C. A. 1903 & SON, In re. Mayor's Court upon the scale applicable to cases where an amount of or exceeding 501. has been recovered. The appellants took objection to the taxation on the ground that, the JAMES BRIGGS amount claimed being under 501., the taxation should have been on the scale applicable to cases where an amount of or exceeding 201., but under 50l., has been claimed. On application to Phillimore J. at chambers he affirmed the decision of the master, and refused to order a review of taxation. (1) J. B. Matthews, for the appellants. The master had no power to tax the costs of the action in the Mayor's Court as between the appellants, the unsuccessful defendants in that action, and their solicitors on the higher scale applicable to actions for amounts of and exceeding 501. Rule 1 of the Mayor's Court Rules, 1890, provides that in every action in the Mayor's Court the costs shall be taxed according to the scales in the schedule to the rules, subject to the review of such taxation by one of the judges of that Court. The power of certifying for costs on the higher scale given by rule 13 of the Mayor's Court Rules, 1890, only affects the taxation of party and party costs as between the successful party and his solicitor on the one hand, and the unsuccessful party on the other. It has nothing to do with the scale of costs applicable as between the unsuccessful party and his solicitor. In the case of In re Langlois and Biden (2) Lord Esher M.R. expressed an opinion that s. 119 of the County Courts Act, 1888, which is in nearly the same terms as rule 13 of the Mayor's Court Rules, 1890, applied only to a taxation between party and party. Inasmuch as the scale of costs applicable in the case of defendants is governed by the amount claimed in the action, the defendant's solicitor must be taken to contract with his client on the terms (1) By rule 13 of the Mayor's Court Rules, 1890, it is provided that "It shall be in the power of a judge of the Court to award costs on a higher scale to the plaintiff on any amount recovered, however small, or to the defendant who successfully defends an action brought for any amount, how ever small, provided the said judge C. A. 1903 & SON, In re. that his remuneration shall be regulated by that scale, and the client to contemplate that the amounts which may become JAMES BRIGGS payable by him to his solicitor will not exceed those specified by that scale. It is submitted that the fact that, on certain grounds mentioned in rule 13, an order may be made giving the successful plaintiff costs as between party and party on a higher scale is no reason why the remuneration to the defendant's solicitor should be increased beyond that contemplated upon his retainer. It does not follow that the considerations with reference to which the judge may make the higher scale applicable in favour of the successful party as against the unsuccessful party have any application as between the latter and his solicitor. The case, for instance, may be of great importance to one party as representing a class, but not to the other. [COLLINS M.R. The decision in In re Langlois and Biden (1) seems to be against the contention of the appellants in the present case; for it was there held that the taxing officer had a discretion to allow a larger amount of costs as between solicitor and client than the amount prescribed by the scale as between party and party.] The ground of that decision was that, under the circumstances of that case, the justice of the case absolutely required that the master should have such a discretion. There the taxation was as between a plaintiff and his solicitors in a case in which the plaintiff, having recovered less than 107. in an action for 157. in a county court, was only entitled as between party and party to costs on the lower scale. The amount of court fees payable and other disbursements, which the solicitor may have to make, depend in the county court on the amount for which the action is brought, and it would be a gross injustice that a solicitor, who may have been misled by his client's statements with regard to the amount for which the action should be brought, should not be able to recover sums disbursed by him, because they would not be recoverable under the scale as between party and party. In that case, the plaintiff claiming 157., the inference would be that he and his solicitors (1) [1891] 1 Q. B. 349. C. A. 1903 contemplated that the solicitors' costs should be regulated by the scale which would be applicable if that amount was recovered. The same considerations are not applicable to the JAMES BRIGGS case of a defendant. Rule 10 of the Rules of the Supreme Court, January, 1902, is only applicable to taxation of costs in High Court actions and matters. Hohler, for the respondents. It is submitted that the scales given by the Mayor's Court Rules, 1890, are not scales for taxation of costs as between solicitor and client, and there is no procedure by means of which the appellants could have got these costs taxed in that Court. It would appear from the books upon Mayor's Court practice that, if the respondents had sued in the Mayor's Court to recover these costs, there might have been a taxation of the bill by the registrar of the Mayor's Court to ascertain the amount for which judgment should be given for them. But these costs could only be taxed at the instance of the appellants under the Solicitors Act, 1843, in the High Court. Therefore rule 10 of the Rules of the Supreme Court, January, 1902, by which a new regulation applicable to every taxation is substituted for the old regulation 29 of Order LXV., r. 27, is applicable. The scales of costs contained in the schedule to the Mayor's Court Rules appear to be scales of party and party costs, only applicable in that Court as between the parties-that is to say, as between the successful party and his solicitor on the one hand, and the unsuccessful party on the other. It is submitted that, though a master might probably in his discretion have regard to those scales in taxing as between solicitor and client, they are not strictly speaking binding upon him, and, if in his discretion he sees good reason for allowing costs on a higher scale, he has power to do so. If in such a case as this the master had no discretion, but was absolutely bound by the lower scale in taxations as between solicitor and client, great injustice might be done to a solicitor. It may often happen that a case is of the greatest importance to particular persons or a class of persons, though the amount for which the action is brought may be very small, as in the case of an action for a toll or dock dues. If the Mayor's Court scales apply to taxation as & SON, In re. C. A. 1903 & SON, In re. between solicitor and client, then it is submitted that the effect of a certificate under rule 13 is to take the case for all purJAMES BRIGGS poses out of the lower scale. Generally speaking, where, in the opinion of the judge, the difficulty and importance of the case justify an order under rule 13, the case would be one which would require care and skill on the part of the solicitor for the unsuccessful party beyond what the amount sued for might indicate. The scales in the schedule to the Mayor's Court Rules are not exhaustive: see Hall v. Launspach (1), where it was held that in cases not specifically provided for by the scales the Mayor's Court has an inherent jurisdiction to order costs. It is submitted that either the rules of the Mayor's Court with regard to the scales of costs should be construed as meaning that, if the judge certifies under rule 13, the action is taken for all purposes out of the lower into the higher scale, or else that the case is casus omissus, not provided for by the rules, and therefore one in which the master may exercise his discretion. J. B. Matthews, for the appellants, in reply. COLLINS M.R. This is an appeal from an order of Phillimore J. affirming the decision of the master upon the taxation of a bill of costs. The taxation in question was of costs of an action in the Mayor's Court as between the appellants, who were the defendants in that action, and their solicitors. Upon the trial of the action in the Mayor's Court the defendants were unsuccessful, and the judge ordered, as he had power to do under rule 13 of the Mayor's Court Rules, 1890, that costs should be payable by the defendants to the plaintiff upon the scale applicable in the Mayor's Court to actions in which a sum of or exceeding 501. has been recovered. The order so made by the judge indicates what his opinion was as to the nature and difficulty of the case, and the scale reasonably applicable to the costs of it. The appellants' solicitors subsequently sent in their bill of costs, of which the costs of the action in the Mayor's Court formed only a part. The appellants demanded taxation of that bill, and it was accordingly taxed by a master (1) [1898] 1 Q. B. 513. C. A. 1903 & SON, In re. Collins M.R. of the High Court, who, in view of the nature of the case and the certificate given by the judge, taxed the costs of the action in the Mayor's Court as between the appellants and their JAMES BRIGGS solicitors upon the scale applicable to cases in which an amount of or exceeding 501. has been claimed or recovered, as the case might be. Against that taxation the appellants appeal on the ground that the scale applied by the master was not applicable. They say that by the Mayor's Court Rules the scale upon which the costs are to be taxed as between an unsuccessful defendant and his solicitor is regulated by the amount claimed in the action, and that they ought not to lose the advantage of the fact that the amount claimed in this action was under 501. by reason of the judge's having made an order in favour of the plaintiff certifying that the case was one of greater importance than was primâ facie indicated by the amount claimed. The fact of the judge's certifying in the terms of rule 13 that an action involved some novel or difficult point of law, or that the question litigated was of importance to some class or body of persons, or of general or public interest, appears to me to indicate that the case in which that certificate is given is not one in which the scale of costs ought to be measured by reference to the amount claimed; and I think that the effect of such a certificate is to take the whole case out of the lower scale, and justify every one who has to deal with the case. afterwards in treating it as one which is not to be regulated by the amount claimed, but as having such importance that it is brought within the class of cases to which the higher scale applies. Therefore, when a master comes to tax the costs, I think that he must be entitled to treat the case as having for all purposes become one in which the scale applicable is that which applies to cases where an amount of or exceeding 501. has been claimed or recovered, unless there is something in the rules distinctly limiting the taxation in such a case by reference to the amount claimed or recovered, and prohibiting him from applying the higher scale. The counsel for the appellants was unable really to point to anything in the Mayor's Court Rules prohibiting the master in such a case from treating the case as if it had originally been what by virtue of the VOL. II. 1903. M 2 |