Wakilii

In Re - Archer and Wilcock (Miscellaneous Civil Application No. 13 of 1955)

East African Court of Appeal · [1955] EACA 12 · 1955 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application by advocates for an order to tax their bill of costs for contentious business covered by a written agreement with the client
Decision
Application for an order to tax dismissed as misconceived; advocates directed to submit agreement to taxing officer for allowance under section 61 of the Advocates Ordinance, 1949

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that work done in preparing a divorce petition, though never filed, constituted contentious business based on the nature and quality of the work, not the filing of proceedings. A client's written endorsement agreeing to a bill, though unsigned by the advocate, constituted a valid agreement under section 59 of the Advocates Ordinance, 1949. Where such an agreement exists, section 63 excludes taxation and the delivery requirement for signed bills. The proper procedure is to submit the agreement to the taxing officer for examination and allowance under section 61, not to apply for a court order to tax. The application for taxation was dismissed as misconceived.

Outcome

Application for an order to tax dismissed as misconceived; advocates directed to submit agreement to taxing officer for allowance under section 61 of the Advocates Ordinance, 1949

Facts

A firm of advocates took instructions from a client to prepare a divorce petition in Kenya. Before the petition could be filed, the client's domicile of origin in England revived and a divorce petition was filed by solicitors in England, which proceeded to decree. The English taxing master adjourned taxation of costs and required formal evidence that instructions were given for work done in Kenya. The advocates applied to the taxing officer of the Supreme Court to tax their bill of costs, but he declined jurisdiction. The advocates then applied by summons in chambers for an order to tax. The client had endorsed at the foot of the bill the words "I agree to this bill as drawn" and had signed and dated the endorsement on 10 March 1955. The advocates argued that the taxing officer's refusal was based on a misinterpretation of the decision in In re Shapley, Barret, Allin & Co.

Issues

  1. Whether work done by advocates in preparing a divorce petition that was never filed in Kenya constituted contentious business within the meaning of the Advocates Ordinance, 1949.
  2. Whether an endorsement by a client on a bill of costs, agreeing to the bill but not signed by the advocate, constituted a valid agreement in writing under section 59 of the Advocates Ordinance, 1949.
  3. Whether the existence of a written agreement to pay costs of contentious business excluded the jurisdiction to tax the bill under section 63 of the Advocates Ordinance, 1949.
  4. Whether rule 10 of Part XIV of the Rules of Court, providing for taxation of advocates' bills, was ousted by section 63 in cases where there was an agreement to pay costs.
  5. What procedure was available to advocates to have an agreement for costs examined and allowed by the taxing officer.

Orders

  • Application dismissed.
  • None of the costs thrown away by the application are to be charged against the client or any of his opponents in the relevant divorce cause.

Rules and key headnotes

Advocates' Remuneration — Contentious Business — Definition — Nature of Work Test
The definition of contentious business depends on the nature and quality of the work done, not on whether proceedings have been instituted. Work done in contemplation of litigation, such as preparing a petition for divorce, constitutes contentious business even if the petition is never filed, provided the work would be taxable on the contentious business scale if proceedings had been instituted.
Advocates' Remuneration — Agreement in Writing — Validity — Client's Signature Sufficient
An agreement in writing for the remuneration of an advocate in respect of contentious business under section 59 of the Advocates Ordinance, 1949, need not be signed by the advocate and is valid if signed by the client only. A client's endorsement on a bill of costs agreeing to the bill constitutes a valid agreement in writing.
Advocates' Remuneration — Agreement to Pay Costs — Effect on Taxation — Section 63 Exclusion
Where there is an agreement in writing to pay the costs of contentious business under section 59 of the Advocates Ordinance, 1949, section 63 excludes taxation of those costs and excludes the requirement to deliver a signed copy of the bill. The existence of such an agreement removes the jurisdiction to order taxation.
Advocates' Remuneration — Rules of Court — Rule 10 Part XIV — Ousted by Section 63
Rule 10 of Part XIV of the Rules of Court, which provides for taxation of an advocate's bill of costs by the taxing officer, is ousted by section 63 of the Advocates Ordinance, 1949, in cases where there is an agreement in writing to pay costs of contentious business. In such cases, neither the advocate nor the client can insist upon taxation until the agreement is set aside.
Advocates' Remuneration — Agreement for Costs — Procedure for Examination — Section 61
The proper procedure where there is an agreement in writing for costs of contentious business is to submit the agreement to the taxing officer for examination and allowance under section 61 of the Advocates Ordinance, 1949. No order of the court is required for this purpose. The taxing officer's role is to scrutinize the agreement and determine whether it is fair and reasonable, not to tax the bill. If the taxing officer considers the agreement unfair or unreasonable, he may refer it to the Remuneration Committee and may order the agreement cancelled and the costs taxed.
In Pari Materia — Advocates Ordinance and Solicitors Act — English Authorities Applicable
Where provisions of the Advocates Ordinance, 1949, are in pari materia with provisions of the English Solicitors Acts, the court will follow decisions of English courts, particularly the Court of Appeal, in interpreting the Ordinance. The definition of contentious business in section 2 of the Advocates Ordinance is identical to that in the Solicitors Act, 1932, and English authorities on the meaning of contentious business are applicable.
Advocates' Remuneration — Privilege Conferred by Statute — Sanction for Non-Compliance
Sections 59 to 64 of the Advocates Ordinance, 1949, confer a privilege upon advocates to make agreements with clients for remuneration in contentious business. An advocate who accepts payment under such an agreement without first submitting it to the taxing officer for allowance as required by section 61 may lose the privilege of exemption from taxation conferred by section 63 and may be subject to disciplinary proceedings for disobeying a mandatory provision enacted for the protection of clients.

Legislation cited (24)

  • Advocates Ordinance, 1949 s.2
  • Advocates Ordinance, 1949 s.53
  • Advocates Ordinance, 1949 s.59
  • Advocates Ordinance, 1949 s.61
  • Advocates Ordinance, 1949 s.63
  • Advocates Ordinance, 1949 s.66
  • Advocates Ordinance, 1949 s.67
  • Advocates Ordinance, 1949 s.74
  • Advocates Ordinance, 1949 s.75
  • Advocates Ordinance, 1949 s.76
  • Rules of Court, Part XIV r.5
  • Rules of Court, Part XIV r.10
  • Solicitors Act, 1932 s.56
  • Solicitors Act, 1932 s.59
  • Solicitors Act, 1932 s.60
  • Solicitors Act, 1932 s.62
  • Solicitors Act, 1932 s.81
  • Solicitors Act, 1932 s.82
  • Attorneys and Solicitors Act, 1870 s.4
  • Attorneys and Solicitors Act, 1870 s.9
  • Attorneys and Solicitors Act, 1870 s.10
  • Attorneys and Solicitors Act, 1870 s.15
  • Solicitors Act, 1843 s.41
  • Legal Practitioners Ordinance, Cap. 10

Cases cited (13)

  • Re a Solicitor [1955] 2 All ER 283 (CA)
  • Pecheries Ostendaises (Soc Anon) v Merchants' Marine Insurance Co [1928] 1 KB 750
  • Frankenburg v Famous Lasky Film Service Ltd [1931] 1 Ch 428
  • R P Morgan & Co [1915] 1 Ch 182
  • Standford v Roberts (1884) 26 Ch D 155
  • In re Thompson, ex parte Baylis [1894] 1 QB 464
  • In re Attorneys and Solicitors Act (1870) 1 Ch D 573
  • Ray v Newton [1913] 1 KB 249 (CA)
  • In re Jones [1895] 2 Ch 724
  • Clare v Joseph [1907] 2 KB 369 (CA)
  • In re Simmons and Politzer [1954] 2 All ER 811 (CA)
  • In re Stuart, ex parte Cathcart [1893] 2 QB 201 (CA)
  • In re Shapley, Barret, Allin & Co (1954) 27 KLR 48

Full judgment

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In Re - Archer and Wilcock (Miscellaneous Civil Application No. 13 of 1955) [1955] EACA 12 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.