1. This application for review of taxation raises a question of principle which appears to be of some interest and importance to the profession and the litigants. The suit out of which this application arises was a mortgage suit. After some proceedings the suit terminated and the defendant was directed to pay the costs of the suit to the plaintiff as between attorney and client. There were certain proceedings in the suit the costs of which, however, were not directed to be paid by the defendant. As the defendant desired to settle and pay costs payable by him without taxation the plaintiff's attorneys Messrs. Kar, Mehta & Co., made out a complete bill of costs including (a) items of charges payable by the defendant as between attorney and client, (b) items of charges payable by the plaintiff as between attorney and client (pure)' in respect of the very proceedings for which the defendant had been ordered to pay ordinary attorney and client costs and (c) items. of charges in respect of proceedings the costs of which were not ordered against the defendant. The total bill amounted to Rs. 6427 and. was delivered to the defendant. The defendant objected to the items falling under (b) & (c). Those items amounted to Rs. 856. The balance of ES. 5571 was settled as between the plaintiff's attorneys and the defendant at a round sum of Rs. 5000 and was paid by the defendant to the plaintiff's attorneys, the latter giving up Rs. 571. It is said that this settlement was behind the back of the plaintiff. The attorneys explain and I see no reason to doubt the bona fides of the attorneys--that the plaintiff has not been helpful but has been rather obstructive towards the attorneys. I need say nothing more about it.
2. The attorneys then claimed from their Own client the plaintiff, the sum of Rs. 856 for which' the defendant was not liable, and which was made up of the items coming within the heads (b) & (c) mentioned above. The plaintiff not having paid the amount the attorneys lodged their bill of costs No. 626 of 1942 for taxation under the warrant of attorney. In this bill of costs, the items which came under the head (a) i.e. those which were payable by the defendant under the decrees and orders in the suit were not included. It set out only the items which came under the head (b) i.e. pure attorney and client portion of costs of the very proceedings the ordinary attorney and client portion whereof was directed to be paid by the defendant and also the items which fell under head (c) i. e. costs of proceedings which were not directed to be paid by the defendant at all. In taxing the bill the Assistant Taxing Officer dealt with the items of charges under the. heads (b) and (e) on different footing. Generally and broadly speaking, he disallowed the items falling under (b) i. e. pure attorney and client portion with the remark 'Rest non-taxable being piecemeal costs of a proceeding which have been realised from defendant.' As regards items under (c) he taxed them in the usual way, allowing some, disallowing some and reducing the others. The attorneys carried in the bill before the Taxing Officer and took exception to the decision of the Assistant Taxing Officer in respect of 76 items. No exception was taken by the plaintiff to the taxation by the Assistant Taxing Officer. The learned Taxing Officer disallowed items 1 and 8 to 11 of the exceptions and allowed items 2 to 7, 12 to 13A and items 14 to 76. With regard to items 14 to 76 the learned Taxing Officer stated his reasons as follows:
I think that there has been misapprehension. The mortgagor has not to pay the mortgagee's costs of this order and therefore these costs must be taxed as between attorney and client.
At the end of the minutes he recorded as follows:
I am satisfied that these costs are taxable and further that Mr. Ghose has been very reasonable in his charges and avoided unnecessary work and expense to client. No order as to costs as costs not applied for.
The matter has been brought before me under Rule 72 of chap. 36 of the Rules of this Court. Mr. A. C. Mitra appearing for the plaintiff made it clear that no aspersion was sought to be made against the attorneys, and that no objection was taken to the decision of the Taxing Officer as regards the items of charges falling under (c), i. e., costs of proceedings for which the defendant was not at all liable under the decrees or orders in the suit. He objected only to those items of charges that came under head (b), i.e., which related to. proceedings for which the defendant was liable under the decrees and orders made in the suit. The ground on which this objection is founded is that the bill of costs in so far as it related to (b), i.e., the pure attorney and client portion of costs of proceedings the ordinary attorney and client costs of which were, directed to be paid by the defendant was insufficient and improper in that it did not include the items of charges payable by the defendant. Mr. Mitter contends that without those last mentioned items the bill is not complete and cannot be taxed, for the items sought to be charged as between attorney and client (pure) cannot be judged unless the Taxing Officer knows what has been charged against, the defendant. Further Mr. Mitter contends that the client is responsible to the attorneys for the whole costs, If the attorneys have realised anything from the defendant they have done so as agents of the client. The attorney must give a complete bill to client and therein give credit for whatever he has received from the client Or realised from the other side. It is only when such a bill is delivered that the client can consider whether the extra charges are proper charges and whether client would pay the same amicably or insist on taxation of the bill. I think Mr. Mitter is right in this contention.
3. In Drew v. Clifford (1825) 2 Car. & P. 69 the attorneys sued the client for payment of costs. A bill signed by the attorneys had been duly delivered. It was for business done (1) in the Insolvent Debtors Court (2) on a writ of error and (3) in an action by the client against a third party in which the client recovered judgment with costs against the third party. Those costs in the action had been taxed as between party and party at 51 13s. but the same could not be realised from that third party. In the above mentioned bill this sum was charged against the client as a lump sum. The client in this 'suit admitted liability for costs under heads (1) and (2) mentioned above but objected to head (8) on the ground that the items were not set out separately. The taxation between party and party by the Master was proved yet Abbott C. J. disallowed the claim for 51 13s. and stated as follows:
I shall hold that the plaintiffs cannot recover this sum of 51 13s. A bill must be delivered with items, if for no other purpose, at least to shew that the party is not charged for the same thing twice over. I think this bill charging a sum in the lump is not sufficient, but as to the other business done the plaintiffs are entitled to recover for it.
4. In Waller v. Lacy (1840) 1 M & G 54 the attorney sued the client for costs in respect of various works done by the attorney in various matters including some suits. The attorney's bill contained, amongst other things, certain extra costs which had not been allowed by the Taxing Master against the unsuccessful parties in actions which the attorney conducted successfully on behalf of client. Those items of extra costs were set forth in the bill, but no other portions of the bill which were laid before the Master for taxation in respect of the said action as between party and party were stated therein. Objection was taken in this suit as regards the extra costs. Mr. Bram-well, as he then was, argued that the client was liable for the whole costs and if the other side had been unable to pay the costs as between party and party the client must pay them to the attorney. The attorney's demand therefore is for the whole, less the amount received from the other party. Unless the Taxing Master has the whole costs laid before him, he could not ascertain whether the extra costs should be allowed. The attorney might otherwise recover the item from the client which he had already received from the other party. Again the client may not want to have the extra costs taxed but he may wish to see the whole costs in order to judge whether or not the extra costs are proper charges. This objection was upheld by the Court. Tindal C. J. observed as follows:
The third question is, whether the charges in respect of extra costs are sufficiently stated ; and it appears to me they do not comply with the requisites of the statute. Those charges by themselves are not intelligible to the officer of the Court. An attorny's bill, generally speaking, ought to give a history of the cause, so as to enable the officer to judge of the propriety of the various items of which it is composed; but if part only of the charges are set forth he has not sufficient materials whereon to form his judgment. A delivery of a bill containing merely the extra costs is certainly not according to the general practice, which is for the attorney to deliver a bill of the whole costs, giving the client credit for the sum that has been received. Here these separate and disjoined items do not furnish the necessary information, and are consequently not a sufficient compliance with the statute, which requires a bill to be delivered for the purpose of enabling the client, should he think proper, to have it taxed. I therefore think that these live items cannot be allowed to form part of the plaintiff's demand.
Bosanquet J. put it on the following ground:
The next question is, whether it was incumbent on the plaintiff, in order to recover the extra costs, to set them out more particularly. It is quite unreasonable to state them in the manner he has done, without giving his client, by the delivery of his whole charges, an opportunity of judging of their propriety; for the client cannot form any judgment as to the correctness of the extra costs, unless he knows what costs have been allowed by the Master against the other party.
Coltman J. also observed as follows:
On the third question I agree with the rest of the Court, that the plaintiff is not entitled to recover the extra costs. The officers report that, the practice is to deliver a bill containing the whole costs and though it may be contended, on the terms of the statute, that such a step is not necessary, we must look not only at the Act, but at the practice which has prevailed upon it.
It will be noticed that the judgments proceeded not only on the terms of the statute, but also on the prevailing practice. The case in Pigot v. Cadman (1857) 1 H. & N. 837 was also an action by the attorney against the client for costs. In the bill the attorney claimed for certain extra costs which were mentioned in detail, but the items of the taxed costs were not included. Bramwell, B., following Waller v. Lacy (1840) 1 M & G 54, in which he appeared as counsel for the client, held that the bill was not a proper bill and went further that the whole bill was bad and the whole suit was dismissed. The last part of his decision dismissing the whole suit was, however, disapproved in later cases. In 1904 the matter was considered and reported upon by the Masters in England who stated that long settled practice of the Taxing Office was to require the whole bill to be brought in for taxation including the party and party items, and the usual taxing fees are taken upon the bill thus taxed; or in other words that, in carrying out the provisions of Section 37, Solicitors' Act, 1843, the bill of which it requires delivery is held to be a complete bill of all the fees, charges, and disbursements in reference to the business to which it relates, and therefore such a bill as will enable the Master properly to tax the costs in respect of which the claim is made. After stating the practice they said:
It has been held to be impossible to consider the solicitor and client bill in any other way, as extra charges by themselves are not intelligible. See judgment of Tindal C. in (1840) 1 M. & G. 54.2 The practice of the Taxing Office is founded on authority, is necessary for the protection of client, and should not, we think, be altered.
5. Kekewich J. approved of the Master's report. The question arose again in Cobbett v. Wood (1908) 2 K. B. 420 The plaintiffs in the case had acted as solicitors for the defendant's wife on a petition by her in the High Court for a judicial separation. The petition was dismissed but the defendant was ordered to pay the costs as between party and party and accordingly the plaintiffs delivered to him a bill of party and party costs. That bill having been taxed the defendant paid to the plaintiffs the amount allowed upon the taxation. The plaintiffs then delivered to the defendant a bill in respect of the extra costs of the proceedings on the petition as between solicitor and client, which bill did not contain the items allowed in respect of party and party costs. This bill not being paid, the plaintiffs sued the defendant for the amount of it as for necessaries supplied to the wife. Objection being taken that the bill so delivered was not a sufficient bill within the meaning of the Solicitors' Act, 1843, Section 37, Pickford J. held that the bill previously delivered to the defendant in respect of the party and party costs and the bill in question must be regarded as one bill delivered in two parts, and therefore there has been a sufficient compliance with the terms of the section, and he accordingly gave judgment for the plaintiffs. The defendant appealed. The Court of appeal reversed the judgment of Pickford J., and held that it was not a sufficient bill within the meaning of that Act and therefore the action was not maintainable:
6. The next case is that of In re Osborn & Osborn (1913) 3 K. B. 862. This was a converse case. In this case a solicitor had acted for client in a successful action. They delivered a bill of costs as between party and party to the unsuccessful party which after taxation was paid. They afterwards upon a request from their client to send in a bill of solicitor and client costs delivered to him a bill which included all items already included in the bill of party and party costs. The client then took out a summons asking for an order that the bill, in so far as it related to the solicitor and client items and the items that had not been allowed on taxation, as between party and party and not paid by the defendant should be referred to the Master to be taxed. This summons was dismissed by Channell J. The client appealed. The Court of Appeal held that the solicitor and client bill as delivered properly included the party and party items that had formed the subject of the bill previously delivered to the opposite party and that the summons asking for a separate taxation of the solicitor and client items was rightly dismissed. The cases in In re Johnson and Weatherall (1888) 37 Ch. D. 433 and In re Park, Cole v. Park (1888) 41 Ch. D. 326 were distinguished because in those cases the taxation was under a special order limited to a part of the bill.
7. In all the above cases it will be noticed that the question arose in action between solicitor and client and was whether the attorney's bill complied with the provisions of the Solicitors' Act. It is true that the Solicitors' Acts are not applicable to this country, but I think those decisions are based on sound principle and the general practice indicated therein is necessary for the protection of the client as the earlier cases show and also for the protection of the solicitor as the last case to which I have referred shows. 'Under our taxation rule, the Taxing Officer, in the absence of any special provision, ought to adopt the practice of the Supreme Court in England. Mr. Ghose has relied on Rule 4 of chap. 36 which requires the Taxing Officer to tax all bills of fees and costs and argued that when his firm lodged the bill in question the Taxing Officer was bound to tax the same. I think, however, the bills referred to in Rule 4 must be proper bills, just as the English Courts have held that bills to be delivered under the Solicitors Acts should be proper bills in the sense laid down in the decisions to which I have referred. In this view of the matter the bill in question, in so far as it included items of charges under head (b) being the pure attorney and client portion of costs without setting out the item, of ordinary attorney and client's portion payable by the defendant, was not a proper bill.
8. In this case, however, the plaintiff took no substantive exception to the taxation by the Assistant Taxing Officer. He only opposed the exception filed by the attorneys before the Taxing Officer. In these circumstances I do not think it would be right to allow him to go behind the taxation of the Assistant Taxing Officer. The result is that the taxation of the bill by the Taxing Officer in so far as it relates to items falling under head (c), i. e. items relating to the proceedings for which the defendant was not at all liable must stand. Mr. Mitter has not challenged them before me. The items falling under head (b), i. e. items of pure attorney and client portion of the costs of proceedings in respect of which the defendant was liable for the ordinary attorney and client portion of the costs thereof and which have been allowed by the Assistant Taxing Officer must also stand because the plaintiff took no exception thereto. I allow this application only in respect of those items which fall under head (b) and which have been allowed by the learned Taxing Officer on exception filed by the attorneys. I understand the matter was argued before the learned Taxing Officer on general principle but the eases cited before me were not brought to the notice of the learned Taxing Officer. So I make no order as to costs of this application.