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Fiji Law Reports |
HIGH COURT OF FIJI
Civil Jurisdiction
1. JAGAT LAL
2. RAVENDRA PRASAD SHARMA
3. VIJENDRA PRASAD SHARMA
v
SOHAN SINGH
Byrne J
25 September 1992
Contract – counsel's fees - whether agreed in advance - Legal Practitioners Act (Cap 254) Sections 15 & 18.
The Plaintiffs disputed a legal practitioner's statements of fees. The High Court reviewed the relevant provisions of the Act and HELD: that the fees claimed (1) were unreasonable and (2) had not been agreed as alleged by the Defendant.
Cases cited:
Keeka v Damji (1968) EACA 91
Singer, Martin v Martin [1929] NZGazLawRp 35; [1929] NZLR 301
S.M Koya for the Plaintiffs
G.P. Shankar for the Defendant
Byrne J.:
This is a dispute about a solicitor's costs. It began by an Originating Summons issued on the 14th of July 1989 but on the 3rd of April 1990 by consent Palmer J. ordered that the action be continued as if it was commenced by a Writ of Summons under Order 28(1) of the High Court Rules 1988.
Consequently pleadings were delivered and discovery, obtained and thereafter it was agreed that written submissions be filed. The last of these, the Plaintiffs' Reply, was filed on the 16th of September 1992.
Based on the matters disclosed in the affidavits of the Plaintiffs sworn respectively on the 14th of July 1989 and 2nd of April 1990 and the Defendant's affidavit sworn on the 21st of August 1989, the Pleadings and the facts admitted by the Defendant in his Defence to the Statement of Claim, it appears that the following facts are not in dispute:
(1) The Defendant was at all material times practising as a Barrister & Solicitor at his Chambers at 62-66 Cumming Street, Suva and acted on the Plaintiffs' behalf in connection with a Police investigation conducted by the Criminal Investigation Department of the Fiji Police at Suva which commenced on the 19th of January 1989 against the Plaintiffs for the alleged offences of larceny by servant. He acted for them between 28th January 1989 and 6th April 1989.
(2) At all material times the Plaintiffs kept a Savings Bank Account with their respective Banks as follows:
(a) the First Plaintiff with Australia and New Zealand Banking Group Limited and Westpac Banking Corporation at Suva;
(b) the Second Plaintiff with the Bank of New Zealand, Nausori and Westpac Banking Corporation at Nausori;
(c) the third Plaintiff with Westpac Banking Corporation at Nausori.
(3) On the 28th of January 1989 the Plaintiffs signed a Document entitled "Instructions to Act" which I shall later set out in full as it is important to the resolution of the dispute between the parties. Although the penultimate line of this document in each case reads: "Agreed Fees: $49,278.16, $43,866.40 and $6,917.74" respectively the Plaintiffs dispute that these words formed part of the relevant document in each case at any time.
(4) On or about 6th of June 1989 the Defendant after obtaining an authority from each of the Plaintiffs collected their respective Bank Pass Books from the Police.
(5) The Defendant collected the moneys belonging to the Plaintiffs some time after the 6th of June 1989 from their respective Banks the sum of $165,103.55 made up as follows:
A. JAGAT LAL (FIRST PLAINTIFF)
(i) From Australia and New Zealand Banking Group, Suva
(ii) From Westpac Banking Corporation.
Suva ...................................................... $80,463.59
B. RAVENDRA PRASAD SHARMA (SECOND PLAINTIFF)
(i) From Bank of New Zealand,
Nausori ............................. $42,182.67
(ii) From Westpac Banking Corporation,
Nausori ............................ $30,928.00
$73,110.67
C. VIJENDRA PRASAD SHARMA (THIRD PLAINTIFF
(i) From Westpac Banking Corporation,
Nausori ................................... $11,529.29
$165,103.55
(6) On or about the 15th or 16th of June 1989 the Defendant presented a document purporting to be "A Bill of Costs" and purported to deduct the sum of $99,062.30 from the last mentioned amount of $165,103.55 comprising the sum of $48,278.16 belonging to the First Plaintiff, the sum of $43,866.40 belonging to the Second Defendant and the sum of $6,917.74 belonging to the Third Plaintiff.
(7) Pursuant to an Order made on the 14th of October 1989 the Defendant paid into Court the sum of $51,777.25 made up as follows:
(a) To the First Plaintiffs credit ........................... $17,921.43
(b) To the Second Plaintiffs credit ........................ $29,244.27
(c) To the Third Plaintiffs credit ............................ $4,622.55
... $51,777.25
(8) The only document upon which the Defendant is relying to establish that there was a written agreement to pay an agreed fee and to deduct such fee from each of the Plaintiffs moneys collected by the Defendant is the document entitled "Instructions to Act" (in each case) and dated the 28th of January 1989.
(9) That as at the 12th of April 1990, the date of the Statement of Claim the relevant amount in dispute was and still is $99,062.30 made up as follows:
(a) As between the First Plaintiff and the Defendant the sum of ...... $48,278.16
(b) As between the Second Plaintiff and the Defendant the sum of ... $43,866.40
(c) As between the Third Plaintiff and the Defendant the sum of ....... $6,917.74
... $99,062.30
After the Defendant presented his Bill of Costs to each Plaintiff in his Chambers on the 16th of June 1989 the Plaintiffs refused to accept this Bill on the grounds that the Defendant's professional charges were too high and were unreasonable. A copy of each Bill of Costs for each Plaintiff is exhibited to the first affidavit of the Plaintiffs and it is not necessary to set out such copy here.
The Plaintiffs say that when they refused to pay the Defendant's account he told them that he did not want them to come to his Chambers in the future.
On the 21st of June 1989 the Defendant issued a Writ of Summons for alleged defamation by each of the Plaintiffs claiming the sum of $100,000.00 and General and Punitive damages but nothing further has been heard of these actions since they were instituted.
For his part the Defendant who has now left the country and is employed in Australia denies the allegations of the Plaintiffs that his charges were excessive. In his affidavit he says that the Plaintiffs were fully aware that they were signing an agreement for the professional work to be done by him, that at their request he explained in detail the contents of the agreement to pay for the professional work which he did in the Hindustani language.
He further says that the Plaintiffs read the contents and after being satisfied signed the agreement thus indicating their willingness to be bound by the terms stipulated. The Defendant denies that the Plaintiffs had ever stipulated that he should hold all their moneys on trust for each of them separately.
In paragraph 17 of his affidavit Mr. Singh states that what he has claimed and deducted was for all the professional services that he had rendered the Plaintiffs during the Police investigations and that this had resulted in success in favour of the Plaintiffs.
He also says in paragraph 43 that the Plaintiffs knew that he was a Barrister practising successfully for the most part in Criminal Law and that therefore the Plaintiffs came to him 'to get the best professional services and they no doubt received the best professional services and the Police investigations concluded in their favour'.
In this regard it is interesting to note that in support of the Plaintiffs' claims an affidavit was sworn on the 20th of June 1991 by one Sada Nand who is a member of the Fiji Police Force and a Senior Inspector of Police attached to the Serious Crime Squad.
Inspector Nand was the Investigating Officer into the complaint against the Plaintiffs. He states that from the 19th of January to the 5th of April -
(a) the Defendant may have made between eight and ten telephone calls to CID Headquarters enquiring about the case in respect of the Plaintiffs;
(b) in that period the Defendant wrote seven letters and three letters of authority in respect of its clients;
c) during that period the Defendant personally called five times at CID Headquarters to enquire about the case against the Plaintiffs and on each occasion spent between 15 and 30 minutes.
He also says that the Defendant made no recommendation to the Police for the termination of the Police investigations against the Plaintiffs but, that even if he had, it would not have had any effect on the decision to terminate the Police investigations.
As to these claims by Senior Inspector Nand the Defendant says in a supplementary affidavit of 1st of October 1991 that the allegations against him of the number of telephone calls and personal visits are not correct because numerous calls and visits were made from time to time.
I observe here that the Defendant does not even venture an approximate estimate of the number of such calls and visits.
It is here relevant to set out the first document entitled "Instructions to Act", the other two being identical except for the amount of agreed fees.
"INSTRUCTIONS TO ACT
TO: ....SOHAN SINGH & CO
SOLICITORS
SUVA
I, JAGAT LAL son of Sukh Lal hereby instruct the abovenamed solicitors to act for me as regards to the police investigations pursuant to search conducted on the 19th of January 1989.
I have requested Mr. Singh to prove to the police that I am not at all involved as per allegation.
I hereby authorise Mr. Singh to negotiate, investigate and prove to the police that I have not committed any crimes.
I authorise Mr. Singh to settle this matter howsoever.
I authorise Mr. Singh to do all the necessary work that is required to exonerate me from any liability either criminal or civil.
And I hereby agree and undertake to pay all fees and charges for professional services rendered and disbursements incurred in this alleged criminal matter upon your notification thereof.
Agreed fees: $48,278.16.
Dated this 28th day of January 1989.
Sgd.
Signature of Client
Sgd.
Witness after interpretation"
Before turning to the submissions for the parties I must state that the Plaintiffs claim -
(a) A Declaration that the document entitled "Instructions to Act" was merely an Authority or instructions enabling the Defendant to act for the Plaintiffs for the Police investigations.
(b) Alternatively that the document "Instructions to Act" be set aside in each case.
(c) Alternatively that the document be reviewed and cancelled under Section 15 of the Legal Practitioners Act and that an Order be made to tax the amount claimed by the Defendant from the Plaintiffs.
(d) An Order that the Defendant pay reasonable interest on the sum of $99,062.30 claimed from the Plaintiffs.
The Plaintiffs also seek their costs.
For the Plaintiffs it is claimed that under Section 15 of the Legal Practitioners Act Cap. 254 any Barrister and Solicitor may make a written agreement with his client respecting the amount and manner of payment for all professional G business done on behalf of a client.
Sub-section 3 states that any such agreement may be reviewed by the High Court upon application by petition or Summons and, if in the opinion of the Court such agreement is unreasonable the amount parable may be reduced or the agreement cancelled and the costs taxed in the ordinary way.
By Section 18 where a Barrister and Solicitor has transacted any business for any person, whether in any Court or not, or has a claim for costs against any person, the Court may make an Order for the delivery by the Barrister and Solicitor of a Bill of Costs and for the delivery of any deeds or papers in his possession.
Counsel for the Defendant has referred me to a number of cases from other jurisdictions including England, New Zealand, Tanzania and Victoria, Australia and argues that the work done by the Defendant was really that of a Barrister and that there is an abundance of law, at least overseas, which holds that a Barrister could not be sued in respect of work done by him as a Barrister. Counsel submits that it must be implied into the Legal Practitioners Act that Section 15 does not apply to a Barrister or to the work done by a Barrister and that the reference to "every Barrister and Solicitor" in Section 15 must be construed to mean that it did not alter the existing law and practice nor was it meant to apply to the work of a Barrister. It does not state that it applies to every "Barrister OR Solicitor".
Counsel goes on that the Legal Practitioners Act has demonstrated its intention by making a scale of costs for the type of matters envisaged or intended to be covered by it but has made no scale of costs for criminal matters and thereby clearly demonstrates its intention that it does not apply to any criminal matters.
On the other hand the Plaintiffs submit first that authorities from other jurisdictions are irrelevant in Fiji in that the Legal Practitioners Act is clearly meant to deal with matters relating to Barristers and Solicitors in Fiji. I agree with this contention. In my view the words in Section 15 are clearly meant to apply to all Barristers and Solicitors regardless of the type of work which they undertake for a particular client or clients.
Section 15(1) refers to "services, fees, charges, or disbursements in respect of business done by a Barrister and Solicitor".
Section 18(1) covers the situation of a Barrister and Solicitor transacting any business (my emphasis) for any person whether in any Court or not who may have a claim for costs against any person.
I therefore consider that Parliament intended the Legal Practitioners Act to apply to all Barristers and Solicitors in whatever work they do, be it criminal, civil or non-contentious, conveyancing or probate work. Furthermore, even if I am wrong in this, I consider that there is nothing in the evidence before me to suggest that the work done by the Defendant for the Plaintiffs was work normally regarded as most suitable to be performed by a Barrister-at-Law where there is a separate Bar, as distinct from an amalgamation of the profession as in Fiji. In my view any Solicitor of average competence could have represented the Plaintiffs in the Police investigations and, had this case occurred in, for example, England where there is a separate Bar. I doubt very much whether the costs of instructing counsel would be allowed if a Solicitor's Bill of Costs came before a Taxing Master for assessment.
As to the cases cited by counsel it is clear that the relevant legislation in each case is different from that of Fiji. To give an example, counsel relied strongly on the New Zealand decision of Mr. Justice Kennedy in re Singer, Martin v. Singer [1929] NZGazLawRp 35; [1929] NZLR 301 and even quoted the judgment of His Honour in full for me. It is clear that the Legal Practitioners Act, 1908 under which the case was brought contains several different provisions relating to the taxation of the charges of a Solicitor from those in the Legal Practitioners Act in Fiji. I refer particular to Sections 28, 29 and 30 of the New Zealand Act which state in effect that no Solicitor shall commence any action for the recovery of any fees for any, business done by him until the expiration of one month after the delivery of a signed Bill and that such costs may be referred to taxation within one month. There are no similar provisions in the Legal Practitioners Act here. Section 14 simply says that every Barrister and Solicitor shall be entitled to sue for his taxed costs or costs due under an agreement without stipulating a time limit for such.
Likewise the Tanzanian case Keeka v. Damji (1968) EACA 91 was brought under the Advocates Remuneration Taxation of Costs Rules 1921. In that Act the word "Costs" widely defined. By contrast our Act does not define the "Costs".
Had it been the intention of Parliament that the Legal Practitioners Act was not meant to apply to criminal matters it would have been very simple to have included a provision to this effect, but there is none.
I therefore reject the Defendant's submissions on question.
The next matter relates to the document entitled "Instructions to Act". The Plaintiffs claim that the words "Agreed Fees etc." did not form part of this document when they signed it. It is to be noted that the document in each case is dated the 28th of January 1989 which was at the very beginning of the period during which the Defendant acted for the Plaintiffs. In my view it is very strange that if, as the Defendant contends his fees were agreed on that date, the amount for each Plaintiff is stated so precisely. Thus in the case of the First Plaintiff the amount is $48,278.16, for the Second Plaintiff $43,866.40 and for the Third Plaintiff $6,917.74. I find it very difficult to believe that at such an early stage in his representation of the Plaintiffs the Defendant could have predicted what his exact professional charges and disbursements would be Counsel for the Plaintiffs invites me to infer that once the Defendant had ascertained the amounts held by each Plaintiff in his Bank Account he decided to calculate his fees on the basis of a percentage of the total amount of moneys collected by him from the Plaintiffs' Bank Accounts. Thus, counsel contends, it is a strange coincidence and one which the Court should not believe, that in each case the amount charged by the Defendant of each Plaintiff amounted to 60 percent of the amount collected from each Plaintiff. I find much force in this submission and am driven to conclude on the probabilities that the Plaintiffs' claim that the amount stated as agreed fees was not included in the document "Instructions to Act" when each Plaintiff signed it is correct.
The Defendant asks the Court to believe that it was as a result of the work which he did for the Plaintiffs which led the Police not to lay any charges against them, Here I tend to accept the statement of Senior Inspector Nand that the Police were not influenced by any representations made by the Defendant in the decision not to charge the Plaintiffs.
Counsel for the Defendant submits that generally a Court does not decide matters of credibility on affidavit evidence as in this case and says that the Plaintiffs elected that this matter be decided on affidavit evidence and the onus is on them to prove the Defendant's charges were excessive or unreasonable.
In this regard I comment that the Order which the Court made on the 6th of February 1991 that this action be tried on affidavit evidence was a consent Order. There was no question of only one side electing to have the matter so tried; it was so ordered by consent of all the parties.
I have carefully considered the submission made on behalf of the Defendant but am left with the distinct impression that at least on their face the costs charged by the Defendant to the Plaintiffs are unreasonable and I so find on the balance of probabilities. I also find on the balance of probabilities that the amount stated to be agreed by each Plaintiff in the document "Instructions to Act" did not appear in such document on the 28th of January 1989 when each Plaintiff signed the document applicable to him. Accordingly I order that there be judgment for the Plaintiffs and that:
(1) The document entitled "Instructions to Act" relevant to the Plaintiffs be set aside and cancelled.
(2) That the Plaintiffs' costs of the matter between themselves and the Defendant be taxed in the ordinary way.
(3) That the Defendant pay the Plaintiffs' costs of these proceedings also to be taxed if not agreed.
I am prepared to hear argument now on the question of whether any interest should be paid to the Plaintiffs on the sum of $99,062.30.
(Judgment for the Plaintiffs.)
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