The Supreme Court Costs Office

No.15 of 2002

McIlwraith v McIlwraith & Stephens & Bolton
24 July 2002
His Honour Judge Rich QC

In this case a beneficiary sought an order from the court for assessment of costs charged to an estate pursuant to Section 71(3) Solicitors Act 1974, even though more than 12 months had elapsed since those costs had been paid.

The Judge, reversing the Chancery Master, held that although the "12 month bar" under Section 70(4) of the Act was certainly quite clear, there was a residual discretion under Section 71(4) to allow assessments in this sort of situation. Section 70(4), although a matter to be taken into account, was not determinative of applications under Section 71(3). Accordingly there was a discretion which should be exercised by the court in the circumstances, but it would be for the applicant who was interested in the bill to persuade the court that he should nonetheless order an assessment and some special circumstances, such as a more timely application, would have to be shown to invoke the court's discretion.