Azimulla Saheb vs Secretary of State for India

Wilkinson, J.—This is an application to review the taxation of the defendant''s bill of coats in the above suit, to set aside the allocation of the

taxing officer, and to lay down the mode in which and the principle on which the bill should be taxed.

The suit was one by a private individual against the Secretary of State. At the first hearing the Secretary of State was represented by the

Advocate-General instructed by the Government Solicitor, and the suit was dismissed, the plaintiff being ordered to pay the costs of the Secretary

of State.

The taxing officer''s notes show that before him the plaintiff objected to defendant''s bill of costs on the ground that defendant had incurred no

costs, ""unless for the time of their officers"" (whatever that may mean). The Government Solicitor replied that the taxing officer was not at liberty to

go behind the order to tax, that costs were given as a penalty, and that it had for more than thirty years been the invariable practice of the Court to

tax Government bills of costs in the same way as other bills of costs. The taxing officer accepted the plea of the Government Solicitor and taxed

the costs as between party and party.

Mr. Norton appears for the plaintiff and argues that as Government pay the Government Solicitor a fixed monthly salary to do its legal work, the

Secretary of State, the defendant in this case, cannot be said to have incurred any costs: that as the Government Solicitor cannot recover from the

Government the items mentioned in the bill of costs, Government cannot recover them from the plaintiff, and that the principle upon which the

Court ought to proceed in fixing costs is to ascertain what was the actual damnification caused to the successful party and to award to him the sum

which he is actually out of pocket. Mr. Norton''s argument proceeds on the assumption that the plaintiff is entitled to the benefit of any arrangement

entered into by the Government with the solicitor, whose services the Government see fit to retain by the payment of a monthly salary. I do not

think that ho is. The principle applicable in cases like the present appears to be that laid down in the case relied on by the Advocate-General--

Raymond v. Lakeman 34 Beav. 584. In that case the taxing master allowed a company which employed standing solicitors at a fixed salary such

costs as the company would be bound to pay to their solicitors. It was argued before the Court that as the standing solicitors were paid a fixed

salary, the company had no right to charge the unsuccessful party more than their own standing solicitors could have charged them. The Master of

the Rolls maintained the order of the taxing master, holding that the unsuccessful party could not have the benefit of any private arrangement

between the solicitor and the company as to costs. The case appears to me on all fours with the present case. The unsuccessful party, the plaintiff,

has been ordered to pay to the defendant the costs incurred by him. The defendant asserts that costs have been incurred, by the employment of a

solicitor to receive the summons, to instruct counsel, put in written statement, etc. It is not denied that the costs, which the present defendant claims

to recover from the plaintiff, are such as any other defendant must have incurred in defending the suit and would be bound to pay to his solicitor.

But it is argued that unless the Government Solicitor proves that he can recover the costs from Government, Government cannot recover them

from plaintiff. This is entirely beside the question, which is one between plaintiff and defendant, not one between plaintiff and the Government

Solicitor, as Mr. Norton suggests. The plaintiff has no right to assume that the defendant has not expended those sums, nor is he entitled to call

upon the defendant to prove the nature of the contract between him and his solicitor. The case of Barnes v. Attwood 5 C.B. 164 is not really in

point, as there the taxing officer had been induced by false affidavits to allow a larger sum as expenses to Commissioners than had actually been

paid. It is true that Mr. Norton''s whole argument proceeded on the assumption that the bill of costs put in by the defendant in this case represents

absolutely fictitious transactions as between the Government Solicitor and the Government. But it is unnecessary to consider that question. The

only question is, has the defendant incurred any, and, if so, what costs? The answer is, the defendant has employed a solicitor, who has done

certain acts and is entitled to charge for his time and work, and the defendant is liable to remunerate the solicitor. Whether Government chooses to

do by a fixed salary and whether the costs, if recovered, go to the Government Treasury or into the solicitor''s pocket, is not a matter into which

the taxing officer is competent to enquire.

The petition must be dismissed with costs.