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IN THE COURT OF APPEAL
1997, No. 142
(Civil)
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| SPRINGBOK SHIPPING (HK) LIMITED AND OTHERS |
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| CLAYTON WONG & CO |
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Coram : Mortimer, V-P, Godfrey, J.A. and Yeung, J. in Court
Date of Judgment : 28 October 1997
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J U D G M E N T
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Mortimer, V.-P.:
1. This is an appeal by a firm of solicitors (Clayton Wong) against an order for taxation of bills for costs made by V. Bokhary J on 25 June 1997. She allowed an appeal against the master's dismissal of an originating summons taken out by eight former clients who were the plaintiffs in the action.
The facts
2. Very briefly the facts are that Clayton Wong represented the eight clients in bankruptcy proceedings. There are 12 bills involved. Those bills were rendered between 21 March 1996 and 31 January 1997. The first five presented were paid out of monies held on account by Clayton Wong but the last seven were paid by cheque from new solicitors on 13 February 1997. The last seven bills were paid following an appearance in court, which is not relevant to these proceedings, but the bills were paid accompanied by a letter in which the plaintiffs' new solicitors said:
"Please note that we reserve all the respondents' rights in relation to your fees."
That followed considerable correspondence and communication between Clayton Wong and the new solicitors concerning the fees and the payment of them. The strange circumstance is that early in the correspondence on 9 January 1997 Clayton Wong wrote to the new solicitors, saying that they would be prepared to accept an undertaking for the payment of the fees from the new solicitors if necessary after taxation. So the two firms each contemplated taxation of the fees but never agreed as to how that should be brought about.
The decision below
3. The matter came before the judge. Taxation was applied for under s.67 of the Legal Practitioners Ordinance Cap. 159 which reads:
"(1) On the application, made within 1 month of the delivery of a solicitor's bill, of the party chargeable therewith the Court shall, without requiring any sum to be paid into court, order that the bill shall be taxed and that no action shall be commenced thereon until the taxation is completed.
(2) If no such application is made within the period mentioned in subsection (1), then, on the application either of the solicitor or of the party chargeable with the bill, the Court may, upon such terms, if any, as it thinks fit (not being terms as to the costs of the taxation), order -
(a) that the bill shall be taxed;
(b) that, until the taxation is completed, no action shall be commenced on the bill, and any action already commenced be stayed:
Provided that -
(i) if 12 months have expired from the delivery of the bill, or if the bill has been paid, or if a verdict has been obtained or a writ of inquiry executed in an action for the recovery of the cost covered thereby, no order shall be made on the application of the party chargeable with the bill except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the taxation as the Court may think fit;
(ii) if the bill has been paid, no order under this subsection shall be made where the application for the order is made after the expiration of 12 months from the date of payment of the bill."
The judge held that here there were special circumstances upon which she should order a taxation. That relates to the proviso in the section relating to bills for costs which have been paid.
The issue
4. The parties agree that the only issue in the case is whether the judge was right when she found that there were special circumstances upon which she ought to order taxation so that she could then exercise her discretion to do so.
5. The basis of her decision was:
"First of all, there is cogent evidence, well worthy the attention of a Taxing Master, of overcharging by something in the region of 35 per cent.
Secondly, looking at the bills of cost, they are very lacking in particularity, and really do cry out for the attention of a Taxing Master."
Mainly based upon those two matters, she ordered the taxation.
6. However, that was not the only reason she gave. She also considered the reservation of rights at the time of the payment on 13 February 1997 to which I have referred. On that she said:
"...The Plaintiffs also rely on what they put forward as a reservation of their rights to taxation which reservation they made in the letter of 13 February this year."
A little later,
"Taking things in context, I view what was written on behalf of the Plaintiffs as an adequate reservation of their right to taxation. As it happens, I would be in favour of the Plaintiffs even without such reservation. For completeness sake, however, I should say that I am of the view that the fact of such reservation is something on which the Plaintiffs could place some reliance if they have to."
As I read her judgment, she relied mainly upon the first two matters - the overcharging and the lack of particularity in the bills - but also relied upon the reservation of rights as a third special circumstance.
The appellant's case
7. Mr Bell for Clayton Wong, submits that there was no basis in evidence for the judge to make a finding of special reasons and therefore she was wrong in making the order she made. He has helpfully invited our attention to authority on the question what are "special reasons".
8. He relied first upon in Re Norman (1886) 16 QBD 673. Lopes LJ adopts the words of Bowen LJ in In re Boycott:
" 'Special circumstances, I think, are those which appear to the judge so...
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