Kinhill Kramer (SI) Ltd v Totorea [2001] SBHC 90; HC-CC 362 of 1995 (4 December 2001)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 362 of 1995

KINHILL KRAMER (SI) LIMITED

v

High Court Of Solomon Islands

Before: Frank O. Kabui, J.

Civil Case No: 362 of 1995

Date of Hearing: 26^th November 2001

Date of Judgment: 04^th December 2001

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> No appearance of the Plaintiff

Mrs. M. Samuel for the Defendant

ENT

(Kabui, J): By Notice of Motion filed on 25^th October 2001, the Defendant seeks the following orders-

1. &nbssp; that ose cin s these pese proceedings be taxe taxed

2. &nnbsp;; bspts os be oaie paie paid by the Defendant.

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At the hearing of this Summons, the Plaintiff was not prein Court though a certificaificate of service filed by the Defendant showed that Mr. Stewart, the Manager of the Plaintiff, had been served with the Notice of Hearing on 30^th October 2001 at his office at Point Cruz in Honiara.

The Facts

In a judgment I delivered on 6^th October 1999, I dismissed the Plaintiffs claim with costs. By letter dated 13^th September 2000, Mr. Kwaiga, a Solicitor from Crystal Lawyers, a firm of Barristers and Solicitors in town, demanded from the Plaintiffs Solicitor payment of the sum of $16,915.00 being their client's total cost in defending his case in Court. This sum comprised $11,915.00 being cost of travelling expenses and $5,000.00 being the cost of work rendered. There was no itemisation of the items of costs. It was pointed out in that letter that if the costs were not accepted, taxation would follow. No response has so far been received from the Plaintiff. In a faxed message sent by Mr. Radclyffe, the Plaintiffs former Solicitor, Mr. Radclyffe informed the Registrar that he no longer acted for the Plaintiff. This faxed message was dated 22^nd November 2001.

Order 68 of the High Court (Civil Procedure) Rules 196s 1964 (the High Court Rules).<

This is the authority upon which fees are charged in respect of matters specified in Part Parts I, II and III of Appendix I to High Court Rules. Appendix I was later amended in 1975 and that is the present position regarding Court fees. Apart from Order 65, which deals with the awarding of costs and Order 68 above, there are no High Court Costs Rules as in England, in this jurisdiction. This is a fairly serious omission because it makes the life of legal practitioners difficult in that only some form of research would reveal the Supreme Court Costs Rules that apply here. Having said that, I must qualify it by saying that an effort on the part of any legal practitioner can easily produce the required result. This is a fact of life that is brought about by being a former Protectorate of the British, thus adopting the rules of common and equity from England the Acts of the British Parliament of general application and the rules made thereunder. The High Court Rules are rules adopted and applied here by virtue of the British Pacific Islanders Order in Council 1893. In this regard, Order 71 of the High Court Rules is the guide where there is a gap in the High Court Rules. The Order allows the Court to apply the rules of procedure and practice in force for the time being in the High Court of Justice in England as far as they can be conveniently applied in Solomon Islands. It is under this Order that I discovered Order 62 of the Rules of the Supreme Court 1965 published in The Supreme Court Practice 1995, Volume 1 at page 1042.

Procedure on Taxation under rule 29 of Order 62

In this procedure, the party wishing to tax costs byue of judgments, direction or order of the High CourtCourt must begin proceedings for taxation within 3 months after the judgment, direction or order was entered, signed or perfected. If one party fails to commence proceedings within 3 months specified, the other party may do so with the leave of the Court. If leave is granted, the other party will proceed as if he or she were the person entitled to begin taxation proceedings. Proceedings for taxation are commenced by producing the requisite document, which in our case will be the judgment, direction or order of the Court to the Registrar of the High Court. Order 62, rule 7 then states,

…“A party who begins proceedior taxation must, at the sahe same time, lodge in the appropriate office-

(a) &nb a copy of the requisite document produced under &nbsp &nbssp;&nnbp; &nsp; &nbbp;&nnbsp; paragraph (5), and

(b) a statement containing the following particulars:-

(i) >) the name of every party, and the capacity in which he is a party to the proceedings, his position on the record of the proceedings which gave rise to the taxation proceedings and, if any costs to which taxation proceedings relate are to be paid out of a fund, the nature of his interest in the fund;

and

(ii) the address of any party to the proceedings who &nnsp;& sp; span/ t"> conclusion of the proceedings which gave rise to the taxation proceedings was acting in person and the name or firm and business address, telephone number and office reference of the solicitor of any party who did not so acknowledge service or was not so acting in person and also (if the solicitor is the agent of another) the name or firm and business address of his principal;

and

(c) &nbssp;&nusp; s less less tess the taxing officer otherwise orders, a bill of costs

(i)  p; &nsp; in which the profess chargcharges and the disbursement are set out in separate columns and each column is cast, and

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(ii) & p; wsich iich is endo endorsed with the name, or firm and business address of the solicitor whose bill it is, and

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(iii) & whp; which is signed by that solicitor or, if the costs are due to a firm, by a partner of that firm;

and

(d) &nnbsp;; nbsp;nbsp; unp; unless the taxing officer otherwise orders, the papers and vouchers specified below in the order mentioned-

(i) &bsp; ;&nbpp; a bundmp comprising all cill civil legal aid certificates and amendments thereto, notices of discharge or revocation thereof and specific legal aid authorities;

(ii) & p; usless less the rehe relevant information is included in the judgment or order or the parties have agreed the timethe hgs, aificate of times or a copy of the associate’s certificate;span><

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(iii) &nbbsp; a bundlbundle comprising oee notes of counsel and accounts for other disbursements;

(iv) &nsp; & onp;comp ete set of pleadpleadings arranged in chronological order, with any interlocutory summonses and lists of documents annexed to it;

class="Mss="MsoNormal" style="text-indent: -36.0pt; margin-left: 144.0pt; margin-top: 1; margin-bottom: 1"> (v) bsp; &nbsp caoes tnscouto advise with with his advice and opinions, and instructions to counsel to settle documents and briefs to counsel with enclosures, arranged in chronological order;

(vi) &nnbsp;; reportsports and oand opinions of medical and other experts arranged in chronological order;

(vii) &nbp; &nthe solicitor’s corresponespondence and attendance notes; and

(viii) any other ret vanersapuly duly bundled and ; paan laN-GBaN-GB"e="foe="font-size: 12.0pt; letter-spacing: -.2pt"> labelled...”

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Rule 30 then says that after the taxation proceedings have began, the Registrar will notifyotify the party seeking taxation and to any other party within 14 days stating the day, time and place the hearing is to take place. Any party whose 'costs are to be taxed must within 7 days after the commencement of the proceedings for taxation and receiving the notice of hearing must send a copy of his bill of costs to every other party who is to be heard on the taxation and notify the Registrar that he has carried out that obligation. Any failure to carry out the requirements of Order 62 does not however nullify the taxation proceedings but may be treated merely as an irregularity. The Court is vested with the power to set aside either wholly or in part the taxation proceedings or make such order as the Court thinks fit in dealing with irregularities if any under rule 30 above. Rule 31 deals with provisional taxation whilst rule 32 deals with short and urgent taxations.

Extension of Time

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Rule 21 deals witension of time. This rule empowers the Court to extend time in the interest of justice. In this case, the bill of costs was sent to the Solicitor for the Plaintiff about a year after the judgment was delivered on 6^th October 1999. One may wonder why this case has suffered this long delay. No one knows. One thing is however obvious I think. None of the Solicitors in Crystal Lawyers would have been expected to discover Order 62 above and applied it in this case. I will not penalize the Solicitors in Crystal Lawyers for acting out of time. I would extend time for them to commence proceedings for taxation under Order 62, rule 29 of the Rules of the Supreme Court 1965 cited above. I would give them 30 days to commence proceedings for taxation. I would also order that the bill of costs be itemised in the usual way. The order of this Court is that-

lass="MsoNoMsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 1. ; The Defendan ’s s Soli Solicitor commence proceedings for taxation within 30 days from today;

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2. ;&nbssp;&nnbsp; bsp; The bihe bill of costs be itemistemised;

3. ; Cost be cost in n taxa taxation.

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O. Kabui

Judge