Maui v Attorney General [2024] SBHC 64; HCSI-CC 645 of 2015 (5 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Maui v Attorney General
Citation:
Date of decision:	5 July 2024
Parties:	Chard-Richards Maui v Attorney General
Date of hearing:	17 June 2024
Court file number(s):	645 of 2015
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Assess and order cost in favour of Maui at $112,400.00. Cost is subject to sales tax.
Representation:	Mr Tovosia for the Claimant Ms Fakarii for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r 24.8, r 24.4 (c), 24.30, r24.36-38, r24.1, r 24.3 and 24.14-24.16, r 24.13, 24.23
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 645 of 2015

BETWEEN

CHARD-RICHARDS MAUI
Claimant

AND:

ATTORNEY GENERAL
Defendant

Date of Hearing: 17 June 2024
Date of Ruling: 5 July 2024

Counsel: Mr Tovosia for the Claimant
Counsel: Ms Fakarii for the Defendant

RULING ON ASSESSMENT OF COSTS

1. On 28/03/2024, I awarded “cost on standard basis” to Mr Maui. I was to assess cost in May 2024. I gave adequate time for counsel to prepare. In May counsel were not prepared. I adjourned hearing in May 2024 to 17^th June 2024. Counsel Tovosia filed a further sworn statement on 10^th June 2024. Counsel Fakari’i did not file sworn statement.
2. The costs awarded is “cost on standard basis” (Rule 24.8). Some costs are made on indemnity basis (Rule 24.9). Some costs may be awarded as parties to pay their own costs (Rule 24.4 (c)). Other costs can be awarded for counsel’s fees (Rule 24.30). There are many types of costs provided for in Chapter 24 of the Rules. I can do the assessment of cost or Registrar can do the assessment (Rule 24.36 - 38). I chose to do the assessment for two reasons. First to complete this case quickly. This case has been dragged on for far too long, since 2015. Secondly having presided over the matter, I am placed in a better position to know the conduct of the proceeding as well as determining the proportionality of the costs in relation to matters involved in the proceeding (Rule 24.8). Additionally, as the presiding judge, I am in a much better position to assess cost in terms of the factors to consider in assessing cost in Rule 24.36 – 24.38.

General principles on cost in the Solomon Islands Courts (Civil Procedure Rules) 2007 – (“Rules”)

3. Before I consider “cost on standard basis”, I will start with general discussions on some of the pertinent principles governing costs in Chapter 24 of the Rules. Because cost is a matter of discretion, I consider a broader understanding of the pertinent principles as paramount: -
   • (i) Court has discretion in deciding whether, when and how to award costs (Rule 24.1) – I have discretion.
   • (ii) Parties can agree to costs and file the agreement in Court (Rule 24.3 and 24.14-24.16) – I have given time for this. Counsel did not agree.
   • (iii) Cost can be awarded outside of Schedule 3 of the Rules (Rule 24.13) – I am not bound by the schedule of costs in Schedule 3 of the Rules, if I have reasons to deviate from the costs in Schedule 3.
   • (iv) A self-litigant party may only recover disbursement costs and no other costs (Rule 24.23) – Not applicable here.
   • (v) The important factors that the Court must consider in the exercise of its discretion to assess cost are in Rule 24.36 – 24.38. In my exercise of discretion, I must consider these factors.
   • (vi) Court can order that the losing party pay for all of the costs of the winning party or some of the costs only (Rule 24.4 (a) and (b). I will have to take one or the other (i.e. all costs or some costs only).

Costs on standard basis

4. Coming back to cost on standard basis, Rule 24.8 relevantly states: -
   • “Costs awarded on standard basis (formerly known as party and party basis) are all costs necessary for the proper conduct of the proceeding and proportionate to the matters involved in the proceeding” (My underlining).

Issue

5. The issue is – What costs are necessary for the proper conduct and are proportionate to the matters involved in this proceeding?
6. There are 2 main costs in my considered view that are necessary and proportionate to the matters involved in this proceeding. First is legal costs (counsel’s fees). Second is disbursement costs properly incurred. In assessing cost under these 2 main heads I am actually considering the factors in Rule 24.36 – 38.

Legal costs/Counsel’s fees – Bill of cost?

7. I have no real assistance, because counsel Tovosia did not disclose a bill of cost. The case authority counsel Tovosia relied on says a bill of cost when furnished to the Court, the Court can assess it and if satisfied, the Court can use a bill of cost as a prudent measure of legal cost to award to the winning party. This is what Deputy Chief Justice Faukona said in the recent case^[1] Mr Tovosia cited to me.
8. What counsel Tovosia gave to me in evidence are invoices/receipts for legal fees charged to Mr Maui. Unlike a bill of cost, invoices/receipts do not itemise clear details that I can reasonably assess such as: -
   • (i) Date bill of cost was given out – This is important because this is a 2015 matter.
   • (ii) Details of litigation work that counsel has undertaken on Maui’s file – This will justify the legal work duly completed and charged. This will help me to assess cost in terms of the factors in Rule 24.36 – 38 – reasonableness of work done and related cost, skill, labour, responsibility, complexity, novelty or difficulty of the proceeding and amount of money involved.
   • (iii) How many hours of litigation work counsel has spent on Maui’s file at any given time – This will tell me the hourly rate that counsel is charging Maui and other matters covered above as factors to consider under Rule 24.36 - 38.
   • (iv) Total cost in the bill of cost under any particular period concerned – Important because from 2015 - 2024, Maui was paying his lawyer’s fees periodically or in instalments, rather than a one-off payment at the end of the case.

(v) Payment of sales tax – A bill of cost will also charge sales tax on top of the total service costs charged to Maui, that the vendor (Mr Tovosia - lawyer) must collect from Maui and transmit to the Commissioner of Inland Revenue for tax. Statutory obligation imposed on vendors^[2] under the Sales Tax Act (Cap 125).

9. In the absence of a bill of cost, I will have to assess cost using Schedule 3 of the Rules. I will use the schedule of costs and see whether I should deviate considering the type of legal work that a lawyer must perform that is reasonably proportionate to this proceeding.
10. Using Schedule 3 of the Rules counsel Fakari’i has carefully submitted a table at paragraph 34 of her written submission, which closely resembles the costs in Schedule 3. I will adopt Counsel Fakari’i’s submission and assess the work performed by the legal practitioner at $30,800.00. However, when I stand back and look at the type of work involved in this proceeding, I can say that since 2015 right up to 2024, the number of hours any lawyer would reasonably spend on this file will come to around 100 hours. A bill of cost will be the perfect measure. Most law firms charge between $700.00 to $1000.00 hourly rates for work they do for their clients. Counsel Tovosia told me from the bar table he charged $1000.00 per hour. In the absence of a bill of cost or sworn evidence, and for the benefit of doubt, I will put it at $800.00 per hour. This is a reasonable charge for hourly work performed in the profession. When I left legal practice in 2015, I was charging $500.00 per hour. That was 8 years ago. So, to put it at $800.00 in 2024, is in my view reasonable.
11. I can deviate from the schedule of costs. So, I will assess cost 3 times the amount I arrived at above using Schedule 3 - $30,800.00 x 3 = $92,400.00. This amount represents a reasonable legal cost for engagement of a lawyer who had worked on the case for about 100 hours since 2015. If I should use the hourly rate counsel Tovosia told me from the bar table, it will come to around $100,000.00. The 100 hours of legal work will include litigation tasks such as meetings with Maui, preparing of pleadings, preparing of sworn statements, research, court attendance, preparations for court attendance, written submissions, preparation for trial, attending trial, travelling to and from court etc.

Disbursements properly incurred

12. Under this head, I note that the disbursements disclosed in the sworn statements are not properly incurred costs. An example I note is attendance at court hearings. A client does not have to come to every court hearing. In this instance, I note that Maui has been faithfully attending court hearings, even when he is not needed. Other times like at trial and to file sworn statements, or be cross examined, Maui is required to be in Honiara for court hearings.
13. For various cost heads Maui is claiming such as transport, accommodation, and administration and miscellaneous, I will group them together under disbursements properly incurred and asses at $20,000.00.
14. The grand total cost I will assess for counsel’s fees and disbursements is $92,400.00 + $20,000.00 = $112,400.00. This is money that will go to Maui because he has already settled his lawyer’s legal fees as per the various receipts/invoices I have seen in the sworn statements. Sworn statements also say other invoices were misplaced over the years. Under the Rules I have discretion to order some of the costs and not all of the costs (Rule 24.4 (b)). This is what I have done here. In addition, under the Rules, I have discretion to decide whether, when and how to award costs (Rule 24.1). This is what I endeavoured to do in this assessment of costs. The cost I award here is subject to sales tax. I do not see such tax charged for legal services rendered and transmitted to the Commissioner for tax under the relevant Act cited above.

Conclusion and Orders

15. Orders of the Court are: -
    • 15.1 Assess and order cost in favour of Maui at $112,400.00. Cost is subject to sales tax.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Levers Solomon Ltd v Van Vlymen [2023] SBHC 130; HCSI-CC 287 of 2018 (21 December 2023).
^[2] Section 13 (1) of the Sales Tax Act (Cap 125).