Summary

Where, under s.71(3) Solicitors Act 1974, a beneficiary sought an assessment of costs charged to an estate, the court should treat the lapse of 12 months since payment of those costs before the beneficiary's application as a factor to be considered in exercising its discretion rather than an absolute bar to granting the application.

Facts

Determination of a preliminary issue arising in the claimant's ('C') appeal from a decision of Master Price on 6 November 2001 refusing the application of C, as beneficiary under the will of William Gordon McIlwraith, to have the second defendant's ('D2') costs, as incurred by the first defendant ('D1') as executor of the will, made the subject of a detailed assessment under s.71(3) Solicitors Act 1974. The master refused to direct a Solicitors Act assessment of D2's bills on the grounds that: (i) four bills rendered between 2 July 1996 and 16 December 1998 could not be referred for detailed assessment as they had been paid more than 12 months before the date of the application and were therefore excluded by s.70(4) of the Act; (ii) bills rendered on 29 April 1999 and 31 August 1999 and paid on 28 March 2000 could only be referred for detailed assessment in special circumstances, none of which existed in this case; and (iii) the application for the bills rendered on 16 December 1999 and 29 September 1999 was refused under a general discretion as the costs incurred would be disproportionate to any benefit received. The preliminary issue was whether the master should have treated the lapse of 12 months since payment before an application by a person interested in the chargeable property as an absolute bar to the application rather than a factor to which the master was bound to have regard to in the exercising of his discretion.

Held

(1) C was entitled under s.71(3) of the Act to apply to have the bills of any solicitor whose bills had been discharged out of the estate assessed. Under s.71(4), in considering an application under s.71(3), the court should have regard to the provisions of s.70 relating to applications by the party chargeable for assessment, so far as they were capable of being applied to an application made under s.71(3). Under s.70(4) of the Act there was no doubt that the power to order taxation under s.70(2) should not be exercisable on the application of a party chargeable more than 12 months from the payment of the bill. However, that was a different power to that in s.71(3) of the Act. Section 70(4), although a matter to be taken into account, was not determinative of applications under s.71(3); it was a factor to be considered in the exercising of discretion under s.71(3). (2) Accordingly there was a discretion under s.71(3). However, it was a discretion to be exercised in circumstances where the court was required to have regard that there would be no power to order the taxation of bills on the application of the chargeable party. It would therefore be for the applicant who was interested in the bill to persuade the court that it should nonetheless order a taxation at his request. Some special circumstances, such as a more timely application, would have to be shown to invoke the court's discretion.

Order accordingly.