THE COURTS.

New Zealand Mail, Issue 955, 20 June 1890, Page 22

THE COURTS.

COURT OF APPEAL. In the Matter of the Law Practiiitioners’ Acts, and of R. McConnell, a Solicitor. (Judgment of Conolly, J.) This was a motion to make absolute a rule to strike a solicitor off the rolls on the grounds, first, that when acting as solicitor for one Murphy he represented to Murphy that he had paid £193 12s 6d as foes to counsel, when in fact he had paid a sum of £SS only ; and, secondly, that some of the charges in his bills of costs against the said Murphy were fraudulent, ord others so excessive in amount as to be fraudulent. With respect to the first charge, it is not denied that the bills of costs represent the fees paid to Mr Harper as £193 12s 6d. Mr Harper’s evidence is that the total amount of hia fees as charged was £l4B 2s fid on(3’ ; so that if he bad been f aid in full there •would have been an overcharge in the solicitor’s bill of costs of £45 10s. But Mr Harper was not paid in full. His evidence is not very clear as to the amount actually paid to him, but probably it was £BS only, thus making the overcharge £IOB 12s fid. Or if I assume that Mr Harper received £32 133 6d in addition (which, however, does not appear to have been the case when I notice the sum which he mentions as being allowed off the total amount) there would skill be an overcharge of £75 19s. Mr McConnell attempts to explain this by stating that his bills of costs were drafted before he made the settlement with Mr Harper; but they certainly were not delivered until long after that time, since the settlement with Mr Harper was 28 th February, 1881, and the bills of costs complained of were delivered to Murphy, according to Mr McConnell’s evidence, about the 3rd August, 1882. He further Btates that at the time of settling the bills of costs with Mr Murphy he acquainted Murphy with the fact that he had received deductions in the amount of counsel's fees charged in the bills of costs. This may be assumed to have been tbe fact; but it is not even asserted that the exact amount of those deductions was stated to Murphy • aithough nothing would have been easier, without recasting or allowing the bills of costs, than to have deducted at the end tbe amount which had been allowed as a deduction by Mr Harper. I therefore find Mr McConnell's explanation of this part of the charges made against him to be unsatisfactory. With respect to the second ground for the rule, I accept the definition that to amount to fraud the charges in a bill of costs must be wilfully and outrageously excessive Meux v Lloyd, 2 C. 8., N.S. 469 was oited as authority that it is not sufficient to prove exorbitant charges by a solicitor, taxation being a sufficient protection to the client. But in re Hill, 84 L.T. 49, is a direct authority that charges may bo so excessive as to be deemed fraudulent, in which ease the Court will interfe e to punish the solicitor in addition to the taxation. Row it is impossible to look at the bills of costs which have been produced in this case without observing that the charges throughout are so excessive as to amount to fraud. Besides the overchaigea for counsel’s fees alleged to be paid but not really paid, T find tiie costs in defending Quo er.miual ohiuje aeainst the client to amount to £351. in another to £lO4. and i > anoth r to £B7. And if I look to items I find the charges in maDy oases to be much higher tliau they should have been, and also that there are charges utterly illegal, and which, therefore, when made by a practitioner of long standing having, as lio himself states, a hmg experience in taxing, any be deemed f nuduleab. Such charges, for instance, as for looking up authorities and for consenting to be bail On the part <-f ihe solicitor it is urged that Murphy himself never objected to any of these charges, hut on the ronrrtsry admitted them to be fair and reasonable ; and that they never were disputed until Murphy became bankrupt, when his creditor:-, moved in the matter. Rut the qneati.m f<-r ih<* Courtis not whether Mitcphy accepted the bills of costs and assumed them t.> be fair and reasonable, although oven this is doubtful when tho large deductions which were made are taken into consideration; but whether, as the case was put on the part of

the Law Society, the bills of costa wore such as it was proper for a solicitor to deliver. Referring to those deductions it may well be supposed that they were agreed to in lieu of taxation ; the probability bring that upon taxation the deductions woulf have been very much greater. Mr McConnell contends that if any objection to his biffs of costs was intended to be taken it should have been taken much earlier, and taxation made when the bills we>*e delivered ; and that he is prejudiced by the delay as not being able to explain matters which he .would have been able to explain some years ago. This no doubt, is to some extent the case, and in looking through the bills of cost* I have made every fair presumption in favour of Mr McConnt-11. As to the passage in his affidavit filed in this Court, stating that tho costs were in part taxed under a consent decree in an action brought by Murphy against him, and that such decree was consented to by him on condition that the charge of fraud made against him should be withdrawn, such condition if made cannot be deemed to bar the Law Society from taking the present proceedings in the interests of the profession, or even to render such proceedings unnecessary or improper. Mr McConneil has never attempted to deny or explain the distinct allegations made in Mr Oaygills affidavits that numerous items in the bills of costs are charged for twice or oftener, in one instance as-much as four times. The itema in question arc described quite sufficiently to bring them clearly before Mr McConnell ; but the only answer given or attempted to bo given is that he cannot without a great deal of trouble test the accuracy of the statements, and that if any items in the said bills of costs are charged for twice or oftener, such double or treble charges must have been necessary, but that on account of the lapse of time he canuot call to mind the circumstances by which they were occasioned. I find all tbe grounds upon which this rule has been obtained to b 6 proved. It was represented to Murphy that £193 had been paid to counsel when probably considerably less than half that sum had actually been paid ; and some of the charges in the bills of coots are fraudulent and many others so excessive in amount as to be fraudulent. This case has not been unduly pressed by the Law Society ; on the contrary, it has been put to the Court as an offence not of the worst kind. But I cannot hold that the charges are not serious in their character. On the ground that the court ought to lean to the side of leniency rather than to severity, I am of opinion that; the rule to strike Mr McConnell off tbe rolls should not be made absolute, but should be varied ; and that the older of the court should be that he be suspended from practice for two years, ahd pay the costs. (Judgment of Williams, J.), The facts of this case have been so fnlly diecussed in the judgments of the other members of the court that there is no necessity for toe to discuss them'further. I agree that the explanation given by Mr McConnell as to the incorrect statement of fees paid to counsel is altogether unsatisfactory, and-that the bills of.costs on the face of them are so excessive and contain charges of such a natnre as lo show evidence of fraud. The case is certainly one for the infliction of the penalty suggested.