In Re: Archer and Wilcock (Miscellaneous Civil Application No. 13 of 1955) [1955] EACA 12 (1 January 1955)

Full Case Text

## ORIGINAL CIVIL

#### Before CRAM, Ag. J.

### In re ARCHER AND WILCOCK, ADVOCATES

### Miscellaneous Civil Application No. 13 of 1955

Advocates—Remuneration of—Advocates Ordinance, 1949—Work done for client in divorce—Petition not filed—Whether contentious business—Section 59— Endorsement by client on bill—Agreement signed by client but not by advocate, whether valid—Whether amounting to an agreement to pay costs— Application for an order to tax—Whether taxation and delivery of bill ousted by section 63—Rules of Court, Part XIV—Whether rule 10 affected in case of agreement—Section 61—Sole procedure available to have agreement examined and allowed by taxing officer—Solicitors Act, 1932, in pari materia $\cdots$ compared.

A firm of advocates took instructions from a client to prepare a petition for divorce, in Kenya, which work they did. Before the petition could be presented. the client's domicile of origin in England revived and a petition was filed by solicitors in England. The second petition proceeded to decree and taxation of costs but the taxing master, in England, adjourned the taxation, requiring formal evidence that instructions were given for work charged done in Kenya. The advocates applied to the taxing officer of the Supreme Court to tax their bill of costs, but he declined jurisdiction and they, accordingly, applied by summons in Chambers for an order to tax. The client had endorsed at the foot of the bill the words "I agree to this bill as drawn" and had signed and dated the endorsement.

Held $(29-7-55)$ .—(1) The definition of "contentious business", contained in section 2 of the Advocates Ordinance, 1949, was identical with that contained in its model the Solicitors Act, 1932, and, being in pari materia the Court would follow the decision of the Court of Appeal, in England, that the words intended not the time when the business was done but the nature of the business. The mere fact that no petition had been filed in Kenya did not cause the work to take on a differ contentious business. The test is not the filing of a petition but the nature and quality of the work. If the work done were in contemplation of a lis that work would properly be taxed on the scale for contentious business. Although no *lis* ever depended the business was none the less contentious.

(2) Although the endorsement on the file was not signed by the advocate, it was none the less signed by the client and amounted to an agreement in writing, as contemplated by section 59.

(3) There being an agreement in writing to pay the costs of contentious business. that agreement, by reason of section 63, excluded taxation as it excluded any necessity to deliver a signed copy of the bill as, otherwise, required by subsequent sections of the Ordinance.

(4) Section 75 (a) saved Part XIV of the Rules of Court touching the remuneration of advocates, subject to any rule affected by the Ordinance. While rule 10 of Part XIV provided for the taxation of an advocate's bill of costs by the taxing officer, this rule was, in case of agreement, so affected by section 63 as to have no more effect and be ousted.

(5) It followed that the application for an order to tax was an appeal to a jurisdiction not provided for and even taken away by the Ordinance and was incompetent and dismissed with an order that none of the costs thrown away be chargeable against the respondent.

Semble: The proper procedure was to have applied *simpliciter* to have the agreement examined and allowed by the taxing officer who was, under the provisions of section 61, empowered with a discretion. But that discretion did not extend to taxation but merely to scrutiny of and allowance or disallowance of the agreement.

Cases cited: Re a Solicitor, (1955) 2 A. E. R. 283, C. A.; Pécheries Ostendaises (Soc. Anon) v. Merchants' Marine Insurance Co.. (1928), 1 K. B. 750; Frankenburg v. Famous Lasky Film Service Ltd., (1931) 1 Ch. 428; R. P. Morga ex parte Cathcart, (1893) 2 Q. B. 201 C. A.

Case distinguished: In re Shapley, Barret, Allin & Co., (1954) 27 K. L. R. 48 (taxation of a bill of costs for non-contentious business not subject to agreement and in invitum of client).

# Wilcock for applicant. Ex parte.

RULING.—The present application, by summons in chambers, unsupported by affidavit and ex parte, prays for an "order that the bill of costs filed in the above cause be taxed by the Deputy Registrar and his certificate of taxation be issued". The application is by Messrs. Archer and Wilcock, a firm of advocates, described as acting as "Counsel" for their client who is designated a "petitioner". Annexed to the summons, but not exhibited by any affidavit, is a bill of costs intituled as a matrimonial cause, showing a "petitioner", a "respondent" and a "co-respondent". It was admitted at the hearing that no such divorce cause had ever been instituted in Kenya, but that the firm of advocates had taken instructions and gone as far as preparing a petition for divorce on behalf of their client, but he had then changed domicile. In the result, the divorce cause was instituted in and heard and decided by the Courts in England. After the petitioner had obtained his decree, the bills of costs came to be taxed and the bill annexed to the summons came before the taxing master, who, it is said, adjourned the taxation and required formal evidence to be produced to him in confirmation that instructions were, in fact, given and carried out in Kenya. The advocates' London agents requested that the bill incurred in Kenya be taxed. The bill had been submitted to the client and he had endorsed his agreement upon it.

This application sounds in advocate and client remuneration and that the application stands not so much at the instance of the client as of the advocates. I direct therefore that this proceeding be intituled in the Register "In re Archer and Wilcock, Advocates: Advocate and Client bill of costs". This Court has both an inherent and a statutory jurisdiction in relation to taxation; the first proceeding from its inherent control over advocates as officers of the Court and the second derived from the Advocates Ordinance, 1949, as well as the Rules of Court, Part XIV, Vol. V, Laws of Kenya, in so far as these rules are not affected by the Ordinance.

It was further averred at the hearing, in accordance with observations made on the bill, that the advocates concerned had applied to have their bill taxed by the taxing officer in the Supreme Court Registry, but the taxing officer had refused to tax the bill without an order of the Court, canvassing the decision of this Court in In re Shapley Barret, Allin & Co., Advocates, reported in 1954 K. L. R. 48 and interpreting that decision as ruling that rule 10 of Part XIV of the Rules of Court was ousted by sections 66 and 67 of the Ordinance, so that a bill could not be taxed unless the subject of an order of the Court. That this view was taken, appears from notes endorsed in the file in the Registry.

At the outset, I must distinguish the decision in *In re Shapley, Barret, Allin & Co.*, as being decided upon completely different facts from the present application, and having no relevance. That decision, in the first place concerned a bill for

non-contentious business, whereas the present application, as I shall show, deals with contentious busin·ess; in the second. place, that decision· dealt with· costs not subject to ·an agreement by the client, whereas the present application is concerned with an agreement to pay costs; and, in the third place, that decision arose from a firm of advocates wishing to obtain a judgment against a client and who had a bill taxed without first delivering a copy of the bill to the client and who then applied for judgment, whereas no -litigation is contemplated, in the present application, against the client and the client, so far from being unwilling, has agreed to ·pay the costs set forth in the bill. That decision proceeded upon the provfaions of section 66 of the Advocates Ordinance and on the facts peculiar to that decision, rule 10 of Part **XIV,** Rules of Court, was so affected by section 66 of the Ordinance as to have no more effect, but the decision in no way went so far as to rule that, in all other cases of advocates' remuneration, rule 10 .was ousted nor that in all cases where an advocate wished a bill of costs taxed he had no longer recourse to rule 10. Whether rule JO is ousted in all cases I have not to decide, but, in my view, for reasons to be given (and for reasons other than those entertained by the taxing officer), rule IO is affected in this application and has no longer relevance.

The Advocates Ordinance, 1949, was intended to consolidate and amend the law in the Colony regarding advocates, including means of remuneration and to provide a code of ethics for the legal profession similar to that developed in England· under the Solicitors Acts,.1839 to 1932, advocates in this Colony having a status akin to that of solicitors in the United Kingdom, and entitled to practise, neither as barristers-at-law nor as solicitors, but as advocates. The Ordinance, at section 76, repealed the Legal Practitioners Ordinance, Cap. 10 of the old Laws of Kenya and revoked the Rules of Court (Legal Practitioners), Part I, Rules of Court. yet this revocation left effective the Rules of Court, Part **XIV,** which dealt with remuneration of advocates and taxation of bills of costs. The re;1son for this was that although section 74 of the Ordinance constituted a rulemaking body with power to make rules and regulations and section 53 constituted a like body charged to make general orders as to remuneration, these powers have been sparingly exercised and because no doubt of a view to a long transi-. tional period, section 75 of the Ordinance enacted: -

"Nothing in this Ordinance shall prejudice or affect-

(b) any existing rules or regulations touching the remuneration of advocates except only so far as they conflict or are inconsistent with any of the provisions of this Ordinance. Such existing rules or 'regulations shall be revoked upon the request of the Remuneration Committee, but shall pending any such requests except only as aforesaid, be deemed to represent an order made by the Remuneration Committee pursuant to the provisions of section 53 of this Ordinance.''

I have not been able to discover any request from the Remuneration Committee revoking the rules contained in Part **XIV,** yet these Rules are affected by certain sections of the Ordinance. For example, rule 10, *prima facie.* seems to offer to an advocate an opportunity. to have his bill of costs taxed by the taxing officer without any order for the purpose and merely upon application to the taxing officer, who is defined by rule 5. Does that rule apply in the instant application, for if it does, then the application is misconceived? As I shall later show, I consider that this rule, is ousted, at least, so far as the· present application is concerned, by the provisions collected under the compendious title of "Contentious Business" contained in the Ordinance. But it does not necessarily follow that this application is well-founded. In my respectful view it is misconceived, as reasons *post* will reveal.

As I have remarked, already, I do not consider that the bill of costs ought to be regarded as any other than for contentious business. The definitions of "contentious" and "non-contentious" business contained in section 2 of the Ordinance are elusive but as they are identical with those contained in section 81 (1) of the Solicitors Act, 1932, and have led to interpretation difficulties in England I consider I ought to follow a recent decision in the Court of Appeal in England on this topic, the Act and the Ordinance being, on these sections in pari materia. I refer to Re a Solicitor, (1955) 2 A. E. R. 283, C. A., which followed upon instructions from a client in matrimonial difficulties to a firm of solicitors. The solicitors advised the client on offers of financial provision made by her husband; on subsequent negotiations in relation thereto and advised her to have a petition for judicial separation prepared for filing at short notice; they took a proof of her evidence, employed enquiry agents and instructed counsel to draw a draft petition and with her approval had it engrossed. The client withdrew her instructions from her solicitors and instructed others who filed a petition in substantially the same form as that originally drafted. An issue arose whether the business done by the first firm was contentious or non-contentious. Denning, L. J., said:

"They raise important questions about solicitors' costs. There is a great difference for solicitors between 'contentious business' and 'non-contentious business'...."

Although the difference is so important to solicitors there is no clear guidance to be found anywhere to enable the profession to distinguish between contentious and non-contentious business. The Solicitors Act, 1932, evades the issue. In section 81 (1) it says what is obvious, that "non-contentious business" includes conveyancing business; but this does not help to decide difficult cases. The section does not say what "contentious business" means or what "non-contentious business" means. We are thus left to find out for ourselves. Counsel for the solicitors asked us to draw a clear line for the guidance of the profession. We should have liked to accede to his request if we could. It seems to me that if a clear line is to be drawn, there is only one possible place for it, viz. the issue of the writ or other originating process in the Courts of law. All business before that could be said to be non-contentious and all business afterwards to be contentious. It would be very convenient if we could draw that line, but I do not think that we are at liberty to do so, for the simple reason that it is not the line drawn by Parliament. The statutory distinction depends on the nature of the business—contentious or non-contentious—not at the time when it was done.

Let me test the position by taking a case where a client asks his solicitor to bring an action. The solicitor, thereupon, instructs counsel to draft the writ and the statement of claim to be served with it. If the action goes for trial, the costs of that work are recoverable as costs in the action. They are not disallowed simply because the work was done before the writ was issued. It is clearly contentious business. Now suppose that in that very case the solicitor had to take statements from witnesses so as to enable counsel to settle the statement of claim. If the action goes for trial, the costs of that work would also be recoverable as costs in the action, see Pêcheries Ostendaises (Soc. Anon.) v. Merchants' Marine Insurance Co., (1928) 1 K. B. 750, and Frankenburg v. Famous Lasky Film Service Ltd., (1931), 1 Ch. 428. It would also be contentious business.

Now suppose that, after the solicitor had done all that work, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different character simply because the case was settled? Surely not. If it is contentious business if the case goes for trial, it is also contentious business if the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business; nor should it alter the method

or amount of the solicitor's charges. He should get the same reward for the same work whether the case goes for trial or is settled the moment before the writ issued or the moment after it.

So far there is no difficulty. But suppose that a solicitor asks counsel to advise on the prospects of success before he instructs him to settle the writ. Would the case to advise be contentious business or not? I can well see that in many cases a case to advise on the client's rights would be non-contentious business: see the opinion of Mr. R. S. Wright (afterwards Wright, J.), dated 13th January, 1888, published in the Law Society's Digest (1923 edn.) and also R. P. Morgan & Co., (1915) 1 Ch. D. 182. The taxing masters in their Practice Notes say that—

"Case to advise. Before and during action may be allowed as between party and party if really useful and necessary, but sparingly." (See the Annual Practice (1955), page 2834.) "It seems to me that, in those cases where the costs of an opinion can be recovered against the other side, it must be contentious business.

"These illustrations persuade me that, where the work done before writ is such that if the case went to trial, it would properly be allowed as against the other party on a party and party taxation, then it is contentious business, even though a writ is not in fact issued; but the work would not be allowed on a party and party taxation, it is not contentious business. I am aware that this test sounds vague and indefinite, but the managing clerks in solicitors' offices have a very good idea of what business will or will not be allowed on taxation, and I feel sure that they will be able to apply this test and say without difficulty what is contentious business and what is not. All work done in the cause itself after writ is, of course, contentious, ... Applying the principles which I have stated. I have no doubt that a good deal of the business contained in this bill was contentious business. The drafting of the petition for judicial separation and all the work connected with it was clearly work which would have been allowed on a party and party taxation."

Parker, L. J., in the same case, said: $-$

"In 1932, the Solicitors Acts, 1839 to 1928, were consolidated by the Solicitors Act, 1932. Far from taking the opportunity to define 'contentious business', Parliament merely provided by section 81 that, "Contentious business" includes any business done by a solicitor in any Court...." As I have mentioned, the Act was a consolidating Act, and I am quite satisfied that by inclusive definition the Act did not purport to convert whatever was already covered by the expression 'being otherwise contentious business' into non-contentious business. Section 56 provided power to make general orders for contentious business, and by section 82 (2) the Order of 1883 was to be treated as an order under and for the provisions of the Act. The position was thereby preserved under which the order on its face, though not in truth, covered business which comes within the expression 'being otherwise contentious business'. What then is covered by that expression? It is urged on behalf of the solicitors that contentious business means business in which there is a litigious contest. There must be it is said, two parties whom there is a *lis*, and accordingly, unless and until a writ or other process has been issued, the business remains non-contentious, even though the solicitor has the client's instructions to launch proceedings. Only thus, it is said, can a hard and fast line be drawn which will enable the solicitor to determine on what basis to prepare his bill. . . For the client, it was contended that it is not time when the work is performed but the quality of the work, the kind of business performed, which is the determining factor. This was the view taken by the learned Judge and I agree with him. It seems to me that the expressions 'non-contentious business' and 'contentious business' when used in the Acts and the orders, are referring to the nature of the work. If the commencement of proceedings had been intended to be the determining factor, how easy it would have been to say so in the definition section of the Act of 1932. Moreover it is to be observed that conveyancing matters are classed as non-contentious business, even if the work is done during proceedings of Standford v. Roberts, (1884) 26 Ch. D. 155, which again points to the nature of the work being the test. Further, any contrary view would lead to the absurd result that the solicitor would be entitled to different remuneration for identically the same work, depending on whether the claim was settled the day before or the day after proceedings were launched... No doubt this view is not so convenient for solicitors in that there is no hard and fast line for determining whether, when business is performed, it is non-contentious or contentious. Each case will depend on its own special facts, but I suggest that some guide can be found in the current practice of taxing masters. If the business performed is such that practice masters would allow the costs under Order 65, rule 27 (29), should proceedings ensue, then I think that it would be proper to treat the business as contentious business. I see no reason why in practice this should not afford a sufficient guide. . . Turning now to the facts in the present case, I cannot do better than to quote from the judgment of the learned Judge, (1955), 1 A. E. R. $265:$

'I think that I have to ask myself what was the nature of the business on which these solicitors were then engaged, and to decide on its proper description. It was the collection of information and the taking of all steps, even to the engrossment of a petition, necessary to launch proceedings hostile to the husband at the moment the client gave the word, the background to this work being that the differences between the client and her husband had resulted in her leaving the matrimonial home in South Africa at his suggestion. It seems to me that it is impossible without doing violence to language to describe that business as non-contentious.'

I agree with that passage. $\ldots$ ."

The test is therefore not the institution of a suit but the nature of the business, the quality of the business. If the business done were business such that were a suit instituted that business would properly be taxed on the contentious business scale then although there is in no technical sense a depending lis none the less the business falls into the category of contentious. The bill of costs before me is the sort of bill that ordinarily would be taxed between party and party provided the cause had been filed in Court and although no such cause ever was filed none the less it is a bill of costs for contentious business.

The *clou*, if I may use the expression, to the problem is contained in section $59$ of the Ordinance read with the words the client has written on the bill of costs. These words are: "I agree to this bill as drawn", signed "Duncan Sheriff" and dated "10th March, 1955". Section 59 runs (it is in pari materia with section 59 of the Solicitors Act, 1932): "Notwithstanding anything to the contrary in section 53 of this Ordinance, an advocate may make an agreement in writing with his client as to his remuneration in respect of any contentious business done or to be done by him, providing that he shall be remunerated either by a gross sum or by salary or otherwise". Do the words endorsed on the bill amount to an "agreement in writing"? I think they must be so interpreted. The wording being *in pari materia* with an English Act, English cases are instructive and, where the decision is in the Court of Appeal decisions, ought to be followed. I refer to In re Thompson, ex parte Baylis; (1894) 1 Q. B. 464, where Pollock, B., when asked to rule on a document to the following effect, signed by a client—"I hereby agree to allow the sum paid by me to him on account of costs as an equivalent of the abatement he has made to the defendants". He held this amounted to an agreement in writing. The decision was under the Attorneys and Solicitors Act. 1870, but section 4 thereof contains identical wording "an agreement in writing" and the intention of the section is the same as in section 59.

Sir George Jessel In re Attorneys and Solicitors Act, 1870, 1 Ch. D. 573, said: $-$

$\mathcal{A}_{\mathbf{1}}$ "The meaning of section 4... is that a solicitor may make what agreement he likes with his clients, but he is not to receive any payment under it unless the taxing master considers it fair and reasonable; and if he does not consider it so, he may require the opinion of the Court or Judge to be taken on it."

A similar view was expressed in Ray v. Newton, (1913) 1 K. B. 249 C. A., by Farwell, L. J. In re Jones, (1895) 2 Ch. Div. 724, Stirling, J., held that the agreement in writing need not be signed by the solicitor and was sufficient if there was an agreement in writing signed by the client only. In that case the writing was no more than: "I agree your costs in the matter of my defence, you to pay counsel's fees, witnesses fees and all other disbursements, at £75". This endorsement was held to be a good agreement within the Acts. The similarity between these words and those endorsed on the instant bill of costs is very marked and I consider I am right in holding that, even although the agreement is not signed by the advocate, it is still a valid agreement in writing within the meaning of section 59 of the Ordinance, although of course it must be signed by the client.

It follows I must explore what procedure avails an advocate who has been able to secure an agreement as to costs in writing from and signed by his client. He may make any agreement he likes with his client, but this is subject to the law relating to champerty and maintenance, some of the restrictions of which are consolidated in the Rules of Court, Part XIV-which are not affected by the Ordinance—and subject also to the agreement being fair and reasonable and subject also to allowance of the agreement by the taxing officer. I refer to section 61 of the Ordinance, viz.: $-$

"(1) If the business covered by any such agreement is business done or to be done, in any action, the amount payable under the agreement shall not be received by the advocate until the agreement has been examined and allowed by a taxing officer of the Court, and if the taxing officer is of opinion that the agreement is unfair and unreasonable, he may require the opinion of the Remuneration Committee to be taken thereon and may on receipt of such opinion reduce the amount payable thereunder, or order the agreement to be cancelled and the costs recovered thereby to be taxed as if the agreement had never been made", and (omitting sub-sections (2) and (3)),

$(4)$ Any such client as is mentioned in the last preceding sub-section who pays the whole or any part of the amount payable under the agreement without the agreement having been allowed by the officer or by the Court, shall be liable at any time to account to the person whose property is charged

with the whole or any part of the amount so paid for the sum so charged, and the advocate who accepts the payment may be ordered by the Court to $-1$ refund the amount received by him."

It is convenient also to remark section 63 of the Ordinance:-

"Subject to the provisions of the last two preceding sections, the costs of an advocate in any case where an agreement has been made in pursuance of the provisions of section 59 of the Ordinance shall not be subject to taxation nor to the subsequent provisions of this part of the Ordinance with respect to the signing and delivery of an advocate's bill."

These sections are *in pari materia* with sections 60 (5), (6), (7) and (8) and 62 of the Solicitors Act, 1932. I refer to Clare v. Joseph, (1907) 2 K. B. 369 C. A., and to Fletcher Moulton, L. J. (with reference to sections 4 to 15 of the Act of 1870, also in pari materia with the 1932 Act and the Kenya Ordinance):-

"That group concludes with a section of great importance (section 15) which provides that where an agreement has been made in accordance with section 4 and has not been set aside, the ordinary provisions as to delivery and taxation of a duly signed bill of costs are no longer to have effect. This gives to a solicitor who comes under this group of sections an advantage not previously given to him. In my opinion section 4 only prescribes the mode in which the solicitor can obtain for himself (and I think also in which the client can obtain for himself) the benefit of a group of sections from section 4 to section 15. If either the solicitor or the client wants the privileges which these sections give him, he must comply with the requirements of section 4 and must have an agreement in writing, but if he does not want the benefit of these sections, section 4 imposes no duty upon him. It is only those who wish to come under those sections who must take the steps prescribed by section 4."

Lord Alverstone, C. J., in the same case, pointed out that the Act of 1870 gave a solicitor-

"Certain rights which he did not previously possess, provided that he $_{j\rightarrow k}$ himself complied with the requirements of the Act."

In re Simmons and Politzer, (1954) 2 A. E. R. 811 C. A., Romer, L. J., was commenting upon a case where there had been an agreement in writing but the solicitors had accepted payment without first submitting the agreement to the taxing officer and said of section 60 (5) of the 1932 Act—

"It is not at first easy to discover what results were intended by Parliament to follow on a disregard of this provision, for, unlike section 60 (7) and (8) no express sanction is imposed on a solicitor for its infringement. It was suggested in argument by counsel for the solicitors that such sanction is to be found in sub-section (6) so that if payment is received without reference to a taxing officer the agreement under which it was made can be reopened, but only if there are special circumstances justifying such a course."

He then cited section 60 (6) (the equivalent of section 61 (2) of the Ordinance) and went on-

"In our judgment, the Court can reopen an agreement covering contentious business even though the agreement has been approved by the taxing officer re Stuart ex parte Cathcart, (1893) 2 Q. B. 201 C. A. In that case payment had not been received. The Act then in force was the Attorneys $\cdots$ and Solicitors Act, 1870. The application was not under section 10 of that Act (the then equivalent of section $60(5)$ ) but under section 9, which gave the Court a general power to set aside agreements which were not fair or reasonable and order taxation. This provision is now to be found in section 60 (4) of the Act of 1932. Clearly that provision cannot now be regarded as the sanction for a failure to observe the terms of section 60 (5), because it can be invoked even though approval under section $60$ (5) has been obtained. A fortiori it would seem that section 60 (6) could be invoked although approval had been obtained and the sanction therefore must be sought elsewhere. In any case, the right of a client to delivery of a bill and taxation if, and only if, he can establish 'special circumstances' seems to us to be an inadequate redress against a solicitor who acts in defiance of section 60 (5). In our judgment, the effect of disregarding sub-section (5) is to deprive a solicitor who ignores it from the privilege conferred by section 62 of the Act. That section, which is much the same in effect as the Attorneys and Solicitors Act, 1870, section 15, provides ... "

The learned Lord Justice then read the section (which is identical with section 63 of the Kenya Ordinance) and went on-

"The conclusion which we have expressed is supported by such authority" as there appears to be on the subject. Section 60 (5) of the Act of 1932 made its first legislative appearance, and in very similar language, in the form of a proviso to section 4 of the Act of 1870... During the argument our attention was directed to one reported decision in which the Court does seem to have disregarded the provisions of the proviso to section 4 of the Act of 1870. The case was re Thompson, ex parte Baylis (supra). In that case, an agreement had been made between a solicitor and his client of a kind which attracted the operation of the proviso and the solicitor had received payment under it without reference to a taxing officer. The client applied for taxation notwithstanding the agreement. The points which were dealt with in the judgments of the Divisional Court were whether the solicitor was able to rely on the agreement although he had not signed it and whether there had been 'payment' within the Solicitors Act, 1843, section 41. The Court answered both of these questions in the affirmative and declined to direct taxation of the solicitor's bill. Counsel for the client had argued (inter alia) that the agreement had not been examined and allowed by an officer of the Court. This point was not expressly noticed in the judgments, but the Court must presumably have rejected it, otherwise it could hardly have held that the solicitor was entitled to rely on the agreement and refused an order for taxation. As the Judges did not deal with the point or refer to it in any other way, we cannot regard the case as satisfactory authority for the view that a solicitor can disregard section 60 (5) with impunity, and such a view seems to us inconsistent with the expressions of judicial opinion which we have already cited and with a proper reading of sections 57 to 62 of the Act as a whole. In our opinion, a solicitor can rely on section 62 of the Act of 1932 and claim the privileges it confers, only if he has duly observed the requirements which the earlier sections impose. It follows that as the solicitors in the present case, in purported pursuance of the agreement which they have sought to establish, received payment of the sum due thereunder without first submitting the agreement to the taxing officer for examination and allowance by him they are disabled from claiming immunity from taxation under section $62...$

The effect of these judgments cited is to make clear that the legislature intended to confer a privilege upon advocates by enacting sections 59 to 64 of the Ordinance. What sanction follows from a disregard of section 63? An advocate is not ex lege compelled to enter into an agreement with his client for payment of his costs for contentious business still less is his client. But presumably an advocate may contract for more than a taxing master might conceivably allow

at a taxation. Indeed this possibility appears in section 59 of the English Act of 1932 .and although omitted from section 59 of the Ordinance the omission is not necess,arily restrictive. The advocate is merely invited to partake of a privilege afforded to him by the . Jaw, always assuming his client is willing to enter into such an agreement in writing. If the advocate elects to invite his client to enter into such an agreement or, as often may be the case, the client tenders an agreement acceptable to the advocate, then and then only, the relevant sections of the Ordinance come into effect. One effect is that no action can follow upon any such an agreement. But while the right of action is cut down a summary remedy is substituted. Another effect is that the ordinary rule as to taxation is abrogated. Rule JO of Part **XIV,** Rules of Court, is ousted and neither the advocate nor the client can any longer insist upon taxation until the agreement is set aside. A third effect is that the advocate is, mandatorily, enjoined not to accept payment unless and until the taxing officer of the Court has had exhibited to him the agreement and has allowed it. It is to be noted that the taxing officer is expressly bound not to tax a bill of costs and may never see a bill of costs, but merely to see the agreement and he has to form an opinion upon it as to whether or not it is fair or unfair and reasonable or unreasonable. If he forms an unfavourable opinion upon it he may refer the same to the Remuneration Committee and the Remuneration Committee is to express a view upon it and on receipt of any such view the taxing officer may order the agreement to be cancelled and the costs to be taxed. In the corresponding law in England the taxing -officer takes the opinion of the Court and it is the Court that makes the order and, with the utmost respect, I ask myself, assuming the taxing officer is in error, what remedy the aggrieved person may have? Whereas, in England, the order of the Court could be referred to the highest Courts in the land. But what effect or indeed sanction is there when an advocate elects to ignore the imperative contained in section 61 of the Ordinance and elects to accept payment without allowance of the agreement? Does he then commit a breach of professional ethics and so subject himself to the strictures of the Discipline Committee? Could the client have a title to complain or is he not estopped by agreement or must he be taken to agree only subject to the safeguards contained in the Ordinance of allowance of the agreement? The Divisional Court in *re Simmons & Politzer* (supra), examined the question of sanction in such a case. Without expressly deciding whether it was a disciplinary offence or not they came to the conclusion that to disregard the provision requiring allowance before payment Jed at least to a Joss of the privilege of non-taxation. I have not to decide the point but it would seem that if an advocate and client enter into an agreement for payment of costs of contentious proceedings and in disregard of the clear imperative requiring allowance of the agreement contained in section 61 •of the Ordinance, the advocate accepts payment from his client (who has neither applied to have the agreement set aside nor raises the issue later) and although the matter may never come to light, nevertheless, the advocate concerned is disobeying a mandatory injunction of the law relating to advocates plainly enacted .by the legislature for the protection of clients against unfair and unreasonable agreements and. an exp,ress provision of law which must be taken to be well. known to him but, conceivably, not to his client. It may yet have to be decided if such neglect renders the advocate subject to discipline or not, in the case, say, of an unconscionable agreement coming **to** }ight and wilfully concealed from the taxing officer. ·

In the result, this application is found to ,be wholly misconceived. It is an application to the Court not only not provided for by any law in force, but impliedly forbidden. There being an agreement in writing for payment of costs in contentious business, taxation, *ex lege,* is denied. The Court has, therefore, no jurisdiction to order taxation. While the Court may have an inherent jurisdiction over its officers to order taxation, it is unnecessary for me to cite authority

fo,r,. the . proposition . that, where there. is provision . by pos1t1ve law the, inherent jurisdiction. is ~ustedi the. Court, has, by positive \_h1w applicable to the. agreement, 119jurisdiction to order taxation for that jurisdiction, in the.instance, has-,been ,expressly taken away by ,the legislature. While, under rule JO of Part:,XIV, Rules of Court, the taxing officer had a jurisdiction to tax the bill of.co.sts. that jurisdiction has flown .off, w,hen the rule was ousted -by section 63 ,of- the ()rd~nance, in \_the sphere of agreement, The applicant is therefore invoking . a jurisdiction in the taxing officer which has vanished. ln any event, even if rule JO still ,applied, the application. would still be miss;onceived, since,. in my .view,, no order of the Court wa;, necessary as the law stood before the coming into force of the. Ordinance and if that law .is unaltered then the application·was, as· before., unn,ecessary. The view taken tha\ an order. of· the Court was necessary. before ther,e could, be. taxation is incorrect. No order can be made and .no taxation· is legally possible. All. that can no\V lawfully take place is that the. adv.qcates coiwe.rned must submit to the taxing master, before payment, the agreement'• for his. allowance or disallowance, under section 61. To obtain. this allowance **no** order of .the Court referring the agreement to the taxing officer is required by the-Ordinance. Further, the view entertained that the decision -in *re Shapley; Barret, Allin* & *Co. '(supra),* applied in the case of an. agreement to pay the costs. :of contentious business is erroneous.· The .decision in that case is not authoritative o,utside the sphere of non-agreement and non-contentious business. I. may: add that· in. accord with section 63 of the Ordinance the general provision' as to deliver:y of an advocate's bill signed by the advocate. is also waived oecauSe of the agreement. The application is dismissed and none of the costs thrown a-way by the application are to be charged against the client or -any of .his opponents in the relevant divorce cause.