[1954] EACA 48

# ORIGINAL CIVIL

### Before CRAM, Ag. J.

## IN THE MATTER OF MESSRS. SHAPLEY, BARRET, ALLIN & COMPANY, Advocates

### Miscellaneous Civil Suit No. 9 of 1954

Advocates' bill of costs for non-contentious business—Advocates Ordinance, 1949 -General provisions as to Remuneration-Part VI-Civil Procedure (Revised) Rules, 1948—Order 50, rule 1—Procedure to obtain order for taxation to be by originating notice of motion—Civil Procedure Ordinance— Section 2—Application amounts to a civil suit—Order 21, rule 7 (2)—Entry of judgment incompetent on application for execution merely—Advocates Ordinance, 1949—Section 69 (2)—Procedure in application to enter judgment -Chancery and King's Bench Procedure under Solicitors Acts compared-Costs of invalid taxation.

A firm of advocates filed a bill of costs for non-contentious business in the Supreme Court Registry, in which a miscellaneous civil suit was registered intituled "Solicitor & Client Bill of Costs" followed by the names of the firm and of the clients shown as adversaries. No application was made to, nor order obtained from, the Court. The Deputy Registrar issued a notice of taxation to the clients (who did not appear at the taxation) and taxed the bill. The firm then applied for execution of the decree by attachment and sale of the client's goods. No judgment had been entered and no decree drawn up or signed. The Deputy Registrar then referred the application to a Judge in chambers.

Held $(18-6-54)$ .—(1) The proper professional designation of lawyers practising in the Colony a (1) of the Advocates Ordinance, 1949, "In the matter of A. B. & Co.,<br>Advocates".

(2) Before instituting a suit to recover an advocate's bill of costs under the common law, there is a statutory obligation to deliver a bill to the client, and the remedy is<br>suspended until after the expiry of one month from the date of such delivery by the operation of section 66 of the Advocates Ordinance, 1949.

(3) Before the Registrar can competently proceed to tax a bill of costs for non-<br>contentious business an order from the Court must be obtained under the provisions of section 67 (2) of the Advocates Ordinance, 1949.

(4) Such an order is obtained only on formal application to the Court. Such application, in the absence of rules made under the Ordinance, ought to be made by originating notice of motion supported by affidavit which must depose to the prior delivery of the bill of costs to the client and to the expiry of one calendar month thereafter without<br>payment. No such order is lawful until after the lapse of one calendar month after the<br>date of delivery of the bill to the client.

(5) An originating notice of motion is competent in terms of Order 50, rule 1, a rule prescribed by the Rules Committee and therefore falls within the definition of a "civil suit" as defined by soction 2 of the Civil Procedure Ordinance, upon which a judgment, such as in contemplated by section 69 (2) of the Advocates Ordinance, 1949, may follow and a decree may be drawn up and signed, all as provided by the Civil Procedure (Revised) Rules, 1948.

(6) The Court will not enter judgment and draw up and sign a decree merely upon an application to execute in terms of Order 21, rule 7 (2) of the Civil Procedure Rules. The procedure available at present is to make an application to the Court by motion supported by an affidavit producing the certificate of the Registrar and deposing to non-payment of the taxed amount of the bill.

(7) In the circumstances, none of the costs thrown away by the invalid filing of the bill in the Registry or by the taxation, application for execution or reference could be charged against the clients.

Cases cited: In re Porrett, (1891) 2 Ch. 433 (C. A.); Ray v. Newton, (1913) I K. B.<br>249 (C. A.); Brooks v. Mason, 1 H. Bl. 290; Blunt v. Heslop, 8 Ad. and E. 577; Browne<br>v. Black, (1912) 1 K. B. 316; Re Hulbert & Crowe (Solicit Felix, (1954) 21 E. A. C. A., 105; Solamalay v. Solamalay, (1941) 19 K. L. R. 50; In re Meister. Lucius and Bruning Ltd., (1914) 31 T. L. R. 28.

Solicitors Acts 1843 and 1932 (in pari materia) compared.

#### Barret for applicants.

RULING.—Messrs. Shapley, Barret, Allin & Company, a partnership of Nairobi advocates, brought a bill of costs for non-contentious business done for a client into the Supreme Court Registry at Nairobi. The Registry intituled a file cover "Miscellaneous Civil Case No. 9 of 1954; Solicitor and Clients Bill of Costs" and entered the same as a civil suit in the register of suits. The sole contents of this file cover was the bill of costs. The Deputy Registrar then issued a notice, which he signed, to the effect that "the bill of costs, lodged in the Supreme Court" would "be taxed" on a certain date. On the due date, the advocates were represented but the clients were not, nor did they appear, although service of the notice was apparently effected. The Deputy Registrar then proceeded to tax the bill which was for Sh. 2,061, taxing off Sh. 107/25, and found due Sh. $1,985/75$ .

Before I continue, it is hardly necessary for me to notice that the professional designation of practising lawyers in the Colony is not "Solicitors" but "Advocates" and, in any such matter, the proper title of any such cause is, in terms of section 69 (1) of the Advocates Ordinance, 1949, "In the matter of A. B. & Company, Advocates". On the subject of title, I refer to In re Porrett (1891), 2 Ch. 433 (C. A.) and Ray v. Newton (1913), 1 K. B. 249 (C. A.).

After the taxation, the advocates applied in writing for execution of the "decree", making use of the style required by Order 21, rule 7 (2) of the Civil Procedure (Revised) Rules, 1948, i.e. Form No. 5 of Appendix D to the rules. Under the heading "Date of decree" (that being information required by the law of procedure) appears the date "6-3-54". There being in fact no decree, this date is referable only to the date of the taxation. The application holds itself out to proceed as part of a "Civil Suit in the Supreme Court" and the advocates as "decree-holders" and solemnly declares them to be "decree-holders".

At this point in the proceeding, it is, therefore, not altogether surprising that the Deputy Registrar took thought and referred the same before a Judge in chambers. At the reference, the advocates, when asked where the decree was and indeed where the judgment was—were, not unnaturally, unable to indicate either. They did, however, put forward, what, in the circumstances, may seem to be a courageous argument, that not only was the proceeding in order, but the application for execution was, in practice, one upon which automatically a judgment was entered; further, they asked for attachment and sale of the clients' goods; for costs of the application; costs of the reference and costs of the "suit". As, with respect, it seems to me that this whole proceeding is, ab initio, quite misconceived, I am unable to give effect to any of these submissions.

The bill in issue, being in respect of non-contentious business is necessarily subject to the provisions of Part VI of the Advocates Ordinance, 1949, intituled "General Provisions as to Remuneration". The appropriate commencing section is No. 66. This section and the sections next succeeding are either identical with or very like in wording to sections 65 to 69 of the Solicitors Act, 1932, which I can only assume, since they are in the whole trend of the English law on the subject, served as a model. English cases, therefore, decided under these sections or under earlier acts *in pari materia*, will be very apt in providing principles to explain the meaning of the like sections of the Ordinance.

Section 66 of the Ordinance commences: —

"(1) Subject to the provisions of this Ordinance, no action shall be brought to recover any costs due to an advocate until one month after bill thereof has been delivered in accordance with the requirements of this section".

These words are ex facie clear and unmistakable in meaning. Before instituting any suit ("suit" rather than "action" is the appropriate word in Kenya) there is an obligation to deliver a bill. As far back as 1789, in *Brooks v. Mason*, 1 H. Bl. 290, where an attorney sued for the amount of his bill, he was non-suited at the trial, delivery being required under a statute in pari materia with the present Ordinance, the circumstances being that although he had delivered his bill he had taken it back again. The Court ruled: "The bill ought to have been left with the client, as it was the intention of the statute that the client should have due time to examine the charges made by the attorney and take advice upon them, if necessary". The purpose of that statute was again judicially declared in *Blunt v. Heslop*, 8 Ad. and E. 577. The Court held: "The words being 'one month or more' we must suppose that the client was intended to have a full month after the delivery of the bill".

Then followed the enactment of the Solicitors Act, 1843, which at section 37, also imposed a restriction upon a solicitor's or an attorney's common law right to sue for his charges in respect of work done by him. Following upon that enactment, successive Solicitors Acts have reimposed like restrictions down to the present day. Similar restrictions are imposed by our own Ordinance. They were most probably put there by the legislature for very like reasons. How are these restrictions to be interpreted? In *Browne v. Black*, (1912) 1 K. B. 316, the Court of Appeal considered the effect of section 37 of the Solicitors Act, 1843. Vaughan Williams, L. J., treated the matter in these words: "Now the Act of George II interfered with the common law rights of solicitors and forbade the bringing by a solicitor of an action for his bill of costs until the expiration of one month or more after the delivery of his bill in the manner therein described". In the Divisional Court, the judgment of which was approved, Channell, J. had said: "The object of the enactment is to give the client a clear month in which to consider the items in the bill and if necessary to take advice upon them".

That action was brought by a solicitor to recover the amount of a bill of costs for professional services rendered by him to the defendant as his solicitor. The bill was not delivered one calendar month before action. It was ruled that the action was premature and was not maintainable.

These decisions have stood the test of some 40 years and have never been upset or questioned. I am of the view, therefore, that before an advocate can have recourse to his common law rights and sue upon a bill, he must first conform with the requirements as to delivery as set forth in section 66 (2) of the Ordinance. The object of the section is to deprive an advocate of any right he might otherwise have had at common law of suing forthwith on his bill, the cause of action, of course, commencing from the completion of the business.

The section is in favour of the client and entitles the client to a full calendar month after delivery in which he may consider items in the bill; take advice thereon if so advised; decide what course to take; make an application for. taxation, if so desired, as well as gain time within which to pay the bill. The whole intent of section 67 (1) of the Ordinance would be defeated if delivery did not suspend the remedy.

That is, if any foundation is made, in this proceeding, upon any common law right, then I must declare that in the absence of a plaint, properly instituted in accordance with Order III of the Civil Procedure Rules, following upon the lapse of one calendar month after due delivery of the bill, the proceeding appears to me null and void. I feel I must so rule, the submissions are so nebulous, even if *ex facie* of the proceedings no remedy at common law appears to have been invoked.

But what is before the Court in this instance? It seems to me that the advocates have endeavoured to make use of section 67 (2) of the Ordinance. They have put a naked bill into the Registry and, no doubt, they intended that the bill should be taxed. If, indeed, this bill was lodged purporting to make use of the provisions of section 67 of the Ordinance, how ought the proceeding to have been initiated? Looking at section 67 (2), it is seen to envisage a taxation on notice; but it further enacts that the taxation must proceed upon an order. An order of whom? It says an order of the Court. How is such an order obtained? It says upon an application. Upon what sort of application? The Ordinance, the rules made under it and the Rules of Court are alike silent on the procedure to be followed or the form of the application. Nevertheless, an application is statutorily required; but advocates have a statutory right to taxation of their bills of costs, the Court will not proceed to make an order without an application and in my view a bare bill lodged into the Registry is not a sufficient compliance with the requirements of the Ordinance. The order of the Court is lacking. Has the Registrar power to make such an order? I do not think so.

I refer to Ray v. Newton (supra). Hamilton, L. J., said: "... and there is Mr. Newton's application for taxation of the plaintiff's bill of costs, which involves as a first step delivery of their bill of costs in order that it may be referred to taxation". In that case Mr. Newton, who was a solicitor, at least had made an application. What he had failed to do, prior to so doing, was to deliver a bill to his client. Farwell, L. J., said: "Under the statutory jurisdiction the solicitor is bound to render a bill of costs to his client and his client is entitled to have the bill delivered ..."

After that decision, I need hardly refer to Re Hulbert & Crowe (Solicitors), (1894) 71 L. T. 748, where it was held that the solicitors were not entitled to a common order to tax as the bill had not been properly delivered. To explain a "common order" in Chancery practice, the application was made by a petition of course, such a petition which, under the very old practice used to be dealt with by the secretary of the Master of the Rolls. Order 52, rule 18 of the Rules of the Supreme Court taking notice of that practice, substituted a power in the registrars of the Court of Chancery to make an order on the petition, referring to taxation. How restricted that power was is revealed in the decision in In re Porrett, (1891) 2 Ch. 433 (C. A.) where it was ruled that even the district registrars of Liverpool and Manchester had no such power. I mention this in case it may be thought that any such power is given to or can be imported to the Registrar of the Supreme Court, here. No such power is given. Petitions of course are all but unknown to our law of procedure.

According to the Court of Appeal, per Lindlev, L. J., the decision in In re Porrett, was considered of importance to solicitors. It ruled that, as the order obtained from the registrar was incompetent, the reference to taxation was also incompetent, being without jurisdiction. Once again, Mr. Porrett, who was a solicitor, on much stronger ground (he had at least applied) than the advocates here, had his application dismissed. What I wish to make plain is that the acceptance by the Deputy Registrar of the bill and his taxation of it cannot in any sense be equivalent to a substantial compliance with the requirements of section 67 (2), being without jurisdiction, which section also plainly envisages the running of one calendar month after delivery of the bill before any application for taxation can be made. The grounds for this are so obvious that I apologize for mentioning that if the client pays the bill there will be no need for taxation. so why should he be made liable for additional cost? Equally, as in the case cited, I consider this application a matter of importance to advocates. At this stage too, I should make it plain that the provisions of section I of Part XIV of the Rules of Court in Vol. 5, Laws of Kenya, cannot affect the issue, since that section deals with bills arising from contentious business only.

Examining once more English practice: in the King's Bench Division, applications for order for a reference to taxation are made on an originating summons before a master; and in the Probate, Divorce and Admiralty Division to a registrar in terms of Order 54, rule 12, of the Rules of the Supreme Court. The difference between Chancery and the King's Bench practice is that the petition of course, permitted by the former, is *ex parte*, whereas the summons is on notice to the client. The order is made by a Registrar in the Chancery Division under the provisions of Order 62, rule 18. But that Order specifically devotes itself to the functions and duties of the Registrars in the Chancery Division. Nothing of this procedure is in the least adaptable to Kenva, and our Ordinance clearly envisages an application to a Judge. I note too that in the County Courts, applications of this sort are made, simply by an originating application. The common ground that can be extracted from English practice is that in every case of a reference to taxation under section 66 of the Solicitors Act, 1932, the reference follows upon an order and the order upon a formal application. The formal applications (of every sort) contain a declaration of one kind or another that the bill which is sought to be taxed has been duly delivered to the client.

Unless and until rules of procedure on this topic are made by the rulemaking body in terms of section 74 of the Advocates Ordinance, a practice direction will require to be formulated by this Court to give effect to the statutory right to taxation provided by section 67 of the Ordinance.

I have had the advantage of reading the decisions of the Court of Appeal for Eastern Africa in Mansion House Ltd. v. Wilkinson, (1954) 21 E. A. C. A. 98, and Saint Benoist Plantations Ltd. v. Felix, (1954) 21 E. A. C. A. 105, which deal with the procedure to be adopted where, by Ordinance, a right to apply to 'he Court is given but no specific procedure has been laid down by rules. The importance of the latter decision is very great, for it marks a departure from Indian procedure followed by this Court in Solamalay v. Solamalay, (1941) 19 K. L. R. 50 (which the latter decision overruled) and a change and an acceptance of English procedure. Both judgments in the Court of Appeal were delivered by Briggs, J. A., and the latter judgment is the logical decision of the question left open in the former; the question being whether the decision in Solamalay v. Solamalay was correct. It was submitted in all those cases that, in Kenya, there is no procedure by originating motion and that proceedings instituted thereby must be irregular and possibly a nullity.

In Solamalay's case it was held that Order 48, rule 1 (Now Order 50, rule 1) of the Civil Procedure Rules applied only to interlocutory applications and not to original proceedings; accordingly, there being no procedure prescribed by local legislation, under Article 4 (2) of the Kenya Colony Order in Council, 1921, the procedure to be adopted on the application for custody of an infant was that applicable in England on 12th August, 1897, which was by way of *habeas corpus* or by petition.

The learned Justice of Appeal in the Saint Benoist Plantations Ltd. case said: $-$

"It seems clear from Article 4 (2) of the Order in Council that if the local statute law provides a form of procedure for any specific proceeding that form must be adopted. It is only where no form is provided that one is thrown back on English Procedure as on the 12th August, 1897. The local provision may be in the most general terms and may require to be worked out in detail in accordance with English Practice. As regards the true effect of Order 50, it is worth pointing out that in the phrases 'originating summons' and 'originating motion' the word 'originating' stands on two different footings. 'Originating summons' is a term of art both here and in England. It refers in each case to a special and limited class of summonses, the class being different in the two jurisdictions; but 'originating motion' has no similar technical meaning. It refers merely to a motion which is not interlocutory, but originates the proceeding in question. The phrase is not commonly used in the English rules, which deal with all motions, whether originating or interlocutory, in Order 52. There is in England a general rule that where a statute provides for an application to the Court, but does not specify the form in which it is to be made, and the rules do not expressly provide for any special procedure, the application may usually be made by originating motion. Re Meister, Lucius and Brüning Ltd., (1914) 31 T. L. R. 28. In that case Warrington, J., said: '... I have no doubt myself that where an Act of Parliament says that an application may be made to the court that application may be made by motion. In the common law courts before the passing of the Judicature Act the only mode by which the court was approached otherwise than by the issue of a writ was by a motion. In the High Court of Chancery it is quite true that the summary mode of proceeding was usually by petition but I see no reason ... that in such case as the present one, where the Act merely provides for an application and does not say in what form the application is to be made, as a matter of procedure, it may be made in any way in which the court can be approached. Now there is no question about it that the court can be and frequently is approached by originating motion ... 'Briggs, J. A., continued: '... The word application does not of itself refer with any greater precision to an interlocutory, rather than an original application. In Mansion House Ltd. v. Wilkinson this Court left open the question whether the decision on Solamalay v. Solamalay was correct, but it now seems necessary to say that in our view it was not. Rules 1 to 6 of the Kenya Order are clearly modelled on the English Order 52 and the deliberate extension here of rule 1 seems to indicate that the local order should be construed liberally. Applications of many kinds which were not competent at all in 1897 can now be made, under statutory authority, to the Court. It is reasonable to suppose that the Rules Committee in 1947 desired to make provision for these. In support of the opposite view two considerations may be urged first that a suit instituted by plaint is the omnibus procedure in this country, or alternatively that original applications should be made here by petition. We think that an application should properly be regarded as something distinct from an action or suit commenced by plaint. In many cases the relief sought might be obtained by action—sometimes by claiming a declaration; but an application should in the ordinary sense be a summary proceeding, something simple and shorter than an action. As regards petitions, we do not wish to say anything which might seem to limit the jurisdiction of the Supreme Court to entertain petitions; but their disadvantages are sufficiently stressed by Lord Warrington and it is not desirable to extend their use. The practice of the Indian Courts in this respect appears to have been adopted *faute de mieux* and should not be followed here.

For these reasons we are satisfied that these proceedings were properly brought under Order 50, rule 1, by originating motion. For reasons set out at length in our judgments in Mansion House Ltd. v. Wilkinson, they resulted in a judgment and decree of the Supreme Court and not merely an order . . . ".

I am of opinion, therefore, that as there is no provision in our law of procedure for an originating summons for an order to tax, the competent method is to apply by originating motion under Order 50 of the Civil Procedure Rules. The application will have to be on notice in terms of the Order and be accompanied by an affidavit deposing that the bill lodged with the motion has been duly delivered to the client a clear month before the lodging of the application without payment. On such an application the Court could make an interlocutory order to tax and such an application would be a civil proceeding within the meaning of section 89 of the Civil Procedure Ordinance and would fall within the definition of a "suit" as defined by section 2 of that Ordinance since it follows upon rule 1 of Order 50 which is a "prescribed" rule. As a suit, a judgment would be competent and upon that judgment a decree could follow. A judgment is contemplated by section 69 (2) of the Advocates Ordinance, 1949. I consider these points find a sufficient authority in the reasoning contained in Mansion House Ltd. judgment: "If Order 50 were the fons et origo of this application it would be within the definition of 'suit' as being a civil proceeding commenced in manner prescribed by the Civil Procedure Rules". In this instance the application would find its origin in Order 50.

Form 41A of Appendix $K$ to Part V of the Rules of the Supreme Court, England, to be found at page 2704 of the *Annual Practice*, 1954, that is the form for the originating summons in the King's Bench Division, could be suitably adapted as the substance of the application. The formal order could be more or less in terms of Form 42 of Appendix K.

I may take the matter further, for I have been urged to enter judgment, and consider what happens after the Registrar certifies the amount due with the costs of the taxation. Does judgment automatically follow? I consider that this would have been a suitable case to make rules in summary procedure in terms of section 25 (2) and section 81 (2) $(f)$ (i) of the Civil Procedure Ordinance. Briggs, J. A., has already made it plain that he regards procedure by originating application, although it may fall, on occasion, within the definition of a "suit" to be a more suitable and a more summary way of achieving certain statutory remedies than by petition. On the other hand no rules have been prescribed enabling the Court to enter judgment in a summary way merely upon having its attention drawn informally to the certificate of the taxing officer. I consider therefore that, until such rules are made, a further application by motion will have to be made. It may be that the client after taxation, to avoid judgment being entered against him, execution and further costs, may pay the bill. Such payment would most probably be without the knowledge of the Court. The application would, therefore, require to be supported by an affidavit, reciting the taxation, producing the certificate and stating that the retainer was not disputed, and the non-payment of the bill of costs.

On this application judgment could be entered, a decree could follow and execution would be competent on an application in terms of Order 21, rule 7 (2).

I have now explored this application for execution far enough to reveal that it is misconceived and the proceedings a nullity from the outset. The taxation was a nullity since the Registrar had no order; there could be no order because there was no application and there could be no application without delivery of the bill. It was a misconception to treat the bare bill as an application, and a misconception to treat the filing of the bill as the institution of a civil suit or of civil proceedings. The application to execute is doubly misconceived because there was no proceeding and, all before, was a nullity, but especially because there was no judgment and no decree upon which the execution could alone proceed. To remove any remaining misconception, the Court will not treat an application for execution in terms of Order 21, rule 7 (2), as an application to enter judgment.

In the result, the application to execute is refused and the applicants will require to bear the costs thereof and all the costs resulting from filing this bill of costs in Court, from the outset, including, of course, the costs of the taxation.

Order accordingly.