COMMONS AMENDMENT (Hansard, 18 July 1967)

§ THE LORD CHANCELLOR

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 6. This is an Amendment to Clause 9. The Table have never really got into my head what the position is in a case like this. This clause was, of course, a part of the Bill, the Bill being a Bill which started in your Lordships' House; and when it left here and went to another place this clause was left out for privilege reasons, because it dealt with money. So technically, I suppose, when the Bill arrived in another place there was no Clause 9 in it. But by an extraordinary coincidence the clause which they put into the Bill was exactly 223 the same as the clause which your Lordships had considered here. What they have done is to make an alteration in what one might call their first draft.

The effect of the Amendment is to enable a solicitor or counsel to elect for taxation in lieu of any fixed costs which may be prescribed by rules of court without being at risk if he receives no more on taxation than he would have received by way of fixed costs. As passed by your Lordships the clause provided that in these circumstances the cost of taxation would be disallowed. The proposed costs sanction was criticised in another place as niggling and unjustifiable, and it was said to be unprecedented. It is true that there is no exact precedent for a sanction of this kind in relation to fixed costs, but under the Solicitors Act 1957 and the Rules of the Supreme Court and the County Court there are provisions for the disallowance of the costs of taxation where on the taxation of a bill as between a solicitor and his own client, or on the taxation of costs which are to be paid out of a fund other than the Legal Aid Fund, one-sixth of the amount of the bill is taxed off.

However, it has become clear that little would be gained by retaining the sanction proposed in Clause 9. The amount of the taxing fee and the costs allowed to a solicitor for attending taxation would probably amount to about £4 10s. in the average undefended divorce case in the county court, and it is unlikely that a solicitor would be deterred by a penalty of this amount if he thought there was any likelihood of his obtaining more on taxation than he would by way of the fixed costs. If the fixed costs are reasonable, most solicitors will no doubt be content to accept them rather than go to the trouble of drawing the bill and attending for taxation. Moreover, the sanction would not operate very satisfactorily in practice in the case of counsel's fees if counsel had done more work than was allowed for by the fixed costs and yet the solicitor was nevertheless prepared to accept them so far as his own work was concerned. It is accordingly proposed that the sanction should be deleted. I beg to move.