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The criteria employed when applying the various bases of taxation may be compared
with the criteria prescribed by para 2(5) as set out in the following Table :-
Rule
Basis
Criteria
O 62 r
28(2)
party and
party
there shall be allowed all such costs as were necessary or proper
for the attainment of justice or for enforcing or defending the
rights of the party whose costs are being taxed
O 62 r
28(4)
common
fund
being a more generous basis than that provided for by paragraph
(2), there shall be allowed a reasonable amount in respect of all
costs reasonably incurred, and paragraph (2) shall not apply......
O 62 r
28(4A)
indemnity
basis
all costs shall be allowed except in
so
far as they are of an
unreasonable amount or have been unreasonably incurred and
any doubts which the taxing master may have as to whether the
costs were reasonably incurred or were reasonable in amount
shall be resolved in favour of the receiving party
O 62 r
29
solicitor
and own
client
(1)
all costs shall be allowed except in so far as they are of an
unreasonable amount or have been unreasonably incurred.
(2)
all costs incurred with the express or implied approval of
the client shall, subject to paragraph (3), be conclusively
presumed to have been reasonably incurred and, where the
amount thereof has been expressly or impliedly approved
by the client, to have been reasonable in amount.
(3)
any costs which in the circumstances of the case are of an
unusual nature and such that they would not be allowed on
a taxation of costs in a case to which rule 28(2) applies,
shall, unless the solicitor expressly informed his client
before they were incurred that they might not be so
allowed, be presumed, until the contrary is shown, to have
been unreasonably incurred.
O 62
Schd 1
Pt 2
§2(5)
counsel's
fees
allowed in full on taxation, unless the taxing master is satisfied
that the same is excessive and unreasonable
It is obvious that para 2(5) sets a more generous standard for allowing counsel's fees
than the party and party basis. Such fees need not pass the "necessary or proper" test,
but must only avoid being "excessive and unreasonable." Indeed, para 2(5) appears to
be at least as generous as the common fund and solicitor and own client bases of
taxation. It was suggested in the Interim Report that this exceptional treatment of
counsel's fees might be difficult to justify and consultees were asked for their views.
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