case to advise before action may be allowed as between party and party, if really useful and necessary, but sparingly", see the Annual Practice, page 2834. It seems to me that in those cases where the costs of an opinion can be recovered against the other side, it must be contentious business.
These illustrations persuade me that where the work done before writ is such that, if the case went to trial, it would properly be allowed as against the other party on a party and party taxation, then it is contentious business, even though a writ is not in fact issued; but if the work would not be allowed on a party and party taxation, it is not contentious business. I am aware that this test sounds vague and indefinite, but the managing clerks in solicitors, offices have a very good idea of what business will, or will not be allowed on taxation, and I feel sure that they will be able to apply this test and say without difficulty what is contentious business or not. All work done in the cause itself after writ is, of course, contentious.
Sir Hartley Shaweross sold that, when no writ or other process was issued, there was no scale by which to charge for contentious business, and be pointed out that it might happen that a case was settled before it was decided what her it should be taken in the high Court or the County Court. This is, no doubt, true, but I do not think it should give rise to any difficulty in practice, The basing Masters will act on analogy to Appendix N. They will tax the bill on the same footing as if a writ had been issued. In case of doubt whether it would have been a High Court or County Court action, they will, I expect, give the solicitor the benefit of the doubt and allow him to charge on a High Court scale.
Applying the principles which I have stated, I have no doubt that a good deal of the business contained in this bill was contentious business. The drafting of the petition for judicial separation and all the work connected with it was clearly work which would have been allowed on a party and party taxation. The Solicitors should have delivered a separate bill of costs for all this contentious business, with detailed items and charges. Another hill should have been delivered for the non-contentious business, and that could have been for a lump sum. The bill which was in fact delivered was a bad bill, because it did not distinguish between the two and treated it all as non-contentious business, which was wrong.
I now proceed to consider the second point, which is this: Assuming that the work was all non-contentious, was the hill a good bill?
Until the year 1920 a solicitor's bill, even for non-contentious work, had to be drawn in the traditional way, Item by item, with a separate charge against each item. By the 1920 Order, as re-enacted by the 1954 order, a solicitorwas to charge a gross sum for , in lion of detailed charges, but it was provided that the client could within six months insist on a detailed till of charges, just as if no gross sum ware permissible. In 1953 a new order was made, which made great alterations in the method of charging for non-contentious business. The solicitor is now entitled to "such sum as may be fair and reasonable having regard to all the circumstances of the case". This, I think, means a lump sum as before, but whereas previously the client could afterwords insist on a detailed bill of charges, he now has no right to have the lump sum split up into . He is, however, ven a valuable now right. The inquire the to put the bill before the Law that the Law society can see whether the sum charged is fair and reasonable. If it in fair and...
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