Spoutz v Tu'utafaiva [1997] TOLawRp 26; [1997] Tonga LR 154 (30 May 1997)

[1997] Tonga LR 154

TONGA LAW REPORTS

Spoutz

v

Taufaeteau Tu'utafaiva

Supreme Court, Nuku'alofa
Hampton CJ
Cr App 323//97

30 May, 1997

Costs - law practitioners - solicitor client costs – taxation
Law practitioners - taxation - solicitor client costs

The applicant applied successfully to tax a bill of costs received by him from the respondent legal practitioners.

Held:

1. The court had statutory jurisdiction to tax costs (s 26 Law Practitioners Act) and the procedures, powers, criteria and other matters contained in Order 29 Supreme Court Rules 1991 then come into play.
2. It is healthily right and proper that the Court does have jurisdiction and power in such matters. It is both appropriate and necessary.
3. A court has to assess how much time has been reasonably and necessarily spent on the case and allow a fair hourly rate, depending on the complexity of the case and the efficiency of its conduct.
4. Here two counsel on occasions had charged their full time for the same attendance when the attention of both to the particular aspect was neither necessary nor reasonable nor expressly or impliedly approved by the client. Nor was there any justification for inflating the hourly rate for work done "after hours". Nor is it appropriate and reasonable to charge a client for dispensing sympathy and "hand holding".
5. As a final check the court considered and weighed whether the total figure allowed fairly reflected the complexity of the matter.

Cases considered: Sanft v Johnson [1991] Tonga LR 1

Statutes considered: Law Practitioners Act 1989 s.26

Rules of Court considered: O 29 SCR

Counsel for applicant: Mr Niu
Counsel for respondent: Mrs Taufaeteau

Judgment

This Court has clear statutory jurisdiction to tax costs (refer to s.26 Law Practitioners Act 1989) and the procedures, powers, criteria and other matters contained in O.29 Supreme Court Rules 1991 come into play (refer particularly to O.29 r.4(2)).

Far from being some "bad precedent" as put to me by Mrs. Taufaeteau, it is healthily right and proper that the Court does have jurisdiction and power in such matters. It is both appropriate and necessary.

The applicant's objections were put in written and in oral form and I do not intend repeating them here. The bill of costs in question was in detailed form sufficient to allow of taxation (under O.29)and Mrs Taufaeteau spoke to it, to the objections and canvassed other matters.

I have in mind and apply where appropriate the matters spelt out in O.29 r.4(2) and in particular.-

"(ii) There shall be allowed all such costs, charges and expenses as were incurred with the express or implied approval of the client.
(iii) Unless there are exceptional circumstances there shall not be allowed:

• (a) any costs incurred or increased as a result of negligence, mistake or over caution;
• (b) any unusual expense, unless the lawyer obtained the express approval of his client to such expense before it was incurred."

I also have in mind and apply here, where appropriate, the comments of Martin CJ in Sanft v Johnson [1991] Tonga LR 1 (L7/81 & 14/88) that a "Court has to assess how much time has been reasonably and necessarily spent on the case (which may be considerably less than the time actually spent) and allow a fair hourly rate for that time. An additional amount may be allowed if the case is exceptionally complex or it has been conducted with unusual efficiency." (I interpolate - in my judgment neither of those last 2 factors - complexity, unusual efficiency - applied here),...." It "(an hourly rate - as set in PD 2/92, I add) also assumes that he will conduct the case efficiently and not waste time on irrelevant matters. A taxing officer knows from his own experience in practice what work was required to be done, and how long it should have taken to do it. He will disallow any time claimed in excess of this ..... As a final check after taxation, it is necessary to consider whether the total figure allowed fairly reflects the complexity of the action."

The costs in question relate to receiving instructions in an importing of drugs prosecution in the Magistrates' Courts, obtaining bail, deciding on plea and making plea in mitigation on a plea of guilty, deciding on whether to appeal against sentence, doing so, obtaining bail pending appeal, considering a cross appeal filed against the grant of bail, arguing the appeal in the Supreme Court, together with all the necessary matters relating to those events. I do not in any way try to understate (or overstate) the matter and what was involved in it - and I will return to this summary when conducting the "final cheek". The costs claimed in the bill of costs come to a total of $5160-50 for fees and a further $25 for disbursements. The disbursements are not challenged.

Some general remarks on the fee breakdown first. There has been, in my judgment, a degree of double charging in effect at various stages of the services tendered – both Mrs Taufaeteau and Mr Tu'utafaiva charging their full time for the same attendance, when the attention of both to the particular aspect was neither necessary nor reasonable nor approved by the client (expressly or impliedly). In addition, given the basis for fixing hourly rates (see e.g. Martin CJ in the Sanft case at para 5) there is not here any justification for inflating the hourly rate for work done "after hours" whether on Sunday or late at night or whenever. The matters of overheads and a margin by a fair return on the lawyer's learning and expertise remain the same.

There are some 23 individual amounts listed in the bill of costs and I will deal with some of them in this ruling (and refer to them by the number in which they occur in the bill): (I mention the matters objected to): -

1.	claimed $450 - includes a component for "after hours service (i.e. "about 5 hours" would equal $90 per hour as opposed to Mrs Taufaeteau's own accepted hourly rate of $75) and, in my view, excessive time claimed. Fee allowed	$300-00
4&5.	a claimed $525 total and some 7 hours for a Magistrates Court appearance to obtain bail and arrange sureties - even allowing for the difficulties explained by Mrs Taufaeteau, an overcharging in my view - and it is not appropriate and reasonable to charge a client for dispensing sympathy and "hand holding" in the way as put to me by Mrs Taufateau. Fee allowed	$225-00
8.	I accept time and fee as reasonable and appropriate in the circumstances.
9&10.	claimed a total of $350 (2 lawyers for 2 hours a piece) to draft a notice of appeal i.e. a printed standard form with gaps to be completed. I would allow 1 person a generous 1/2 an hour. Fee allowed	$37-50
11.	a claimed $500 for seeing the applicant at Central Police Station and not at Prison, as claimed, to get instructions to appeal and sign the appeal notice - 5 hours claimed at Mr Tu'utafaiva's own accepted hourly rate of $100. A simple and relatively straight forward task, although I accept advice to the client would be appropriate and some time should be spent on that. Fee allowed	$100-00
12.	I accept.
13&14.	a claimed total of $350 and 2 lawyers for 2 hours apiece to go ahead and file an appeal (why not a clerk?), receive and consider the cross appeal re bail (1 page of standard form) advise client and prepare for an appeal hearing. I would allow one lawyer for a total of 2 hours - but given the tasks, 1 of the hours at the lesser rate. Fee allowed	$175-00
15&16	a claimed total of $1050 and 2 lawyers for a full court day to argue an appeal against sentence. That matter, (before me) took a short while only, but allowing waiting time counsel would have been occupied, reasonably, for a half day. I allow 1 counsel, at the higher (senior) rate for that 1/2 day. Fee allowed	$300-00
17,18&19	a claimed $575 and some 6 hours (although the fees and hours do not match in any way) to reserve instructions and draft, write and deliver a 1/2 page letter to Minister of Police re deportation. I allow 1 hour, at the lesser rate - the letter although signed by Mr Tu'utafaiva, seems to have been prepared and delivered by Mrs Taufaeteau. Fee allowed	$75.00
21&22	a claimed $450 for what is shown in the bill as only 2 hours (with an "after hours" component) for receiving and considering a 1 1/2 page letter from Minister of Police and advising of the client on it, by telephone. I allow 1 hour (generous, I believe) at the lesser rate. Fee allowed	$7500
23.	a claimed $350 i.e. 2 counsel for 2 hours apiece to travel to prison to discuss the client's concerns with him - including his concern as to his lawyers' performance. I allow 1 lawyer for 2 hours (given travelling time) at the higher rate. Fee allowed	$200-00

The total amount to be deducted from the total fee of $5160-50 claimed is $3187-50 leaving a balance fee which I allow at $1973-00 which, with the accepted disbursements of $25-00 comes to a total of $1998-00.

I direct that the Registrar issue a Certificate of Taxation in the prescribed form (No.14 SCR) accordingly.

I add that, before leaving the matter and as a final check, I have considered and weighed whether the total figure allowed fairly reflects the complexity of this matter. I consider it does.