Le Mesurier V. The Attorney-General

Present : Mr. Justice Wendt and Mr. Justice Middleton.

LE MESURIER v. THE ATTORNEY-GENERAL.
 
D. C, Kandy, 12,998.

[THE DEHIGAMA CASE.]

    Costs, taxation of-Crown Counsel appearing for the Crown-Fees not actually paid-Expenses of Crown Counsel-Proctor, recognition of appearance of-Objection- to taxation of costs-Expenses of witnesses not called-Materiality-Taxing officer-Civil Procedure Code, ss. 27 and 208.

    Where the Attorney-General employs Crown Counsel to appear on behalf of the Crown and disburses nothing, and incurs, no debt by way of fees, he is not entitled to charge the opposite party such fees as he might reasonably have had to pay for the services of a private advocate had he chosen to engage one, but the Crown is entitled to recover travelling expenses and batta payable to such Crown Counsel.

    A successful party is entitled to recover from the opposite party not only the expenses of witnesses who' have been actually called at the hearing, but also the expenses of all material witnesses whom it was necessary to bring. Whether such witnesses were material or not must be decided by the taxing officer.

    A party who has recognized the appearance of a proctor as representing another party to the suit cannot afterwards object to the taxation of costs due to such proctor on the ground that he had no authority to appear.

    APPEAL from an order of the District Judge (J. H. de Saram, Esq.) overruling objections raised by the plaintiff to certain items in the defendant's bill of costs.

    The material facts and arguments sufficiently appear in the judgments.

    H. J. C. Pereira (with him F. M. de Saram), for the plaintiff, appellant.

    Fernando, C. C., for the defendant, respondent.

Cur. adv. vult.

    17th December, 1906. WENDT J.-

    This is an appeal against the District Judge s ruling in review of his Secretary's taxation of costs. The plaintiff's action was dismissed, and he was condemned in the defendant's costs. The defendant (who is the Attorney-General sued on behalf of the Crown) brought in a bill made up of counsel's fees Rs.892.50, proctor's fees and stamps Rs.1,961.95, and batta to witnesses Rs.2,392.81, total Rs.5,247.26, which the Secretary on taxation cut down to Rs.4,835.71. This taxation the learned District Judge affirmed. Certain of the objections taken in the Court below were not pressed before us.

    I proceed to deal with the objections which appellant's counsel argued. The objection to the sum of Rs.168 charged as Mr. Bawa's fees was not pressed, his receipt for Rs.105 having been put in. For the same reason Rs.52.50, being fee for Mr. Fernando at the first trial, was conceded. But exception was taken to the following charges for Mr. Fernando, viz., retainer Rs.21, advising defence Rs.21, and consultation Rs.21, brief fee (second trial) Rs.105, and refreshes for 16 days Rs.504, on the ground that they had not been paid to Mr. Fernando, and were therefore not expenses necessarily incurred by defendant within the meaning of section 208 of the Civil Procedure Code.

    The facts material to this objection,. as agreed upon by counsel on both sides, were as follows: Mr. Fernando was one of the Crown Counsel, paid an annual salary by the Crown, and appeared in the case as part of his official, duties. None of the fees in question were paid to him. When the Attorney-General succeeds in any action and obtains an order for costs against his opponent, those costs are taxed, including fees for the appearance of Crown Counsel, and if the taxed costs are recovered, they are paid to the particular Crown Counsel for whose services they were taxed. If those costs are not recovered, or if the Attorney-General is not awarded costs, the Crown Counsel gets nothing for his services beyond his regular official salary. The question then is, whether in a case in which he has disbursed nothing, and incurred no deb

Click Here to Read the rest of this document