Mishra Prakash & Associates v Lautoka General Transport Ltd [2008] FJHC 367; HBC136.2007 (19 December 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action NO HBC 136 of 2007

Between:

MISHRA PRAKASH & ASSOCIATES
Plaintiff

And :

LAUTOKA GENERAL TRANSPORT LTD.
First Defendant

Before : Master Udit

Counsel : Ms M. Muir for the Plaintiff/Respondent
Mr. K Tunidau for the 1st Defendant/Applicant

Date of Decision: 19th December, 2008

DECISION
(Solicitors bill of costs– summary judgment – when and how it should be allowed)

Introduction

[1] The plaintiff is a firm of Barristers and Solicitors practising under the Legal Practitioner’s Act 1997. At all material times the defendant instructed and the plaintiff represented it in several court matters. A dispute has arisen as to the bill of cost delivered to the defendant for the professional services rendered.

[2] After several attempts to resolve the dispute failed, the plaintiff filed a Writ of Summons seeking a judgment in the sum of $29,266-54 being the balance of the legal fee due and owing. The claim is opposed. The defendant denies owing any fee in the statement of defence filed. No dispute is raised as to the instruction but the contention is that the agreed fee is already paid. In addition it is counter-alleged that the defendant overpaid a certain sum of money.

[3] In order to get an expedited judgment, the plaintiff filed a Summons under Order 14 rule 1 of the High Court Rules 1988 on the ground that the bills were duly rendered and although one month had lapsed thereafter the defendant failed to seek taxation. Additionally, Ms. Muir submitted that since 12 months from the presentation of the bill of costs has had lapsed coupled with no challenge to it, the defendant does not have any defence in law available to it but to pay the same. This interlocutory application is also vehemently opposed.

Facts

[4] Without indulging too much into the facts of the case, briefly by this action the plaintiff is seeking to recover professional fee from the defendant. It is claimed that between 10th February 2003 and 23rd October, 2003, the defendant engaged the services of the plaintiff on several occasions. After rendering the services sought, the plaintiff randomly submitted bills of costs, (final or part thereof) of which some were paid. However, there came a point when the defendant contested and failed or neglected to pay the bills.

[5] When the writ was filed, the plaintiff alleges a sum of $29,266-54 still remained due and owing. On the other hand, the defendant contends that it has paid all the fee (see paragraph 4 of the statement of claim) as such owes nothing. No prior agreement as to the manner in which the charges were to be applied was adduced as evidence before me.

Law

[6] This is an application for summary judgment. The question I am required to decide is, ‘whether a summary judgment on a contested bill of costs of a Practitioner can be granted.’ This question becomes pertinent where the defendant denies owing any fee or for that matter challenges its reasonableness. In my view this is an important issue of law warranting a comprehensive analysis. I will begin generally with reviewing the relevant statutory provisions.

Relevant Statutory Provisions

[7] There are a few statutory provisions which directly impinge upon a legal practitioners’ bill of cost. They are collectively contained in Order XXXVIII Magistrates Court Rules and Legal Practitioners Act 1997. The former mainly provides for the procedure for filing an action to recover the fee. The High Court Rules do not contain any such provision. Whilst there is lack of any treatise on the matter, perhaps a plausible justification is that the architects of the legislation may have anticipated that the practitioners’ fee would be within the range of and limited to the magistrate’s court jurisdiction. If indeed that was a presumption, certainly over a period of time the fee has certainly exploded beyond the Magistrate’s Court jurisdiction. This will be the position the substantial enlargement of the lower court’s jurisdiction.

[8] I will begin with the Magistrates’ Court Act and the Rules thereto. Order XXXVIII, captioned “Recovery of Costs by Legal Practitioners” provides the procedure for the commencement of a suit for recovery of costs by a Practitioner. No action for recovery of a solicitor’s cost can be launched until after the expiry of one month from the date of service of such a bill of cost; Order 38, rule 1. If the paying party applies to the court within the aforementioned period the taxing Master is to tax the costs; (Order 38, r. 2), except for the conditions provided in Order 38, rule 4. It provides that an application for taxation shall not be granted if:-

(i) A judgment has already been obtained for the costs;

(ii) After the expiration of twelve months after the bill has been delivered except under special circumstances to be proved to the satisfaction of the Court to which the application for such reference is made.

[9] Pursuant to Order 38, rule 12, any application under the rules for taxation or recovery of costs is to be made by a Notice of Motion intituled, “In the Matter of (the Practitioner concerned)”.

[10] The next piece of legislation to which I refer to is the Legal Practitioners Act 1997. Cost is contained in Part VIII of the Act. Unlike the predecessor Act, now a Costs Review Committee is established; S. 75. One of the roles of the Committee under S. 76 (1) (b) is to biennially review the:-

“b) the schedules of fee which in the absence of any agreement to the contrary, are properly payable by a client to a Practitioner, in relation to both the form and content of those schedules with a view to establishing a fair and reasonable level of fee, simplifying the schedules so far as is practicable, amending the schedules to ensure that, so far as is possible, the fee properly payable might be calculated without the need for a taxing officer's discretion to be exercised, and shall make recommendations to the Minister accordingly. The Committee shall provide written reasons for those recommendations, and shall include the views of any dissenting members of the Committee)”

(emphasis added)

[11] The schedule of fee becomes absolutely crucial in cases where there is no written agreement between the client and Practitioner. A Practitioner may make a ‘fee agreement’ with the client; S. 77 (1). Any such agreement is subject to review by Court on application of a client; S 77 (2). In considering the reasonableness of such an agreement under S77 (5), the Court or Judge may take into account the following matters:-

“ (a) the complexity of the matter and the difficulty or novelty of the issues involved;

(b) the experience and standing of the Practitioner;

(c) whether the Practitioner is to carry the costs of any disbursements;

(d) whether the Practitioner is entitled to charge professional costs only in the event of success in any proceeding;

(e) the duration of the matter to which the agreement relates;

(f) the urgency and circumstances in which the business is transacted;

(g) the value or amount of any property or money involved;

(h) any other matters or circumstances which the Court or Judge considers appropriate.”

[12] A Practitioner has an absolute right to sue and recover costs pursuant to a fee agreement; S. 79(1). And in the absence of any such agreement “in accordance with the schedule of fee established by regulation pursuant to this part, together with any proper disbursements, in respect of services rendered whether as a barrister or solicitor” ; S 79(1). S. 79(2), states that it “shall not be necessary for a Practitioner to have such costs taxed prior to instituting proceedings for recovery of those costs.” Where the cost is left to the discretion of the taxing officer, either by agreement or the appropriate schedule of fee, no proceeding is to be commenced in the absence of taxation.

[13] Under S. 80 (1) a client is entitled to request for particulars of the charges and where the right is exercised, the Practitioner cannot commence proceedings before the same is provided; S. 80(2).

Relationship between Legal Practitioners Act 1997 and Order 38 of the Magistrates Court Rules

[14] The Act did not expressly repeal Order 38 of the Magistrates Court Rules. Therefore, in my view, the Rule co-exists with the Act to the extent of any inconsistency, in which case the Act shall prevail. The Act prevails over for two reasons. It is an Act of Parliament, whereas the rules are subsidiary legislation. Secondly, the Act came into force in 1998 as such it impliedly repealed the earlier inconsistent written law.

[15] Pursuant to Order 38 a Practitioner may commence a recovery action after the expiry of one month from the delivery of the bill. “One month” is not defined under the Magistrates Court Act or rules. Under the Interpretation Act a month is referred to as “a calendar month”; S. 2. The regime under the Legal Practitioners Act 1997 is different. There is no requirement to withhold an action for a month from tendering a bill. A Practitioner can commence a recovery action after rendering the bill.

[16] A client is given the necessary protection in S. 80, which provides that where a bill is rendered the client is entitled to seek particulars of the bill. S. 80(2) prohibits the commencement of a recovery action or where an action is pursued to continue with it until the particulars are provided “and five days thereafter has lapsed.” It states:-.

“(2) Where a client has requested such particulars of a Practitioner, the Practitioner shall not be able to institute proceedings, or if already instituted continue proceedings, for the recovery of those charges until those particulars have been provided and five days thereafter has elapsed.”

(emphasis added)

No such provision similar to that of S. 80(2) was in the repealed Act or in the present applicable Rules. S. 80(2) seems to reflect a greater accountability on the part of the Practitioners to provide detailed bill of cost to the clients. A Practitioner is free to commence an action unless S 80(2) is invoked. It also requires the clients to play a proactive role once a bill is rendered for payment by a Practitioner. This provision conflicts with Order 38 rule 2. The triggering factor now is for the client to seek particulars and the solicitors to provide the same before an action can be commenced. Nonetheless the Practitioners are still required to render the bill of cost.

[17] Does Order 38 rule 4 still apply once the solicitor has provided the details (if any sought) and the bill still remains unpaid for 12 months? That Rule is not expressly or impliedly repealed. In my view it still applies. For instance, where a Bill is rendered and the practitioner takes no step to recover the fee, a client cannot seek particulars under S80 (2) to frustrate any recovery action. Thus where the 12 month has lapsed from the delivery of the bill of costs then in special circumstances the bill of costs may be referred for taxation under the Act. The questions then are:- “Why is there a need for taxation? What constitutes special circumstance?

[18] The reason why a bill needs to be taxed is that, as a matter of law an un-taxed solicitor’s bill is an un-liquidated claim. In Klamer –v- Kyriakidas & Baraier (A Firm) (CGD) (1st March, 2005), the solicitors delivered a statutory demand. It was an un-assessed bill of costs. The Registrar held that it is not a liquidated debt. The Registrar relied on a decision of the Court of Appeal in Turner & Co –v- O Palomo [1999] EWCA Civ 2007; [1999] 4 ALLER 353. In delivering the decision the Registrar said:-

“Solicitors are required to either provoke the assessment procedure under the Solicitors Act or if the 12 month for assessment had expired, sue on the bill of costs and obtain an interlocutory judgment with quantum to be assessed in order to create a liquidated sum.”

(emphasis added)

[19] In my view, even a fee agreement under the Act does not prima-facie constitutes a liquidated demand because it is also subject to review by the Court under S77 (5). However, where no review is sought it constitutes a liquidated demand. In addition where there is an agreement reached after the rendering of the bill or is capable of being ascertained by arithmetic it may amount to a liquidated demand.

[20] What constitutes “special circumstance”? “Special circumstance” is not defined by the Act or Rules. The English Court of Appeal held that there is no hard and fast rule of what constitutes special circumstance. Each case depends on its own facts; Re Cheeseman [1891] UKLawRpCh 73; [1891] 2 Ch 289. It is not confined to misconduct or fraud; Re Hirst & Capes [1908] IKB 982 (CA). Charges may be unreasonably large; Re Norman (1886) 16 Q.B.D. Even pressure exerted by counsel to pay a bill constitutes special circumstance; Kundrath -v- Harry Kwatia & Gooding [2004] EW HC 2852 (QB) per Bertson J.

[21] The main thrust propagated by the Legal Practitioners Act seems to be directed at ensuring a system of maintaining “fair and reasonable levels`” of legal fee.

How is twelve months calculated?

[22] There is no difficulty with the delivery of a single bill. The time begins to run from the time of the delivery of the bill. But where there are series of bills, the time begins to run from the delivery of the last bill.

[23] In view of S 80(2) of the Act, Order 38 rule 4 must be read with necessary modification. Order 38 rule 4 and S80 when read in conjunction, will result in 12 months running from the time the Practitioner provided the particulars, if any, requested under S 80 (2) and in the absence of any such request, the position discussed above applies i.e. the position under similar provisions of the Solicitors’ Act 1974..

Jurisdiction to Tax or Assess Costs

[24] The general rule is that a Court has an unfettered discretion to tax costs of a Practitioner save for any express restrictions imposed by the written law.

[25] I will begin with the position in England, where the much celebrated judgment was of Sterling J in Re Park [1889] UKLawRpCh 62; [1888] 41 Ch. D. 326. His Lordship at pages 331 & 332 held that in dealing with solicitors costs the Court had three folds jurisdiction namely:-

(a) Statutory jurisdiction conferred by the Solicitors Act;

(b) General jurisdiction over the solicitors as officers of the Court;

(c) Ordinary Jurisdiction of the Court in dealing with contested claims.

[26] In re Park a firm of solicitors claimed the balance sum of fee from the client. The client was an estate. The then executor received the bill 12 months before he died. In fact he had made partial payments. After the demise of the executor, the successor sought to challenge the reasonableness of some of the items in the bill. The solicitors claimed that since 12 months from the delivery of the bill had lapsed and no special circumstance being shown, the Plaintiff could not have challenged the Bill under the Act. Sterling J (upheld by the Court of appeal) held that despite the right to have the bill taxed under that Act was lost the court still had the inherent and ordinary jurisdiction to refer the contested parts of the bill for taxation. His Lordship said:-

“It appears to me that the Judges treated the non-taxation of the bill within the year after its delivery as an admission by the defendant that the bill was a reasonable one and was due; but an admission which, like every other admission, could be explained by evidence as to the circumstances under which it was not taxed, or as to the amount of the bill.

(emphasis added)

[27] In re park was re-considered and followed by the Court of Appeal in Jones & Sons v Whitehouse [1918] 2 K.B. 61. In that case the solicitors rendered the bill and sought recovery action after a lapse of 12 months from the delivery of the bill. The defendant opposed the bill by challenging the reasonableness of the same. An application for summary judgment was declined on the ground that the client still had a right under the Court’s inherent and ordinary jurisdiction to have the reasonableness of the bill tested.

[28] Just to clarify, inherent jurisdiction is customarily invoked to do justice. It is a residual jurisdiction which is invoked, if a payee falls foul of any statutory constraint. Thus “inherent jurisdiction is to supplement the statutory jurisdiction, when it is necessary to do so to put right what otherwise would be clear injustice”; Symbol Park Lane Ltd. –v- Steggles Palmer (A Firm) [1985] 1 WLR 668.

[29] Although the Solicitor’s Act had been amended or repealed on numerous occasions In re-park is still followed in England. Currently Solicitor’s Act 1974 is in force in England. As a general rule, where the right under the Solicitor’s Act had persisted due to delay and lack of any special circumstances the court exercised its ordinary and/or inherent jurisdiction where deserving cases warrants judicial intervention to do justice.

[30] The settled principle came under scrutiny in Harrison and Anor. -v- Tew [1988] 2 WLR 1. Tew paid the solicitor’s fee in accordance with the bill of cost. Twelve months after the date of payment he sought to challenge the fee. The solicitors contended that under S70 (4) of the Solicitors Act the court lacked any authority to review the charges. S70 (4) of the Act states; “The power to order taxation conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.’ The House of Lords had to consider the application of S. 70 (4) which provision is materially different to the one which was in force when In Re Park was decided. In doing so, their Lordships at pages 527G - 528A held:-

“That on its true construction section 70(4) of the Act of 1974 had displaced the; that court's inherent jurisdiction to make orders for taxation of a solicitor's bill of costs where the relevant application had been made more than 12 months after payment of the bill similarly the court's disciplinary jurisdiction over solicitors as officers of the court, although preserved by section 50(2) of the Act of 1974, had been expressly made subject to the provisions of that Act, including section 70(4)”

(emphasis added)

[31] Their Lordships conclusion was solely based on the interpretation of S70(4) which specifically barred the courts other jurisdiction on the narrow issue where the bill was paid and a challenge mounted ex-post facto in excess of 12 months. Such a distinction was made based on established principles of law. Lord Lowry at pages 535 and 536 said:-

“ With regard to the inherent jurisdiction, it is fallacious to pose the alternative that it was either abolished by the Act of 1974 (or strictly by the Act of 1843) or else remained in full force and effect. The doctrine of the sovereignty of Parliament or the legislative supremacy of Parliament, as it is called in Wade & Bradley's Constitutional and Administrative Law, 10th ed. (1985), p. 65:

'consists essentially of a rule which governs the legal relationship between the courts and the legislature, namely that the courts are under a duty to apply the legislation made by Parliament.'

One must distinguish between affirmative and negative provisions: the common law can co-exist with a statutory provision with which it is not inconsistent. Mr. Newman, for the respondent, as well as introducing the quotation from Wade & Bradley, referred your Lordships to Coke, Institutes of the Laws of England (1817), cap. 20, p. 200 (O. 2 Inst. 200):

'it is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law’ ”

(emphasis added)

[32] However, it must be noted that the position regarding the ordinary jurisdiction of a contested claim remained unaffected. At page 538, Lord Lowry categorically speaking of the ordinary jurisdiction said as follows:-

“.....in the absence of inherent jurisdiction, a client who had been grossly overcharged would have no remedy once he had been careless or unfortunate enough to fall foul of the 12- month time limit. But it has to be said that in some cases the solicitor will have deducted his costs from money received on the client's behalf, in which case the client could sue under the ordinary jurisdiction described in In re Park[1889] UKLawRpCh 62; , 41 Ch.D 326.”

(emphasis added)

[33] After the decision in Harrison –v- Tew (supra) the English Court of Appeal again considered the Court’s inherent and ordinary jurisdiction in Turner & Co & O. Palomo Sa [1999] EWCA Civ 2007; [2000] 1 WLR 37. In that case the solicitors were challenging the client’s attempt to have the reasonableness of the charges determined either by taxation or assessment by a Judge. The question before their Lordships was “whether the client lost the right to challenge the amount of the bill after the period of taxation had lapsed.” Lord Evans in delivering the judgment of the Court distinguished Harrison -v- Tew (supra) on the narrow issue of the payment of the bill. His Lordship expressed some doubt as to whether the House of Lords closed the doors for a client not having timely activated the taxation process. His Lordship said:-

“Having examined the wording of the Act itself and having referred to the cases of In re Park, Allen -v- Jarvis and also to Jones & Son -v- Whitehouse and having taken notice of the decision in Harrison -v- Tew said : “These judgments, in our view, are clear Court of Appeal authority for the proposition that a client who is sued by his solicitor for the amount of his charges is entitled to challenge the reasonableness of the sum claimed, notwithstanding that the period during which he may apply for an order for taxation under what is now section 70 of the 1974 Act has expired.”

(emphasis added)

[34] Evans LJ, in conclusion at page 59 succinctly held :

“The Court of Appeal has held, three times, that the common law or "ordinary jurisdiction" of the court is not excluded, and these judgments are not in any way inconsistent, in our view, with the decision of the House of Lords in Harrison v. Tew [1990] 2 A.C. 523".

(emphasis added)

[35] Therefore S 70(4) of the Solicitor’s Act expressly abolished the inherent jurisdiction only on a narrow issue. Save for that, the three folds jurisdiction In Re Park applies. For that reason, the Court held that the inherent jurisdiction for that narrow purpose was eroded with the coming into effect of the legislation. This point is well made out subsequently by the Court to Appeal in Turner & Co –v- O. Palomo SO which I have already discussed. Turner & Co –v- D. Palomo SQ was subsequently applied in Brian Connolly (Trading as Connollys (A. Firm) -v- Patrick Benald Harington (a liquidator) 2002 WL 1654988 (17/5/2002).

[36] The reason I have examined in depth the position in England is to compare as how the legislature intervened purposely to curtail the Court’s wide powers for a very limited circumstance and the prevalence of the common law which for most part applies or is persuasive in this jurisdiction. In Turner & Co. –v- O. Palomo at page 59, Lord Evans explained the evolutionary reason for the introduction of S 70 (4) as follows:-

"It seems to us also that the approach adopted in Jones & Son –v- Whitehouse [1918] 2 K. B. 61 was a straightforward application of the principles which govern any application for summary judgment under Order 14. In 1918 the solicitor was required to serve a particularised Bill of costs. It was then for the defendant to show "plausible" grounds for objecting to individual items. If he did so, then the court would inquire into the reasonableness of those items, but without embarking on a full-scale taxation or an inquiry into the whole Bill. Today, the solicitor is entitled to deliver a gross sum Bill, as the solicitors have done in the present case. In those circumstances, if no breakdown has been provided, then the most that the defendant can be expected to do is to challenge the reasonableness of the total sum claimed. The language used In re Park[1889] UKLawRpCh 62; , 41 Ch. D. 326 reflects the same approach, though at a time when the question of reasonableness was for a jury to decide, subject to the court ruling that the evidence disclosed a prima facie or even conclusive case."

[37] To conclude therefore the position in England is that the Court has jurisdiction over the Solicitors:

(a) Under the Solicitors Act 1974.

(b) Inherent Jurisdiction not specifically abolished by any Statute.

(c) Ordinary jurisdiction to decide contested claims.

OUR POSITION

[38] I have already discussed this at length at the beginning of this decision. I do not intend to repeat the same save to discuss the requirement of "reasonableness" of the fee. The Act specifically recognises fee agreement (S. 72), contingency fee (S. 78) and as well as "schedule of fee established by the Regulation ... together with any disbursements" (S. 79).

[39] S. 78 gives an unfettered right to a Practitioner to sue and recover the fee. This includes fee pursuant to any ‘agreement’ or "schedule of fee" prescribed by the Costs Review Committee. I will pause here to reiterate that a client has a right under S. 77(2) to apply to Court or Judge to review any fee agreement for its reasonableness. Effectively, it implies that a client is not strictly bound by the fee agreement. A fee agreement thus is capable of being tempered with by the Court. In doing so the Court may take into account matters prescribed by S. 77(5), to which I have already alluded to.

[40] As to the reasonableness of the fee, under Rules of Professional Conduct and Practice, under Rule 7.03 provides:- "A Practitioner shall not charge client a fee greater than is reasonable in the circumstances."

[41] This Rule is particularly important in that where the question as to the reasonableness of fee is raised the onus is upon the Practitioner to justify the same. In order to discharge the burden, amongst other matters the Practitioner must adduce evidence that s/he has complied with rule 8.01 (1) (a). That rule requires the Practitioner to have in place a procedure whereby from the outset a client is given the information as to:-

"(i)......

(ii) The basis upon which costs will be charged and if reasonably possible an estimate of costs."

[42] S. 79(2), permits a solicitor to commence recovery action "without prior taxation of costs." But where the agreement or appropriate schedule of fee is left to the discretion of the taxing officer no action can be commenced before taxation. A client is entitled to request for particulars. Unless the particulars are provided and five days has had lapsed no action can be commenced by the Practitioner. If one was commenced, it will be automatically stayed under the Act until such time the details are provided.

[43] All in all, the relevant provisions of the Solicitor’s Act 1974 of England are markedly different to that of our Act. Our Act vests the court with unlimited powers to deal with the issue of the reasonableness of the fee akin to the three folds jurisdiction held in In re Park. Although, Order 38, which is largely procedural, places certain constraints. It does not absolutely curtail its wide powers under the Act. Since the Act does not expressly abolish the inherent jurisdiction of the court over its officers, in my view the source of the power conferred to the courts to deal with a Practitioner’s bill of costs held in In re Park(supra) ipso facto apply.

[44] In conclusion thus I hold the following:-

(a) Under the Legal Practitioners Act the Court has an unfettered discretion to deal with a contested bill of cost whether it be a "fee agreement" or "based on schedule of costs prescribed by the Regulations" or "contingency fee"

(b) Unlike the Solicitor’s Act 1974 of England, the Legal Practitioners Act does not curtail any powers of the Court. Therefore on the ratio of In re Park (supra), the Court still retains the three sources of jurisdiction over the Practitioners as follows:-

(i) under the Legal Practitioners Act 1997;

(ii) inherent jurisdiction as officers of the court;

(ii) ordinary jurisdiction as applies in any contested claim.

(c) The Legal Practitioners Act gives the clients an unrestricted right to challenge a Practitioners bill from the time of signing a fee agreement, presentation of a bill of cost or when sued.

(d) Because the Practitioners are required to charge only "reasonable fee" where reasonableness is contested," the onus rests on the Practitioner to establish the same before a Court or Judge. It implies that where reasonableness of bill is queried, the Court has an unlimited jurisdiction to decide it.

(e) Although S 79(2) does not restrict the filing of recovery action for fee by a Practitioner, perhaps in cases of prima-facie contested bills, taxation prior to commencement of action is the appropriate approach to take. However, each case must be decided on its own facts.

(f) Although the Legal Practitioner’s Act does not make reference to Order 38 of the Magistrates Court Rules, in view of no timeframe being provided, in my opinion the Order complements the Act. Thus the 12 months period still applies mutatis mutandis. The effect of it is that the client can only challenge the reasonableness of items identified and not the whole bill.

(g) Order 38, rule 3 must be read together with the Act. S 80 (2) defers the filing of any action until the Practitioner provides necessary particulars sought and for further five days from the provision of the same. Twelve months period commences to run after the lapse of five days from the provision of particulars by the Practitioner where it is sought, otherwise anytime after the delivery of the bill of cost.

(h) For the application of Order 38, rule 4, that is the "twelve months period" the Court still has the power to consider the cost claimed under "special circumstances." For special circumstances, English cases do apply. In addition the Court also retains the inherent jurisdiction over the Practitioners’ as its officers.

(j) Apart from the Act, the Court can still after the lapse of 12 months consider a bill under its ordinary jurisdiction as contested claim where no special circumstances are shown or beyond the scope of the inherent jurisdiction. The Act as well as the common law allows the Court to look at the "reasonableness" of the fee charged.

Order 14 Application

[45] Having considered the various jurisdictions and power of the Court, let me consider whether in this case as submitted by the plaintiff, a legal Practitioner is entitled to a summary judgment on the premise that the statutory bill of cost was duly delivered and it remained unpaid for over twelve months. The short answer is "No".

[46] To begin with the general rule is that a solicitor’s bill is no different from any other claim. In Re – Park (supra) Sterling J (whose judgment was upheld by the Court of Appeal) at page 333 expressly stated:-

"The Courts of Common Law dealt with an action on a solicitor's bill of costs in the same way as they would deal with an action on an ordinary tradesman's bill containing a number of items.

(emphasis added)

[47] Like any other case, delay in seeking taxation may militate against the client, "If it were shewn that the bill had been delivered for a considerable time, and had never been objected to by the person to whom it had been delivered; and if the bill on the face of it seemed to be fair and reasonable, a jury would no doubt be told that, in the absence of anything to the contrary, it was conclusive against the person charged and that they ought in such a case to find a verdict for the plaintiff"; In Re – Park (supra)

(emphasis added)

[48] Lord Justice Gibson in Peter Carter Ruck & Partners –v- Mr. S. Holmes and Anor. [2001] EWCA Civ 285, further considered the application of Civil Procedure Rules pertaining to the solicitor’s Bill. His Lordship conclusively held:-

"In any event, why should the District Judge, assessing what was due under a contractual claim for solicitor and client fee, apply the Civil Procedure Rules and the overriding objective? Although statute has intervened in relation to what a solicitor may recover by way of fee, there is no difference in principle between a claim by a solicitor for his fee and a claim by a non-solicitor for work done for a customer or client (see Lumsden –v- Shipcote Land Company [1906] UKLawRpKQB 73; [1906] 2 KB 433 at page per Stirling LJ). The Civil Procedure Rules and the overriding objective relate to the conduct of court proceedings and in particular as to how court should apply the rules."

[emphasis added]

[49] I adopt and apply both the statements of Sterling J and Gibson LJ, to the present case. Thus the plaintiff’s bill is no different to that of any non-legal Practitioner’s claim. A fortiori the civil procedure and rules apply without any derogation. It follows therefrom that the settled principles of granting summary judgement apply on all fours. Those principles are comprehensively summarised in Carpenters Fiji Ltd –v- Joes Farm Produce Ltd Civil Appeal No. ABU 0019/2006. I do not intend to repeat the same.

[50] Thus, in so far as a solicitor’s bill is concerned, where the liability to pay is contested for meritorious reason(s), then an unconditional leave must be granted to defend the entire action. On the other hand, where only the reasonableness is challenged an interlocutory judgment as to liability may be allowed with leave to challenge the quantum.

[51] As to the burden of proof, Thomas J in Hibiscus Shopping Town Pty Ltd –v- Woolworths Ltd [1993] FLR 106 at 109 aptly stated:

"The legal burden of proof is borne by this plaintiff throughout the application, however when he had established a prima facie right to an order, a persuasive or an evidential burden shifts to the defendant to satisfy the court that judgment should not be given against him."

(emphasis added)

[52] Ms Muir relied on Order 38 rule 4 of the Magistrate’s Court Rules to support the summons for summary judgment. She submitted that after the lapse of 12 months from the service of a bill the payee is forfeits the right to challenge the costs.

[53] On this point, Ms Muir’s primary hurdle is that the action was commenced before the lapse of 12 months of the delivery of the bills. Of the series of bills sent, the first was on 11th September, 2008 and last being on 30th March, 2007. This action was commenced on 1st may, 2007. None of the bills come within the 12 months timeframe as such Order 38, rule 4 is inapplicable.

[54] Secondly, there is no agreement at least to prima-facie ascertain the reasonableness of the fee. Nor is there any evidential foundation for the methodology by which the fee may be calculated. In short, the claim in the writ is unliquidated. By virtue of S 79(2) the bill needs to be taxed before it becomes a liquidated claim.

[55] Thirdly, the defendant for most part certainly disputes the reasonableness of the fee. As discussed above it is entitled to do so under the Act. Generally, where reasonableness of a fee is challenged, an Order 14 application ought to be on partially allowed as to liability with an unconditional leave to defend the quantum. On this point Pickford LJ in Jones & Sons v Whitehouse [1918] 2 K.B. 61 at page 65 aptly stated:-

"That case therefore decides that, although there was no right to have the bill taxed under the Act, if the client could point out any items as being extravagant, he could have those items, and those items only, inquired into. That was the order made at what was the equivalent to the trial of the action. We have to deal with the matter upon an application for leave to sign final judgment under Order XIV. It seems to me that we must deal with it on the same principle, and we are not entitled to say that if the defendant can point out items in the bill as being apparently unreasonable that is enough to entitle him to have leave to defend as to the whole bill and to have the whole bill taxed. If he can specify certain items as being extravagant, and can thus show a plausible ground of defence as to them, he can have those items, and those items only, taxed, but not the whole bill. Though there is no right to have the bill taxed under the Act, the Court may still under its general jurisdiction order any of the items to be inquired into.

(emphasis added)

[56] However, a summary judgment will succeed where a Practitioner obtains a certificate of taxation from a taxing officer before commencement of an action or seeking such an order; Turner & Co –v- O. Palomo SO (supra). Likewise, where a "fee agreement" is not contested, or the client formally admits to the fee after it is delivered, the court may grant a summary judgement as an uncontested claim. Otherwise, a solicitor’s bill is an unliquidated sum.

[57] In Turner & Co –v- O. Palomo SO (supra), Order 14 application was partially allowed as to liability. The issue of quantum was referred for taxation. But in that case only reasonableness was challenged as opposed to the present case, where the liability is contested with great acrimony.

[58] Reading through the various affidavits filed for and against the application, what clearly emerges is that:-

(a) the plaintiff is adamant that it has complied with Act and Rules, and the fee is reasonable thus a summary judgment is inevitable relief.

(b) the defendant primarily contests that he has paid the plaintiffs fee in full. It claims in total it has paid a sum of $75,449-62.

(c) Arising from (b) above, certainly the defendant not only challenges the reasonableness of but denies owing any fee by the plaintiff. In paragraph 11 of the Affidavit of Elens Galo, (an employee of the defendant) categorically states:-

"The defendant denies the allegation contained in paragraph 16 of the said affidavit and say that the charge are exorbitant and excessive."

(d) There is no evidence of any fee agreement which could be used as a means for ascertain a quantifiable sum so that it becomes the basis of a summary judgment.

[59] A summary judgment is to be only granted in cases where there is no meritorious defence to the claim. Where there are conflicting affidavits, the court should refrain from resolving the same without the benefit of thoroughly cross-examined parole evidence. Before me, there is a defence of an absolute denial. Further, the reasonableness of the fee is directly in issue. Under the Legal Practitioner Act, a client is entitled to test the reasonableness of any fee so demanded. That statutory defence itself becomes a ground not to allow the application for summary judgment.

[60] If the reasonableness of the bill was the solitary issue, I would have directed the Plaintiff’s solicitors to have it taxed. Conversely, the defendant emphatically denies owing any money. The denial is fortified by a payment of following fee:-

Case	Amount
Emi Vosa	$34,978-47
Timoci Dauma	$18,056-81
Salanieta Koroi	$12,867-98
Subhy Wati	$ 9,546-36

The total sum paid is by reference to specific bills of the plaintiff which is tabulated and annexed to the affidavit of Elenoa Galo The plaintiff’s affidavits on the hand contradict the defendant’s contentions.

[61] In view of the conflicting evidence, I will dismiss the application for summary judgment. In doing so, I direct parties to exchange all documents and convene a pre-trial conference to sought out the Bills. If parties agree to have the bills taxed the same can be taxed by the Deputy Registrar or Master. Otherwise, parties must prepare the matter for a speedy trial without any delay.

Conclusion

[62] For the foregoing reasons, the application is dismissed. Due to the importance of the issues raised, I will make no order as to costs.

Accordingly so ordered.

J. J. Udit
Master

19th December, 2008