A BILL OF COSTS.

New Zealand Times, Volume XXXIII, Issue 5391, 8 July 1878, Page 3

A BILL OF COSTS.

. (Prom the New Zealand Jurist.) The recent trial of Mr. George Jones, the publisher of the Oamaru Mail newspaper, on an indictment preferred by the-Crown for the* publication of au article on the late AttorneyGeneral, Mr. Whitaker, has given rise to a public discussion of some professional interest. The House of Representatives having resolved, when directing the prosecution, that the defendants costs, as between solicitor and client, should be paid by the Government in the event of his beiug acquitted, the bill of costs has recently been sent in for payment, and referred to the Registrar of the Supreme Court for taxation. In .this bill Mr. J. A. Hislop, of Dunedin, solicitor, claimed payment of £2XI7 145,, including a sum of £1709' 10s. claimed for agency charges by Messrs. Hislop and Creagh, of Oamaru. The principal items in the agency bill, with the reductions made on taxation, are as follows Instructions for brief '..£25 10

Brief, 200 sheets 75 0 f£2s) 'Engrossing same, 280 sheets ~ 70 0 (£23 8s) Copy brief for Mr. Hislop .. 70 o*(£23 Ss) Attending Mr. Bees with brief 1 1 Paid Mr. Rees’ fee and clerk .. 540 0 Attending Mr. Hislnp with brief 1 1 Paid Mr. Hislop's fee and clerk 270 0 (£55) Case having been fixed for 13th Nov. paid Mr. lleos’refresher 275 0 (£275) The like Mr. Hislop .. . ■■ 137 10 (£137 10s) > Letters, messages, telegrams, and attendances from August, 1877. to Match, 1875.. .. 50 0 The bill was allowed at £l4Ol 9s. 8d.,. the amount struck oil being £716 4s. 4J. The fees claimed by counsel—soo and 200 guineas respectively—are certainly out of proportion to the fees hitherto a deed in important oases. No higher fee than 300 guineas, so far as, we are aware, has been heard of in New Zealand before this case occurred. In the case of a barrister of high professional standing, 1 it might not be unreasonable to demand 'SOO guineas on a brief which involved travelling from one end of the colony to the other, and the fee might be willingly paid. But looking at the matter from an abstract point of view, the taxation of these items would have been more in accordance with practice if the scale of fees hitherto prevailing had been adhered to. A more important question than the amount of these charges has been raised. It is contended that Mr., llees, the senior counsel, and Mr. T. W. Hislop, the junior, having been members of the House when the prosecution was’ ordered, have committed a breach of privilege by making this demand upon the public purse. The cases of Mr, Lusk and Mr. Travers are cited as authorities for this view. Mr. Lusk was adjudged guilty of contempt, and fined because, being solicitor for tho City Council of Auckland, ho drafted and promoted a Bill under the instructions of his clients, and charged them for his services in Parliament. Mr. Travers was also adjudged guilty of contempt, because he presented a petition to Parliament on behalf of certain clients. The effect of these cases is, that any member of Parliament who takes or demands payment for services rendered in Parliament, commits a breach of privilege. It is quite clear that* taking or demanding payment for services rendered out of Parliament is a totally different thing. The bill of costs contains no charge for services rendered in Parliament ; and it cannot be contended that a barrister or solicitor, who happens to be a member of the House, commits a breach of privilege when he holds a brief or attends a client in the ordinary way of business, merely because the bill is ultimately paid by the Government. . He is expressly exempted - by the Disqualification Act, 1876, as to oases in which he may be directly retained by the Government. He cannot therefore be .within the Act when ho is retained by a private person who happens to be indemnified by the Government. There may be a doubt, we admit, with respect to Mr. Hislop’s position in the matter, although there can be none as to that of Mr. Bees. This doubt is suggested by certain statements which appeared in tho Oamaru Mail when dealing ' with the question. That journal'enys :—! " Not only did Mr, Hislop vote against it [the prosecution] with Mr; Koes, but os-we stated in a' previous article, he was thoroughly • opposed to it. . . . As the accused’s'solicitor and ’ friend, he, during tho period that the subject was being debated in the House—not then being so well versed in the transactions referred to in the article which' was alleged to be libellous—daily impressed upon his mind the' desirableness of coming to an amicable settlement of the matter, and from the time that the House ordered the accused's prosecution in the Supreme Court to the time that he (the accused) left Wellington,! he would have,been glad to see the proceedings in the Supremo Court quashed." . i It appears therefore that Mr. Hislop was.toll-

citor for the accused at the time when the latter was summoned to*the Bar of the House; and that he acted as his'solicitor “ during the period that the subject was being discussed in the House,”, and daily advised'his client. When the House ordered the prosecution, Mr. Hislop was not unmindful of his professional duty, for we are told that, — “Viewing the circumstances in which the prisoner was placed, Mr. Hislop moved a reso-, JutioQ, which was carried, to the effect that in case of his acquittal, or the jury disagreeing, the expenses of the suit, as between attorney and client, were to be- paid by the country,”

These admissions make Mr. Hislop’s case a doubtful one. The only interpretation that can be put upon his resolution is, that in moviag it he saw his way clearly to a haul of the Treasury nets. The acquittal of a defendant on a political prosecution is a foregone conclusion in any case ; and Mr. Hislop certainly did his duty as a professional man in obtaining a public indemnity for his client. But was his professional duty in this instance in harmony with his duty as a public representative ? Whatever opinion may be formed on this question, it is impossible to overlook one or two points in the case, which have not been referred to elsewhere. In the first place, when the Ho ee resolved that the expenses of the defendant should be paid by the country in the event of an acquittal, it was understood that the defendant should go to trial on a plea of justification, in order that the facts of the alleged libel might be fully investigated in a Court of Law. Through the technical unskilfulness of his advisers tin? defendant was unable to submit a plea of justification to the jury, his pleas beiug upset on demurrer ; consequently there was no investigation of facts, aud the House gets nothing for its money. In technical language, there is a complete failure of consideration. In the second place, when Mr. Rees and Mr. Hislop undertook the defence, it was certainly made to appear that their professional services were offered in a spirit of pure political chivalry ; that the case was regarded by them as a party question, the main object of the contest being to expose certain land transactions in which members of the then Government were alleged to be interested, and to defeat the Government itself on the prosecution. This was .the impression left by the debates ; and the professional mind recalled with enthusiasm the traditional glories of .Erskine aud Macintosh defending the cause of public liberty against the arbitrary power of the Crown. How sadly did the little bill for £2117 14s. awaken us from these romantic dreams! '