Yam v Wong [2002] SBCA 2; CA-CAC 017 of 1999 (19 August 2002)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Civil Case No. 17 of 1999

AUSTIN YAM
Appellant

v

MARIA WONG
Respondent

Mr. J Katahanas for the Appellant
Mr. A Nori for the Respondent

Before: Registrar Chetwynd as Taxing Officer

Hearing: 9^th August 2002

(Registrar Chetwynd) - this matter has come before me as Taxing Officer following the judgment of the full court given on 7^th February 2001 and sealed on 26^th April 2002. The full Court said, inter alia, costs against the Respondent. The Appellants would now like their costs taxed. As a preliminary issue the Appellants Solicitors have asked me, in effect, to indicate what scale of costs I would use. Their main argument is that costs are in the complete discretion of the Court. Mr. Nori, for the Respondents, does not really contest that point. He has other concerns which I have duly noted.

I reserved judgment because I felt that this was an important issue and one of some complexity. However, on consideration I am now of the opinion that it is not a complicated issue. What is, or will be, complicated and problematical are the consequences of my decision.

I am guided in my decision by the recent judgment of His Lordship Mr. Justice Kabui in another Court of Appeal case, namely Jovere -v - Makoto Case Number 01901. In his recent, but yet unreported, judgment His Lordship said, if I may paraphrase him, that the powers of the Registrar are limited by the Rules. That is the Court of Appeal Rules 1983. The Registrar, whether as Registrar or in this case taxing officer, can do no more and no less than what is set out in the rules.

What do the Rules say as to taxation and scales of costs? The short answer is very little indeed. The rules say the Registrar shall be the Taxing Officer. There is no scale of costs and no other guidance or indeed restriction on what costs should be allowed. In essence then I have complete and unfettered discretion to decide the quantum of costs. The questions of where the costs lie and on what basis have already been decided by the full Court.

There is no doubt in my mind that I must exercise my discretion judicially. However, that will give rise to the problems and complications I mentioned earlier. Mr. Katahanas referred me to the helpful case of Dwyer v Dwyer [1976] 2 All ER page 1. Whilst that case concerned the discretion of a Taxing Officer to exceed a scale of costs it is just as helpful in deciding what can be taken into account when there is no scale of costs. Payne J says, "What is a fair rate for solicitors to charge for the time of themselves and their staff requires a detailed study which is not possible within the confines of one case and taxing masters and officers must have regard to what solicitors in fact currently charge their clients and rely on their unique experience in comparing the cases that come before them on taxation". Earlier in the judgment Payne J also refers to the balance that must be maintained between, "curbing the cost of litigation" to prevent it from "becoming so expensive as to make justice unattainable by ....... members of the public" and, "the no less important factor of providing that solicitors and counsel shall be adequately remunerated for their services".

In this jurisdiction that is a problem. The High Court scale of costs is so hopelessly out of date and inadequate that in nearly 6 years of being Registrar I have never been asked to tax a bill of costs. The "unique experience" relied on by Payne J does not exist here. Put somewhat bluntly, there is no experience of taxations, at all in this Jurisdiction. In any future taxations then, at least to begin with, the Taxing Officer is going to require a good deal of evidence from the practising about what is adequate remuneration in Solomon Islands. Legal Practitioners will have to adduce evidence about their businesses, their overheads, the costs they incur in providing legal services to their clients and more of that sort of detail. I appreciate that this may mean the Taxing Officer trespassing into sensitive and confidential areas. I have no wish to fetter the way Legal Practitioners approach this problem but I would suggest that one way is to seek some kind of statement from the Solomon Islands Bar Association about the average rates of remuneration or put another way, the acceptable rates of remuneration presently found in this jurisdiction. I appreciate too that this may be thought of a somewhat novel approach, i.e. ask the lawyers how much they want to be paid, but the alternative is to require detailed evidence from individual Legal Practitioners in each and every taxation.

I would have to say that I am not suggesting that Legal Practitioners have carte blanche on the question of costs. There are rules as to what costs are properly recoverable in most cases. There are settled questions about the meaning of phrases commonly used by Judges and Courts when awarding costs. I am not suggesting for one moment that Legal Practitioners are entitled to recover from losing parties what they would charge their own clients. The issue here is what is an adequate rate of remuneration. The other "normal" rules governing the taxation of costs will, of course, apply. These were the concerns raised by Mr. Nori in the present case. I am of the opinion that those other normal rules are so well established and clear that his concerns are largely unfounded. I again stress that I am dealing with the rate of remuneration not whether a particular item of work is properly recoverable in a particular case. What items of work are recoverable will depend upon the basis of the taxation and that in turn will depend upon the exact order of the Court.

In the present case then I have to say that I do not have sufficient evidence before me to say whether the suggested rate of remuneration, of between $500 and $800, is the proper rate. I will adjourn this taxation to a later date to be fixed to allow the Appellant to produce further evidence concerning the rate of remuneration that would be adequate in the present case.

Dated 19^th August 2002

RD Chetwynd
Registrar Court of Appeal