Patel v Kant [2012] FJHC 898; HBC16.2011 (28 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 16 of 2011

BETWEEN:

RAMESH PATEL
(f/n Raojibhai Patel) of Suva

and

DEVANESH PRAKASH SHARMA
(f/n Prakashwanand Maharaj) of Suva,
trading as R. PATEL LAWYERS, a partnership of Barristers & Solicitors
having its registered Office at Level 5, Development Bank Centre, 360 Victoria Parade.
PLAINTIFF

AND:

RAJINI KANT
(f/n Gaman Lal) of 27 Mal Street, Samabula, Suva, Managing Director
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Mr. P. Sharma for the Plaintiffs
Mr. D .Singh for the Defendant

Date of Hearing: 25th May, 2011
Date of Ruling: 28th February, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff has filed this action to recover money for the professional services rendered to the Defendant. The Defendant does not deny that he retained the Plaintiffs as their solicitors, but he states that fees were unreasonable. The parties are at variance as to the terms of engagement of the solicitors whereas the solicitors depend on unsigned fee agreement and the client denies existence of such agreement. The application before me is the summons by the Defendant seeking leave of the court for extension of time by seven days to file a statement of defence. The Plaintiff object to that application. The application is made in terms of Order 3 rule 4 of the High Court Rules of 1988. The Defendant also seeks a transfer of the case to Magistrate's Court.
   

2. ISSUES
   

2. The issues for determination are:
   

(i). Whether the High Court is the appropriate Forum to determine this Action?

(iii). Whether the Court should grant the Defendant further time to file his Statement of Defence?

(i). Appropriate Forum

3. The Defendant in his Summons and Affidavit in Support by Hemant Kumar filed on 16th February 2011, submits that the proper jurisdiction to hear this matter is the Magistrate's Court.
   
4. The Legal Practitioner's Decree 2009 governs Legal Practitioners including the issue, taxing and recovery of bill of costs.
   
5. Section 148 of the Legal Practitioner's Decree 2009 repealed the Legal Practitioner's Act 1997. The Legal Practitioner's Decree 2009 includes the definition of Court and "Court" means the High Court of Fiji.
   
6. The taxation sought by the Plaintiff is in terms of the provisions contained in the Legal Practitioner's Decree. Practitioner may sue for and recover costs and the Section 79 of the Legal Practitioner's Decree states as follows
   

"79. – (1) Every practitioner shall be entitled to sue for and recover the practitioner's costs pursuant to any agreement made in accordance with the provisions of this Part, or in the absence of such agreement in accordance with the scheduled of fees established by regulation pursuant to this Part, together with any proper disbursements, in respect of services rendered whether as a Legal Practitioner.

(2) It shall not be necessary for a practitioner to have such costs taxed prior to instituting proceedings for recovery of those costs. In the absence of taxation no claim may be made by the practitioner for any costs which are, pursuant to such agreement or the appropriate schedule of fees, as the case may be, left to the discretion of the taxing officer."

7. There is no express provision in the Legal Practioner's Decree for taxation of costs, and there is no special interpretation for the words 'costs' or 'taxation' and the meaning contained in the High Court Rules should be applied to them in the absence of special meaning .
   
8. Assuming the meaning given in the High Court Rules of 1988 the costs should be taxed by the court when there is a dispute in accordance with the rules of taxation contained in the High Court Rules. Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007 Master Udit in an action to recover the fees of a solicitor from a client by way of summary judgment held
   

'[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 denal is fortified by ......'

9. It is clear that Master Udit has held in the said case that if there is only a dispute as to the reasonableness of the fees, still he could have given directions for taxation of the fee, meaning taxing by the High Court and that is by the taxing officer which includes the Master in terms of the Order 62 rule 1 (2) which interprets the word "taxing officer". So, there is jurisdiction for the taxing officer to deal with any disputed fees between parties but that can be done only when there is an action filed for the recovery of the fees as done in this case.
   
10. The Section 79 (1) states that 'sue for and recover' and these words contemplate that a practitioner must institute legal proceedings if he wishes to recover fees and disbursements that are due by a client as done in this case.
    
11. The principles underlying these provisions and the nature and extent of their application is well documented in Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007. In this case, the Plaintiffs solicitors did have instruction to act. They did provide the legal services and thereafter, raised bill of costs for payment. The quantum of the bill of costs was in issue. The Plaintiff solicitors issued a Writ of Summons for recovery of monies due based on bill of costs to which a defence was filed. The Plaintiffs solicitors then filed an application for Summary Judgment but this application was refused by the Master of the High Court, but in refusing the said summons for the summary judgment further held that if the issue was only as to the 'reasonableness' of the fee, then that could have been dealt by a direction for taxation.
    
12. Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007 Master Udit dealt with the issue of provisions contained in Magistrate's Court Rules and the Legal Practitioner's Act 1997 which was the preceded by the Legal Practitioner's Decree and stated as follows
    

'Relationship between Legal Practitioner's 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.' (emphasis is added)

The provisions contained in the Legal Practitioner's Decree 2009 as regards to these provisions are identical the repealed Act of 1997.

13. Section 77(2) of Legal Practitioner's Decree reads as follows
    

"77(2) a client may apply to the Court or a Judge thereof for a review of any such agreement and, if in the opinion of the Court or Judge such agreement is unreasonable, the amount payable thereunder may be reduced or the agreement cancelled and such costs shall be payable or shall be determined in such manner as to the Court or Judge may seem fit. The Court or Judge may also make such order as to the costs of such review as to the Court or Judge may seem fit." (emphasis added)

14. This provision is applicable when there is an agreement between the parties and this can be directly referred to the court for review and the court can determine the cost in such an instance. This is only when there is an agreement and without that court cannot exercise the discretion provided in the said provision. In the matter before me the agreement has been sent by the solicitor to the client but he did not sign it and the solicitor also did not insist on the execution of the agreement, but both parties have acted without any reference to it, but the solicitor has billed according to the said unsigned agreement. The Plaintiff tried to apply the case of Vision Properties Limited v Northern Projects Fiji Limited Suva High Court, Civil Action No. HBC 285 of 2010 where even an unsigned document was considered as legally enforceable agreement. The facts of that case cannot be applied to every situation as submitted by the Plaintiff. In the said case there were ample evidence after the oral and document evidence were submitted to court that both partied had in fact agreed on all the important factors including the price and all of these were done before the unsigned sale and purchase agreement was also communicated to the Property Agent who then communicated to the prospective buyer. So, there were cogent evidence quite apart from the unsigned agreement that the parties have struck a deal before the unsigned agreement was circulated. The said facts are entirely different from the facts of this case and clearly distinguishable from the facts of the case before me. In the case before me there is no prior agreement of minds as to the assessment of costs and though the cost agreement was given to the client both parties ignored it and proceeded for a considerable time without referring to it till this dispute started.
    
15. Section 77(1) of the Legal Practitioner's Decree 2009 allows a Legal Practitioner to enter a written agreement with a client in relation to the amount and manner of payment of fees for services. Section 77(2) of the Legal Practitioner's Decree 2009 allows a client to apply to the High Court or a Judge for a review of a written agreement.
    
16. Section 79(1) of the Legal Practitioner's Decree 2009 allows a Legal Practitioner to sue for and recover the practitioner's costs pursuant to a written agreement. Order 62 Rule 18 of the High Court Rules 1988 allows a Legal Practitioner's bill of costs to be taxed.
    
17. Order 62 Rule 1 defines a "taxing officer" as:
    

"means the Registrar or Master or any officer for the time being authorized by the Chief Justice to act as a taxing officer."

18. Given that the High Court:
    
    • (a) Has the ability to review a written agreement between a Legal Practitioner and a client [section 77(1) of the Legal Practitioner's Decree 2009];
      
    • (b) Allows a Legal Practitioner to sue for and recover the practitioner's costs pursuant to a written agreement [section 79(1) of the Legal Practitioner's Decree 2009]
      

[c] Through the Master of the High Court conducts taxation of bills of costs, the High Court is the appropriate forum to hear and determine Actions instituted by legal practitioners for recovery of amounts outstanding pursuant to bill of costs.

19. Master Udit in Mishra Prakash & Associates v. Lautoka General Transport Ltd. [2008] FJHC 367, HBC 136 of 2007 at paragraph 39 stated as follows
    

'[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.

20. The said matters prescribed are as per Section 77(5) are as follows
    

" (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."

21. So, it is clear that the High Court has the jurisdiction to deal with the disputes relating to the fees whether there is a fee agreement or not between the parties and I do not need to transfer this matter to the Magistrate's Court as requested by the Defendant.
    
22. The Defendant has sought a seven day extension of time period for the filing of the statement of defence. Considering the nature of the writ and the circumstances of the case, here was even an attempt to enter default judgment while this application is pending, for which I aleardy delivered a written ruling on the same day, I do not see any prejudice to the Plaintiff by granting 7 day time period for the Defendant to file and serve their statement of defence. In accordance with the Legal Practitioner's Decree, even if there is a fee agreement between the parties still it can be challenged in a court of law and in this case the fee agreement is not signed by the Defendant. In the circumstances it is nothing but just and fair to allow the Defendant a further 7 day period from today to file and serve the statement of defence.
    

100. CONCLUSION
     

23. The High Court has jurisdiction to deal with contested fees of a Legal Practitioner and I need not transfer the matter to the Magistrate's Court. The Defendant is granted 7 days from today to file and serve its statement of defence. I will not order any cost.
    

4. FINAL ORDERS
   

1. The Defendant is granted to file and serve the statement of defence within 7 days from today.
   
2. No cost.
   

100. The matter will take normal course.
     

Dated at Suva this 28th day of February, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva