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Decisions of the Superior Courts of New South Wales, 1788-1899

Clarke v. Fitzhardinge (1844) NSW Sel Cas (Dowling) 866; [1844] NSWSupC 1

costs, taxing - barristers, selection by attorney

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 4 May 1844

Source: Dowling, Select Cases, New Series, Vol. 2, S.R.N.S.W. 2/3468

An attorney is vested with a sound discretion as to the fitness of counsel to be retained and the measure of the fee to be given, which ought not be struck off his bill of costs unless it is outrageous or plainly extravagant.*

This was an application to the Court to order the Prothonotary to receive his taxation of Mr Fitzhardinge's bill of costs against Mr Thomas Clarke, as between attorney and client in and about divers matters in which he was employed professionally. The Prothonotary having reported to the Judges the principle on which his taxation was founded, the motion for a review was discussed at great length in the early part of the term, when the Court reserved its decision and now Sir James Dowling C.J. delivered judgment.

The Court. We have fully considered the matter of this application and are of opinion that the rule must be made absolute for referring it to the Prothonotary to review his taxation. The main objection to the Prothonotary's taxing the bill submitted to him, was that he had disallowed large sums of money actually paid out of Mt Fitzhardinge's pocket to counsel as fees, on the ground that they were not sanctioned by the client and it was broadly contended that this was an unjust principle, for that an attorney has an unbounded discretion in determining what amount of fees he will or will not give to counsel for the conduct of his client's case, and that he has in the taxation as between himself and his client a right to be allowed them as costs out of pocket, unless it be made to appear that there has been fraud or collusion. It is difficult to lay down any precise rule upon a matter of this kind. An attorney is no doubt an agent for his client for the faithful, honest and zealous protection of his rights and interests, and being more competent from his professional knowledge to judge of the merits of his client's case than the client himself, he must be vested with a sound discretion as to the fitness of the counsel to be retained and the measure of the fee to be given, not merely with reference to the standing of the advocate, but the difficulty and importance of the interests committed to his charge.

The Court cannot however, recognize the broad principle that there is to be no limit to the discretion to be exercised by the attorney in the amount of fees to be given, because it might be carried to an injurious if not ruinous extent and it would be impossible to say where it must stop. The safer rule to guide him is the discretion which he would exercise were the case his own, having regard to the magnitude of the interest at stake, the weight and standing of the advocate and the probable difficulty and labour to be imposed in the effective advocacy of the matter in issue. If an attorney has with reference to these considerations paid bona fide out of his own pocket fees to counsel to an amount perhaps startling to a successful client in the fair protection of that client's interests, whether savouring of safety against ignominious punishment, or loss of character or privation of property, we cannot but think that it would be the height of injustice to suffer him to be at the loss. It is, we think, a sound principle to lay down, that payments so made by an attorney on his client's account ought not to be struck off his bill of costs, unless they are outrageous or plainly extravagant. With this limit, that he is to be left to the exercise of such liberal discretion as would guide him in his own case, we think he ought not to be fettered by a niggard review of his bill at the instance of a client, who is perhaps from his own habits of life and pursuits, incapable of appreciating the learning, the ability and zeal and labour of his advocate. There may indeed be cases in which it would be prudent for an attorney to take the express directions of his client when an unusually large fee is proposed to be given, but in ordinary cases no man of honor and character fit to hold the important office of an attorney could be expected to consult his client upon a nice calculation of pounds, shillings or pence, what fee ought to be given to his counsel in the progress of a suit, whether civil or criminal.

There has been no impeachment of the integrity and good sense of the learned Prothonotary, but it was not unfairly urged that he is new in office and was not in the Colony during the criminal trials in which Mr Clarke and the other parties prosecuted with him, were involved. Two members of the Court have judicial knowledge of the length, difficulty and fatigue of those trials and it is possible that if our learned officer had been a spectator of the talent, learning and untiring zeal of those who brought the proceedings to a favourable issue for Mr Clarke and the other gentlemen implicated, he might have been disposed to relax the stringency of taxation of a bill placed before him for cold calculation without a leaving impression of the substantial merits of the work done and performed or the vital importance of that work to the client. We cannot help thinking therefore that with this intimation his taxation of the bill may be reviewed in a more liberal spirit without violating the conscientious desire of doing right, which it is conceded on all hands it has been his disposition to manifest. Unless therefore the fees bona fide paid out of pocket to counsel by Mr Fitzhardinge be outrageous or extravagant, we think this part of his taxation may with justice be reformed.

Having then disposed of the prominent objection to the principle of the Prothonotary's taxation, we are now to advert to smaller matters. We perceive that the Prothonotary has disallowed a fee of £5.10 paid by Mr Fitzhardinge to a gentleman at the bar, for attending a meeting of creditors to advocate the interests of Mr Fitzhardinge's clients, but which he did not attend. That matter has been satisfactorily explained to the Court. It appears that a brief with the fee in question was left with the barrister, who distinctly told Mr Fitzhardinge that if he left it he must do so at the peril of his being unable to attend during the sittings of the Supreme Court then going on; but that he would prepare himself to attend the meeting of creditors and would attend if he could. It so happened that he could not attend and another gentleman appeared, but the attorney took the chance of the other barrister being able to attend. The brief had been read and the counsel had prepared himself to attend if he could. Under such circumstances we are not aware of any professional rule which required the fee to be returned and therefore we think this disbursement ought to have been allowed on taxation; but at the same time we cannot forbear strongly discommending the principle of leaving a brief and paying a fee on the contingency of the barrister being unable to attend. It is not only injurious to the client but unfair towards other gentlemen at the bar.

The Prothonotary has disallowed several fees for consultations with counsel, on the ground of being unnecessary in his judgment, having been held on matters of minor import or on points where the knowledge of a skilful practitioner ought to have been sufficient. The Court goes along with the principle laid down by the Prothonotary that it is a highly important part of the duty of an attorney to save his client every possible expense; yet if consultation fees have been bona fide paid (and are not exorbitant) in the progress of a pending case of deep importance to a client charged with fraud and conspiracy, it may be difficult after the proceedings are ended to determine whether such consultations were really necessary or judicious. The client entrusts his interests to his attorney and if the attorney bona fide thinks it expedient to consult counsel, and has in fact paid money out of pocket, it would indeed be paid upon him to be at the loss. In reviewing this part of the bill, the Prothonotary will be guided by a more liberal view, and endeavour if he can to avoid exception on the score of strict severity of taxation. With the remaining parts of the Prothonotary's report we can find no fault.

The charge for costs made by Mr Fitzhardinge in the cases of Mrs Campbell, Mr W.P. Gordon, Mr Lockyer and Mr Scrutton have been disallowed on the ground that they were incurred without retainer and contrary to instructions from Mr Clarke. Retainer or no retainer in these cases (in the absence of any proof before the Prothonotary) is a question of fact to be determined by trial. It is no doubt a question within the province of the Prothonotary to determine, but in case of doubt like the present, we think Mr Fitzhardinge ought to be left to his action to establish Mr Clarke's liability under these heads. It was suggested that in taking his taxation the Prothonotary had by mere miscalculation disallowed or overcharged Mr Fitzhardinge with £20. If this be so, it will be a matter of easy adjustment when the bill comes again before that officer.

With these observations the Prothonotary will review his taxation, the costs of which will abide his final report.

Published by the Division of Law, Macquarie University