GORAKHRAM SADHURAM Vs. PIROZSHA MANECKJI JAVERI (NO1)

JUDGEMENT

(1.) [After setting out facts as above his Lordship continued:] Defendants Nos. 5 and 6 took three objections to the taxation of the bill of costs of defendants Nos. 1 and 2 and defendants Nos. 5 and 6 as between attorney and client. The first objection was that the Taxing Master was wrong in allowing charges for briefs and fees for the hearing and final disposal of the suit to two sets of counsel, one set appearing for defendants Nos. 1 and 2, and another appearing for defendants Nos. 5 and 6, though all were represented by the same firm of solicitors, Messrs Hiralal and Co. The second objection related to the amount of refresher payable to Mr. Gharekhan, advocate, who was a junior counsel in the case. At first Mr. Setalvad was briefed with Mr. Varma for defendants Nos. 1 and 2, and Mr. Taraporewala with Mr. Gharekhan for defendants Nos. 5 and 6, but before the hearing commenced a change was effected by asking Mr. Taraporewala and Mr. Varma to appear for defendants Nos. 1 and 2 and Mr. Setalvad and Mr. Ghare khan to appear for defendants Nos. 5 and 6. In the bill of costs Messrs. Hiralal and Co. have charged 15 G.Ms. as refresher for Mr. Gharekhan. Defendants Nos. 5 and 6 allege that Mr. Gharokhan's refresher was fixed at 4 G.Ms. a day from the very commencement of the hearing, and they allege an oral agreement under which this refresher of 4 G.Ms. was further reduced to 2 G.Ms, from and after March 27, 1930, during the course of the hearing. Messrs. Hiralal and Co, denied the agreement. The third objection related to the item of instruction charges for briefing counsel for the hearing on behalf of defendants Nos. 5 and 6.

(2.) As I have stated before, defendants Nos. 1 and 2 and defendants Nos. 5 and 6 appeared at the hearing by separate counsel instructed by the same solicitors, and on taxation as between attorney and client the Taxing Master has allowed the costs of both sets of counsel. One of the English rules of taxation which is to be found in Order LXV of the Supreme Court Rules, Rule XXVII, Regulation 8, runs as follows:- Where the same solicitor is employed for two or more defendants, and separate pleadings are delivered or other proceedings had by or for two or more such defendants separately, the taxing officer shall consider in the taxation of such solicitor's bill of costs, either between party and party or between solicitor and client, whether such separate pleadings or other proceedings were necessary or proper, and if he is of opinion that any part of the costs occasioned thereby has been unnecessarily or improperly incurred, the same shall be disallowed.

(3.) This rule does not preclude the Chamber Judge from interfering with the decisions of the Taxing Master on the question of the allowance of separate defences and the appearance of separate counsel at the trial, for it has been held that this is really a matter of principle. In Ager V/s. Blacklock and Co. (1887) 56 L.T. 890, Kekewich J. held that it was not purely a question of the Taxing Master's discretion, and his ruling was followed in A.G. Spalding V/s. A.W. Gamage, Limited [1914] 2 Ch. 405 in which the Judges differed from the decision in Beattie v. Lord Ebury (1873) 29 L.T. 419 in which the Vice-Chancellor refused to interfere with the discretion of the Taxing Master. With regard to taxation, however, there is a well-recognised difference with regard to the principles upon which costs are taxed as between party and party and as between attorney and client. Generally speaking in taxation as between party and party only those costs are allowed which are strictly necessary for the purposes of the prosecution of the litigation, while in taxation as between attorney and client a party is allowed as many of the charges which he would have been compelled to pay to his own solicitor as being costs of the suit which fair justice to the other party would permit. This is the principle on which, generally speaking, an opposing party is in certain cases made to pay the costs of the other side as between attorney and client. In the present application for review of taxation the question is one relating to the costs which may or may not be allowed to a solicitor against his own client on taxation as between attorney and client. A solicitor's right to recover costs as against his own client arises out of his professional employment, and it is the solicitor's duty to see that his client does not run tip unnecessary costs without proper advice. If, therefore, he claims items in excess of party and party costs from his own client, the expenses must be such as are not unusual or extraordinary, unless the solicitor takes care to protect himself by the express authority of his client which he must obtain after he has clearly explained to the client that the costs in respect of such expenses will probably be disallowed as between party and party. If he does not do so, such costs may be altogether disallowed, unless the solicitor is able to show some valid reasons for incurring the expenses without obtaining the necessary authority. The same principle is stated in Kemp on Costs, at p. 270.