3. Affidavit in Support. The application should be supported by an affidavit verifying the agreement, showing that the work has been done and that the solicitor is entitled to be paid under it, or stating the grounds for applying to set it aside. SECTION III. DELIVERY AND TAXATION OF BILL BETWEEN SOLICITOR AND CLIENT (g). 1. Summons to obtain Order for a Delivery of Bill of Costs (h). In the High Court of Justice. King's Bench Division. In the matter of A. A., gentleman, one of the solicitors of the Let A. A., of Office, Royal Court day of 19-, at o'clock in the -noon, on the hearing of an application on the part of C. D. [or E. E., executor or administrator of C. D. deceased] that the said A. A. may be ordered within [seven] days to deliver to the said C. D. [or to E. E., executor or administrator of C. D. deceased] or to N. S., his solicitor, a bill of costs in all causes and (the solicitor), attend the Master in Chambers, Central of Justice, Strand, London, on day, the Thomas, [1893] 1 Q. B. 670). Even when the business was done in a police-court or at quarter sessions (Re Jones, [1896] 1 Ch. 222). They cannot, however, be taken until some money is payable under the agreement (Re Att. and Sol. Act, 1870, 1 Ch. D. 573). Sect. 8 does not prevent the solicitor from bringing an action for any breach of the agreement other than the non-payment of the agreed remuneration (Rees v. Williams, L. R. 10 Ex. 200). Sect. 10 provides that agreements may be re-opened, after payment, in special cases. Sect. 11 prohibits the purchase by the solicitor of the interest, or any part of the interest, of his client in any contentious proceeding, and any stipulation for payment only in the event of success in such proceeding. Sect. 12 provides that contracts void in bankruptcy shall be invalid. Sect. 13 provides for the cases of death or incapacity of the solicitor. Sect. 14 relates to a change of the solicitor after the agreement has been made, but before the business has been concluded; and sect. 15 exempts these agreements from taxation, except in the manner provided by the Act. (7) An application for an order for delivery or taxation of a bill is made under the Solicitors Act, 1843 (6 & 7 Vict. c. 73), ss. 37 et seq. It should be by originating summons to a Master at Chambers. It should not be made in the King's Bench Division, unless the bill relates wholly or in part to business transacted in that Division (Re Pollard, 20 Q. B. D. 656). The title given in the forms is that prescribed by the above statute (s. 43). The Solicitors Remuneration Act, 1881 (44 & 45 Vict. c. 44), does not affect the costs in any action or contentious business, and it is therefore unnecessary to deal with it in the present work. (h) Sect. 37 of the above statute expressly empowers the Court or a Judge to order delivery of the bill in cases where an order can be made for taxation. But there is power to order delivery of a bill which could not be ordered to be taxed (Duffett v. McEvoy, 10 App. Cas. 300; Re West, [1892] 2 Q. B. 102, 108; Re Baylis, [1896] matters wherein he has been concerned for the said C. D., and to give credit therein for all money received by him from or on account of the said C. D. [The summons may be confined to a bill for business done in a particular action or matter, or for business done during a specified period.] Dated [&c., as in form No. 2, ante, p. 5 (including the NOTE).] 2. Order thereon. [Title, &c., as in preceding form, adding below the word Division, Master, Master in Chambers.] Upon hearing the solicitors [or agents] for C. D. [or E. E.] and for A. A., and upon reading the affidavit of filed this day of 19-: It is ordered that the said A. A. do within seven days deliver to the said C. D. or to his solicitor [or to E. F., executor or administrator of C. D. deceased] a bill of costs in all causes and matters wherein he has been concerned for the said C. D., and that he give credit therein for all moneys received by him from or on account of the said C. D. [The order may be confined to a bill for business done in a particular action or matter, and not for all business, or it may be for business done during a specified period, or the like.] Dated 3. Summons for Delivery of Bill upon the Executors, or Trustee, of a In the High Court of Justice. King's Bench Division. Solicitor (i). In the matter of A. A., gentleman, one of the solicitors of the Let E. E. [executor, or administrator, or trustee of the property of A. A., a solicitor, now deceased, or bankrupt], or his solicitor or agent, attend [&c., conclude as in form No. 1, mutatis mutandis.] 2 Ch. 107, 112). The statute does not limit the time for making the application, and it may be made at any time, even after payment of the bill (Re Baylis, [1896] 2 Ch. 107; Tanner v. Lea, 4 M. & Gr. 617; Re Morris, 27 L. T. 554), and though twelve months have elapsed since such payment. Such an application, however, if made after a great lapse of time, would probably be refused (see Re Vann, 15 C. B. 341). The Master may require an affidavit making out a prima facie case to the right to a delivery of the bill, and this more particularly where the application is by a party not directly chargeable with it. The order should, as a rule, name a time (such a time as is reasonably necessary) for the making out and delivery of the bill. If the application be made after payment of the bill, and in due time, the order should be for the delivery before the expiration of twelve months after such payment, otherwise it will be inoperative for the purpose of obtaining a taxation, an order for which cannot be made after that time. The order requires the solicitor to give credit for all sums of money which he may have received from or on account of his client. It would seem, from the wording of the 37th section, that an order for delivery and taxation cannot be obtained under one summons. The practice is to make separate orders for each. () The 6 & 7 Vict. c. 73, s. 37, empowers the Master to make an order in this case. 4. Summons for the Delivery of Copy of Bill on the Application of a Third Party liable to pay it, or who has paid it under Liability (k). [Title, &c., as in form No. 1, ante.] [Commence as in form No. 1, ante, to the word order, and continue] that he do within [seven] days deliver to G. H. a copy of his bill of costs in all causes and matters wherein he has been concerned for A. A. [or all business done by the said A. A. in the matter of -], and that he do give credit therein for all sums of money received from or on account of the said A. A. Dated - [&c., conclude as in form No. 1, ante.] 5. Order thereon (k). [Title, &c., as in form No. 2, ante.] [Commence as in form No. 2, ante, to the word ordered, and continue] that the said A. A. shall within days deliver to the said G. H. or Mr. —- his solicitor, a bill of costs in the action of E. F. v. I. K. [or in the matter of or as the case may be, stating shortly the subject-matter of the business, or a bill of costs for all business] in which he has been concerned for the said C. D. as a solicitor, upon payment by the said G. H. to the said A. A. of the costs of the copy of the bill so to be delivered (1). Dated (k) This application may be made under the 6 & 7 Vict. c. 73, s. 40; see also sect. 38. It should in general be supported by an affidavit, shortly showing that the party is liable to pay or has paid the bill, and how he is or was liable to pay it. To bring a party within the provisions of the Act he must be directly or indirectly liable to pay or contribute to the payment of the bill, although not chargeable with it, or he must have paid it under such liability. It does not extend to a mere volunteer, who, without liability, pays it (Sayer v. Wagstaff, 5 Beav. 415; Re Carew, 14 L. J. Ch. 100). Nor does it extend to parties who are merely interested, or remotely interested, in the payment or taxation (see Re Becke, 5 Beav. 406; Re Stephen, 2 Ph. 562; Re Taylor, 18 Beav. 165; Re Leadbitter, 10 Ch. D. 388; Re Barber, 14 M. & W. 720). The enactment extends, it seems, to a member of a railway or other joint-stock company, though he was not the party chargeable with the bill (Er parte Bass, Re Stephen, 17 L. J. Ch. 219; 2 Phill. 574). A mortgagor may obtain an order for delivery and taxation of the mortgagee's solicitor's bill (see Re Carew, 8 Beav. 150; Re Bracey, Id. 338; Re Fyson, 9 Id. 117; Re Bignold, 9 Id. 269; Re Gabriel, 10 Id. 46; Re Phillpotts, 18 Id. 84; Re Fisher, Id. 183). So may a surety for the solicitor's bill against the principal (see per Lord Cranworth, V.-C., Re Vardy, 20 L. J. Ch. 325; Blagrare v. Routh, 26 L. J. Ch. 86). (7) The payment of these costs must be part of the terms of the order (see 6 & 7 Vict. c. 73, s. 40). 6. Summons for Taxation taken out within a Month after Delivery on behalf of the Client (m). [Title, &c., as in form No. 1, ante, adding to the title: "In the matter of the taxation of costs."] [Commence as in form No. 1, ante, to the word application, and continue] on the part of A. D. (hereinafter called the applicant) that the bill of fees, charges and disbursements delivered to the applicant by the above-named solicitor be referred to the Master to be taxed, and that the said solicitor give credit for all sums of money by him received of or on account of the applicant, and refund what (if anything) he may on such taxation appear to have been overpaid (n), and that the Master do tax the costs of the reference, and certify what shall be found due to or from either party in respect of the bill and demand, and costs of the reference to be charged (if payable) according to the event of the taxation, pursuant to the statute (0), and that the said solicitor do not commence or prosecute any action or suit touching the demand pending the reference (p), and that upon payment by the applicant of what (if anything) may appear to be due to the said solicitor, the said solicitor do deliver up to the applicant, or as he may direct, all deeds, books, papers and writings in the said solicitor's possession, custody, or power, belonging to the applicant (g). [If the retainer be disputed, or there be any other ground for denying the liability to the whole or any portion of the bill, an affidavit should in general be made (#) This application is founded on the 6 & 7 Vict. c. 73, s. 37, which provides that the taxation in such a case shall be ordered to be made without any money being brought into Court, and that the order shall restrain the solicitor, or his executor, administrator or assignee, from commencing any action or suit touching his bill, pending the reference. The order for taxation in such a case, i.e., where the application is within the month, is as of course, and the Master has no discretion in the matter (Re Pender, 2 Phill. 77). If there be several parties chargeable, all should in general join in the application. Where several parties have given separate retainers, any one of them may apply, but a direction will generally be given that the others be communicated with for the purpose of being joined as applicants or respondents, if they can be found (see Re Salaman, [1894] 2 Ch. 201). When the client of a solicitor becomes bankrupt and the solicitor does not prove for the amount of his bill of costs in the bankruptcy, the trustee cannot obtain an order to tax without giving an undertaking to pay the whole amount of the bill (Re Elmslie, L. R. 9 Eq. 72). (#) These clauses as to giving credit and refunding are generally introduced into all orders for taxation. (0) See 6 & 7 Vict. c. 73, s. 37 ; Re Woollett, 12 M. & W. 504. (p) These terms as to the taxation of the costs of the reference to tax, and as to the restraint of an action or suit pending the reference, are required by the 6 & 7 Vict. c. 73, s. 37; as to the latter, see supra, n. (h). (g) In making an order for taxation, it is discretionary whether or not to add the order for delivery up of papers (Ex parte Jarman, 4 Ch. D. 835). Under the common order to tax it is the practice for the Master to strike out items barred by the Statute of Limitations (Budgett v. Budgett, [1895] 1 Ch. 202, 214); but they will be taxed if the object of taxation is to ascertain the amount for which the solicitor has a lien for papers (Curwen v. Milburn, 42 Ch. D. 425), or if special directions to tax them are given (Budgett v. Budgett, supra). shortly stating the facts to make out a primâ facie case, showing a right to dispute the liability, and the summons and order should reserve the right to question it (r).] Dated [&c., conclude as in form No. 1, supra]. 7. Order thereon (s). [Title as in forms Nos. 2 and 6, ante.] Upon hearing the solicitor for C. D. (hereinafter called the applicant) and for A. A., and upon reading the affidavit of, filed herein the day of 19: It is ordered that the bill of fees, charges and disbursements delivered to the applicant by the above-named solicitor be referred to the taxing officer to be taxed, and that the said solicitor give credit for all sums of money by him received of or on account of the applicant, and that he refund what (if anything) he may on such taxation appear to have been overpaid. And it is further ordered that the taxing officer tax the costs of the reference, and certify what shall be found due to or from either party in respect of the bill and demand and of the costs of the reference, to be charged (if payable) according to the event of the taxation, pursuant to the statute (t). And it is further ordered that the said solicitor do not commence or prosecute any cause or matter touching the demand pending the reference (u) And it is further ordered that upon payment by the applicant of what (if anything) may appear to be due to the said solicitor, the said solicitor do (if required) deliver up to the applicant, or as he may direct, all deeds, books, papers and writings in the said solicitor's possession, custody or power belonging to the applicant (v). [And it is ordered that the costs of this application be -.] Dated the day of 19. [If the order reserve the right of the client to question his liability to the bill on the ground of his not having retained the solicitor or otherwise, insert the reservation as thus: reserving to the said C. D. his right (if any) to dispute the retainer of the said A. A. (x).] The printed form of order has indorsed on the back of it the form of certificate, post, p. 16, in blank. (2) Without such reservation the order will preclude the client from disputing the retainer as to the extent of the whole bill; but he may still dispute it as to particular items or heads of charge in the bill (Re Herbert, 34 Ch. D. 504; Re Jones, 36 Id. 105; Re Frape, [1894] 2 Ch. 290). (s) This form is prescribed by R. S. C., App. K., No. 41. (t) See n. (o), ante, p. (9). (u) See n. (p), ante, p. (9). (v) See n. (q), ante, p. (9). (x) See n. (r), supra. |