Gavin v Gavin [1990] SBHC 54; HC-CC 249 of 1989 (25 October 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case 249 of 1989

MARY WINIFRED GAVIN

V.

ROBIN MICHAEL RICHARDSON GAVIN

Taxation of Plaintiff's bill of Costs
Before: M.W. Lodge, Registrar of the High Court
Ruling delivered 25th October 1990

This is the plaintiff's bill of costs in the above action.

In this jurisdiction the rules relating to costs are set out in Order 65 of the High Court (Civil Procedure) Rules 1964

O.65 r.1 provides -

"Subject to the provisions of these Rules, the costs of and incident to all proceedings in the court .... shall be in the discretion of the Court".

It is further provided by O.65 r.13 that

"There shall be allowed to practitioners in the court in relation to the various matters set out in Appendix J fees and costs amounting to not less than those prescribed in the Lower Scale of the said Appendix and not exceeding those prescribed in the Higher Scale of the said Appendix".

The clear effect of these rules is that costs may only be allowed in respect of the matters set out in Appendix J. The only discretion I have is as to whether I allow costs on the lower or higher scale.

In this case all items on the bill of costs are claimed on the higher scale. Strictly, the higher scale should be reserved for the most difficult and complex category of cases. It could not be said that the present case falls into that category.

Appendix J, however, has not been revised since 1975. The amounts recoverable thereunder are clearly inadequate and, though I do not think that, by itself, that is a valid argument in law for taxing on the higher scale, I do not intend, in the absence of any objections to the bill as drawn, to disallow any of the items claimed on page 1 of the bill.

Under the heading 'Part A - Work Done' the plaintiff claims a total of $2,631 in respect of various attendances all of which are itemised in the bill. The bill is charged at a rate of $100 per hour.

Appendix J does not prescribe any scale for "work done". There is a saving provision in item 44, which reads as follows-

"44. For any business not covered by the above scales such as instructions, letters, telephone calls, attendances, etc, the charges in respect thereof shall be calculated on the basis of the scale of costs in the Supreme Court in England subsisting at the 1st January 1970, but without the addition of any percentage increase."

It is clear from this that I only need to refer to the 1970 scale to calculate the costs for any business not covered by Appendix J. If one examines closely the various matters specified in Part A of the bill it is apparent that most of them are covered by Appendix J.

Part A - Work Done

(i) The Plaintiff

Instructions to act, instructions re defence and counterclaim, instructions regarding interlocutory proceedings, and attendance prior to trial are all covered by Appendix J, items 1, 2, 9, 11, 12, 13, and 23 and have already been claimed. I have no discretion to allow any further claim in respect of these items and I would therefore tax off $1,758 - being $1,865 less $107 in respect of letters and telephone calls. I will deal with the claim for letters and telephone calls later.

(ii) Defendant's Solicitor

All the items claimed under this head are correspondence and telephone attendances. As well as charging these at $5.00 and $1.00 each the plaintiff is also claiming for time spent in relation to the same work. This is obviously not what the rules envisage and I must therefore tax off $158 being $256 less $98.

Again, I shall deal with the claim for letters and telephone calls later.

(iii) Evidence

An attendance upon a witness is claimed. There is no provision for this in Appendix J and I am therefore prepared to refer to the 1970 scale. Referring to Appendix 2 to Order 62 RSC I am prepared to consider this as an attendance under item 60 on the scale. The amount allowable is 15s. Converting this to new pence and then to Solomon Islands dollars at today's rate produces a figure of $3.70 (approximately).

I am of the opinion that I have no discretion to allow any greater sum than this and accordingly I would tax off $96.30.

(iv) Considering facts and law

There is no separate provision for this in Appendix J. Nor is there any provision for it in Appendix 2. The matters claimed for are not attendances and I am unable to find any provision in the 1970 scale which seems to cover them. I infer from this that it is envisaged that the consideration of facts and law are matters which have already been taken into account in the scale of costs and therefore I cannot allow any further claim under a different head. I disallow this item and tax off $400.

Letters and telephone calls

These have been claimed at $5 each for letters out and telephone calls and $1 each for letters received.

This is clearly a fair and reasonable rate. I propose to tax this item under item 85 of Appendix 2 as read with item 44 of Appendix J and I allow all sums claimed.

RSC O.62 r.32(2), to which counsel has referred me, allows the taxing officer in special cases to allow costs of an amount higher than that prescribed by the scale in Appendix 2 or in relation to items not mentioned in the scale.

It is useful to recite O.62 r.32(2) in full:

"(2) On a taxation in relation to which rule 29 or rule 31(2) has effect and in other special cases costs may at the discretion of the taxing officer be allowed-

(a) in relation to items not mentioned in the said scale; or

(b) of an amount higher than that prescribed by the said scale."

In a Practice Direction, reported at [1972] 2 All E.R. 352, the Chief Taxing Master made it clear that the words "other special circumstances" in r.32(2) should not be construed ejusdem generis with cases to which rr.29 or 31(2) relate.

On this basis Miss Corrin for the plaintiff now asks me to find that in Solomon Islands every case may be treated as a "special case" simply because Appendix J has not been revised since 1975. It is a necessary implication of her argument that I am asked to take judicial notice of the fact that inflation since 1975 has had a dramatic effect on the value of the Solomon Islands dollar and thus Appendix J is so out of date as to be utterly inadequate as a basis for taxation.

I accept that Appendix J is utterly inadequate. No reasonable taxing officer could possibly consider that Appendix J is a fair basis for assessing costs in 1990. I also accept that r.32(2) confers a wide discretion on the taxing officer.

With the greatest of respect however I cannot accept that I can lawfully use my discretion to evade the clear terms of the legislation. To do so would, in my view, be to usurp the functions of the Rules Committee.

The only way the plaintiff could take advantage of r.32(2) would be by making out a special case in each individual taxation. I am further of the opinion that "special" relates to the circumstances of the case itself, not to extraneous circumstances independent of the case.

With those findings in mind I turn again to examine the claim under Part A.

Although on the face of it this case was a fairly straightforward claim for specific performance of a maintenance agreement it developed into quite a complex matter. Points of law of some complexity were raised and it may be that I could be persuaded that this is a proper case for the exercise of discretion under r.32(2) to allow enhanced costs.

I cannot apply r.32(2) to Part A, items (i) and (ii) because, as explained above, these are items for which provision already exists in Appendix J. If the plaintiff's solicitor wishes me to consider allowing costs higher than those prescribed the bill should have been drawn in such a way as to set out the costs claimed against each item in the scale. The costs of each item would have to be justified with reference to r. 32(2)(b).

I could apply r.32(2)(b) to Part A, item (iii). I have already explained how I have arrived at a figure of $3.70 for an attendance under item 60 of Appendix 2 and I would be prepared to consider an increase of this amount if a special case was made out.

No special case has been made out at this stage.

The effect, in summary, of this ruling on the bill would be to allow the following costs.

Page 1 $75 $258

Page 2 $205

Page 3 $23 $96.30

Total $98 $559.30

This means that a total of $2,412.30 has been taxed off.

Before leaving this case I have to say that I have a great deal of sympathy with the plaintiff. The scales are completely out of date and quite clearly inadequate. Having looked into the matter thoroughly it has also come to my attention that there are a number of conflicting decisions by previous Registrars or District Registrars. Unfortunately I find myself unable to agree with some of those decisions and it may be felt that my ruling adds to the confusion. It may be that the plaintiff appeals against my taxation in which case a definitive ruling may be given by the Chief Justice.

In view of my findings as to the operation of RSC O.62 r.32(2), however, I am prepared to allow the plaintiff to re-draft the bill of costs in the form I have suggested (i.e. claiming a special rate in relation to each of the items on the scale). If the plaintiff wishes to do this I will proceed to tax the bill again on the principles I have set out above.

I will allow the plaintiff a further 7 days to consider her position. Unless she takes any new step, I will formally tax the bill as set out above.

(M.W. Lodge)
Registrar of the High Court