Lauer v Magson

• Jurisdiction: Barbados
• Judge: Simmons, C.J.
• Judgment Date: 29 May 2006
• Neutral Citation: BB 2006 HC 9
• Docket Number: 51 of 2004
• Court: High Court (Barbados)
• Date: 29 May 2006

High Court

Simmons, C.J.

51 of 2004

Lauer

and

Magson

Appearances:

Mr. M. Beckles for the plaintiff

Mr. T.A.Walcott in person and with him Ms. B. Callender

Costs - Review of bill of costs — Plaintiff's counsel submitted first bill in amount of $29,203.50 — Bill taxed by Registrar at $23,258.50 — Second bill submitted in the amount of $78,220.92 — Bill taxed by Registrar in the amount of $24,890.42 — Counsel complained that time expended of $37,025 was reduced by the Registrar to $5,955 — Whether Registrar's assessment was fair and reasonable — Court must assess a reasonable amount of costs for work reasonably done — Court not satisfied Registrar properly adverted to the established legal principles due to brevity of reasons — No contemporaneous timekeeping — Costs assessed at $39,748.80.

DECISION

Introduction

1 Simmons, C.J. This is an application under the provisions of Order 62 r.55 of the Rules of the Supreme Court (RSC) for an order reviewing a bill of costs certified by the former Registrar of the Supreme Court, Ms. Sandra Mason. Mr. Theodore Walcott (as he then was) is the former attorney-at-law of the plaintiff and is dissatisfied with the Registrar's assessment of the bill of costs which was taxed and reviewed on the attorney-at-law/client basis. In particular, Mr. Walcott is dissatisfied with the Registrar's decisions as they relate to his time charges for various work – see the schedule appended to this judgment. Mr. Walcott alleges that the taxation and review of the bill were arrived at arbitrarily and whimsically; underestimated the time spent in preparation of the plaintiffs case; failed to take into account relevant considerations and failed to take into account an affidavit filed by his clerk.

Background

2 Some history is important to an understanding of this matter. In February 2003, the plaintiff came to Barbados on a visit. She is a retired German teacher. She met the defendant on 7 February 2003. He persuaded her to join him in a business renting mini-mokes for hire. He proposed that they purchase 10 mini-mokes from Simpson Motors. He would look after their rental but the plaintiff should advance all of the financing for their purchase and pay all expenses. They would own the vehicles in equal shares.

3 A joint venture agreement was prepared by Mr. Rahim Bacchus, attorney-at-law, and he incorporated a company, Jeep Rentals Ltd. The plaintiff returned to Germany and raised a loan from a German bank against the security of her penthouse suite in Hanover. The German bank then transferred approximately $377 000 to the company's account at First Caribbean International Bank in Barbados. The defendant was a signatory to the account. Several times during 2003 the plaintiff came to Barbados to follow up the operations of the company because she was receiving no information or documentation about the business from the defendant. On one visit in November 2003 she observed that “all of the vehicles were on hire 24 hours a day” contrary to the defendant's stories that “business was bad” and “all the roads were closed”. She also found out that the defendant had registered and insured 6 of the vehicles in his own name. The relationship was about to end. Mr. Walcott was retained by the plaintiff to file an urgent application in the High Court to protect the plaintiff's interest in the company.

4 On 16 January 2004, Moore, J. (as he then was) ordered the defendant to deliver up 6 vehicles to the plaintiff together with all records and accounts relating to them. At first the defendant refused to comply with the order and Mr. Walcott moved to commit him to prison. He was in fact not committed to prison because he gave an undertaking to produce the documents which he said had been left at the offices of Pilgrim & Associates, attorneys-at-law. A quite substantial amount of documents was eventually sent to Mr. Walcott's chambers from Pilgrim & Associates, attorneys-at-law. In the meantime, relations between Mr. Walcott and the plaintiff deteriorated. Mr. Walcott ceased to act for the plaintiff on 11 February 2004. He had not been paid his fees. He therefore filed a bill of costs (the first bill) claiming $29, 203.50. The Registrar taxed this bill in the sum of $23, 258.50.

5 On 22 March 2004 the plaintiff re-engaged Mr. Walcott and the next day he obtained an order from Greenidge, J. calling upon the defendant to resign his directorship in the company and authorising the plaintiff to secure a valuation for the 6 vehicles. In response to a public advertisement, by 5 April 2004, Mr. Walcott secured a firm offer to purchase the vehicles for $204,000 and he so advised the plaintiff. But again the attorney-at-law/client relationship broke down in April 2004.

The Second Bill and the Issue

6 Mr. Walcott then filed a second bill of costs for taxation. He claimed total costs including Value Added Tax of $78, 220.92 and this bill did include the previous amount allowed on the first bill (i.e. $23,258.50). The Registrar taxed the total costs on the second bill at $24,890.42. Whereas Mr. Walcott claimed costs based on time expended at $37, 025, the Registrar allowed him $5 955. That is the issue in dispute before me. Was the Registrar's assessment fair and reasonable? After the taxation Mr. Walcott asked for a review and on 23 May 2004, the Registrar, in the presence of Mr. Walcott and Mr. Michael Beckles (the new attorney-at-law for the plaintiff) reviewed the bill but stood by her original taxation

The Registrar's Reasons

7 Mr. Walcott argues that the Registrar's reasons for her decisions on taxation and review were not adequate. I have had the benefit of a transcript of the submissions before the Registrar and the reasons for her decisions. Those reasons, given on 23 April 2004, are as follows:

“Having reviewed the arguments of counsel as well as the bill of costs, each item of correspondence, each document lodged and taking into account the requirements of O. 62.r.7, the bill of costs has been drastically reduced.

It is the opinion of the Registrar that the sum allowed for taking instructions and consultations properly includes the information needed for preparing the court documents and so it will be noticed that the sum for taking instructions have been reduced to $8, 000 from $10, 500 and each court document attracts the sum of $250. There is no significant information included in these documents which would attract the sum requested.

There is a similar opinion regarding correspondence. Having read each letter, it is noted that the information contained in the latter cannot attract the sums requested nor should have taken the time that is suggested. Accordingly, the sum has also been reduced.

The sum requested for the appearances has been allowed to stand since the attorney-at-law is an attorney of over 30 years’ experience.

The amount is therefore as follows:

Disbursements	1,142.17
Legal Fees	21,955.00
VAT on fees	3,293.25
	26,390.42
Less banker's cheque	1,500.00
	24,890.42”

8 In respect of the review held on 24 May 2004, the Registrar's reasons were very brief. She said:

“The award given in this matter was reached after very careful consideration of the law regarding taxation of costs as well as the review of the court file and regard to each item of correspondence.

It was not a decision arrived at either arbitrarily or whimsically. In spite of the foregoing, the evidence given, the law and the documents and letter were revisited and the decision given previously remains the same.”

The Submissions

9 Mr. Walcott criticised the Registrar's approach as erroneous and contrary to principle because she failed to show the method by which she taxed down the bill. He admitted that he received the sum taxed on the first bill viz. $23, 258.50 but alleged that this covered his work up to 11 February 2004.

10 Mr. Beckles submits that the Registrar's reasons were ample. He said the Registrar said that her decisions were not arbitrary or whimsical. He says that she took all relevant considerations into account. In his submission, taxation of costs is an exercise in judgment. He makes two important points. First, he points out that the Registrar had previously allowed the sum of money on the first bill of costs to cover care and conduct of the litigation and Mr. Walcott's office expenses. The second point urged upon me was that the second bill related to “an assessment of work done between March and April 2004”. The Registrar had to be careful not to duplicate the award. Mr. Beckles submitted that the total sum of $78, 220.92 claimed on the second bill in addition to the previous award was wholly unreasonable and was, in effect, a claim for $78,220.92 for one month's work.

The Law Applicable to this type of taxation

11 Since Mr. Walcott's dissatisfaction relates to the Registrar's disallowance of the vast majority of items in the bill of costs to which he had ascribed computations based on time spent, I think it appropriate to set out my understanding of the applicable principles of law. The starting point is the Legal Profession Code of Ethics, 1988 made under the authority of the Legal Profession Act, Cap. 370A. Rule 66 is in point. It is as follows:

• “66.

  • (1) An attorney-at-law shall not charge fees that are unfair or unreasonable.

  • (2) In determining the fairness and reasonableness of a fee the following factors may be taken into account.

    • (a) the time and labour required, the novelty and difficulty of the questions involved and the skill required to perform the legal service properly;

    • (b) the likelihood that the acceptance of the particular employment will preclude other employment by the attorney-at-law;

    • (c) the fee customarily charged in the locality for similar legal services;

    • (d) the amount, if any involved;

    • (e) the time limitations imposed by the client or by the circumstances;

    • ...