High Court 

In Re The Attorneys and Solicitors (Ireland) Act 1849; 

Aegon Insurance Company (UK) Limited v Liam Lysaght Carrying on Practice under the style and Title Liam Lysaght & Company, Solicitors

1998/170 SP 

6 August 1999 

MACKEN J: 

This matter comes before me by way of a Special Summons issued on the 20 April 1998, by which the Plaintiff seeks declarations that the Bill of Costs dated the 28 February, 1996 and furnished by the Defendant to the Plaintiff for payment, was not a Bill of Costs within the Attorneys and Solicitors (Ireland) Act, 1849 and did not comply with the Rules of the Superior Courts 1996. In addition, the Plaintiff seeks an Order that the Defendant's Bill of Costs be remitted to taxation, either pursuant to Section 2 of the aforesaid Act or pursuant to the inherent jurisdiction of this Court. The Defendant resists this application, on the ground that an inordinately long period of time, well in excess of the statutory period, elapsed prior to the commencement of these proceedings, or even prior to the time when the Plaintiff first sought consent to have the Bill of Costs referred to the Taxing Master. 

THE BACKGROUND 

The background to the matter is fairly readily set out. The Plaintiff is an insurance company, established in the United Kingdom, but carrying on certain business in the State which I will describe in greater detail in a moment. 

For a considerable number of years, the Defendant acted as Solicitor in Ireland on behalf of the Plaintiff. The Bill of Costs, the subject matter of this application, arose in the course of this relationship between the Plaintiff and the Defendant. 

The business of the Plaintiff is that of reinsurance. It was, together with other insurance companies (three in all) reinsurers of a professional indemnity risk undertaken by an assurance company, ICI, in respect of an Irish company, Project Management Limited. More correctly, it was the lead reinsurer of the group which together were the 97.5% reinsurers of the risk. 

Some years ago a dispute arose out of which an arbitration was commenced in respect of the alleged negligence of Project Management. The claimant was Curran Limited, and, for the purposes of this judgment, the details of the claim are not especially material. What is, however, material to this case is the following:- 

(a) The arbitration hearing was likely to be very complex and complicated, because it was estimated by the Defendant, undoubtedly with the advice or guidance of Counsel, that it would continue at hearing for a period of about 50 days; 

(b) There were two respondents to the arbitration, and it is likely therefore that the estimate as to time for a complex claim was not unreasonable; 

(c) The instructions to act commenced in or around the year 1983, although it is uncertain whether that was simply in respect of the claim, or in general; 

(d) In the course of the arbitration, there had been a "first" hearing, which dealt only with a claim by the claimant for monies due under the contract (I assume with Rohan Construction, the co-respondent to the arbitration) and in respect of which the Defendant held a watching brief; 

(e) The major but outstanding matter in the arbitration in late 1994/early 1995 was however the undetermined claim by Curran Limited in respect of damages for negligence and breach of duty, which was the expected 50 day arbitration. 

During the course of his retainer, the Defendant was paid certain sums by the Plaintiff, to which I will return in due course, since the alleged delay in the payment of these, forms part of the Defendant's claim that the Plaintiff has been dilatory and even lacking in bona fides in the manner in which it has dealt with payments to the Defendant over the years. The interim bills furnished by the Defendant to the Plaintiff were during the years 1994 and 1995. 

The Plaintiff alleges that on the 28 March 1995, it wrote to the Defendant seeking estimated cost details for the arbitration. It is disputed by the Defendant that this letter was received by him. By that latter the Plaintiff sought an estimate of (a) the total incurred costs to date, (b) the Defendant's anticipated costs up to the end of August 1995, and (c) the costs of the arbitration hearing and a potential costs award if there was an unfavourable outcome. This letter referred to the fact that at that time there was still no date fixed for the arbitration, and that the reinsurers would have to consider the possibility of a commercial settlement of the claim. 

The Defendant wrote on the 6 May 1995, making no reference to the foregoing letter, but in any event setting out some information, on the question of costs, having regard to the Points of Claim delivered in the arbitration and on the basis that the arbitration would continue for 50 days. The amount of the claim at that time was £1.820 million with continuing interest, and the costs were estimated by the Defendant at a global rate of £500,000 for each of the three parties in the event Project Management was held liable at the arbitration. There were certain discussions on possible settlement apparently in the month of July 1995, which were halted, and these resumed in September 1995. In December 1995, a settlement was reached which had, as its result, the fact that the arbitration hearing did not take place. A payment was made to Curran Limited including a contribution made by Project Management through the Plaintiff representing the reinsurers. The precise amount of the payment is not critical. 

The monies were paid in early January 1996. On the 28 February 1996, the Defendant wrote to the Plaintiff and included a note of his charges, including a Bill of Costs in total sum of £799,750.53, inclusive of Counsel's fees, outlay and value added tax, and subject to credits in respect of the payments on account referred to above. The Plaintiff, as lead insurers, then sought advice from Solicitors (now their instructing Solicitors) in relation to whether the Bill of Costs could be challenged by the Plaintiff and the manner of such a challenge. They, in turn, engaged Legal Cost Accountants, who advised in June 1996 that the professional fee sought by the Defendant was excessive and that the correct fee should be substantially less than claimed. The Plaintiff says it then sought further advice from its Solicitors as to the procedure involved in requisitioning a taxation of the Bill of Costs, and the possible consequences of adopting such an approach. The Plaintiff also says it was anxious to secure advice as to whether the estimates provided by the Defendant conferred on the Plaintiff any independent right of action against the Defendant. This was based on a claim for negligence arising from a claimed misrepresentation based on the estimate provided and the inadequacy of the same. I do not think I have to consider whether such a claim would succeed. In that regard, advice were sought by senior and junior Counsel, through Solicitors, and the advice were received some time later. 

Mr Lysaght, in his replying affidavit, points to the fact that during the course of the retainer, the Plaintiff had paid interim payments to the Defendant. He stated that it was made clear that the request for payment of such fees and expenses was on the basis that at the conclusion of the case the Defendant would submit its papers to its Cost Accountants to prepare a final account. Further, he states that the estimate made of £500,000.00 was on the basis that one party would have to pay the other party or parties, and therefore that it was clearly a figure given for party and party costs, and not for Solicitor and own client costs. 

In addition, the Defendant drew the Court's attention to correspondence, sent since the furnishing of the Bill of Costs, apart from that exhibited in the Plaintiffs affidavit. The Plaintiff, by its letter of the 6 March requested, inter alia, an explanation for the costs claimed, having regard to the estimate previously furnished. On the 5 June this letter was replied to and set out the basis upon which higher sums were now being sought by the Defendant, as well as setting out the breakdown of the payments previously made. It appears to be common case that the interim payments, certainly the large ones of £25,000.00 were paid late, and sometimes very late after the "due" dates. 

Mr Lysaght again wrote on the 17 June asking for a response to his earlier letter. Both letters were responded to on the 25 July with an indication that independent legal advice was being sought on the matter. Mr Lysaght wrote again on the 14 August indicating that he would ask all parties, on his side, to be patient for a little longer and sought a final response by the 5 September. He wrote again on the 5 September, indicating that he had been obliged to inform the parties for whom he had incurred liability that the Bill of Costs was outstanding for seven months and suggesting the level of delay was unacceptable. This letter threatened legal proceedings. On the 11 September, the Plaintiff responded and suggested that the only liability which had been incurred by the Defendant was Counsel's fees. This letter requested copies of Counsel's fees and indicated that these would be considered early. The letter repeated that legal advice were being sought in respect of the Plaintiffs fees. 

On the 19 September, separately, the Plaintiffs Legal Cost Accountants wrote to the Defendant's Legal Cost Accountants seeking access to the Defendant's papers and indicating his understanding that the matter was urgent from both parties' point of view. By letter dated the 1 October (but from its content clearly written earlier), Mr Lysaght again wrote to the Plaintiff recording Counsel's grave concern at the non-payment of fees. Neither party appears to have taken any further steps in the matter and the next letter is dated the 14 February 1997, from the Plaintiffs Legal Cost Accountant to the Defendant seeking to arrange inspection of files. It would appear that this was the last correspondence prior to the Defendant commencing proceedings on foot of the Bill of Costs, although certain interim payments for earlier work continued to be made. In addition, there was some correspondence concerning access to the Defendant's files, which the Defendant willingly gave, and short correspondence concerning the Defendant's stance on Counsel's fee, in response to a request from the Plaintiffs Cost Accountant to meet to discuss these. Among these is a letter of the Defendant to the Plaintiffs Cost Accountant dated the 19 March, 1997, indicating that in the absence of payment of the fees by the end of March, proceedings would issue. 

The proceedings which the Defendant commenced, issued in July 1997, well after the expiry of the twelve month statutory period. Prior to the issue of the present proceedings, a motion for judgment in the Defendant's proceedings had issued, returnable for the 27 April, 1998. The Plaintiff indicated in its affidavit that it was anxious to have the Bill of Costs submitted to taxation. It therefore issued the within proceedings, by Special Summons issued on the 29 April, 1998, having received an indication that the Defendant was not prepared to remit the matter to taxation or agree an adjournment of his proceedings on foot of the Bill of Costs. 

A number of issues arise for consideration. The main issues are:- 

(a) The Defendant's contention that his fees were not really queried by the Plaintiff at any time after the furnishing of the Bill of Costs up to the commencement of his proceedings on the Bill. Under this heading also there is an issue on the question whether Counsel's fees were tendered and refused 

(b) The Plaintiffs contention that the Bill of Costs does not, in any event, satisfy the provisions of the Attorneys and Solicitors Act, 1849 for certain technical reasons. 

(c) The Plaintiffs contention that the matter should be remitted to taxation notwithstanding that the period on excess of 12 months provided for under the Attorneys and Solicitors Act, 1849 has elapsed since the presentation of the Bill of Costs. 

(d) The Plaintiffs contention that the Bill should be referred to taxation despite the elapse of 12 months on the basis of the Court's inherent jurisdiction. 

(e) Whether not value added tax is payable. The Plaintiff says it is not payable, and the Defendant says it is. 

I propose to deal with these matters in sequence. 

As to the querying or not by the Plaintiff of the Bill of Costs furnished. 

It is true to say that, in strict words, the Plaintiff did not during the course of the correspondence say "We are querying the extent of your fees". However, it is very clear, in my view, that on a proper consideration of the tenor and content of the correspondence which did pass from the Plaintiff to the Defendant, the Defendant could have been in no doubt but that the Plaintiff was in fact querying the Defendant's Bill. I refer to the very first letter of the 6 March, and to the first and last paragraphs which make it clear that the contents were under review. In particular the last paragraph invited the Defendant to comment on the final account, having regard to the figure of £500,000.00 mentioned in his letter of the 6 May, 1995. I do not think there could be any doubt about the position. 

But it was also clear from the subsequent letter of the 5 July that the account was being queried, because the Plaintiff told the Defendant "We are taking independent legal advice on the submission of your final account . . ." and it seems to me that this could be for no other reason than that the Plaintiff was not satisfied it had a legal obligation to pay it, or in the alternative to pay the actual amount sought. And again, in response to a letter from the Defendant, the Plaintiff on the 11 September, 1996 stated "Insofar as your own fees are concerned, as explained . . ., we are taking independent legal advice . . . 

And on the 19 September, 1996 the Legal Cost Accountant for the Plaintiff wrote and indicated that he had been instructed to advise in respect of the Bill of Costs, and seeking access to the Defendant's papers, which access was in due course furnished, and willingly -- and in my view properly so. This could have been for no other reason than to review the amounts claimed. It seems to me, therefore, that it is not true to say that the Bill of Costs was not queried. 

As to satisfying the provisions of the Attorneys and Solicitors Act. 1849. 

I now turn to the technical point made by the Plaintiff of the Defendant's Bill of Costs, namely that it does not comply with the provisions of the Act of 1849, because the Bill of Costs is not signed in the manner required. The Act requires that the Bill be signed or that it be accompanied by a letter duly signed. This means, in my view, that for a Bill of Costs to be a valid Bill of Costs under the Act, and thereby to have the characteristics which permit the solicitor to sue for his fees in the event there is no remission to taxation, it must comply fully with the provisions of the Act. In other words, the client should be under no illusion that the Bill of Costs is the final Bill, and subject to taxation being sought, is a Bill which can be sued upon without further ado. For that reason, and in particular for the protection of the client, it must comply fully with the Act. But that does not mean that the Act must be interpreted in a wholly artificial way or in a manner which strains credulity. 

I have reservations about the appropriateness of the English cases cited. As to the Irish cases, it seems to me that the approach adopted by the Irish Courts is correct. So I now look at the Bill of Costs and see that the Bill of Costs itself is not signed. However, the covering letter -- and it is not disputed that the Bill of Costs was sent under cover of that letter of the 28 February 1996 -- does have an appropriate signature. In the circumstances, I am satisfied that the Bill constitutes a valid Bill of Costs pursuant to the Act. But even if there was doubt about it, having regard to the actions of the Plaintiff in respect of the Bill of Costs, including having its Legal Cost Accountants inspect the Defendant's documents and seeking to agree certain items and further seeking consent to taxation of the very Bill, it seems to me that if there were any doubt on this point, the Plaintiff would be stopped from raising it. 

As to remission of the Bill of Costs to taxation despite the Defendant's contention that the 12 month period has elapsed and/or pursuant to the Court's inherent jurisdiction. 

I deal with these two topics together, which are the key issues. 

The Plaintiff contends that the true meaning to be attached to Section 2 of the Attorneys and Solicitors Act, 1849 is that a Solicitor cannot sue for his Bill of Costs until after one month has elapsed from the presentation of the Bill. It says that the Solicitor's client has twelve months within which to seek taxation of the costs, and that if the Solicitor's client, in this case the Plaintiff, does not refer the matter to taxation within the 12 month period, the client can seek an extension of that time within the 12 months statutory period. And finally it says that the Court can, in any event, grant an extension of that time in special circumstances. The Plaintiff also argues that the Court in any event reserves to itself the right to refer any Bill of Costs to taxation at any time, under its inherent jurisdiction. 

While these are two related matters, in that they both concern the question of remitting a Bill of Costs to taxation, it seems to me that the issues may be quite different having regard to the provisions of the 1849 Act. It is common case that the Plaintiff did not refer the Bill to taxation within 12 months. 

The Plaintiff argues that while there was some delay prior to the time when it sought to remit the matter to taxation that delay was due, to:- 

(a) the procuring of legal advice on whether or not to seek taxation; and 

(b) the procuring of legal advice as to such recourse as it might have against the Defendant in respect of the estimate of costs given by the Defendant to the Plaintiff and says that these were good and valid reasons for the delay. 

Ultimately, the Plaintiff says that it was decided, in consequence of the advice given, that the Plaintiff should seek to have the Bill of Costs taxed, and to commence legal proceedings against the Defendant for the purposes of so doing and that these proceedings were then commenced. 

On the 3 March 1998 the Defendant, having been requested to agree to have the Bill of Costs taxed, refused to so agree. On the 3 April, 1998 the Plaintiffs Solicitors again asked and at that time raised the Question of Counsel's fees. Cheques were sent in respect of Counsel's fees, but these were rejected by the Defendant. 

A number of cases were referred to during the course of the Plaintiffs argument. It was said by Mr Rory Brady, on behalf of the Plaintiff, that under the Act of 1849 or under the inherent jurisdiction of the Court the matter ought to be remitted to taxation because:- 

(a) The sum of £750,000 sought by the Defendant in the Bill of Costs dated the 28 February 1996 was an unusually large sum for costs in a matter which had settled, having regard to the amount of £500,000 which was estimated by the Defendant as the likely cost in the event the arbitration proceeding to a full hearing and lasting for 50 days; 

(b) The Defendant was well aware that the Plaintiff had retained Solicitors to advise on the Bill of Costs as early as June 1996, as well as engaging Legal Cost Accountants, and having regard to this well knew the Bill of Costs was being queried by the Plaintiff, 

(c) The Defendant agreed in February 1997, at a time when the statutory period for the Plaintiff to remit the matter to taxation was about to expire, that inspection of his papers could take place on the 4/5 March 1997 and would be carried out by the Plaintiffs Legal Cost Accountants a date after the expiry of the 12 month period. 

(d) On the 6 March 1998 a query arose in respect of the payment of Counsel's fees. It is said by the Plaintiff that the Defendant did not reply until the month of June 1998. The Plaintiff argues that the Defendant's letter of the 28 May 1995 spoke only about Counsel's fees "in respect of the upcoming hearing in July", and not about such fees arising in any other circumstances. 

(e) When the Plaintiff received the final report of its Legal Cost Accountants, and considered the same, is still failed to persuade the Defendant to remit the Bill of Costs for taxation; 

(f) Finally the Plaintiff says that it was one of a number of reinsurers, and although the lead reinsurer, it was nevertheless obliged to consult with the co-reinsurers, and this inevitably lead to some delay in the matter. 

The Plaintiff relies on the provisions of Section 2 of the Act of 1849 and says that in the absence of remitting the Bill of Coats to taxation, the Court itself would have to undertake an adjudication of intricate matters of costs, which is undesirable. One reason why the Court maintains an inherent jurisdiction to remit, even after the statutory time scale has expired, is to ensure that the matter goes to a specialist Court. The Defendant was seeking fees plus interest plus value added tax. It was the Plaintiffs submission that, as to fees, the Taxing Master should consider these and adjudicate on them. After he has determined the amount, the interest claim should be returned to Court for determination of the question whether the Plaintiff was wrong to refuse to pay the amount demanded. In that event, the Defendant might have his costs, depending on the outcome of those proceedings. 

The Plaintiff argues that there was very little time delay after the expiry of the twelve month period, and that the delay which did occur was explicable by the above matters, reasonable in the circumstances. 

Before considering these issues, I now set out the case made in argument by the Defendant, which is this. The Defendant says that the history between it and the Plaintiff has been one of consistent delay, in the payment of monies by the Plaintiff and the other reinsurers, notwithstanding agreements which were reached in respect of those payments. 

The Defendant also argues that the sum of money which was set out by him in his letter of the May, 1995 to the Plaintiff was not in response to any request by the Plaintiff, but only coincidental in time, and that it came as the last part of a detailed report to the Plaintiff on the then status of the arbitration, and its likely future. Mr Keane, on behalf of the Defendant points to the fact that the letter does not in fact refer at all to the Plaintiffs letter of the 28 March, 1996 and says that the Defendant never received that letter. 

The Defendant further argues that the sum of money set out in the letter was a sum which he estimated would be payable by an unsuccessful party in respect of three sets of costs, on a party and party basis, and he estimated these at £500,000 per party. The Defendant has said that this was given by way of indication in the context of his recommendation that there was good reason why a commercial settlement ought to be reached in the matter. 

However, he also says that his solicitor and own client costs would always have been larger, that the preparation for the hearing of the arbitration was substantial, and he pointed to the fact that some 35 days had been spent in the course of that preparation, apart from other matters which, in effect, drove up the Bill significantly. And further he says that the payments on account were what might be called simply "ballpark" figures, in even numbers, which did not reflect the cost of the work actually done, but went somewhere towards discharging this. 

Finally, the Defendant says that as to Counsel's fees, these had been fixed some considerable period of time prior to the hearing and ought to have been paid in full. 

Mr Keane argued that the primary period laid down by the 1849 Act made it clear that the matter must be remitted within 12 months of the date on which the Bill was presented. That time limit had been in existence for 150 years. He argued that the Court was being asked to consider whether or not special circumstances existed, and said that no special circumstances could exist because the Plaintiffs Solicitors had advised of the right to have the Bill of Costs taxed as early as June 1996. Legal Cost Accountants had been retained as early as June 1996, on the admission of the Plaintiff, and therefore there could be no valid further debate on the Plaintiffs side on the matter, and this sets aside any suggestion that the Defendant should have told the Plaintiff of the right to tax. The Defendant argues that there is and has been no breach of duty arising from any failure to inform the Plaintiff, qua client, because the Plaintiff never disputed the Bill of Costs. Further, if there was any doubt about the matter, the Plaintiffs own Solicitors advised it of the right to taxation in June 1996. 

Mr Keane argued that there could be no basis for any claim in negligence, but even if it were thought by the Plaintiff that there might be such a claim, there was nevertheless an extraordinary delay. 

On the question of delay on the part of the Plaintiff and its co-reinsurers, Mr Keane said that one only had to look at the number of letters sent and the content of these, to see the frustration generated in the Defendant by the Plaintiffs failure to deal with agreements concerning payments on account and other outstanding payments, and he cited almost twenty letters in the exchanges between the parties in that regard. He argued that it was highly relevant to look at the Plaintiffs attitude before the Bill of Costs was even submitted. He said that, as to the Bill of Costs itself, it was prepared on the basis that he was obliged to spend a large number of days in Cork, including Saturdays and Sundays, preparing the matter for the arbitration hearing. Moreover, he had to engage counsel for the arbitration, about whose fees the Plaintiff said there was no serious dispute. The Plaintiff could not now be heard to say that those fees were being disputed. 

Even if the Plaintiff had no entitlement to tax the costs late, why then did the Defendant not agree to taxation anyway? The answer to this, Mr Keane argued, was that the fees included were most reasonable, whether of counsel or the instruction fee of the Defendant and it was clear from the content of the letter of the 28 May, 1995 that the sum suggested was only an estimate, and then only on a party and party basis. There was no satisfactory explanation for the real delay, namely between June 1996 and March 1997 for the Plaintiffs Legal Cost Accountant to inspect the Defendant's files. It was a further example of the ongoing and continuing deliberate delays on the part of the Plaintiff in the payment of fees. 

The Defendant claims it is entitled to rely on Section 2 of the Act of 1849, and is entitled to show that no special circumstances exist or did exist. In fact, the Defendant argues that there are special circumstances in which the Court should not permit the matter to proceed to taxation. The Defendant is entitled to proceed and seek costs in its claim. Even if the matter were to go to taxation, it would then revert back to Court as to interest under the Mellowhide v Barrow Agricultural decision. 

Mr Collins in reply suggested that the only issue of consequence is whether or not the Bill of Costs should be remitted to the Taxing Master. All other matters arise out of that. He suggested there were a number of factual inaccuracies, but that the only one of significance, so far as the actual costs are concerned, as those relation to fees for counsel. In respect of a fee of £37,324.00, the sum of 30,000 had been tendered, and in respect of a fee of £22,848.00 a sum of £20,000 was tendered. Tendering these lesser figures, which was only very insignificantly less, was not unreasonable. The figures actually claimed included a significant amount for value added tax. 

Mr Collins said that the only argument made on behalf of the Defendant was one of delay. He said, however, one must look at (a) the enormity of the Bill of Costs; and (b) the amount by which it exceeded the estimate. In the circumstances, he said, the Plaintiff cannot be criticised for the careful steps it took in the matter. 

So far as the law is concerned, all of the cases suggest that the position is quite clear. The basic entitlement to remit a Bill of Costs to taxation arises only pursuant to statute. The inherent jurisdiction of the Court to direct that a Bill of Costs be remitted to taxation is not a right in a client or solicitor but rather a power which the Court reserves to itself to ensure that, in an appropriate case, such taxation can take place. As to the statutory right, this is found almost exclusively in The Attorneys and Solicitors Act of 1849, and section 2 of that Act has remained intact and free from significant controversy for a very long period of time. The section was helpfully analysed and applied by the Supreme Court in The State (Gallagher Shatter & Co) v de Valera [1986] ILRM 3 in which that Court held, according to the judgment of McCarthy, J as follows:- 

(a) that the right to demand taxation under the Act is vested in the client. In the present case that right vests in the Plaintiff; 

(b) that right must be exercised within the statutory period laid down by the Act, namely, within 12 months of the date on which the Bill of Costs is presented, in this case February 1996; 

(c) the right, if not exercised within that period of time, cannot be extended by the client; 

(d) if the right is not exercised within the statutory period, then the statutory right to demand taxation is lost; 

(e) the Court can, however, on the application of the client, extend the time, provided that such application is made within the 12 month statutory period. 

Applying these principles, it seems to me clear that the decision of the Supreme Court is to the effect that, unless the client's right is exercised within the statutory period, it lapses. The Bill of Costs -- assuming that it complied with the provisions of the Act was presented in February 1996. The 12 month period provided for by statute concluded on or before February 1997. The Bill of Costs was not demanded to be taxed within that time by the client. Nor was any application for an extension of time made prior to the expiry date. It seems to me in these circumstances, the statutory right may not be invoked. There is, in the above case, a slight difference in dates of expiry depending on whether the Bill is paid or not but, applied to the present facts, no consideration of this arises. It could have the effect however of extending the 12 month period, in a particular case, by which an extension must be sought. 

However, the Plaintiff also invokes the Court's inherent jurisdiction to remit the Bill of Costs to taxation. In such circumstances, the Bill of Costs may be remitted, if the Court considers it proper to do so, notwithstanding that the period within which the statutory entitlement to do so has elapsed and has not been extended on application. When looking at this power, it is appropriate to consider just why it is the Court's retains such jurisdiction. It is because the statutory time limit should not be capable of being invoked to shut a party off from taxation if the circumstances are such that taxation is warranted. If it were otherwise, the Court would be deprived, in a serious manner, of being able to avoid any perceived abuse of the system by reliance being placed on the statutory time limit. That is not to say, and I do not find, any suggestion of any attempt by the Defendant to use the statutory provisions in a manner which is in any way improper. 

When the Court's jurisdiction to remit is invoked, the Court also looks to see whether the delay in failing to remit within the period provided by the Act of 1849 can be excused. In other words, it looks to see whether the reasons given for the delay are acceptable, and whether in such circumstances, it is appropriate to remit the Bill to taxation. The reasons given by the Plaintiff are clearly set out in the affidavit evidence presented. The reasons are twofold, and they are set out above. As to the first of these, it seems to me that in the ordinary course of events, Solicitors are well able and certainly regularly do, give advice on the likely consequences of remitting a Bill of Costs to taxation, particularly the financial consequences, and I find that there is little to be said for any delay by the client being caused by the necessity to seek and secure legal advice on this matter. The only delay factor which would be excusable under this heading is a short delay naturally consequent upon the retention of entirely new Solicitors on behalf of the Plaintiff. But in fact the new Solicitors appear to have given advice on the issue of the remission of the Bill of Costs to taxation within a very short period of time after becoming involved, and no case is made out for delay occurring on this basis. This was in any event well prior to the expiry of the statutory period. A more difficult question arises in respect of the delay which came about as a result of the Plaintiffs desire or need to seek legal advice on the question of the Defendant being liable in negligence in respect of the Bill of Costs tendered, having regard to the earlier estimate given. I do not think that the actual difference in the figures, nor the Defendant's claim that the earlier figure was an estimate and given on a party and party basis really makes any material difference to the delay caused by this matter. What is important is that the Plaintiff took the view, on its solicitor's advice, that Counsel's opinion should be taken on this question, and this caused or contributed to some of the further delay. Such delay as was thereby caused appears to me to be bona fide delay and excusable, although it might be said that the actual time taken to obtain the advice was on the long side, even allowing for the fact that the issue was a complex one. 

Moreover, there is a clear indication in the evidence that the Plaintiff, having retained both new Solicitors and a Legal Cost Accountant, and through its own Legal Cost Accountant, entered into some sort of discussions with the Defendant with a view to examining the files of the Defendant and with a view to coming to some arrangement in respect of certain of the fees charged. 

It is true that the Defendant makes the case that this approach was too little and too late, but that is because the time-scale involved is put forward as March 1998. That, however, does not take account of the fact that the Defendant knew from mid to late 1996 that the Bill was under consideration and being subjected to review, and could not have thought it was for any other reason than to challenge the size of the Bill. 

So, while there was some considerable delay on the part of the Plaintiff, I am not satisfied it was all inexcusable. 

I now turn to the question of the Court's inherent jurisdiction to remit to taxation, notwithstanding that the period of time allowed for by statute has expired, and even though there has been delay on the part of the client, only some of which is excusable. The rationale behind the Court retaining this power to remit to taxation is readily understandable. If there were no such power, then at any time after the statutory period had elapsed, and notwithstanding the bona fides of the delay involved or other factors, the Court would be obliged, in proceedings brought for the recovery of the sums claims, to usurp the role of the Taxing Master, and become involved in ascertaining the appropriate fees and disbursements or even be compelled to accept the Bill of Costs regardless. Where the legislature has established a system for the taxation of Bills of Costs, it is wholly inappropriate, save in the case of an appeal from the award of the Taxing Master, for the Court itself to become involved in such matters. It is a wholly different situation where the Court is, on consent, or for other good reason, prepared to measure costs. But this exercise of its power to measure costs is almost invariably undertaken in circumstances where it is undesirable and inappropriate to incur the additional cost of taxation. An example of the willingness of a Court to exercise such a power is found when the Court measures the liquidator's fees, costs and expenses on an application to Court for an order for the final dissolution of a company within a liquidation. 

In the present case, the Bill of Costs runs to many pages and is both detailed and particular. There are large numbers of items to be taxed. It would, in my view, be wholly wrong for the Court to embark on the exercise of dealing with each and every item in the Bill of Costs, which the Court would inevitably have to do, when there is available an expert in taxing matters, who can utilise his expertise to deal with the Bill of Costs, drawing on that expertise, and likely dispose of the matter in a more timely and efficient manner than could be done if the Court were to embark on the exercise. I am also satisfied that the Plaintiff always intended to challenge the Bill of Costs simpliciter having regard to the estimate given, and perhaps more important, by having regard to the fact that the arbitration settled well in advance of the hearing date. I do not have to consider the actual figures charged, but on the face of it, the figures appear to be on the high side and support the Court's concern to ensure that appropriate costs are awarded to a Solicitor. 

I am satisfied therefore that, in the exercise of the Court's inherent jurisdiction, I should remit the Bill of Costs to taxation, to be dealt with in the usual way by the Taxing Master, and I will so order. 

There are a number of ancillary matters which I also must consider at this time. As to the question of value added tax, no authorities have been opened to me on the question whether the Plaintiff is an accountable person for the purposes of value added tax or not, and I take it therefore that that matter can be resolved before the Taxing Master, or remitted back to this Court if there continues to be an outstanding issue on it. 

The next matter is the question of interest accruing on the Bill of Costs. Counsel for the Plaintiff argues that it is premature to consider the question of interest at this time, since it is unknown whether the Bill of Costs as-drawn will remain as is, or will be reduced or increased. I agree that it is premature, and in any event, interest on costs has been the subject of a number of cases and may not require further debate. In the circumstances, if an issue does arise, the matter can be brought before the Court at the appropriate time. 

Next I should consider whether there was a tendering of fees for counsel, and a rejection of the same. It seems to me that, having regard to the strictness with which cost matters are dealt with, in order to succeed in a claim that Counsel's fees were tendered and rejected, the Plaintiff would have to have tendered the entire of the fees demanded. Tendering what the Plaintiff clearly considered a reasonable sum does not comply with the requirements of the law as to tendering. In any event this item should preferably be dealt with as part of the Bill of Costs and it may be that it and many others will be agreed, and in my view the Court should not interfere with that process. 

Having regard to all of the foregoing, I will make an order directing that, pursuant to the inherent jurisdiction of the Court, the Bill of Costs of the Defendant which was sent to the Plaintiff by letter (with enclosure) dated the 28 February 1996 be remitted to the Taxing Master for taxation in the usual way. 

I will adjourn this action generally with liberty to re-enter since the question of possible interest and the question of valued added tax may arise after the taxation has been completed, and will give both parties liberty to apply.