42
CAP. 159]
Legal Practitioners
[1989 Ed.
under the agreement, the agreement shall, before payment, be laid before the taxing officer of the court, and that officer shall examine the agreement and may disallow any part thereof, or may require the opinion of the court to be taken thereon.
(6) Any such client as is mentioned in subsection (5), who pays the whole or any part of the amount payable under the agreement without the agreement having been allowed by the taxing officer or by the court, shall be liable at any time to account to the person whose property is charged with the whole or any part of the amount so paid for the sum so charged, and the solicitor who accepts the payment may be ordered by the court to refund the amount received by him.
61. Death, incapability, or change of solicitor, etc.
[cf. 1957 c. 27 s. 61 U.K.]
(1) If, after some business has been done under an agreement made in pursuance of the provisions of section 58 but before the solicitor has wholly performed it, the solicitor dies or becomes incapable of acting, any party to, or the representative of any party to, the agreement may apply to the court and the court shall have the same jurisdiction as to enforcing the agreement so far as it has been performed, or setting it aside, as it would have had if the solicitor had not died or become incapable of acting:
Provided that the court may, notwithstanding that it is of opinion that the agreement is in all respects fair and reasonable, order the amount due in respect of the business done thereunder to be ascertained by taxation, and in that case-
(a) the taxing officer, in ascertaining that amount, shall have regard so far as may be to the terms of the agreement; and
(b) payment of the amount found by him to be due may be enforced in the same manner as if the agreement had been completely performed.
(2) The provisions of subsection (1) shall apply in the event of the client changing his solicitor (as, notwithstanding the agreement, he shall be entitled to do) before the conclusion of the business to which the agreement relates in the same manner as they apply when the solicitor dies or is incapacitated, with this modification, that if an order is made for the taxation of the amount due to the solicitor in respect of the business done under the agreement the court shall direct the taxing officer to have regard to the circumstances under which the change of solicitor has taken place, and the taxing officer, unless he is of opinion that there has been no default, negligence, improper delay or other conduct on the part of the solicitor affording to the client reasonable ground for changing his solicitor, shall not allow to the solicitor the full amount of the remuneration agreed to be paid to him.