CHARLES MORTIMER EASTLEY Vs. ERNEST DO ROZARIO

JUDGEMENT

(1.) THIS is an application in revision against an order made by the Full Court of Small Causes. The matter arises out of a divorce case which I tried, in which the wife was claiming judicial separation, and I held that she was not entitled to any relief. But I gave her costs. As my judgment shows, I felt some hesitation about it; but I thought that, as the solicitor had acted upon the advice of counsel, he might be said to have acted bona fide, and, therefore, I allowed the wife's costs as against the husband, although she had failed ; but I did not give costs as between solicitor and client. I am told that no application was made to me at the time for solicitor and client costs, and that may well be, because counsel may have thought that, having regard to the view I had taken, it would be indiscreet to ask for more costs than I had given. At any rate, so far as my judgment went, the wife got party and party costs. Her solicitor then sued the husband in the Court of Small Causes for the difference between party and party, and solicitor and client, costs. The solicitor and client costs have been taxed, so no question arises as to quantum.

(2.) NO evidence was called in the trial Court, but the record in the High Court proceedings was put in, and the learned Judge decreed the plaintiff's case, apparently because he considered that my finding that the solicitor had acted bona fide, coupled with the fact that the costs had been taxed, showed that the solicitor was entitled to solicitor and client costs. But that is wrong. So far as my judgment went, it was against the wife getting solicitor and client costs, because I only gave her party and party costs. Her solicitor was quite entitled, notwithstanding that judgment, to go to the Small Cause Court, and recover judgment for the difference between solicitor and client, and party and party, costs by proving that those costs were really a necessity for which the wife was entitled to pledge her husband's credit. But as Mr. Justice Mc Cardie pointed out in Michal Abrahams, Sons & Co. v. Buckley [1924] 1 K. B. 903, in such a case the solicitor must prove, amongst other things, that he acted on reasonable grounds, made adequate inquiries, and showed proper diligence and full care. The solicitor here never went into the box, and never attempted to prove that he had fulfilled those conditions, except by reference to the evidence given in the Divorce Court.

(3.) THE application is dismissed with costs.