D N REGE Vs. VCVIJAYAKAR

JUDGEMENT

(1.) This is an appeal from an order made by Mr. Justice Tyabji in chambers relating to a bill of costs of solicitors who are the appellants. The appellants had acted as solicitors for a client who was engaged in certain disputes with his father. There had been a testamentary suit which had terminated, and then there was a partition action. In 1932 there was a proposal to settle the partition action, and in connection with such settlement the son desired to know the amount of the solicitors bill. He accordingly asked the solicitors to send him their bill, and on May 13 the solicitors sent in what they described as copy of a draft bill of costs. They sent it in with a covering letter saying, As we have had not the time to go through the draft bill and examine the same, we make it clear that the bill submitted to you herewith is subject to our revising the same in the event of taxation, in which case we shall of course submit to you a copy of our revised bill. As it is, we are prepared to settle our costs with you on the basis of the bill submitted herewith. So that it is clear that in the first instance the bill was not delivered as a final bill. Subsequent correspondence took place, in which it may be said that the solicitors treated this draft bill as a bill formally delivered, and I will deal with the case on that basis.

(2.) Eventually, however, they applied for taxation of a revised bill. In the first instance the Taxing Master agreed to tax the bill. Then an application was made to him to review his taxation, and on that application he came to the conclusion that he must reject the whole bill. In so doing he took the view that the English cases dealing with the law on the subject prevented a solicitor from delivering a fresh bill after having already delivered a previous bill. Then there was an application to the Chamber Judge to review the order of the Taxing Master, and the learned Judge came to the conclusion that the view of the Taxing Master was right, and from his judgment this appeal is brought.

(3.) The question for decision is whether the law on the subject which prevails in England applies to taxations in this Court. Now in England taxation between solicitor and client is, or was until recently, dealt with under Section 37 of the Solicitors Act, 1843. That section provides that a solicitor shall not be entitled to sue for his fees until one month after the date of the delivery of his bill to the client, and within the month the client can apply for an order for taxation. If the client does apply, the common form order is made which directs the Taxing Master to tax and settle the bill and certify the amount due, and then orders the client to pay what is found to be due, because an application for taxation involves an undertaking on the part of the client to pay what is found to be due. Then the section deals with the costs of the taxation, and provides that the costs of the reference shall be paid according to the event of the taxation, that is, if the bill when taxed be less by a sixth part than the bill delivered, then the solicitor has to pay the costs, and if the bill when taxed shall not be less by a sixth part than the bill delivered, then the party chargeable has to pay the costs, and the only discretion as to costs which is left in the Taxing Master is that if he thinks there are special circumstances, he may certify the circumstances to the Court, and the Court then may make such order as to the payment of the costs of taxation as it thinks fit. There is no statutory provision in England which prevents a solicitor from delivering more than one bill, but it has been held in many cases that a solicitor is bound by the bill once delivered, subject to certain exceptions, which I need not discuss. The reason for the rule is this, that if the solicitor is at liberty to deliver an exorbitant bill, and then, when he finds that it is going to be taxed, he is entitled to substitute for that exorbitant bill a proper bill, the result will be that he will generally escape having to pay the costs of taxation, because less than a sixth is likely to be taxed off a proper bill whereas more than a sixth would probably have been taxed off the exorbitant bill. The object r-of the rule is to protect the client from having exorbitant bills delivered, but it is obvious that the protection afforded is partial only ; the rule does not prevent the solicitor delivering an exorbitant bill, nor does it afford any relief to the client who pays the exorbitant bill; at the most it may be said that the rule tends to discourage a solicitor from delivering an exorbitant bill, because of the fear that he may be left to pay the costs of taxation. The question is whether that rule of English practice ought to be applied in this Presidency. It is, I think, true to say generally that the law and practice in England relating to solicitors and to taxation of bills of costs applies in this Presidency, except where that law or practice is inconsistent with the rules or practice of this Court. But there is no statute in Bombay dealing with the matter, and it is clear that the English Solicitors Act does not apply. Taxation is dealt with in this Court by rules of the Court commencing at Rule 519. That rule provides :- The Taxing Officer shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvent Court. All other bills of costs of attorneys shall also be taxed by him when he is directed to do so by a Judge's order. The bill in this case dealt with matters on the original side of the Court, and therefore the obligatory portion of the rule applied. It is argued by the appellant that the Taxing Master being ordered to tax bills on the original side, was not at liberty to refuse to tax the bill in the present case. On the other hand, it is contended by the respondent that the obligation on the Taxing Master to tax bills only means proper bills, and I agree that the Taxing Master might refuse to tax a bill which was not in conformity with the rules, or was otherwise improper. It is, however, rather a strong thing to say that when a bill is delivered for taxation the Taxing Master can refuse to tax it because a bill has been previously delivered by the solicitors, there being no rule of this Court forbidding such an act. Then it is to be noticed that there is no rule which requires delivery of the bill to the client. No doubt in practice the Taxing Master will see that the client has a proper opportunity of considering a bill before taxation, but there is no rule of this Court which makes delivery of the bill a condition precedent to any suit to recover the fees. Then rule 559 deals with costs, and that rule provides that except when a bill is taxed between party and party, whenever one-sixth part of the bill shall be taken off by taxation, the attorney shall pay all costs whatever attending the taxation. Now it is to be observed that that rule is much less comprehensive than the English statutory rule. It provides that if more than a sixth is taxed off, the solicitor shall pay the costs, but it does not provide that if less than a sixth is taxed off the party chargeable shall pay the costs. No doubt in practice that would be the course ordinarily adopted by the Taxing Master, but he is not, as in England, compelled to adopt that course. It seems to me that if the Taxing Master comes to the conclusion that the only reason why less than a sixth has been taxed off a bill is that the solicitor has substituted a proper bill for a more exorbitant one previously delivered, that would be a very good reason for depriving the solicitor of any costs of taxation. So that, the protection which the rule in question is designed to afford in England, a modified protection against the delivery of exorbitant bills, is, it seems to me, provided for in this country by the wider discretion given to the Taxing Master in dealing with the costs of his taxation. Having regard to the peremptory terms of rule 519, the absence of any obligation on the solicitor to deliver a bill one month before suing, and the difference in the rule as to costs, it seems to me that there is no sufficient reason for holding that the English rule that a solicitor must be bound by a bill once delivered applies to this Court. It must be remembered, as was pointed out by Fletcher Moulton L. J. in Lumsden V/s. Shipcote Land Company [1906] 2 K.B. 433, that if a solicitor is not to be at liberty to amend a bill once delivered or to substitute a fresh bill, he is deprived of a right which any other professional man would enjoy, and that deprivation can only be justified either on the ground of some statute, or on the ground of the disciplinary jurisdiction which the Court exercises over solicitors. There is no statute applicable in Bombay, and it is difficult to see why the disciplinary jurisdiction should be invoked in a case like the present, where it has been held by the learned Judge that the solicitor's conduct was perfectly fair, and was not intended in any way to overreach the client. The original bill was delivered at the express request of the client, because he wanted to know in a hurry what the amount of costs to which he was liable was likely to be. I see no sufficient reason for incorporating in this country this rule which restricts the normal right of a professional man to amend his bill. I am only dealing with the case of a fresh bill delivered before the former one has been lodged for taxation. I do not mean to suggest that after a bill has been lodged for taxation the solicitor would have any right to withdraw the bill or to alter it without the consent of the Taxing Master. In my opinion, therefore, the decision of the Taxing Master and the learned Chamber Judge was not correct.