This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Trustee acting as solicitor can only charge incurred.
(s) Re Schnmrr, 1902, 1 Ch. 326; 71 L. J. Ch. 219; and tee Re Watling Tithe Redemption, 1924, 2 Ch. 123.
(t) Gould v. Staffordshire Waterworks Co., (1850) 5 Ex. 214; 19
L. J. Ex. 281.
(u) See Covington v. Met. Diit. R., 1903, 1 K. B. 231; 72 L. J. K. B. 93. And see L. C. C. Act, 1869, s. 3, as to compensation for lands in Westminster, to be settled by the high bailiff or his deputy.
(x) Potts v. Button, (1845) 8 Beav. 493.
(y) Re X., (1886) 54 L. T. 634.
(z) Re Taylor, (1854) 18 Beav. 165; and see Vipont v. Butler, (1893) L. J. Newspaper, 293.
(a) See the P. T. (Fees) Order, 1925.
(b) See the J. T. Act, 1896, s. 1.
Under the Bkcy. Act, 1914, the trustee (including the official receiver as trustee (d)) of the bankrupt's property may not, without the consent of the committee of inspection, or, where there is none, of the Board of Trade, employ a solicitor or other agent (e); but if he is himself a solicitor, he may contract to be paid a certain 6um by way of percentage or otherwise, as remuneration for his professional and other services as trustee (f), and without the consent of the Court no trustee or member of a committee of inspection may directly or indirectly make a profit out of the estate (g).
Employment of solicitor by bankrupt's trustee; where himself a solicitor.
Under the Solicitors Act, 1843, a solicitor's bill of costs, though composed entirely of conveyancing charges, might formerly, upon petition, and may now, on summons in Chambers (h), be referred for taxation.
Taxation of conveyancing costs under the Solicitors Act, 1843, s. 36.
And the Court may, under its general jurisdiction, order taxation of a bill consisting wholly or in part of conveyancing costs, if the solicitor refuse to deliver up deeds and papers in his possession except upon payment of the bill (i).
Taxation under general jurisdiction if solicitor claim lien on papers.
(c) See Wolst. & Cherry, 11th ed. vol. ii. p. 428.
(d) Re Duncan, 1892, 1 Q. B. 331; ib. 879.
(e) Ss. 56 (3) and 20 (10); and see Re Duncan, 1892, 1 Q. B. 879; 61 L. J. Q. B. 712; Re Vavasour, 1900, 2 Q. B. 309; 69 L.j. Q. B.685.
(f) Ss. 82, 83; Re Wayman, (1890) 24 Q. B. D. 68; 59 L. J. Q. B. 28; and see Re Christie, 1900, 1 Q. B. 5; 69 L. J. Q. B. 31.
(g) Rule 348 of Bkcy. Rules, 1915; Re Gallard, 1896, 1 Q. B. 68; 65 L. J. Q. B. 199; 1897, 2 Q. B. 8; 66 L. J. Q. B. 484.
(h) Sec An. Pr.; R. S. C. 1883, Ord. LV. r. 2 (15); and see generally on the subject of taxation of bills of costs, Cordery on Solicitors, 3rd ed. p. 304 et seq.
(i) Re Murray, (1826) 1 Russ. 519; Re Rice, (1837; 2 Ke. 181; as to the jurisdiction of the Court, see Re Park, (1888) 41 Ch. D. 326, 331; 58 L. J. Ch. 547; Re Brockman, 1909, 2 Ch. 170; Re Plummer, 1917, 2 Ch. 432. As to an agreement being "fair and reasonable," see Re Stuart, 1893, 2 Q. B. 201; and cf. Re Hoggart's Settlement, (1912) 56 Sol. Jo. 415.
By the Attorneys and Solicitors Act, 1870, a solicitor may fix the amount of his remuneration by agreement in writing with his client, either in respect of past or of future profee-sional services; but if in respect of business done in any action or suit, the agreement must be examined and allowed by the taxing-master before payment is made (K). The agreement, unless specially framed for the purpose, excludes any claim of the solicitor for further remuneration (L), and a provision exempting him from liability for professional negligence is made wholly void(m). The Act provides a summary mode for testing the validity or effect of the agreement, and for setting it aside, and for re-opening it after payment in specified cases (n); and, except where otherwise provided in the Act, the bill of the solicitor under such an agreement is exempt from taxation (o). The Act also enables a solicitor to take security for his future costs (p), and allows interest to be charged on disbursements by the solicitor, and also on moneys improperly retained by him belonging to his client (q).
Attorneys and Solicitors Act, 1870.
Under the Solicitors' Remuneration Act, 1881, a solicitor may still make an agreement with his client, before, after, or in the course of, the transaction of any business, that he shall be paid either by a gross sum, or by commission or percentage, or by salary or otherwise (r); and the amount agreed upon may be made to include all out of pocket expenses (s). The agreement must be in writing signed by the person to be bound, or by his agent (t), and may be sued upon, impeached, or set aside in the like manner, and on the like grounds, as an agreement not relating to a solicitor's remuneration; and if upon any order for taxation of costs it shall be objected to by the client as unfair or unreasonable, the facts may be inquired into by the taxing-master, who must certify them to the Court; and the Court may cancel, or reduce the amount payable under, the agreement (u). The above provision supersedes that made for agreements between solicitor and client by the Attorneys and Solicitors Act, 1870, in cases to which the Act of 1881 relates (x).
Agreement under the Solicitors' Remuneration Act, 1881.
(k) S. 4; Re Russell, (1885) 30 Ch. D. 114; 54 L. J. Ch. 948; Re West, 1892, 2 Q. B. 102, 106; 61 L. J. Q. B. 639. It is not necessary that the agreement should be signed by both solicitor and client; Re Thompson, 1894, 1 Q. B. 462; 63 L. J. Q. B. 157; Bake v. French, 1907, 2 Ch. 215. It need not be in writing where it is to charge nothing if the action fails, and to take nothing for costs out of any money that may be awarded to the client in the action; Jennings v. Johnson, (1873) L. R. 8 C. P. 425; Clare v. Joseph, 1907, 2 K. B. 369; Re Gundry, 1910, 1 K. B. 645.
(l) S. 6. (m) S. 7.
(n) S. 8; Rees v. Williams, (1875) L. R. 10 Ex. 200; 44 L. J. Ex. 116; and ss. 9, 10.