1. This is an appeal from an order made by my learned brother Lort-Williams, J., on an application made by the attorneys with reference to the taxation of their bill against their clients for whom they had acted in the course of a partnership suit. The partnership suit appears to have proceeded to a stage at which a reference was being conducted in this Court. The bill was carried on and the taxation before the taxing officer arrived at a stage at which the officer was about to complete the taxation. It appears that certain learned Counsel had been employed from time to time in connexion with the suit and the reference and the attorneys acting for the clients wore objecting to this taxation to the allowances of sums which had been paid to counsel on account of counsel's fee. Thereupon the taxing officer having come to the end of his duties recorded an order and said that he would deal with counsel's fee finally at the next meeting and that he understood that the attorneys were applying to the Judge for an order which would authorise allowance of counsel's fee. The taxing officer intimated with regard to the different fees charged in the bill which of them he considered he was entitled under Rule 32, Chap. 36, of the Rules of this Court to allow and which of them he considered should not be allowed by him, at all events, without a further order from the Court. Thereupon the attorneys moved the learned Judge and obtained from him an order directing the taxing officer to allow all fees paid to counsel including the charges incurred in preparation of briefs to counsel and all other charges and expenses incurred herein and set out in the applicants' bill of cost's. The intention of the summons is not entirely clear; but when we come to consider the affidavits and the materials, it is not difficult to see what is intended by the order of the learned Judge. The fact is that on all the questions as to which counsel's fee which has been paid, were disallowed or about to bo disallowed by the taxing officer the attorneys had given specific and detailed information in their affidavit. They had given several pages of items of counsel's fees which the taxing officer as at present advised was not prepared to allow on the ground that it was not within his power. By that affidavit they claimed to show partly by the oath of the defendant and partly by letters received from the clients and from counsel that in each case the amount of the fees had been agreed upon by the clients, and that the clients knew and intended that these fees should be paid. There was a question in some cases whether one counsel or two counsel should have been employed and in these matters also the affidavit of the attorneys is of very great detail and, speaking for myself, very convincing. In my judgment, the learned Judge was minded to make an order that in view of the client's consent although in some cases the consent was not in writing the amount paid to two counsel with the client's consent should be allowed and the first question logically for our consideration is whether, in these circumstances the learned Judge had any power to allow the fees.
2. It is anything but clear to me that it was argued before the learned Judge that the Court had no power at all to allow fees above the maximum mentioned in B. 32 in the absence of a written consent. The contention seems to have been that the application was premature rather than that the application asked for something which the Court had no power to allow. It seems to me that while it is quite true that the words referring to the order of the Court or a Judge were in 1924 left out of Rule 32 when that rule was redrafted that was not because the absence of these words could effect or was intended to effect a total destruction of the power of the Court in any case to permit the maximum to be exceeded. The position is that the taxing officer himself can allow fees to any extent in excess of the maximum not that he is obliged to but he may allow fees to any extent in excess of the maximum on production of a written consent of the client or his representative or recognized agent. When we look at Ch. 36, we find that that chapter leaves a certain amount of discretion to the taxing officer and in certain respects leaves further discretion to the Court. In particular we see by Rule 9 that:
where in the opinion of the taxing officer the maximum fee allowed by these rules is insufficient or a fee ought to-be allowed for any matter not provided for in the rules or table of fees he may, upon the application of a party, refer the matter to the Court stating what amount in his judgment ought to be allowed and by whom the same ought to be paid and the Court shall make such order thereon as to the allowance of the whole or any part of the amount proposed by the taxing officer as it shall think fit,
and it is quite clear that the Court can make an order authorizing the maximum to be exceeded. In the same way when we look at the rules which deal with the proper procedure for a review of taxation when taxation has been completed we find that the Judge may make such order as to him may seem just. It appears to me that the omission of an express reference to an order of the Court in Rule 32 is not because in the absence of such reference the rule by itself would bind the hands of the Judges but because the matter is left to the general principle which is that the limits marked out by Rule 32 are meant to be provisions defining the power of the taxing officer and are not intended to take away and cannot by implication to take away the power of the Court in a proper case to allow fees greater than the maximum authorized by the rules. I therefore hold that just as the taxing officer has jurisdiction to allow fees in excess when a written consent is produced, the Court has jurisdiction to allow fees in excess where consent is proved although it is not proved in every instance by a consent in writing.
3. I now come to the next question. It was contended that the procedure was wrong because the attorneys should have waited until the completion of the taxation and applied for a review of the taxation under Rules 71 to 73, Ch. 36. In many cases of course it is only reasonable to wait till the very end and apply in that manner because it is a way which provides that the taxing officer shall if specific objections are brought before him, deal with these specific objections, and then the matter goes to the Judge on proper materials. That is quite right as regards many questions, but in a matter whore the decision is not vested in the taxing officer at all as in the present case it seems to me that there is no objection whatever and it is more convenient to approach the Court at a stage before the taxation is finally concluded. There is no reason to think that it is not open to the learned Judge to entertain the application in the circumstances.
4. Then comes the question of the merits of the application. I am satisfied that as regards the payment of the fees to counsel in excess of the maximum which is laid down these attorneys have shown thoroughly and to the hilt that they were acting throughout with the consent of the clients, that the clients knew that the fees paid were in excess of the usual and that the clients were from time to time discussing with the solicitors what fees should be paid and knew what fees would be paid and satisfied themselves that they were no more than what was desirable. In these circumstances, it seems to me that as regards the specific fees of counsel which are mentioned in the affidavit in support of this application they should all be allowed and it seems to me further that this is equally so as regards those cases where two counsel's fees were paid. These matters of counsel's fees have I think been most satisfactorily cleared up in the application.
5. There remains only the question of incidental charges for preparation of two briefs instead of one and matters of that sort. As long as it is understood that the Court has satisfied itself that the fee8 mentioned in the affidavit were consented to and that where two counsel were employed the employment of these counsel was consented to any matter of detail must be left to the taxing officer. It is quite evident that there is no difficulty in carrying out properly the consequences of this order. If any question does arise in consequence of this order in that respect then it is better that the matter should come again before the Court on a proper reference under Rules 71 to 73, Ch. 36.
6. I think that in substance the order of the learned Judge is right. It is however somewhat loosely drawn up and I think it should be altered so as to read as follows:
It is ordered that the taxing officer be directed in taxing the bill of costs of the said Messieurs Orr, Dignam and Co. to allow all fees to counsel and the proper charges incurred in preparation of briefs to counsel and other incidental charges and expenses found to be proper.
7. But it is not intended that the order is to be an order enquiring the taxing officer to allow the whole bill as it stands. The appeal must be dismissed with costs.
8. I agree.