1. I think the objection must be disallowed. There is no rule of this Court similar in terms to Rule 48, Order LXV, under the Judicature Act; but by the 707th Rule of the Rules of this Court on the Original Side, it is laid down that 'in all cases in which the rules of the Supreme Court do not sufficiently declare what business or proceedings may be charged for in the bills of fees and costs, or in what manner, and by what steps any part of the business or proceedings ought to be conducted, the taxer of costs is directed to take the rules and practice of the Superior Courts in England as his guide.'
2. The English rule is clear, that refreshers are not as a general rule to be allowed on motion heard by affidavit, and this general rule should be followed, as was done by the taxing officer in the present case. It is competent, of course, for the Judge, before whom the motion may be heard, to give special directions with respect to the costs to be allowed of any motion heard before him; such special directions I myself gave in disposing of the motion in the case of Kristoromoney Dossee v. Khetter Paul Sreeteerutno but in the absence of such special directions, the taxing officer should follow the general rule.
3. The principle on which a different rule is applicable to motions and to hearings in which viva voce cross-examination takes place, is laid down in Blyth v. Fanshawe L.R. 10 Q.B.D. 207. I think I ought to follow it.
4. In the present case the suit was disposed of on the motion; it may well be that in such a case as this, in which, as I understand, a good deal of discussion necessarily took place as to the hearing of the authorities respecting the similarity or identity of trade marks used by the contending parties on the facts disclosed on affidavit, the Judge before whom the matter came would, had he been asked to do so, have directed that costs should be allowed as on a hearing of a case; I apprehend it would have been quite within his power to do so.
5. So in the case before me to which I have referred, the hearing was a protracted one, the facts complicated, and the questions at issue of great importance to the parties who ultimately succeeded. In a case of that nature it would be difficult for the solicitor to estimate beforehand the length of time which the hearing might fairly be expected to take; were he to overestimate it, the fee paid by him might be disallowed as excessive; and were his calculation defective in under-estimating the amount of time and labour required from counsel, either his client or his counsel might unduly suffer.
6. It seems, therefore, that the power of the Court to make special orders must sometimes (though no doubt rarely) be exercised. No special order was made in this case; whether it is still competent for the Court to make such an order, I do not enquire; if so, it should be obtained from the learned Judge who heard the motion; the taxing officer having no special order before him was right; the objection is disallowed with costs.