8. Summons and Order for Taxation after the Expiration of the Month, or after the Expiration of Twelve Months and before Action brought for the Bill. These will be the same as in the two preceding forms, except that here the Master has discretionary power to restrain any action pending the reference, and to make the order upon such terms and with such directions as he may think proper. If the client apply after the expiration of twelve months from the delivery of the bill, he must prove special circumstances to the Master's satisfaction in order to obtain the order (see 6 & 7 Vict. c. 73, s. 37). The proof should be by affidavit. Matters of objection appearing on the face of the bill, such as an unusual charge of a large amount requiring explanation to justify it (Re Robinson, L. R. 3 Ex. 4); a gross overcharge coupled with non-compliance with instructions to tax (Re Pybus, 35 Ch. D. 568); a very large bill, containing a gross blunder and an extraordinary charge (Re Norman, 16 Q. B. D. 673), will generally suffice. And so will any other circumstances which may appear to the Master so exceptional as to justify taxation (Re Norman, supra). See further 1 Pract. 14th ed. 142. The existence of the relation of solicitor and client is not of itself a sufficient special circumstance (Re Elmslie, L. R. 16 Eq. 326). Nor is it sufficient to show that some of the charges would not be allowed on taxation (Re Pybus, supra); and a mere dispute as to the propriety of some of the charges will not suffice, unless they be shown to be improper; nor will mere non-payment of counsel's fees (Re Wilton, 13 L. J. Q. B. 17; Re Hastings, 30 Ch. D. 1). The mere fact that an action for the bill is pending is not a special circumstance (Cowdell v. Neale, 1 C. B. N. S. 332); and in an action for a bill delivered more than twelve months before the action, special circumstances ought generally to be shown to entitle the defendant to a taxation; but in some cases an inquiry as to specific items will be ordered (Re Park, 41 Ch. D. 326, which see as to the case of an executor being sued). 9. Summons for Taxation after Action brought for the Bill (y). Let all parties concerned attend the Master in Chambers, Central Office, Royal Court of Justice, Strand, London, on -day, the day of (y) This application is founded on the 6 & 7 Vict. c. 73, s. 37. In this case the Master has discretionary power to restrain the prosecution of the action pending the reference, at 19-, o'clock in the -noon, on the hearing of an application on the part of the above-named defendant C. D. that the bill of costs, charges and disbursements delivered to the defendant, for the recovery whereof this action is brought, be referred to the taxing officer to be taxed, and that upon the taxation the plaintiff give credit for all sums of money received by him from or on account of the defendant [here insert any special directions or conditions desired], and that the said taxing officer do tax the costs of the reference, and certify what upon such reference shall be found due to or from either party in respect of the bill and demand, and of the costs of the reference, pursuant to the statute; and that the plaintiff be restrained from prosecuting this action touching the demand pending the reference, and that upon payment of what (if anything) may appear due thereon to the plaintiff, together with the costs of the action, to be also taxed and paid, all further proceedings be stayed. (As to special terms reserving a right to dispute the retainer, &c., see No. 7.) Dated [&c., conclude as in form No. 1]. 10. Order thereon (a). [Title, &c., as in form No. 9, supra, adding below the word Division, Master, Master in Chambers]. Upon hearing [the solicitors or agents for the plaintiff and defendant, or as the case may be], and upon reading the affidavit of filed the day of, 19- [&c., add any further affidavits read]: It is ordered that the plaintiff's bill of costs, charges and disbursements delivered to the defendant, for the recovery of which this action is brought, be referred to the taxing officer to be taxed, and that the plaintiff give credit at the time of taxation for all sums of money by him received from or on account of the defendant. And it is further ordered that the taxing officer tax the cost of the reference, and certify what upon such reference shall be found due to or from either party in respect of the and to make the order on such terms and with such directions as he may think proper. If the defendant, or one of several defendants making the application, require an order without prejudice to his disputing the retainer, or to his other defence, if any, to the action, the requisition should be stated on the face of the summons, and the summons should be supported by a short affidavit stating that the retainer is disputed, or that there is a good defence on the merits, positively so, or as the defendant is advised and believes. This is necessary; otherwise the common order to tax tacitly admits a retainer and liability. The Master, on the taxation, should consider and determine all questions as to the necessity or propriety of the proceedings for which the charges are made (Re Wormsley, 39 L. T. 85). If the application is made after twelve calendar months from the delivery of the bill, special circumstances are necessary to obtain an order for taxation; see supra, No. 8. (*) It is sufficient to intitule the summons in the action only: but there seems no objection to its being intituled in the matter of the solicitor also (see Re Vallance, 8 Scott, N. R. 232). (a) This form is prescribed by R. S. C., App. K., No. 43. bill and demand, and of the costs of the reference, pursuant to the statute. And it is further ordered that the plaintiff do not prosecute this action. touching the demand pending the reference. And it is further ordered that upon payment of what (if anything) may appear to be due to the plaintiff, together with the costs of this action (which are to be also taxed and paid), all further proceedings therein be stayed. And that the costs of this application be Dated the In the old form ment within day of 19-. of order the words, "and that in default of such paydays after taxation the plaintiff be at liberty to sign judgment and order execution," were added after the word stayed in the last clause. These words might still be ordered to be included in the order, and it would be convenient that they should. They should not be used if the order is made with liberty for the defendant to dispute the retainer, or to set up any other defence to the bill. As to these terms, see No. 7. 11. Summons and Order for Taxation on behalf of a Third Party who is liable to pay or has paid the Bill under Liability. The forms may be readily framed from Nos. 6, 7, supra. The right of this party to have a taxation is founded on the 6 & 7 Vict. c. 73, s. 38. He has no right to tax except under that section (Re Jackson, 40 Ch. D. 495). The application must be supported by an affidavit showing that the party is liable to pay, or has paid, the bill, and how he is or was liable to pay it (see Re Heritage, 3 Q. B. D. 726). Sect. 38 requires the third party to show special circumstances in all cases where the client would have to show them in order to obtain an order, but authorizes the Master to take into consideration additional special circumstances applicable only to the third party. The section only applies to solicitor and client costs, and not to costs between party and party (Re Grundy, 17 Ch. D. 108; Re Coudell, 52 L. J. Ch. 246). Sect. 40 provides that a bill previously taxed and settled shall not be again referred in the absence of special circumstances. 12. Summons and Order for Taxation of Bill after Payment. The forms for this purpose may readily be framed from Nos. 6, 7, supra. See the form of order in Phillips v. Broadley, 9 Q. B. 744. The 6 & 7 Vict. c. 73, s. 41, expressly provides that payment of a bill shall not preclude an order to tax, if the special circumstances of the case appear to require it, upon such terms and subject to such directions as the Master may deem right; provided that the application be made within twelve calendar months after the payment. The section only applies where a bill has been delivered (Re Baylis, [1896] 2 Ch. 107), but it applies to an unsigned bill which has been paid (Re Sutton, 11 Q. B. D. 377). Application too late, when.]—The section expressly provides that the application must be made within twelve calendar months after payment. Under no circumstances can the application be entertained if not made within that time (Re Wellborne, [1901] 1 Ch. 312). But a client who was induced to enter into a settlement of accounts by fraud may still have a remedy by action (see Watson v. Rodwell, 11 Ch. D. 150). The time runs, in case of payment by retention of money and settlement of accounts, from the settlement (Re Bignold, 9 Beav. 270; Re Steele, 20 L. J. Ch. 562); and in case of payment by bill, note or other such security, from payment of the security, unless indeed it was taken as cash, or treated by the parties as actual payment at the time when it was given (Re Harries, 13 M. & W. 3; Sayer v. Wagstaff, 5 Beav. 415; see Re Wilton, 13 L. J. Q. B. 17; Re Boyle, 5 De G. M. & G. 540; Re Romer, [1893] 2 Q. B. 286). 13. Summons and Order for Taxation of Bill after Verdict or Writ of Inquiry executed. The forms for this purpose may be readily framed from Nos. 6 and 7, supra. The taxation in this case will only be ordered on proof to the satisfaction of the Master of special circumstances to warrant it (see 6 & 7 Vict. c. 73, s. 37). These must be established by affidavit. The application should generally be made within the time allowed for setting aside the verdict or inquiry (see per Parke, B., Re Whicher, 13 M. & W. 549). A verdict is often given in an action for a solicitor's bill subject to its taxation. If a verdict is taken subject to taxation within a given time, the defendant should get the bill taxed, and if he does not do so within the time, the plaintiff may sign judgment for the whole amount of the verdict (Tucker v. Neck, 6 Dowl. 231). It is apprehended that no order for taxation could be made after final judgment signed in an action on the bill. 14. Summons for Taxation of Bill by the Solicitor himself (b). Let C. D., of attend the Master in Chambers, Central Office, Royal Courts of Justice, Strand, London, on -day, the day of (b) This application is authorized by the 6 & 7 Vict. c. 73, s. 37, which provides for it in case no application for taxation is made by the client within the month after delivery of the bill according to the Act (see Ryalls v. Reg., 11 Q. B. 781). The application cannot be made if there has not been a signed bill delivered (see Re Pender, 2 Ph. 78). When there has been a change in a firm of solicitors, the new firm may effectually sign a bill for work done by the old (Penley v. Anstruther, 48 L. T. 664). The Act authorizes the application by the solicitor, or by his executor, administrator or assignee. It is doubtful whether that includes a mere assignee of costs (Re Ward, 28 Ch. D. 719). It may be in many cases desirable to obtain this order, for the purpose of avoiding the expense and delay of an action on the bill. The Act directs that it shall be made with such directions and subject to such conditions as the Judge shall think proper. The common order does not prevent the client from at o'clock in the -noon, on the hearing of an appli 19—, cation by the above-named A. A., that his bill of fees, charges and disbursements delivered to the said C. D. (hereinafter called the said client) be referred to the Master to be taxed, the said solicitor giving credit for all sums of money by him received from or on account of the said client, and refunding what (if anything) may on such taxation appear to have been overpaid; and that the Master tax the cost 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 paid according to the event of the taxation, pursuant to the statute. Dated [&c., conclude as in form No. 1, ante, mutatis mutandis]. 15. Order thereon (c). [Title, &c., as in form No. 2, ante, p. 7.] [Commence as in form No. 7, ante, down to the words it is ordered, and continue as follows:] It is ordered that the above-named solicitor's bill of fees, charges and disbursements delivered to (hereinafter called the said client) be referred to the taxing officer to be taxed, and that the said solicitor give credit for all sums of money by him received from or on account of the said client, and that he refund what (if anything) he may on such taxation appear to have been overpaid. And it is further ordered that, if the said client shall attend upon the taxation, 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 paid according to the event of the taxation, pursuant to the statute. And it is further ordered that the said solicitor do not commence or prosecute any cause or matter touching the demand pending the reference. And it is further ordered that upon payment by the said client of what (if anything) may appear to be due to the said salicitor, the said solicitor do (if required) deliver to the said client, or as he may direct, all deeds, books, papers and writings in the said solicitor's possession, custody or power belonging to the said client. [And it is ordered that the costs of this application be.] day of Dated the 19-. 16. Appointment for Taxation. The party obtaining the order for taxation should follow it up by obtaining an appointment from the Master for the proceeding with such disputing every item of the bill on the ground of there having been no retainer (Re Jones, 36 Ch. D. 105). (e) This form is prescribed by R. S. C., App. K., No. 42. |