D.N. Rege Vs. V.C. Vijayakar - Court Judgment

John Beaumont, Kt., C.J.

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. 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.

4. Before parting with the case I desire to say that I cannot approve of the principle on which the learned Judge dealt with a part of the costs. He said in his judgment:-

I wish to leave no room for misunderstanding the significance of the order as to costs which I am making. My order, that the costs of these proceedings should be borne by the solicitor, in form follows the usual practice that the costs should follow the event; but in reality my order makes the solicitor pay a considerable portion of the costs from which I should have been inclined to relieve him, if the correspondence had not been in terms which I highly disapprove, and the tendency to adopt which I should like to eradicate. Much correspondence is carried on in Bombay in terms that are offensive to the Court.

Now it appears that after the original bill was delivered, some correspondence took place and the client suggested to the solicitor that he should take a sum considerably less than the sum claimed to be due, and this seems to have annoyed the solicitor, and it is, I think, a legitimate criticism upon some of the correspondence that it is couched in terms that are unnecessarily acrimonious and in doubtful taste ; but it is not suggested that the tone of the correspondence had any influence whatever on the course of events, or increased to any extent the costs, Judges have a very wide discretion in the matter of costs, but it is a discretion which must be exercised judicially, For a Judge to deprive a solicitor of costs because the Judge disapproves the r- style of his correspondence and would be glad to see the controversial methods of solicitors generally altered is, in my opinion, to confuse the functions of a Judge with those of a school-master. In my opinion the appeal must be allowed. The respondent should pay all costs of the appellants throughout except the costs of the order by the learned Chamber Judge on September 5, 1934, on speaking to the minutes, the lower Court's order of costs as to which will stand.

Rangnekar, J.

5. I agree both on the merits as also with the observations of my Lord the Chief Justice as regards the order for costs in this matter. The learned Judge has given two reasons for his order. The first is that some of the sentences in two letters written by the solicitor were expressed in objectionable language, and the second is the desire of the learned Judge to eradicate the tendency which, according to him, exists among the solicitors in Bombay to carry on correspondence in offensive language. As to the first, even assuming that the sentences invited criticism, it is clear that the style of the correspondence did not in any way increase the costs. As to the latter, speaking for myself, a generalisation of this nature must be deprecated and, speaking for myself and with respect, there is no ground for it. Apart from this, in my opinion, the reasons given can hardly be relied upon as supporting the order.

6. On the merits, the matter is exhaustively dealt with in the judgment just delivered. I only wish to add a few words. It is broadly stated that the law and practice prevailing in England must in every case of such a nature be made applicable in this country. I entirely dissent from this proposition. In my view it is only in cases where there is no law of the land or no statutory rules applicable that one can turn to the law and practice in England on the principle of 'justice, equity and good conscience'. In my view the High Court Rules, and in particular Rules 519 to 529 read with notice in form No. 140 mentioned therein, make it clear (1) that the Taxing Master is bound to tax a bill of costs which is in accordance with the rules ; (2) a solicitor is not bound to deliver his bill to his client; (3) the English rule that a solicitor is bound by a bill once delivered does not apply.

7. The Advocate General has drawn our attention to various points of difference as regards procedure relating to taxation under the Solicitors Act in England and our Rules. It is not necessary to refer to them except one point which is important. In England the delivery of a bill to a client is a condition precedent to the right to bring an action for costs. Here, it is conceded that a solicitor can sue for recovery of his costs without having previously submitted his bill to the client.

8. As a matter of practice;, however, the majority of solicitors send a copy of a bill of costs to their clients before lodging the same for taxation, and the Taxing Master in practice sees that this is done.

9. Assuming, however, that the English practice applied to this case, it is quite clear that in England it is competent to a solicitor to send a bill of costs to the client at his request subject to a condition. The only question is whether the condition which is imposed by the solicitor at the time of submitting the bill to the client is a fair condition or not. This is clear from In re Thompson (1885) 30 Ch. D. 441. The first para of the head-note is as follows :-

A solicitor may, when sending in his bill of costs to his client, reserve to himself the right to withdraw or alter it on condition, provided the condition is fully and clearly stated to the client; but if the solicitor has sent in his bill without any condition, or with a condition which he could not fairly impose, he cannot afterwards withdraw it or send in an amended bill.

It is argued that the case only decides that the only condition which a solicitor can impose on the client when he sends his bill to him must be that he must tell the client that the bill contains charges which cannot be sanctioned on taxation. I am unable to accept the contention. The condition mentioned by Cotton L. J. in that case was mentioned by him as an illustration or e.g., and it can hardly be urged that the learned Lord Justice intended to lay down that condition for all times and in all circumstances. The learned Lord Justice observed as follows (p. 450) :-

It would, I think, be wrong to say that a solicitor who sends in his bill subject to a fair condition, and one which we ought to hold lawful, is not entitled to do so just as much as anyone else might be entitled to send either moneys or securities on a condition : but such a condition as we find here is not one which ought to be allowed, nor one which a solicitor can impose upon his client.

10. Lord Justice Lindley observed (p. 453) :-.it appears to me that they have not fulfilled their obligation as solicitors to their client, in expressing the condition in the language which they did.

A careful perusal of the case shows clearly that the principle laid down was that in imposing a condition upon a client the solicitor must act in a fair manner and not in a fraudulent or dishonest manner so as to overreach the client, in other words, the condition must not be such as would 'open a door to fraud'.

11. On the facts of this case I find it impossible to hold that a bill as such was finally delivered or intended to be delivered to the client even within the meaning of the English rule, and I am not prepared to say that the condition was not fair. I further find from the notes of argument, which the Taxing Master has taken down, that on the very first day the solicitor contended that what he sent to the client was a rough copy of the bill. That contention was accepted by the Taxing Master, and he overruled the objection made by the respondent, and he proceeded to tax the bill, and it is only on an application for a review brought in that he changed his mind and held that the bill could not be taxed as it was not the original bill submitted by the solicitor to the client. Now, it seems to me extremely doubtful whether the Taxing Master had any jurisdiction to vary the order which he had made. An application for review is made under rule 554 ; and it states that the party dissatisfied with the allowance or disallowance of any item or items by the Taxing Master may, at any time before the allocature is signed, deliver to the other party interested therein and carry in before the Taxing Master an objection in writing to such allowance or disallowance specifying in a short list the item or items or part or parts thereof objected to, and under rule 555 the Taxing Master has to consider the items which are specifically objected to and reconsider his taxation. But that was not the position here.