HYNDMAN-JONES CJ

I CANNOT agree with the view taken by the Judge in the Court below with regard to this matter, nor can I agree with the view taken by the Registrar.

The learned Judge appears to have thought that the fee should not have been included in the bill at all but Counsel for the respondents did not attempt to support the decision on that ground, and s. 1284 of the Civil Procedure Code 1907, appears to me to conclude the matter. The fee was therefore rightly brought into the bill.

The Registrar, on the other hand, was of opinion that, although the fee rightly appeared in the bill, he had no power, having regard to ss. 1314 and 1321 of the Code, to do otherwise than disallow it. But these sections are inapplicable to the case, s. 1314, because its provisions clearly cannot apply to a solicitor and client taxation in cases where a party to a suit has lost his case, s. 1321, because this fee was not strictly a retaining fee but rather in the nature of a hearing fee paid Mr. Carver for arguing the case in Court during the trial.

This being so the question arises as to what this Court should now do.

Mr. Upcott, for the respondents, contended that although the fee was rightly brought into the bill, it was a disbursement and not taxable; but as I understand the word, a disbursement means money which a solicitor has expended on behalf of his client; whereas this fee was not money expended by Messrs. Donaldson & Burkinshaw on behalf of Shaik Sahied; but, on the contrary, it was a few paid to them by Shaik Sahied for Mr. Carver's services, and placed by them to the credit of their firm. Mr. Upcott also relied upon the case of In re Harrison [1886] 33 Ch. Div. 52.

That case was analagous to the present one inasmuch as it was, like the present case, a taxation as between solicitor and client by a client who had lost his case. It was also an illuminating case inasmuch as it dealt with the duty which a solicitor owes his client before plunging him into extraordinary expense, viz., to inform his client clearly of the position and advise him that he might not recover the extraordinary expense on a taxation between party and party.

The foundation of the decision of the Lords Justices was knowledge by the client of the position, a knowledge which, if the client had it not, the solicitor is bound to give him.

In the case of In re Harrison it was just because the client had this necessary knowledge that the leader's fee was sent to the Registrar for taxation; whereas, with regard to the juniors' fees, inasmuch as the client had not the knowledge which the solicitor ought to have given him those fees were allowed to stand as they had been reduced by the Registrar in accordance with the provisions of Order 65 r. 27 (48).

Judging from the observations made by the Lords Justices I am disposed to think that if they had to deal with the case before us this $100 fee would not be allowed at all, on the ground that Messrs. Donaldson & Burkinshaw never informed Shaik Sahied that he might not be able to recover it on a party and party taxation.

My learned brothers are, however, of opinion that the right course will be to refer the matter to the Registrar for him to deal with the fee and allow it or such portion of it as he may consider fair and reasonable; and as it appears that Shaik Sahied himself requested the services of Mr. Carver and voluntarily paid the fee demanded for them, and himself consented to Judgment being entered against him, I do not propose to dissent form the view taken by the majority of the Court.

SERCOMBE SMITH J

On the 20th June 1910, it was ordered under s. 151 of the Courts Ordinance 1907 that the bills of costs delivered by messrs. Donaldson & Burkinshaw to the present appellant should be taxed as between solicitor and client.

On the 11th July 1910 the Registrar decided that a fee of $400 paid by the appellant to Messrs. Donaldson & Burkinshaw must be brought into account. His reasons were: (1) that