Patel v Patel and Others (C.C. 3/1931.) [1932] EACA 48 (1 January 1932)

# ORIGINAL CIVIL.

### Before LUCIE-SMITH, $J$ .

## KHODABHAI S. PATEL (Plaintiff)

- MAGANBHAI O. PATEL 1. - $2.$ PUNJABHAI C. PATEL - 3. CHHOTABHAI M. RAO

## $(Defendants).$

# C. C. $3/1931$ .

Costs—Advocates—Instructions tο $oppose\\$ application $\quad\text{in}\quad$ chambers—1916 Rules.

Held (20-1-32):—That the words: "For applications, notices of<br>motion or chamber applications" in the Schedule of fees for in-<br>structions (p. 110, Consolidated O. P. R. & R., 1926) may refer<br>either to a successfu

Modera for Plaintiff.

Hogan for Defendants.

Review of taxation by Deputy Registrar.

- The ruling given by the Deputy Registrar in a previous taxation in this case was followed by him in taxing this bill. The substance of the ruling, so far as it concerns the matters now in dispute, was that there is no authority for the charge for. instructions to oppose an application. The schedule of charges for instructions was examined; the relevant one in this case was " for applications, notices of motion or chamber applications." The words "to oppose" were not included and could not in the view of the Deputy Registrar be inferred. He concluded that if it was intended to allow a fee for instructions to oppose an application the words "to oppose" would have been included, and he therefore dismissed the item for instructions to oppose the application for security with the observation that the fees allowed, apart from this, i.e., perusal of the application, Sh. 10; perusal of affidavit, Sh. 4; and attending Judge in chambers, Sh. 30, appeared adequately to remunerate the advocate for the work done.

Three months after judgment was given for the plaintiff the second defendant applied for a review, the notice of motion in respect thereof being served on plaintiff himself, although his advocates were still on record. The application was dismissed with costs which were in due course taxed. In the bill of such costs the plaintiff's advocate charged Sh. 50 for "instructions to defend," i.e., to oppose the motion to review, which the Deputy Registrar disallowed, referring to his ruling quoted above.

The plaintiff applied for a review upon which Lucie-Smith, J., ruled that the words: "for applications, notices of motion or chamber applications "may refer to either a successful applicant or a successful respondent.

FINDING.—This is an application by the plaintiff asking for the reversal of a ruling of the Deputy Registrar in disallowing an item in a bill of costs for taking instructions to resist an application. My decision in this application is based on the facts. in this particular case which are as follows: $\rightarrow$ .

Judgment in the original action was given for the plaintiff by my learned brother, Thomas, J., on 19-9-31, and plaintiff taxed his first bill of costs herein on 26-9-31, when the Deputy Registrar reserved certain points raised at such taxation and gave his ruling thereon on 30-9-31.

On the 4-12-31 the second defendant gave notice of motion to review for hearing on 11-12-31. This notice of motion was served on the plaintiff himself although his advocates were still on the record. It will be noticed that some three months had then elapsed since the judgment which it was sought to review. The application was eventually dismissed with costs on the 31-12-31. The plaintiff then presented his bill of costs for taxation on 2-1-32 and it was taxed on 9-1-32. It is this taxation with which we are dealing.

Looking at the First Schedule of the Rules of Court, which is headed, "Costs in Supreme Court", sub-heading "Instructions", I find "For applications, notices of motion or chamber applications." Now I do not think it can be disputed that in practically all motions or chamber applications (unless they be ex parte) there is always an applicant and a respondent. It is to be noted following the reasoning of the Deputy Registrar as . to the word "oppose" that the quotation I have given does not state whether the fees laid down are to go to the applicant or to the respondent. It seems to me a fair inference that they are to go to the successful party whether applicant or respondent, and I am strengthened in my opinion by the ruling of the learned Chief Justice in the last paragraph of his ruling in Lakhman Bhanji v. T. Thakore, 12 K. L. R. 96.

It seems to me that were it otherwise the following state of affairs might easily arise. In September I recover judgment and in December there is an application for review. In the interim I have had a disagreement with or changed my advocates, or my advocates have only a vague recollection of the facts of the case. It is necessary to oppose the application for revision. The following may arise: (1) my old advocates may refuse to take the brief; (2) the new advocates might very well say, "We were only briefed after judgment and you must instruct us fully "; or

(3) the old advocates might say; "Three months have elapsed, our recollection is vague, and you must again fully instruct us." Are the advocates, old or new, to do this work of taking instructions gratis? I say-no. Is the respondent, if successful, to be deprived of the fees he has had to pay his advocates? Again I say no.

In my opinion the meaning of the words "For applications, notices of motion or chamber applications "may refer to either a successful applicant or a successful respondent.

The item in dispute in this taxation will be referred back to the Deputy Registrar to be taxed. No order as to costs.