So, you have been successful for your client, have obtained a cost order in their favour and are at Taxation to recover all of the costs you incurred during your efforts. Chances are you will be in for a bit of a shock as the Taxing Master, on the day, may well disagree with many if not most of your charges and disbursements. The outcome of the taxation looks bleak.
This is a scenario most lawyers have found themselves in at least once. For some, it’s a regular issue. Why does it happen, and is the Taxing Master being unreasonable?
One of the main duties of a Taxing Master is to see that costs are kept within a proper limit. This means disallowing excessive costs and, particularly, making sure that the other party is not being made to pay for unnecessary costs. In other words, he must control costs. That is his job.
However, while it is his job to give effect to a costs order, it is not his job or function to interpret, and in so doing, vary a costs order. It is also not his duty or function to decide any technical disputes that may be raised as defence at taxation. That is the function of the Court. In order to determine whether an item in a bill is “proper”, the correct view to be adopted by a Taxing Master should be “that of a sensible attorney sitting and considering what, in light of the then knowledge, is reasonable in the interest of the successful party”.
His success, however, will in most cases depend on the facts placed before him by the Attorney concerned. And this then will become the most important thing to determine the success or failure of your taxation efforts. As Attorneys are officers of the Court, they have a duty to assist the Taxing Master “to steer his difficult course between Scylla of liberality and the Charybdis of niggardliness”
In this – as in previous articles – we hope to shed light onto some of the dark or confusing areas of the law as it relates to costs which should assist you even further when taxing bills. In our next article, we will address the question of the meaning of “costs” in more detail.