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High Court of Solomon Islands |
HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 93 of 1995
ter">KITURU GHEMU
-v-
CLERK TO MAROVO LOCAL COURT
AND JIM JIM KOLIKEDA="3">Before: Palmer, J
Hearing: 4th June, 1997 - Ruling: 30th June, 1997
Cl: G. Suri for the Applicant/Second Defendant; A. Nori for the Respondent/Plaintifintiff
PALMER J.:
This is an application by Notice of Motion filed on 11th December, 1996, and later superseded by an Amended Notice of Motion filed on 8th May, 1997. The application sought inter alia, orders as follows:
"(2) The fees and costs set out in the Second Defendants itemised bill of costs for taxation filed herewith be allowed and paid by the Plaintiff on Solicitor and own Client basis. or be assessed and paid on common fund basis.
(3) Alternatively the fees and costs prescribed in Appendix J of the High Court (Civil Procedure) Rules be increased generally above the Higher Scale and that the fees and costs set out in the Second Defendant's itemised bill of costs be allowed and paid by the Plaintiff as reasonable in the circumstances of the case."
The fees and costs claimed stem from the judgment of this court dated 10th September, 1996, in which the declarations sought by the Plaintiff in the originating summons filed on 21st May, 1996 were denied, and costs ordered against him. The Defendant seeks to recover costs on a Solicitor and own client basis or common fund basis.
The issue thus is whether the costs which the Plaintiff has to pay should be taxed on a Solicitor and own client basis or on common fund basis ( this is also commonly known as "between Solicitor and client basis"). In addressing this issue, this Court must consider whether there is authority or grounds for an order for taxation of costs to be made on those basis.
The only ground advanced by Mr Suri in support of his client's claim, was that the application by originating summons initiated by the Plaintiff was unnecessary and should not have been brought in the first place. With respect however, I must disagree. It cannot be said that the application by originating summons based on the doctrine of res judicata was a hopeless one right from the beginning. It had some prospects of success until ruled upon by the Court and dismissed in that insufficient evidence had been adduced by the Plaintiff to challenge the affidavit evidence adduced by the Second Defendant. The application of the Plaintiff also cannot by any standard be regarded as frivolous or vexatious, or that undue delay or gross negligence had been demonstrated by the Plaintiff in prosecuting his claim. In the circumstances, the application for costs to be taxed on a Solicitor and own client basis cannot be allowed.
As to the question whether costs should be taxed on a common fund basis, with respect this must also be denied. There is no common fund on which costs of the Defendant can be paid from, or that the circumstances of this particular case warrant the exercise of this Court's discretion.
The only base for taxation which the costs in this application must fall within in my respectful view is that on a party and party basis; that is the costs which are being allowed are those which are necessary or proper for the attainment of justice or for defending the rights of the defendant. I note that the Bills of Costs of the Plaintiff for taxation had been drawn up on a Solicitor and own client basis. Accordingly it should be re-drawn on a party and party basis and re-submitted for taxation (if not agreed).
The alternative order sought by the Second Defendant in paragraph 3 of his Amended Notice of Motion is for the Court to certify an increase in the charges listed in Appendix J to the High Court (Civil Procedure) Rules, 1964. The main ground relied on is that the charges listed in Appendix J had not been reviewed since 1975 and that accordingly, the fees and costs listed are too low and no longer reflect the current economic climate. Whilst I sympathise with the grievance of the Second Defendant and all others whose costs have continued to be calculated on out-dated charges, the purposes for which paragraph 43 of Order 65 Rule 13 was intended cannot be construed as giving this Court power to give a general increase in the fees and charges provided for in the Rules. That is an administrative function and lies with the Rules Committee. I acknowledge that the charges are obsolete but until new fees are put in place litigants are stuck with those figures. The proper course is to pursue the matter with the Rules Committee as a matter of priority. In the circumstances of this case, I am not satisfied any increases in any of the charges listed is warranted.
Finally, Mr Suri seeks to include costs of previous hearings in respect of an application for orders of mandamus but which had been adjourned sine die. With respect, this must also be refused. The order of the Court couldn't be clearer. It was in respect of the application by originating summons filed on 21st May, 1996. The Court obviously had in mind the fact that the application for mandamus had merely been adjourned sine die with liberty to restore and therefore had not been finally concluded. In the circumstances it would be improper to include costs pertaining to that application. I note that a summons had been filed on 4th November, 1996 in respect of that application and is awaiting listing and hearing by this Court.
The costs of the Plaintiff in this Amended Notice of Motion shall be borne by the Second Defendant.
THE ORDERS OF THE COURT:
1. Abridge time for filing notice of motion as specified under Order 65 Rule 13 and paragraph 43 of Appendix J for certification of increase in the scale of costs.
2. Refuse order for costs to be paid on Solicitor and own client basis or on common fund basis.
3.Refuse order for certification of a general increase in the scale of costs as prescribed in Appendix J.
4.Order that the Bill of Costs filled by the Second Defendant on 11th December, 1996, be re-drawn on a party and party basis and re-submitted for taxation if not agreed.
5. Costs of the Plaintiff in this Amended Notice of Motion to be paid by the Second Defendant.
6. List summons of the Plaintiff filed on 4th November, 1996 for hearing on 30th July, 1997 at 3.30 p.m.
ALBERT R. PALMER
The Court
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