SUPREME COURT COSTS.

Evening Star, Issue 7188, 16 April 1887, Page 1 (Supplement)

SUPREME COURT COSTS.

TO THE EDITOR. Sir, —Everyone, except, perhaps, the framers of the Supreme Court Code, must, I think, agree with the remarks contained in the article on this subject which appeared in your last night’s issue. The matter, however, was only partially dealt with. The scale of costs, although difficult enough to apply in many cases of pure money demands so as to work out anything like justice, is wholly inapplicable to a large proportion of the cases that come before the Court, and cannot by any ingenuity be accommodated to those cases which therefore have to be arbitrarily dealt with. For instance, the cases of trusts arising under bills and settlements whore no money demand is in question, or at all events, not immediately in question ; but the assistance of the Court is required to pronounce an opinion upon their instruction and as to the mode in which the trusts and other provisions are to be carried out, not necessarily because the documents are unskilfully drawn, but from the complication of circumstances arising out of events which could not by any reasonable human foresight have been provided against. Sometimes questions of domicile arise* from the altered position of some of the beneficiaries and other nice questions, Cases also occur of specific performance of contracts; breaches of trusts, questions as to the due execution of wills, declarations as to the rights of parties either to the land or to other subjects where no damages are sought, or perhaps _ merely nominal damages to mark the establishment of the right; actions for the administration of real and personal estates of deceased persons; applications to the Court by petition or otherwise in matters of lunacy or infancy, or under special Acts of Parliament, and other cases too numerous to mention. It is obvious that the labor in such can only be properly paid for by charging in detail for the work actually done. Take the cases, whether civil or criminal, where scientific evidence has to be obtained, which involves much time and labor. Before such cases can be properly conducted much research on the part of both solicitor and counsel is usually necessary. They have to get up the subject from scientific books before they can collect, and, when collected, deal with, perhaps a mass of scientific evidence, for they cannot be_ supposed to be familiarly acquainted with all the sciences. Take a medical or an engineering case. How can counsel examine witnesses upon the subject in dispute, or prepare himself for an argument of his case in Court, unless he is moderately well acquainted with the subject before going into Court, and of the nature and effect of the scientific evidence to be given. Take some of the heavy cases that have occurred in this Colony ; look at some of the important cases that have recently been dealt with in England, civil and criminal, will and settlement cases, defamation of character and divorce cases, the liability of railway companies and other public bodies, poisoning, lunacy, and other cases, and say whether the scale of fees in question would afford a reasonable remuneration for the work done. In the great case of Small v. Attwood, which occurred in England about half-a-century ago, the late Lord S. Leonards, then Sir Edward Sugden, the leading counsel for one of the parties, devoted himself exclusively for three months to reading his brief and preparing himself for the argument in Court, which lasted many days. He would have been surprised if he had been told that he was to be remunerated for this three months’ work by the fees for attending Court. The solicitor’s work, too, in collecting the facts and evidence, and in preparing the briefs for counsel, was prodigious. Under our scale he would have received for this four guineas only. In ordinary mercantile cases evidence which is sometimes taken abroad by commission has to be obtained at considerable trouble and expense, and in nearly all cases much time is expended in preparing for the conduct of the case in Court, including the preparation of briefs; for cases cannot be argued in Court from detached documents, which are usually dirty, torn, and ill-written, and many of which the counsel has to put in evidence before ho has completed his case and cannot get again until the case is decided, possibly on appeal. He must have a brief properly prepared and fairly written, _ and the particulars of the evidence to be given. The law points, too, must be looked up, con? sidered, and marshalled for argument, for the English law is being constantly added to and altered. The amount of Judge-made law in a single year, to say nothing of the accumulation of statute law in the same period, is something considerable, and which no practitioner can possibly know until he reads it. All this ho lias to do in this Colony for four guineas. Even when costa are taxed it is not the practice here as it is in England to allow anything to counsel for reading his brief and preparing himself for his argument in Court. He is supposed to be paid for this work by the fee he gets for attending Court, which is obviously unfair. A week or two since a practitioner here of standing was engaged as junior counsel in a case involving about LSOO. The trial occupied four days, and it must have taken him one day, or nearly one day, to read his brief and prepare himself for the conduct of the case in Court. For these five days he was awarded five guineas. Mental and physical labor in all departments of human knowledge must be fairly paid for if it is to be performed by competent persons, or it will be ill done or neglected. It is simply as nonsensical as it is unjust to attempt to frame any cast-iron rule upon the subject. With reference to the general practice of the Court, it may be observed that in Victoria the English code, as amended, with tables of costs added for the guidance of the taxing officer, has been adopted without alteration, except by a few short supplemental nlles to accommodate it to the machinery of the colonial Supreme Court. This has the effect of saying much expense to suitors by having a uniform course of procedure in England and in the Colony, although not absolutely perfect, and of saving the expense of contesting technical points, which are certain to arise for some time to come where the old practice of centuries has been siyept away and a new system introduced. The English decisions upon these points can be referred to without debating similar points which would arise upon a different code in force in the Colony. Why this plan cannot be adopted in New Zealand, instead of having a code of our own full of striking novelties, in which old things are called by new names, and in which some of the most valuable provisions of the English code which would be applicable to the Colony are omitted, is a puzzle which can only be explained by our law reformers who have boasted so muph about cheap law. I hope I have said enough and not too much to make the whole matter clear to non-professional minds. —I am, etc,, A Solicitor. Dunedin, April 14th.