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Sandersons and Morgans, Solicitors (In the Matter of Bill of Costs) Vs. Mohanlal Lalluchand Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Judge
Reported inAIR1955Cal319
ActsHigh Court Rules; ;High Court Orders; ;Calcutta Original Side Rules - Rules 4, 5, 17, 20, 32(4) and 74; ;Constitution of India - Article 227(3); ;Legal Practitioners' Fees Act, 1926 - Section 3; ;Contract Act, 1872 - Section 16
AppellantSandersons and Morgans, Solicitors (In the Matter of Bill of Costs)
RespondentMohanlal Lalluchand Shah and ors.
Appellant AdvocateR. Chowdhuri, Adv.
Respondent AdvocateK.P. Khaitan and ;A.C. Ganguly, Advs.
Cases ReferredRe Park Cole v. Park
Excerpt:
- orderp.b. mukharji, j. 1. this summons raises a point of universal importance to the litigant public and the profession of solicitors in india. the cardinal question on this application is how far, if at all, an attorney's private agreement with client to charge higher fees and remuneration than those obtainable under the rules of this high court can prevail. the clear issue in this application is whether such a private agreement supersedes the scale of fees permitted by the high court. in short the point is if such private agreement gives the attorney immunity from taxation of his fees according to the rules of this court. the attorney in this case has charged and obtained from his client fees amounting to rs. 1,73,033-6-0 under an alleged private agreement. the client considers such.....
Judgment:
ORDER

P.B. Mukharji, J.

1. This summons raises a point of universal importance to the litigant public and the profession of solicitors in India. The cardinal question on this application is how far, if at all, an attorney's private agreement with client to charge higher fees and remuneration than those obtainable under the Rules of this High Court can prevail. The clear issue in this application is whether such a private agreement supersedes the scale of fees permitted by the High Court. In short the point is if such private agreement gives the attorney immunity from taxation of his fees according to the Rules of this Court. The attorney in this case has charged and obtained from his client fees amounting to Rs. 1,73,033-6-0 under an alleged private agreement. The client considers such fees to be excessive or exorbitant and wants them to be taxed according to the scale laid down by the High Court. The attorney resists on the ground of this private agreement, and claims by virtue thereof exemption from such taxation. No attorney has claimed such privilege before in the history of this High Court. I am not aware of any attorney elsewhere in India has claimed similar privilege.

2. The applicant Bhogilal Hargovindas Patel, a director of Renwick & Co. Ltd., has taken out this summons for an order upon his solicitors Messrs. Sandersons & Morgans directing them to prepare and submit a proper bill of costs for all works done by them in connection with or relating to the litigation mentioned in the petition both in and outside the Court for taxation and for investigation and determination of proper charges by the Taxing Officer of this Court. The summons also asks for an order that the Taxing Officer do tax such costs in accordance with the Taxation Rules of this Court and certify what should be due to or from either party in respect of the said hills. The respondent is a firm of solicitors Messrs. Sandersons and Morgans. No actual order for payment is sought on this summons.

3. The dispute between the client and the solicitors arises in respect of four bills. The first bill is dated 16-8-1950 for the sum of Rs. 7526-7-0 covering a period from 16-9-1949 to 31-7-1950. This bill shows in-packet costs amounting to Rs. 7250/- and out-of-pocket costs Rs. 276-7-0. The second bill is dated 20-6-1951 No. 1754-/51 for the total sum of Rs. 33,910-1-6 composed of in-pocket costs amounting to Rs. 3410-1-6 and out-of-pocket costs amounting to Rs. 30,500/-. The second bill covers a period from 1-8-1951 to 30-4-1951. The third bill is dated 29-9-1951 No. 2588/51 for the sum of Rs. 1,26,001-0-6 composed of in-pocket costs amounting to Rs. 36,800/- and out-of-pocket costs Rs. 89,201-0-6. This third bill covers a period from 30-4-1951 to 15-9-1951. The fourth bill is dated 25-3-1952 No. 711/52 amounting to Rs. 5597-13-0 being composed of in-pocket costs amounting to Rs. 3000/- and out-of-pocket costs amounting to Rs. 2597-13-0. The fourth bill covers a period from 2-10-1951 to 11-2-1952. The total amount of the solicitors' four bills of costs as aforesaid amounts to Rs. 1,73,035-6-0. The client contends that these charges are grossly excessive, unfair and unreasonable. All payments in connection with these bills have been made by the client in circumstances which I will discuss later in this judgment.

4. According to the applicant's case there were disputes and differences among the different groups of directors of Renwick & Co. Ltd. Due to such disputes and differences a suit was filed in this Court being suit No. 796 of 1951 on 19-2-1951 by that company along with' the applicant and another director. It is his case that as counterblast to that suit some of the defendants there filed an application for winding up of the company. In both the suit and the winding up proceedings Messrs. Sandersons & Morgans acted as solicitors for the applicant. Both the suit as well as the winding up proceedings were amicably settled by a consent decree dated 3-12-1951 containing the terms of settlement between the parties settling not only the suit but also the winding up proceedings.

5. The consent decree provides inter alia, 'it is further ordered and decreed with the like consent that the costs of this suit mentioned in the said terms be, if necessary, taxed by the Taxing Officer of this Court.' By Clause 12 of the terms of settlement contained in the consent decree it is provided:

'That the winding up applications filed by Mrs. Anima Chakrabarty, Mrs. Hirabai Papatlal Shah, Bhagwandas Papatlal Shah and Mohanlal Lalluchand Shah and all other applications in such winding up proceedings or in the suit will be dismissed, each party to pay his own costs.' Clause 18 of the terms of settlement provides, 'each party to pay his costs'. Clause 19 of the terms of settlement provides for 'liberty to apply'. It will, therefore, be seen that the suit and its proceedings and the winding up application and the proceedings thereunder ended on 3-12-1951, so that they cover between themselves a period from 18-2-1951 to 3-12-1951.

6. The defence of the solicitors is three-fold: Their first defence is that this Court has no jurisdiction to order taxation of these bills on a summons. Their second defence is that there is a special agreement to protect their charges. Their thud defence is that payments having been already made no question of taxation arises.

7. I will take up the, first defence of jurisdiction. Mr. K.P. Khaitan, learned counsel for the solicitors, advanced a number of arguments in support of his proposition that this Court has no jurisdiction to order taxation of these bills on a summons. His first submission is that there is no inherent right in Court to direct taxation of every bill of an attorney. His second submission is that these bills not only cover the suit and the winding up proceedings both of which took place in this Court, but also include works done by the solicitor outside the Court proceedings. For instance, he says that the first bill covering the period from 16-9-1949 to 31-7-1950 was long before the suit or winding up proceedings which came in February 1951. Similarly he says that the second bill covering a period from 1-8-1950 to 30-4-1951 covers part of the period prior to the suit and the winding up proceedings. His next submission thereafter is that the client's remedy in such a case, if there be any, is by way of a suit and not by summons, specially because in this case the fact of the special agreement is pleaded by the solicitors, which fact can only be investigate a and found in a suit and not in an application. His last submission is that the Legal Practitioners' Fees Act, 1926 governs the solicitors and that Statute by giving the right to legal practitioners to settle their fees by private agreement with clients and by including the legal practitioners' right to bring a suit under the agreement has destroyed any inherent jurisdiction of the Court that there might have been to order taxation prior to that Statute. This in substance is Mr. Khaitan's argument on the point of jurisdiction.

8. In aid of his proposition Mr. Khaitan has relied on a number of authorities. He first refers to 'Ex Parte Bowles's Trustees', (1835) 131 ER 1261 (A) to say that the Court has no common law right to tax an attorney's bill. Then he relies on the case in 'Re: Whitcombe', 50 ER 56 (B) to say that if a special agreement is alleged the Court has no jurisdiction to interfere in a petition for taxation and that the agreement must first be set aside by a suit. He referred also to the cases --'In Re: Rhodes', (1844) 50 ER 88 (B1); -- 'In Re; Thompson', (1845) 50 ER 93 (C); -- 'In Re: Beale', (1849) 50 ER 949 (D) and --'In Re: A Solicitor', 1947-1 Ch 274 (E).

9. The last case is cited for the proposition that even under the Special English Law the Court is not bound to order delivery of bill or direct taxation where client was satisfied with work and paid the gross or lump sum charges by the Solicitor.

10. Mr. Khaitan has also relied on the Indian authorities which may be briefly noticed. These Indian decisions are -- 'Ramdoyal Serowgie v. Ramdeo', 27 Cal 269 (F); -- 'Ibrahim Mallick v. Lalit Mohan Roy : AIR1924Cal388 ; -- 'Saw Hla Pru v. Maung Po Htin', AIR 1931 Rang 104 (H); -- 'Ramjash Agarwalla v. Orr, Dignam & Co. : AIR1932Cal233 ; -- 'Shiv Narain Jafa v. Judges of Allahabad High Court', AIR 1935 PC 176 (J); -- 'Bijon K. Nawn v. Sudhir Nawn : AIR1942Cal468 ; -- 'Ordhendra Coomar Gangoli v. Hrishikesh Chatterjee : AIR1944Cal198 ; -- 'Gitarani Debi v. Mooira Debi', 54 Cal WN 764 (M) and the latest Full Bench decision -- 'In Re, An Attorney', (S) : AIR1955Cal113 . Most of these cases are irrelevant on the point of issue as to whether this Court has jurisdiction to order taxation on summons of on Attorney's bill where the Attorney pleads special agreement. But even among those cases referred to by Mr. Khaitan, at least two decisions are definitely against him on the point of jurisdiction, one being the case of -- 'Brojendra Nath Mullick v. Luckhimoni Dassi', 29 Cal 595 (O), and the other being '54 Cal WN 764 (M)'. I will immediately state the effect of these two decisions.

11. The decisions of '29 Cal 595 (O)', is an authority for the proposition that an attorney is not entitled to any reward for services rendered to his client beyond his just and fair professional remuneration during the subsistence of the relationship of Attorney and client, unless the client had competent and independent advice to measure the amount of service rendered by the Attorney. This case is of importance because it gives and collects some of the leading English authorities on the point. Lord Westbury in -- 'Tyrrell v. Bank of London', (1862) 10 H. L.C. 26 (P), observed:

'I earnestly hope that this case will be one of the many which vindicate that rule of duty which has always been laid down, viz., that a Solicitor shall not, in any way whatever, in respect of the subject or any transaction in the relations between him and his client, make gain to himself at the expense of his client, beyond the amount of the just and fair professional remuneration to which he is entitled.'

Mark here that the learned Lord does not makeany distinction between proceedings in Court andthe proceedings out of Court so long as the Attorneycharges for his professional remuneration as anAttorney. Turner L. J. in -- 'Rhodes v. Bate',(1866) 1 Ch App 252 (Q), says:

'With respect to the first of these reasons I takeit to be well established principle of this Courtthat persons standing in a confidential relationtowards others cannot entitle themselves to holdbenefits, which those others may have conferredupon them, unless they can show to the satisfaction of the Court that the persons by whomthe benefits have been conferred had competentand independent advice.'

Of great importance also is the observation of the learned Judge himself in '29 Cal 595' at p. 603 (O)', of that Report on the effect of an alleged agreement by an Attorney to take a gross sum in lieu of costs. His Lordship quotes the observations of the Master of the Rolls in '(1844) 8 Beav 140 at p. 144 (B)', which being material, I quote also: 'I must remark on the great danger which Solicitors incur when they enter into such arrangements With their clients. An agreement like this between a Solicitor and client for taking a fixed sum in satisfaction of all demands for costs is an agreement which may be perfectly good, but this Court, for the protection of parties, looks at every transaction of this kind with great suspicion. The matter may turn out to be perfectly fair and right, still it exposes the conduct of the Solicitor to suspicion and naturally awakens the vigilance and jealousy of this Court, seeing that one party has all the knowledge and the other is ignorant.' I need not go into further authorities on this point.

12. In the case of '54 Cal WN 764 (M)', the learned Judge expresses the view that the rights of Solicitors in India are the same as the rights of Solicitors in England under the common law except as modified by the statute and learned Judge notes that there were no Solicitors Acts in India as in England, a point which has been emphasised again in the recent Full Bench decision. The conclusion therefore is that Indian Statutory modification if there be any, will apply. But where there is no Indian Statute, the English law and practice, as administered by the Courts in England under their inherent jurisdiction are attracted.

13. The English Courts have exercised their inherent jurisdiction to order taxation even quite apart from the Solicitors Acts that exist there. Scrutton L. J. -- 'In re; Foster 1920-3 KB 306 at p. 314 (B & S), admirably puts the English jurisdiction in this respect in the following words at p. 314:

'The powers of the Court to order delivery of a bill and taxation rest, in the first place on the Original Jurisdiction of the Court over its Officers as explained by the House of Lords in -- 'Storer & Co, v. Johnson', (1890) 15 AC 203 (T); in the second place on Section 37, Solicitors Act, 1843 which empowers the Court to order delivery of a bill in any case where they could under the Act refer the bill for taxation if delivered. Indeed in some cases delivery of the bill may be ordered to see whether there are grounds for taxation; See per Lord Blackburn in -- 'Duffett v. McEvoy', (1885) 10 AC 300 (PC) (Aus) (U), or followed by an order, not for taxation, but for an enquiry whether the agreement alleged in the bill is fair and binding on the client.'

14. In fact, Lindley L. J., repelled an almost similar argument which Mr. Khaitan has made before me. 'In re: Frape', 1893-2 Ch 284 at p. 295. (V), Lindley L. J. says this:

'Upon this appeal it is argued that if there is reason to suppose the agreement is unfair or unreasonable, yet you cannot impeach it on such a Summons as this, but that some kind of similar proceeding which we suppose, according to the present practice, would be an action to set it . aside, must be instituted.'

Having noticed this argument and even saying that the said special Statute which His Lordship was considering 'seems to favour that view', Lindley L. J. proceeds to say at p. 295: 'But when you consider it carefully it appears tome there is really nothing in the argument, because, so long as the Solicitor has a proper opportunity of resisting taxation, it cannot matter whether the application to tax is by writ or by a special petition to tax or a summons to tax as in this case. The client may say, 'I want an order to tax notwithstanding the agreement.' The agreement can be no answer to that, if he can show reasons why there ought to be a reference to the Taxing Master to enquire into that agreement.'

15. As the order which Lindley L. J. made in that case is a celebrated one, I will further quote the observations of the learned Lord Justice at p. 296 which are in these terms:

'The fact is that it is impossible to decide whether the agreement is unfair or unreasonable without taxing the bill. There is a great deal of doubt about it and it is sufficient for us to say that the case ought to be enquired into. That being so my brothers and I think the right order will be 'to let the order of Mr. Justice North stand', but to add to it a direction that the Taxing Master is to certify whether the agreement was fair and reasonable, which I cannot do without taxing the bills.'

16. The latest decision in the House of Lords in -- 'Myers v. Elman, 1940 AC 282 (W), also contains many observations in the different speeches of the Law Lords referring to the inherent jurisdiction of the Court over solicitors, Lord Wright at p. 319, speaking of the summary procedure observes: 'This summary procedure may often be invoked to save the expense of an action.' My study of the English authorities leads me to the conclusion that the English Courts have always exercised an inherent jurisdiction over the solicitors practising before them in the matter of having their bills of costs taxed quite independently of any statutory right under the Solicitors Act in England. That is also I find how the practice is stated in 31 Halsbury, Hailsham Edn. pp. 182-3 Article 214.

17. In this Court I feel no doubt that it has inherent jurisdiction to order taxation of an attorney's bill of costs. I will state my reasons briefly apart from the English authorities that I have already cited. Under Clause 9, Letters patent of this Court powers are given to this Court to admit and enrol attorneys. They are to act for their suitors 'as the said High Court may by its Rules and directions determine, and subject to such Rules and directions.'

I will presently show the effect of the Rules ofHigh Court. What I wish to emphasise here isthat the attorneys are not only subject to suchRules but they are also subject to the 'directions'of this Court. I, therefore, hold that this Courtcan always direct taxation of an attorney's bill ofcosts even under Clause 9, Letters Patent apart fromRules that are contained in Chap. 36, OriginalSide Rules relating to taxation. That is the origin &the; source of this Court's inherent and generaljurisdiction to direct taxation and not dependenton the notion whether solicitors are officers ornot of this Court.

18. Next come the Rules of this High Court under Chap. 36, Original Side Rules. Rule 2 of Chap. 36, expressly says that the English rules and practice are to be followed

'in all cases in which the rules of the High 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.'

This Rule, therefore, expressly provides that in such cases the rules and practice of the Supreme Court in England are the guides of the Taxing Officer here. Now the Rules of this Court do not at all declare the attorney's immunity from taxation in any case nor do these Rules declare what step is to be taken in a case like the present. The result, therefore, is that the present controversy comes within the four corners of Rule 2 of Chap. 36, Original Side Rules. Therefore the English rules and practice are attracted. As I have indicated the English rules and practice, apart from English Statutes in the form of the Solicitors Acts, always exercise this power to order taxation of attorneys' bills on summons.

19. Rule 4 of Chap. 36 says that

'the Taxing Officer shall tax all bills of fees and costs on every -side (other than the Appellate Side) of the Court.'

This Rule makes no special exemption in favour of any of fees on the ground that such bills are covered by special agreement between attorney and client and therefore immune from taxation, Indeed this Rule says, 'all' bills of fees and costs without exception. The proceedings in this matter arose on the Original Side of this Court, one in the suit and one in the company jurisdiction, but both on the Original Side and therefore covered by this Rule 4. The attorney, therefore, cannot claim immunity from taxation in this case under Rule 4.

20. Here incidentally reference may be made to Rule 5 of Chap 36 which gives plenary power to this Court

'at any time to determine the scale upon which the costs are to be taxed.'

It is true that this Rule 5 assumes that the costs are such as can be taxed and it is only then that the Court can determine the scale. I have already said that both under Rules 2 and 4 such costs of the attorneys as are in controversy in this application are liable to taxation. This Court therefore under Rule 5 has power to determine the scale upon which such costs are to be taxed and say that the costs are to be taxed according to the Rules of this Court.

21. Rule 74 of Chap 36 in my opinion is also conclusive on this point. This Rule provides that

'the fees to be taken in all proceedings in this High Court shall be those set forth in such schedules'

as are appended thereto and which include in the First Schedule the Original Civil Jurisdiction. This Rule provides only two exceptions, (1) one is where the Rules themselves otherwise specially provide and (2) where by any law in force made by competent Legislature it is otherwise provided. Now in this case no Rules specially provide that the attorneys are not to be liable to taxation on summons because, they plead a special agreement with the client, nor is there any Statute of any Legislature to say that where an attorney has a Special agreement with the client this Court will have no power to order taxation according to the schedule provided under Rule 74.

I will discuss presently the effect of the Legal Practitioners' Fees Act, 1926, because Mr. Khaitan realising the grip of Rule 74 wanted to get out of it by pleading that Statute as providing the exception contemplated by Rule 74. I will only content myself here by stating that all fees to be taken by an attorney on the Original Civil Jurisdiction of this Court shall under this Rule be according to the First Schedule thereunder. The result, therefore, seems to me that the attorney cannot claim a higher fee than that provided in the First Schedule by pleading a special agreement with the client, at any rate in respect of the proceedings in this Court, namely the suit and winding up proceedings,

22. There are only two other Rules of this Court to which reference is necessary, to complete my reading of the Rules on the point. The first is Rule 91, Chap 36, Original Side Rules which says, 'except as otherwise specially provided in these rules the following fees shall be allowed to attorneys', followed by the table of fees.

23. As there is no special provision permitting special agreement by Attorneys to charge higher remuneration, such an agreement is repugnant to this Rule.

24. Lastly, Rule 51A of Chap 38, Original Side Rules gives to my mind, ample power to this Court to order taxation. This amended Rule came into force on 1-3-1948. In clear and express language Rule 51A of Chap 38 says that if in any case it shall appear to the Court of Judge that costs have been incurred 'improperly' or 'without any reasonable cause' the Court or Judge can always call on the attorney to show cause why such costs should not be allowed as between Attorney & client. This is a case where I hold that the costs have been 'improperly' or 'without any reasonable cause' incurred and the excessive costs should be disallowed. In order to do that the first obvious step necessary is to order taxation of the bills of the Attorneys in this case.

25. Indeed, the only Rule on special agreement is Rule 32 (4) of Chap 36 in respect of Counsel alone & even in that case such excess must be covered by written authority of the client or his agent to pay such higher fees, unless specially allowed by the Court itself.

26. The entire body of Rules of Chap 36, Original Side Rules does not mention any case of a special agreement between Attorney and client whereby the Attorney can charge higher fees and remuneration than those specified in the Schedules therein, The principle is clear why the Attorney's special agreement with client is not recognised by the Rules. If such a special agreement between Attorney and client were to give immunity to an Attorney from taxation, then the whole of the taxation rules will overnight become ineffective because enjoying the monopoly under a license from the Court, Attorneys will dictate their own terms and throw overboard the High Court Rules for taxation by contracting out of them. Speaking on a cognate subject Byles J., an eminent authority on taxation and common law in England, in the well-known case of -- 'Philby v. Hazle', (1860) 141 ER 1320 (X), which I will quote on another point later, said at p. 1323 this:

'Such agreements as the present between the Attorney and his client are void. If it were otherwise, an Attorney might hang up a Tariff in his office and then insist upon a special bargain between himself and his clients as to the terms on which he transacted business for them. If we were to hold such an agreement as this to be good it would be necessary to re-model the Act of Parliament altogether.'

Speaking for myself in this context I will only say this, that it such an agreement as is in issue in this application is to be held good, then we will have to remodel our entire body of statutory Rules contained in Chap. 36, Original Side Rules. I am however satisfied that no such distressing prospect need be apprehended, because, it is to my mind clear beyond doubt on my analysis of the specific Rules of Chap 36 which I have just discussed, that our Rules do not recognise and permit any special agreement between an Attorney and his client by which the Attorney gives himself the bounty of higher fees and remuneration than those provided in the Schedules given in Chap 36, Original Side Rules.

27. Mr. Khaitan's argument on Legal Practitioner's Fees Act (Act 21) 1926, may now be stated and examined. It is stimulating in its novelty and in sheer daring it is unsurpassed. The provisions on which Mr. Khaitan relies to save from shipwreck the Attorney's special agreement by invoking this Statute have existed in some form or other in the Indian Statute books ever since the days of the East India Co. (See Sections 7 and 8, Legal Practitioner's Act (Act 1 of 1846) and as will appear from the many Indian authorities, no redoubtable champion of Attorney's cause for this period of over a century had the courage to put forward such provisions as saving Attorney's special agreements with clients in this High Court. His argument is that because (1) Section 3 of that Act permits 'private agreement' by which a legal practitioner may settle his fees for professional services and (2) Section 4 of that Act says 'any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement', therefore no application by client on a summons for taxation against a legal practitioner which includes an 'Attorney', can any longer be entertained by this Court where the Attorney pleads special agreement.

28. This argument suffers from many obvious defects. Its primary defect is that it completely misunderstands the object of the Legal Practitioner's Fees Act (Act 21) of 1926. That Act as its preamble shows is only

'an Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in -the discharge of their professional duties.'

It therefore has nothing to do with the citizens or the clients' rights against the legal practitioners. Secondly, the preamble speeks of 'certain cases' not of all cases. It is therefore necessary to carefully determine what those 'certain cases' are under this statute. By Section 3 of this Act a legal practitioner is permitted 'by private agreement' to settle with such persons the terms of his engagement and the fees to be paid for his professional services.

But then the Attorney as a legal practitioner in this context means an Attorney only in respect of his practice in Courts subordinate to the High Court but not in the High Court. That is the effect of Section 5, Legal Practitioner's Act of 1879 read with the definition of the 'Legal Practitioner' in Section 3 in that Act. It is that definition which is adopted by the Legal Practitioner's Fees Act, 1926. Therefore 'private agreement' mentioned in Section 3, Legal Practitioner's Fees Act of 1926 means agreement with regard to fees so far as Attorneys are concerned, in respect of their legal practice in Courts subordinate to the High Court but not in this High Court. Thirdly, Attorneys are expressly excluded from the operation of the Legal Practitioner's Act of 1879 by Section 38 thereof except only in so far as they come under Section 5 of that Act in relation to their practice before the Subordinate Courts.

Lastly, the final answer to this argument is that Section 4, Legal Practitioner's Fees Act of 1926 only gives a right to the legal practitioner to sue for his own fees inter alia on the agreement. This however is not a suit by the legal practitioner for his fees but a proceeding by an aggrieved client for an order of taxation against his Attorney because he considers that his Attorneys have charged him excessive fees. Having thus broadly indicated the answers to Mr. Khaitan's argument on this Statute, I propose to explain them in some more detail as they involve questions of construction,

29. What the Legal Practitioner's Fees Act, 1926 does is first to permit any legal practitioner who acts or agrees to act for any person by private agreement, to settle with such persons the terms of his engagement and the fee to be paid for his professional services and then the Statute also gives him the right to sue on this agreement for his fees, and finally declares his liability to be sued in respect of any loss or injury due to his negligence in the conduct of his professional duties. The words 'legal practitioner' in this Act of 1926 is defined by Section 2 (a) thereof to mean a legal practitioner as defined in Section 3, Legal Practitioner's Act, 1879 unless there is any thing 'repugnant in the subject or context'. This definition is expressly made only 'for the purposes of this Act' of 1926.

A legal practitioner in Section 3, Legal Practitioner's Act of 1879 means inter alia an attorney of any High Court. But the whole of the Legal Practitioner's Act, 1879 consisting of 41 sections contains only one provision relating to attorneys and that is Section 5. That is only a provision entitling the attorneys to practise in all Courts subordinate to the High Court and in the Revenue Offices situated within the local limits of the Appellate Jurisdiction of such High Court but expressly excludes their practice in the High Court. Even there the High Court is specially empowered to make rules for such attorneys practising in the subordinate courts as legal practitioners declaring then function, powers and duties. The rest of the Act does not concern the attorneys at all. Chap 3 of the Act deals only with pleaders and muleteers, Chap IV with Revenue agents, Chap 5 with certificates, Chap 6 with the remuneration of pleaders, mukteers and Revenue agents and Chap 7 with penalties. Section 27 regulates the fees payable by any party in respect of the fees of his adversary's attorney and the table of such fees is to be published in the official gazette.

Finally the most significant section in this Act is Section 38, Legal Practitioner's Act, 1879 which expressly exempts High Court practitioners from certain parts of the Act. So far as the attorneys are concerned it is expressly provided by Section 38, Legal Practitioner's Act 1879 that except as provided by Section 5 (the other sections mentioned in Section 38 are not relevant for the present purpose) which I have already quoted

'nothing in this Act applies to advocates, vakils and attorneys admitted and enrolled by any High Court under the Letters Patent by which such Court is constituted.'

Therefore it is abundantly clear that so far as the attorneys of this Court are concerned they continue to be governed by the Rules of this High Court under the Letters Patent. In short the definition of a legal practitioner in the Legal Practitioner's Act, 1879 includes an attorney only for the limited purpose and ambit of including him as a pleader or legal practitioner in the subordinate courts.

The definition therefore of a legal practitioner in the Legal Practitioner's Act, 1879 must be interpreted and understood only for that very limited purpose in respect of an attorney. It is only this limited definition in respect of an attorney that is attracted by the Legal Practitioners' Fees Act, 1926. As the present controversy in the application does not relate to the fees and remuneration of an attorney as a pleader or legal practitioner in courts subordinate to this High Court this whole of the Legal Practitioners' Fees Act, 1926 permitting private agreement for fees has therefore no application to this case. Indeed for the reasons I have already stated, inclusion of attorneys' fees other than those specified in Section 5, Legal Practitioner's Act 1879 will be repugnant to the whole subject and context of the Legal Practitioners' Fees Act, 1926 and will be in direct violation of the specific provision of Section 28, Legal Practitioner's Act, 1879.

30. It may not be out of place here to emphasise that what is now contained in Section 3, Legal Practitioners' Fees Act of 1926 was formerly a part of Sections 28 to 31 in the Legal Practitioners Act of 1879. Therefore the historical origin of Section 3, Legal Practitioners' Fees Act, 1926 conclusively proves that agreements with clients mentioned therein were agreements confined only in respect of fees in the subordinate courts and not elsewhere or other fees. While on the historical antecedents of legal recognition of private agreements with clients for fees, the ancient law as contained in Section 8, Legal Practitioner's Act (Act I) of 1946 'regarding appointment and remuneration of pleaders in the courts of the East India Company' was

'private agreements between parties and their pleaders respecting the remuneration to be paid for professional services shall not be enforced otherwise than by a regular suit'.

What was law for the pleaders in the Courts of East India Company is no longer the law for attorneys of this High Court in the year 1954. The requirement of suit as the only remedy has been swept away by the Legal Practitioner's Act, 1879 and their Fees Act of 1926. Section 4, Legal Practitioners' Fees Act, 1926 gives the right to institute and maintain 'legal proceedings' but does not say that fees cannot be recovered on an agreement except by a suit. I cannot, therefore, help feeling that Mr. Khaitan's argument that suit is the only remedy in such cases even today has not outgrown the legal habiliments of 1846. These again are the reasons why over a century in the numerous cases in this High Court no one ever thought of putting up attorneys' private agreement with clients as a ground of exemption from taxation in respect of works not in the subordinate courts. The Legal Practitioners' Fees Act, 1926 was unsuccessfully urged on a point of disciplinary jurisdiction over an advocate before the Supreme Court recently in the matter of 'G', a Senior Advocate, 'AIR 1954 SC 557 (Y)', where the observations of the learned Judge at p. 560 can be seen.

31. One more word on this argument on this Statute and I have done. Article 227(3), Constitution of India today permits this High Court to settle tables of fees to be allowed to attorneys practising in the High Court. This power even goes to the extent of being inconsistent with any law for the time being in force provided it has the previous approval of the Governor. The existing Rules for taxation of this High Court continue after the Constitution by reason of Article 225 thereof. I shall be the last person in that context to destroy such Rules and this High Court's powers by allowing attorneys* private agreements with client to prevail over them.

32. For these reasons I, therefore, hold that the Legal Practitioners' Fees Act, 1926 does not apply to the fees and remuneration charged by the attorney in this case for works done in this Court and outside but not in respect of any works done in Courts subordinate to this High Court and therefore that statute is not a defence to the order for taxation sought by the applicant.

33. The next argument on this point of jurisdiction advanced by Mr. Khaitan is that this Court has no jurisdiction to order taxation of fees for works done by the attorneys not in connection with any litigation in this Court but prior to such litigation and when there was no such litigation pending. This argument really covers the first bill of the attorneys for Rs. 7,526-7-0 from 16-9-1949 to 31-7-1950 and a part of the second bill for Rs. 33,910-1-6 from 1-8-1950 to 30-4-1951. It may be recalled that litigation started on 9-2-1951. This argument, therefore, cannot resist taxation of the last two bills being the third and fourth bills of the attorneys in this case.

Here again there is a good deal of confusion which requires to be cleared up. The crucial point is not the distinction between proceedings in Court and works outside the Court. In other words, the crucial distinction is not what has been said to be a difference between contentious and non-contentious work. The law draws a difference only between professional and' non-professional charges. The law of taxation, as I understand it, is that the Court has no jurisdiction to order taxation for non-professional work done by the Attorney or where the Attorney charges remuneration for work not done in his professional capacity. There are numerous cases in English law to illustrate this difference and the best one to my mind is the observation of Lord Langdale in -- 'Alien v. Aldridge', (1844) 5 Beav. 401 (Z), where His Lordship said:

'The business connected with the profession of a Solicitor, the business in which the Solicitor is employed or in which he would not have been employed if he had not been a Solicitor.'

For instance, the Court has declined to order taxation when the Attorney did some work as clerk to a local board as in -- 'Bush v. Martin', (1863) 2 H & C 311 (Z1), or where the Attorney did some work as a steward in a manor as in -- 'Alien v. Aldridge', (Z), already quoted or where the Attorney did some work as a scrivener in procuring a loan on commission as in -- 'Gradwell v. Aitchison', (1893) 10 TLR 20 (Z2), or where the Attorney did some work as a parliamentary agent as suggested in the observations in -- 'In re Baker Lees & Co', 1903-1 KB 189 (Z3) where, however it was held that there were other provisions which regulated the remuneration. It has been held that a question whether work was professional or not would be sufficient to prevent the client obtaining on petition the common order for taxation as in 'Re Inderwick', (1883) 25 Ch D 279 (Z4).

The Rules of our High Court, as I have indicated, make all bills of Attorneys liable to taxation without exception. I therefore do not see any reason why an Attorney's bill for professional work in his capacity as Solicitor should be immune from taxation simply because that such work never came to the Court. So long as the bill for remuneration is for work done as Solicitor the Attorney is liable for taxation and the only immunity from taxation lies in respect of his bill for work not done in his capacity as Solicitor. The test for taxation is not whether the bill is for work done in Court proceedings or outside but whether it is for work done by the Solicitor in his professional capacity as a Solicitor no matter whether the work was in Court or outside. In this case reference may be made to the fourth Edition of Cordery's law relating to Solicitors at pp. 326-327. The bills of Attorneys in this case all relate to works done by them in their professional capacity as Attorneys and therefore liable to taxation.

34. Lastly, the terms of the Consent Decree embodying the terms of settlement in this case are in my opinion, relevant on the question of jurisdiction of this Court to order taxation. I have already quoted the relevant clauses in the Consent Decree and the terms of settlement. Now, the provision in the Consent Decree is: 'And it is further ordered and decreed with the like consent that the costs of this suit mentioned in the said terms be, if necessary, taxed by the Taxing Officer of this Court.'

Plainly enough, this is clear consent to tax the costs of this suit if necessary. As each party was bearing his costs under the terms of settlement, such taxation as could be in contemplation by this provision in the Consent Decree were costs between a party and his Solicitor. The respondent firm of Solicitors, Messrs. Sandersons & Morgans were parties to this Consent Decree. The words 'if necessary' in this provision of the Consent Decree cannot obviously mean where both the party and his own Solicitor agree. They obviously mean that if either the party or his Solicitor considers it necessary or if the Court considers it necessary. This much is certain that party and his Solicitor by this provision in the Consent Decree definitely agree to the taxation of the costs in the suit and if the words 'if necessary' are to be given the meaning that if either the party or the Solicitor does notconsider necessary, then there will be no taxation, the result will be unworkable and the consent to taxation will be rendered illusory.

There is another way of looking at it. Now the Solicitor says in this case that taxation is not necessary because there was special agreement with the client. But I have held that the special agreement is not a ground to resist taxation. The Solicitor's ground having failed, taxation has become therefore necessary. My own view is that if the Consent Decree was intended to prevent taxation, then the Consent Decree should have expressly provided by saying that the costs of the suit will not be taxed where there is a special agreement. As there is no such express provision in the Consent Decree exempting special agreement from taxation my interpretation of this part of the Consent Decree is that the Solicitor has agreed to taxation thereunder so far at any rate as the costs of this suit are concerned.

35. Mr. A.C. Ganguly, learned junior counsel following Mr. Khaitan in argument for the respondent Solicitors then said that what was agreed to be taxed by this part of the Consent Decree was only 'the costs of this suit' and nothing else and not costs in the winding up proceedings nor costs prior to this suit. The argument is ingenious. It, however, concedes that the costs of Suit No. 796 of 1951 were agreed to be taxed. Now the words in the Consent Decree are not only the words 'the costs of this suit' but also the significant subsequent words 'mentioned in the said terms'. Now the terms of settlement referred to in the Consent Decree and annexed as a Schedule thereof do not deal only with the costs of the suit but also the costs of the winding up proceedings as in Clause 12 of the terms of settlement which I have already quoted in an earlier part of this judgment. The fact is that the winding up proceeding was ultimately transferred from Bachawat J. to J.P. Mitter J. who took both the suit and the winding up proceedings.

Indeed the applicant's case is that the main dispute was between the different groups of the Directors of the Company for which the suit was filed and his express pleading in para. 4 of his petition is that it was only as a counterblast to that suit that the winding up proceeding was brought. This fact that the winding up proceeding was only a counterblast to the suit is not denied in para. 13 of the Affidavit of Basil Gill on behalf of the respondent Solicitors. One Consent Decree in the suit embodying the terms of settlement and settling not merely the suit but also the winding up proceedings, read with the fact that the winding up proceeding was merely a counterblast to the suit and not disputed by the Attorney, leads me to the conclusion that the words 'the costs of this suit mentioned in the said terms' as appearing in the Consent Decree should be read as a whole and the words 'mentioned in the said terms' mean therefore not only the costs of the suit but also of the winding up proceedings, on a proper, fair and reasonable interpretation of the Consent Decree,

36. So far as the costs which the Attorney is charging for works not falling within the suit or the winding up proceedings, neither the Consent Decree nor the terms of settlement therein cover them, and it has not been argued either that they do so. The order sought to tax such, costs is on the ground that they are costs charged by the Attorneys for the works done in their professional capacity -- a point which I have just determined.

37. For all these reasons I am satisfied that the present Summons for taxation is not only competent but also is the proper proceeding and client need not be driven to a suit to agitate for his remedy Our own Rules on the one hand and the general practice in England (apart from English Statutes) attracted expressly by our Rule 2 of Chap. 36 of the Original Side Rules permit such Summons and that even the question of special agreement has been and can be referred to the Taxing Master. The argument that the client should file a suit, in essence, misconceives the whole claim of the client al this stage. The claim by the client is that the Attorney's bills of costs are 'excessive', 'exhorbitant' and very much more than those allowable under taxation under the Rules of this High Court. If he has to file a suit, even then he has to satisfy the Court in that suit that the Attorney's charges are higher than those payable under the Rules of taxation of this Court. The plaintiff cannot prove that unless the bills themselves are taxed first and it is found now much, if at all, costs charged exceed the taxed costs. Therefore taxation in any event cannot be resisted. That is why the procedure to apply on summons for taxation. In fact Cordery on Solicitors' Edn. 4, at page 329 quotes the observations in 141 ER 1320 at p. 1322 (X) for the proposition that 'a special agreement whether in writing or not touching the scale or mode of remuneration as to costs to be incurred, was not binding on the client so as to preclude the delivery and taxation of a proper bill.'

38. The next plea of the attorneys pleading special agreement with client as a bar to taxation requires special scrutiny on its merits, because it is the very essence of the whole defence of the attorneys on this application. This special agreement so far as the attorney's own charges are concerned is not in writing. It is said to be oral and I am supposed to infer it from the conduct and the correspondence. So far as the counsel's charges are concerned, there is a letter of authority which I will discuss later.

39. It is a very peculiar kind of special agreement that is set up by the attorneys in this case. It is best described in the attorneys' own pleading in para. 6 of the affidavit of Basil Gill sworn on 16-8-1954. That pleading is in these terms:

'Messrs. Sandersons & Morgans have a special scale of charges of their own work done in all matters litigious and non-litigious. * * * My firm was not prepared to undertake the work except upon his agreement to pay my firm's costs and charges according to its usual scale which it was pointed out to him, was in some respects, higher than the scale laid down in the High Court Rules. * * * The applicant thereupon not only agreed to pay the said usual charges of my firm for all works involved, but stated that money was no consideration to him and that Messrs. Sandersons & Morgans should do all that lay in their power to deal with this work in the utmost speed and expedition even though the same might involve dislocation of their routine work as well as their other commitments.'

40. This plea of special agreement is totally disputed and denied by the affidavit of the applicant who says that he never entered into such agreement. But that is not the point. The point is that here is an attorney solemnly pleading a special agreement with client. But what does he say in effect? He really says nothing except pleading the vaguest generalities. Not a single term of this special agreement can be found in the affidavit of Basil Gill. Except stating that Messrs. Sander-sons & Morgans have 'special scale of charges'', and that the 'usual charges' of the firm are in 'some respects higher' than those laid down in the Rules of the High Court, the attorney says nothing else. I should have thought that such a pleading does not even amount to sufficient averment in law of any special agreement. What is the 'special scale of charges', What are the firm's 'usual charges', in what 'respects' are they higher than the High Court scale, what exactly are then rates find charges for different classes of works and what is the principle behind such charges whatever they may be, are the basic and indispensable informations which are not vouch-safed to the client who has paid near about two lacs of rupees, to be exact, Rs. 1,73,035-6-0 and where the actual hours spent in Court in both the suit and the winding up proceedings did not exceed even five or seven hours altogether.

What is worse, these necessary informations are also withheld even from the Court in the attorney's own affidavit which itself is trying to set up the special agreement and asking the Court to uphold it and resist taxation. How can any Court find and uphold an agreement whose terms are not stated and are left vague, indeterminate, inconclusive and undefined? There can be only one answer and that is to hold that no such special agreement is even established as a fact which can even call for an investigation by any Court of law. No client can be expected to consent to an agreement whose terms are not known to him or defined by the attorney. The attorney might as well have said, without the ceremonial pleading already quoted, that the client left a blank cheque with the attorneys and asked them to fill it up with any figure as the fancy of the attorneys prompted. Sitting here in this Court, I for one, am not prepared to lend this Court's approval to such an astonishing agreement or to hold that it can at all be a defence to taxation.

As I have already said while dealing with the point of jurisdiction that this Court views with great jealousy & suspicion attorney's special agreement with client for higher bounties and remuneration for the good and simple reason of the relationship of confidence between attorney and client where the attorney is in the position of a dominating party and which relationship the law has always characterised as being unusually susceptible to undue influence and peculiarly prone to breed unconscionable bargains. When this bargain is of the vaguest character such as the present one, where even the terms of the bargain did not see the light of the client or even of the Court, where no one knows what exactly the rates or charges are, then it will be monstrous for any Court to say that such an illusory agreement is a bar to taxation.

A special agreement must at least contain the major terms and identify the rates of charges with the classes of work done. Common sense requires it, bare justice to the client who pays the money demands it and the most elementary fairness insists on it. In England the Solicitors Act provides for it and Codery's Fourth Edition of the law relating to Solicitors at p. 332 clearly puts the proposition by saying; The agreement should contain all the terms and identify the costs.'

Law has always regarded attorney's special agreement with client with great jealousy and is stated, in 31 Halsbury, Hailsham Edition, page 165, Article 199 in these terms:

Such an agreement was not necessarily unenforceable under the general law as distinct from statutory law though a Court would have viewed it with great jealousy and would have been slow to enforce it, where it was favourable to the solicitor, unless satisfied that it has been made in circumstances precluding any suspicion of an improper attempt to gain a benefit at the client's expense.'

41. Dialectics on freedom of contract have been freely and liberally employed in arguments on behalf of the attorneys. Freedom of contract postulates freedom of bargaining power and hardly exists where the contracting parties are not of equal bargaining power. Jurisprudence has never looked at the relationship between an attorney and client as on a par with a common contract between private persons. The attorneys enjoy a monopoly under licence of this Court and this Court will be astute to see that they do not enjoy the monopoly of business and denounce the rules of that monopoly.

(42-50) Turning one's attention to the counsel's charges the amount of which on the bills as made out come roughly according to Mr. Choudhury to about Rs. 82,000/- it is necessary to refer to certain facts, (His Lordship then referred to the letters passed between the parties and other documents and continued as follows:--)

51. I am, therefore, quite, unable to hold on these facts that there was any valid agreement in writing which this Court can recognise as being a written authority of the client with his full consent to pay counsel at a rate higher than those provided by the High Court Rules. Looked at from every possible point of view I am satisfied that no special agreement for attorneys' charges also existed in fact in this case. Even if such agreement did exist in fact that would be unavailing against the Rules of this Court and therefore bad and incompetent to resist taxation for the reasons I have already stated.

52. On behalf of the attorneys the next point of defence is payment of these bills by client or silence over these bills. In considering this defence, it is necessary to discuss first the circumstances in which the payment took place in this case and secondly the legal effect of payment of or silencer over the bills and whether such payment or silence is enough to resist an order of taxation,

53. Dealing first with the circumstances in which payment of these bills took place, it would be proper to refer to the relevant correspondence. On the first bill dated 16-8-1950 there is a letter of 26-8-1950 addressed by client to the solicitors. That letter encloses client's cheque on the Central Bank of India Ltd. in attorneys' favour for Rs. 4526-7-0 being the balance due on the first bill. Even in this letter' there is a post-script asking the attorney to take quick steps to file the suit, which indicates that the suit was already in contemplation at the time when the first bill was being paid. With the payment of this Rs. 4526-7-0 on 26-8-1950 the first bill of the solicitors for Rs. 7526-7-0 was completely paid off.

On the second bill for Rs. 28,876-l-6 there are three letters one dated 23-6-1951 from the solicitors to the client and the other dated 16-7-1951 from the client to the solicitor, and the last one dated 17-11-1951 from the solicitor to the client. In the letter of 23-6-1951 the solicitors enclosed their second bill showing a balance due to them by the client of the sum of Rs. 28,876-1-6. In this letter the solicitors pointed out that the counsel's fees for that period had not been included in that bill but would be charged in a subsequent bill 'after you have settled the matter with counsel as arranged.' Client's, letter of 16-7-1951 shows that he was enclosing a cheque for the sum of Rs. 28,876-l-6 on the Central Bank of India Ltd., in full payment of this bill. The third letter dated 17-11-1951 from the solicitor to the client is important because by then the dispute between the attorney and the client had started, and this letter of the attorney dated 17-11-1951 shows that they are sending the details of their second bill for Rs. 28,876-1-6 as desired by the client.

54. As will be seen from this correspondence the client paid the first two bills without protest although with regard to the second bill he called for its details after the dispute had started.

On the third and fourth bills the relevant correspondence is a letter dated 7-4-1952 from the attorney to the client, client's reply dated 15-4-1952 and 8-7-1352. It will be recalled that the third bill is for Rs. 1,26,001-0-6 and the fourth bill is for Rs. 5597-13-0. Reference has already been made to the letter of 7-4-1952 which deals mostly with counsel's fees and the reduction in such fees which the attorney claimed to have made. Reference has also been made to the client's reply, the first dated 15-4-1952 from the Secretary to the client and the second dated 8-7-1952 from the client himself. Apart from the reduction of counsel's fees which I have already discussed the letter of 15-4-1952 says:

'We were expecting considerable reduction from your bill of Rs. 33,910-1-6 and Rs. 1,26,001-0-6, but we are sorry to note that no reduction is granted for the same. We have therefore to request you to consider this matter.'

The client's reply of the 8th July definitely says:

'I cannot agree to the settlement of four bills on the basis mentioned in your letter to me of 7-4-1952.'

The client also complains that the bills 'were all in abstracts and no details specially regarding in-pocket charges were given in any of the said bills.'

57. Now this reply of the client dated 8-7-1952also raises a question about the first two bills whichwere paid without protest at the time of paymentThe client complains in this letter:

'As regards your bills Nos. 2384 of 1950 and 1754of 1951 as already pointed out, no detailed billswere submitted and I had no opportunity toscrutinise the same, but I paid those bills relyingon your representations that the bills had beencorrectly made out'.

58. As I have already said, the attorneys did not reply to this letter at all, nor did they challenge that these first two bills (bills Nos. 2384 of 1950 and 1754 of 1951) contained no details and that they were paid by client without any opportunity to scrutinise such details and that such payment was made by client relying on the attorneys' representations that they had been correctly made out. That is ft material circumstance to note in which the payment of the first two bills took place.

59. In this letter of the client dated 8-7-1952 he concludes by saying:

'I, therefore, request you to submit your proper bills of costs giving full details of your in-pocket charges in respect of matters covered by our bills Nos. 2384/50, 1754/51, 2588/51 and 711/52.' This means that the client asked for proper bills in respect of all these four bills submitted to the client.

60. The concluding paragraph of the client'sletter dated 6-7-1952 ends by saying:

'According to me a large sum of money wouldbe found refundable to me by you and theamount of your cheque for Rs. 4796-1-6, enclosedwith your letter of 7-4-1952 has been taken in part satisfaction of my claim against you which kindly note.'

To emphasise again, this important letter was not answered by the attorney.

61. There are two other letters to which reference may be made to complete the record on this point. The first letter is dated 25-7-1951 from the attorneys to the client. No special agreement with client is pleaded in the letter at all. This letter only asks the client for a sum of Rs. 1,25,000/- in connection with the suit and what is noteworthy is that it is based on an estimated hearing for 20 days. I have already indicated that the actual hearing altogether did not last for more than 7 hours on the most liberal estimation although it was part-heard for only four or five days altogether and not 20 days as the attorneys had estimated. This letter is also important because the attorneys there said:

'We are endeavouring to complete our detailed bill for our charges up to the date of hearing and will forward this to you as soon as it is ready together with a detailed statement of account of all disbursements.'

Now, the bills in this case, if they have any meritat all, do not certainly have the merit of anydetail or itemisation. The client on 1-8-1951 in hisanswer to this letter to the attorney enclosed acheque for Rs. 30,000/- on the Hindusthan Mercantile Rank Limited on account.

62. These are the circumstances of payment of the four bills which can be found from the correspondence. So far as the third and the fourth bills are concerned the client protested all along and so far as the first two bills are concerned although the client did not protest at all time of payment, at is clear that they made these payments on the representation of the attorney that the bills were correctly made out as stated by client in his letter of 8-7-1952 which was not answered by the attorney.

63. Now, there was no silence on the part of the client over these bills as is proved by the correspondence on the subject. There were, however, payments. The legal question now is: how far such payments are a bar to the order of taxation that the client now seeks against the attorneys.

64. So far as the English law is concerned my study of the authorities leads me to the conclusion that payment of attorney's bill does not provide a bar to the order for taxation. In the case of -- In re Hirst & Capes', 1908-1 KB 982 (Z5), the facts show that payment there made was no answer to taxation. In that case the decision of the English Court of Appeal constituted by a Bench of Lord Justice Vaughan-Williams, Farwell and Kennedy is 1908-1 K. B. 982 (Z5)'. The case went to the House of Lords and the decision of the House of Lords is -- 'Hirst & Capes v. Fox', 1908 AC 416 (Z6). The House of Lords affirmed the decision of 4he Court of Appeal with a slight variation. There the parties to an action agreed to a compromise upon the terms that the defendants should pay the costs of all parties as between solicitor and client in relation to the plaintiff's claims against the defendants. The plaintiff paid the solicitors their bill of costs and claimed the amount from the defendants who then took out a summons for a reference to the Taxing Master to tax the plaintiff's costs in accordance with the agreement of compromise. The plaintiff's solicitors opposed the application on the grounds first that the bill had been paid and secondly that questions would arise on the construction of the agreement which ought to be decided in an action and not by the Taxing Master. Both these objections were overruled and the House of Lordsdid make the order for taxation.

65. There is another authority of the English Court of Appeal constituted by Cozens Hardy M. R., Buckley and Kennedy L. JJ. 'In re Brockman', 1909-2 Ch 170 (Z7), from the facts of which it appears that even after the statutory period of time under the English Solicitors Act had expired, the client can apply for reference to taxation and submission to pay according to the taxed costs. That decision was given on the important question as to the right of a client who within one month after the delivery by a Solicitor of bills containing items which were alleged to be statute-barred, sought to obtain an order for taxation in such a form as would not compel him to pay statute-barred items.

66. But the more relevant case is the other decision of the English Court of Appeal in -- 'Re Park Cole v. Park', (1888) 41 Ch D 326 (Z8). There the Appeal Court was constituted by Lord Justice Cotton, Lindley and Fry. There the analogy of facts is closer with the facts in this application in the sense that there also the client had paid the Attorney's bill of costs (although in part), which he later challenged, Lord Justice Lindley at p. 339 of that Report observes:

'Now it is true that if a signed bill has been delivered by a Solicitor and has been kept without objection for twelve months and a part has been paid that is a prima facie evidence Of its reasonableness and Stirling J. has adopted that view. But it is not conclusive evidence of reasonableness.'

With these observations the English Court of Appeal ordered taxation.

67. Although, therefore, it appears from the English authorities that payment of a bill will not prevent the Court from making an order of taxation, here the difficulties of the Attorneys are much greater on the facts of this case. Payment of a bill as a possible bar to an order for taxation can only arise in a case where there has been a proper bill by the Attorney. But in this case I have carefully scrutinised the four bills in controversy and the one outstanding feature in each bill is that it is a misnomer to call it a bill because not one of them contains any details with the itemisation of the work along with the charge noted against each item of work. Such a bill is meaningless because the client can never scrutinise it nor check whether there has been proper charge for each item of work done by the Attorney. In fact, all the so called bills in this case are lump sum bills. After a general recital of the work in the most general terms without itemisation and without showing individual charges against individual items of work only a lump sum total is given at the end of, the bill. I am afraid I cannot consider anyone of -these bills in this case to be an Attorney's bill at all.

Guidance as to what an Attorney's bill should be, can be had from Rules 17 and 20, Chap 36 of Original Side Rules.


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