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The Working Party sees the force of the Bar's opposition to a new rule permitting fees
previously agreed between solicitor and barrister to be challenged as to fairness and
reasonableness at large. That is, of course, not to say that as between solicitor and
client, the disbursement of counsel's fees cannot be taxed off or taxed down, applying
the tests in O 62 r 29. Where, for instance, the solicitor has, without his client's
express or implied approval, agreed counsel's fees which are unusually high and such
as to exceed what would be recoverable on a party and party taxation, such costs
would be presumed to be unreasonable and the client may well succeed in challenging
that disbursement. Since solicitors, by their professional code, would be bound to pay
the barrister in any event, they would obviously be well-advised not to place
themselves in such an unhappy situation and always to seek their client's prior
authorization before agreeing counsel's fees.
It is the Working Party's view that the concepts currently applicable to solicitor and
own client taxations reflect considerations of elementary fairness as between a
solicitor and his client. The Working Party would not be in favour of introducing a
rule allowing a solicitor's bill to be challengeable at large on "fairness and
reasonableness" grounds if such a rule meant that factors of the type described above
would not be given substantial and often decisive weight. If, on the other hand, such a
new rule would continue to accord such weight to those factors, its introduction would
be unnecessary. The Working Party accordingly recommends against adoption of
Proposal 54.
Recommendation 130: Proposal 54 (for introducing a new test for use in
solicitor and own client taxations) should not be adopted.
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