Suri v Morris [2003] SBHC 151; HCSI-CC 172 of 2001 (2 April 2003)

CC 172, 2001, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 172 of 2001

IN THE MATTER of the Bankruptcy Act [Cap.3]

AND

IN THE MATTER
of the appointment of Wayne Frederick Morris and of Benjamin Giles Price
as Special Managers/Trustees of the Estate of Rex Fera

BETWEEN

GABRIEL K. SURI as Deputy Official Receiver for the Estate of Rex Fera
First Applicant

AND

ATTORNEY GENERAL
(Representing the Minister of Commerce)
Second Applicant

AND

WAYNE FREDERICK MORRIS and BENJAMIN GILES PRICE
as purported Special Managers/Trustees of the Estate of Rex Fera
First Respondents

AND

CLEMENT TORI, JACK WALE, BRADLEY BOENI FERRIS FOLI, EDNA JEOFFREY
Second Respondents

High Court of Solomon Islands
(Registrar Chetwynd)

Civil Case No 172 of 2001

Mr. Suri in Person
Mr. Katahanas for the Second Respondents
The First Applicant and the Second Respondents not appearing

Before Registrar Chetwynd as Taxing Officer Hearing 2nd April 2003

REGISTRAR CHETWYND - This matter has come before me on Taxation. It follows an order made by Kabui J which says that the Applicants should pay the costs of the First Respondent “to be taxed if not agreed”

The First respondents have now produced a bill for taxation. In the narrative of the bill they say that the present High Court scale of fees [the scale at Appendix J in the High Court [(Civil Procedure) Rules 1964 (“the Rules”)] is over 20 years old and that they should be able to claim fees in excess of those permitted under the scale. They say I can find “special circumstances” and use my discretionary powers to increase what is payable under the scale. I am not, at this stage being asked to scrutinise each and every item in the bill, I am being asked to give an indication whether or not I accept that argument and agree to tax the bill at an hourly rate of SBD500 for Solicitors and SBD80 for clerks where appropriate.

The provisions as to costs in this jurisdiction are found at Order 65. The Rules of the Supreme Court (“RSC”), the rules that governed practice in the English Courts in 1961, also contain provisions as to costs at Order 65. I have to point out is that in our O.65 there are 13 Rules. In the RSC equivalent there are 28 Rules and some 58 Regulations. In short, there are some very important differences between the Rules and the RSC. As has been said in a number of cases, I can only do what I am permitted to do by the Rules. It is a statement of the obvious therefore that in the matter of costs I must refer to the Rules.

O.65, r. 1., of the Rules says, in brief terms, that costs are in the discretion of the Court. Our Rule is almost identical to O.65, r.1 of the RSC. I can look at the notes to the RSC and the cases mentioned therein to obtain guidance. It is clear that what this Rule means is that the Court has a wide discretion on the question of the award of costs in any matter before it. However, that discretion is, in the terms of O.65,r.1, “subject to the provision of these Rules”. At its basic level Order 65 means that the Court can make orders as to which party pays what costs in any proceedings before it. Thus, the Court could order the costs to be paid to the parties in definite proportions, or even make a successful party pay the costs of the losing party. It can order fixed costs instead of taxed costs.

There is a distinction in the Rules between what the Court can do and what the Taxing Officer can do. This is only sensible when you think that the Court hearing the matter will have delved much more deeply into the progress of case and the Taxing Officer only becomes involved at the very end. It is clear from paragraph 43 of Appendix J that the Court’s discretion is far wider than a Taxing Officer’s. It reads:-

“43. In any case a judge of the Court either at the trial or on notice of motion made within 14 days after Judgment is pronounced may certify for an increase in any of the above charges, of such amounts as he thinks fit having regard to all the circumstances of the case”.

This provision is little used by Practitioners in the Court and I have to confess I do not know why that is. It seems to me that paragraph 43 coupled with O.65, r.1 gives a Judge the widest possible discretion on the question of costs, not only as to who should pay the costs and on what basis but also as to the amounts that can be used instead of those set out in Appendix J.

O.65, r.1 does not give a Taxing Officer such unfettered discretion about the amount of costs any party should pay or be paid except in the broadest of terms. Once the Court has said that party “A” should pay party “B” the cost of proceedings a Taxing Officer cannot say that “A” should pay those costs at an hourly rate of X dollars. The reason being is that there is provision in the Rules relating to the what rates are properly payable and these rates are set out in Appendix J.

The provision is found at O.65, r.13. That says;

“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”.

So far as my authority as a Taxing Officer is concerned, I am of the opinion that O.65, r.13 is quite plain and clear. It means for example that if you refer to the first item in Appendix J [Instructions for and writing letter before action or defence] the minimum sum that can be allowed on taxation for that item is $10.00 (the Lower Scale) and the maximum is $20.00 (the Higher Scale).

Under the RSC the situation is different. Both the Rules and the RSC follow basically the same format and wording until we get to O.65,r.8. In our Rules O.65, r.8 deals with a situation where (in the words of the marginal note) “Costs may be allowed to or ordered to be paid by an advocate on account of delay or misconduct”. Exactly the same Rule may be found in the RSC at O.65, r.l1.

In the RSC O.65, r.8 deals with what costs are allowed and says, in effect that costs are only to be allowed on the lower scale. In O.65, r.9 of the RSC there is a specific discretion available to Taxing Officers to allow costs on the higher scale “on special grounds”. It has been said that O.65, r.9 (of the RSC) merely re-enforced the discretion set out in O.65, r.1. ^[1]

It seems to me that our O.65, r.13 combines the two RSC mentioned above but without the specific need to find special grounds in order to allow the Higher Scale to apply.

How do these rules apply to costs in general? The RSC can assist. The General Note to Appendix N (which is the scale costs set out in the 1961 RSC) puts it this way;

“The allowances in this appendix are applied to all cases by O.65, rr. 8,9; but neither the fixtures in this Appendix, nor any regulations on practice·made by Masters after agreement among themselves, can fix an absolute maximum so as to deprive the Taxing Masters in special cases of discretion which they have received under O.65, r. 27(29) .......”.

This General Note mirrors the comments of Farwell J., in Re Ermen [1903]2 Ch.156. In his Judgment Farwell J referred to the negative words found in O.65, r.8,

“...Solicitors shall be entitled to charge........set forth in the column headed “Lower Scale”......and no higher fees shall be allowed in any case ..........” (My emphasis.)

In the Rules the corresponding phrase in O.65, r.13 is differently worded but the effect is the same,

“There shall be allowed......fees and costs amounting to not less than those prescribed in the Lower Scale........and not exceeding those prescribed in the Higher Scale”. (Again my emphasis.)

There is a crucial difference though between our Rules and the RSC. In O.65, r.8 of the RSC after the words I emphasised above there follows the words’ “...... except such as are by this Order otherwise provided for......” Farwell J., says, at page 161,^[2]

“Turning on to find what are “otherwise provided for”. I find a fasciculus of sub clauses headed “Special allowances and general regulations,” 58 in number, contained in rule 27.”

There are no such provisions in our Rules. There is no provision in our O.65, r.13 which refers a Taxing Officer to regulations. We simply do not have the equivalent of Order 27.

In short then, I do not think that I, as a Taxing Officer in Solomon Islands, have as much discretion as did the Taxing Officers in England. There is no ambiguity in the Rules so I cannot go to the English Rules and ignore our own. Neither can I rely on the saving provisions of Order 71. My authority to tax and the way I must tax are set out in Order 65. That order is quite clear. In my humble opinion, the only discretion I have in dealing with “the various matters set out in Appendix J” is the appropriate level of costs and fees between the minima and maxima of the Lower Scale and the Higher Scale as set out in Appendix J.

As I have indicated already, there are no “Special allowances and general regulations” as referred to by Farwell J. to guide and assist me. In fact there is very little in the Rules to assist on the question of costs. Whilst I can take note of the best practice in England and utilise some of the guidelines set out by Taxing Masters in the various Annual Practices I cannot consider myself bound or rather “unbound” by the specific discretions set out in the RSC O.65, r.8 or r.27.

The difficulty of the Taxing Officer in Solomon Islands do not end there because the other major difference on costs between the Rules and the RSC is in the scales themselves. Appendix N is far more extensive than Appendix J. Appendix N (admittedly with all it’s footnotes) takes up some 50 pages of the 1958 White Book. Scale J takes up 6 or so pages of our Rules. For this reason I surmise that the framers of our Rules, realising the probable inadequacies of the Rules, inserted a provision into Appendix J in the following terms;

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.”

In my copy of the Rules the 1970 date has been crossed out and 1980 inserted. I have to confess that I do not know why that is. I have looked in Solomon Island Laws and the Gazettes for 1979 and 1980 but I can find nothing relating to a change in Appendix J. I did discover the High Court (Civil Procedure) Rules 1964 Amendment Order 1980 (number 2); (That introduced Order 60A) and it being number 2 it presupposes there was a number 1 amendment, but I cannot find it. I am prepared to hear further argument on whether I refer to the 1970 or the 1980 Scales but for the time being I shall read paragraph 44 of Appendix J as referring to the 1970 Scale.

The effect of this provision in the Rules (Appendix J is part of the Rules) is that if there is a claim for costs which is not “in relation to the various matters set out in Appendix J”, [0 .65,r.13] then I can refer to Appendix 2 to Order 62 of the Rules of the Supreme Court. By way of explanation I should note that the Order which deals with costs in the Supreme Court in England in 1970 is numbered 62 and not 65. To add just a little more confusion the equivalent of Appendix J is Appendix 2.

There would appear to be two principle methods of taxing costs in .Solomon Islands. If the costs are for items set out in Appendix J then I am bound by the minima and the maxima set out in Appendix J. as I have indicated above. If they are not in relation to the various matters set out in Appendix J then I refer to Appendix 2 of the 1970 RSC.

There is no Lower or Higher Scale in Appendix 2. There is sometimes a set figure, sometimes a minimum and a maximum figure and sometimes a discretionary figure. To see how to deal with these one must then turn to Part X of Appendix 2 of the 1970 RSC. There one finds guidance on dealing with those various elements. Paragraph 1.-(1) of Part X says;

“Where in the foregoing provisions of this Appendix there is entered in the second column against any item specified in the first column either an upper and a lower sum of money or the word “Discretionary”, the amount In respect of that item shall (subject to any order of the Court fixing the costs to be allowed) be in the discretion of the Taxing Officer, within the limits of the sums so entered, if any”

It is quite clear then that when I am taxing costs which are not in relation to the various matters set out in Appendix J I can use my discretion. If there is a lower and an upper figure I can fix an amount between the two. If the word “Discretionary” appears in the second column (of Appendix 2) it would appear I have a wide discretion as to the amount. I must point out though that I do not have the benefit of Rule 27 as do English Taxing Officers. In other words, my discretion may not be as wide as theirs.

Part X also makes it quite clear that I must exercise that discretion judicially and consider all relevant circumstances and in particular the matters referred to in paragraphs 2.-(2) (a) to (g). In other words I cannot say as I have a discretion to decide the sum allowed I can simply do so without more ado. I am obliged to consider all the circumstances and in particular those set out as above.

To compound my difficulties as a Taxing Officer all this leads to a situation where I tax in 2 different currencies as well. Appendix J costs are obviously in Solomon Islands Dollars. Appendix 2 costs where there is an upper and a lower figure are calculated in pound shillings and pence, converted to pounds and pence (1970 was before decimalisation in the United Kingdom, that event happened on 15th February 1971) and then converted to SBD. So far as the discretionary costs are concerned I see no reason why they cannot or should not be calculated in SBD.

In this particular taxation therefore there are several questions that I can answer at this stage. First, in respect of items in the bill of costs which are in relation to the various matters set out in Appendix J I find that I cannot exercise any discretion apart from choosing between the Lower Scale or the Higher Scale. Given the “age” of the scale I do not think it would be wrong of me to work to the Higher Scale in all taxations.

Secondly, in respect of items in the bill of costs which are not in relation to the various matters set out in Appendix J I find that I can exercise my discretion to tax at “higher rates”. In other words I can, after considering all the relevant circumstances and particularly the matters set out in paragraph 2.-(2) (a) to (g) of Part X of the 1970 Appendix 2, work on a figure up to the maximum figure rather than the minimum figure in column 2. One of the relevant considerations is the “age” of Appendix 2 of the 1970 RSC. The figures set out in Appendix 2 are 33 years out of date. If that is not a relevant consideration then I would say the matter which resulted in this taxation was of sufficient complexity and had sufficient importance to the parties and particularly the First respondent, to warrant my exercising my discretion. I would add that some of the issues explored in the caser were of National importance as well. I may have to look at the individual items again but on the whole I would say that there is sufficient about this matter to say that I can exercise my discretion to allow higher costs unless the individual item is so plainly mundane on the face of it.

Having decided that I can exercise my discretion what figure would I use to calculate the “Discretion” items in Appendix 2. The Solicitors for the First Respondents have suggested in the narrative that I use a figure $500 for qualified Solicitors and $80 for Clerks. I can say that I would not have any difficulty taxing at that figure. I think it is a perfectly acceptable figure in this case in relation to the discretionary items.

At the moment I understand that this taxation stands adjourned generally. I do not believe I have to make any orders as such. Having given an indication of my intended approach I shall let the parties apply to have to Taxation set down again whereupon I shall proceed as indicated above.

Dated this 20th Day of May 2003

R D Chetwynd
Registrar/Taxing Officer

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^[1] Peter Bowen L.J., Paine v. Chisholm [1891] 1 QB, p.589
^[2] Re Ermen [1903] UKLawRpCh 64; [1903] 2 Ch. 156