Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 15 of 1997

In Re: Island Concrete Ltd. v. Hugh O'Neill (CL 15 of 1997) [1999] TCASC 5 (18 November 1999);

Law report citations
Media neutral citation
[1999] TCASC 5
Coram
Ground, CJ

IN THE SUPREME COURT                                                                                                 ACTION NO: CL 15/97

TURKS & CAICOS ISLANDS

IN THE MATTER OF SECTION 22 OF THE SUPREME COURT ORDINANCE (CAP. 3) OF THE LAWS OF THE TURKS & CAICOS ISLANDS AS AMENDED

AND

IN THE MATTER OF THE CONDUCT OF HUGH G. O’NEILL WHILE A PRACTISING MEMBER OF THE SUPREME COURT OF THE TURKS & CAICOS ISLANDS AND A MEMBER OF THE TURKS & CAICOS BAR ASSOCIATION

BETWEEN;

ISLAND CONCRETE LIMITED

Plaintiff/Respondent

- and -

HUGH G. O’NEILL

Defendant/Applicant

Mr. Keeble for the applicant; and

Mr. Rogerson for the respondent

RULING

This matter came before me on 4th November 1999, pursuant to section 211 of the Civil Procedure Ordinance, for a review of the taxation of the plaintiff's costs conducted by the Registrar on 7th January 1998. The learned Registrar had allowed $21,677.86 on a bill of costs totaling $34,882.86. I ruled on the day, but promised reasons, and a detailed computation, which I now give.

The taxation of costs was pursuant to an order of Chief Justice Hallchurch, made on 14th October 1997. The matter concerned a complaint of professional misconduct against the defendant. Although he dismissed the proceedings, considering it already disposed of by an earlier order of his predecessor in other proceedings, the learned Chief Justice awarded the plaintiff its costs to be taxed. Any preliminary objections that, at that time on the then state of the legislation, the proceedings were misconceived or that there was no role for an attorney in them were, in my view, disposed of by that order for costs in the plaintiff's favour, and are no longer open to the defendant.

It was said before me that the order that the defendant pay the plaintiff's costs was akin to a fine. The plaintiff invites me to take that into account on the taxation, but I do not think that that is an allowable approach. The Chief Justice did not specify taxation on an indemnity basis. In the absence of such a direction, I think that the normal rules apply:

“Costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them, or given as a bonus to the party who receives them’’ Harold -v- Smith [1860] 5 H & N 381, per Bramwell B.

The basis on which the costs are to be taxed is that set out in s. 212 of the Civil Procedure Ordinance:

“No costs . . . shall be allowed which do not appear to the Registrar on taxation to have been necessary or proper for the attainment of justice or defending the rights of the party incurring the same, or which appear to such officer to have been incurred through over caution, negligence, or mistake, or merely al the desire of such party."

Counsel for the defendant challenged various items on the basis that the amount allowed was excessive. Most of those challenges involved no point of principle and I did not accept them. I do not need to deal with them further. However, certain items did involve important issues of principle, and I now turn to deal with those.

1.             Brief Fee

The Bill of Costs was in three parts. It began with an item for $20,000 described as a brief fee, and there is a lengthy justificatory narrative, which recites the difficulty and seriousness of the issues. There is then a list of specific items, with the time spent on each in hours, and the amount claimed, calculated on an hourly rate of $250. The third section is disbursements.

The list of specific items appeal’s, on its face, to encompass all of the steps in the action, including taking instructions, preparation and attendance at court. It totals $13,950, but that includes items relating to the taxation. Down to judgment it was for $11,400. If a brief fee was to be allowed it would necessarily duplicate some of those items, because it is conceded that there was only one attorney involved in all the work, and this is not a case where one attorney did the solicitor’s work and another conducted the advocacy. The Registrar allowed $13,000 for the brief fee, apparently basing this on a broad brush assessment of the complexity and difficulty of the case, and disallowed the specific items for preparation and appearance which would normally be covered by such a brief fee.

It appears that in fact the purported “brief fee” is a notional item. It does not appear that the attorney and his client ever agreed that that was the basis on which the work was to be undertaken, and it conceded that the client was not billed on that basis. It seems to be simply a lump sum put in to reflect the alleged difficulty and complexity of the matter. I think that that was the wrong approach.

A fundamental principle for the taxation of costs is the indemnity principle: See generally the note at 62/A2/27A in the Supreme Court Practice, 1999 ed. That has nothing to do with taxation on an indemnity basis, despite the similarity of wording. It means that the party taxing his costs is not entitled to recover from the other side more than he is himself under a liability to pay to his attorneys. Nor are those attorneys entitled to inflate the amount payable as a result of the outcome. Put another way, a party may not recover costs which he has not incurred, and that is implicit in the wording of section 212 itself ('‘……….the party incurring (he same . . . ”).

In principle I can see no objection to work being done on a brief fee basis in a fused profession. This approach was recognised in relation to Civil Matters in the “Scale of Minimum Fees Chargeable” approved by the Bar Council on 11th September 1981 (although the figures are obviously now out of date). Such an arrangement has advantages for both sides, not least of which is that the client knows with some certainty what he is letting himself in for. Such a brief fee is obviously recoverable on taxation, subject to the amount being appropriate.

Counsel for the plaintiff, however, sought to rely upon the Bar Council scale to justify tire approach in this case. I do not think that it docs. That it is a scale of recommended fees to be charged to the client. It is not, and does not purport to be, a scale of costs allowable on taxation. If the client is in fact billed on a brief fee basis for a hearing, then that should be the basis of taxation. However, if the client is in fact billed on some other basis, there is no room for a notional brief fee, and there is nothing in the scale which contemplates that. It is certainly not appropriate to invent a brief fee ex post facto in order to obtain an uplift in the recoverable costs.

In this case it was not contended that the “brief fee” was actually agreed with or billed to the client. It is a fiction. I disallowed it in its entirety.

However. it seems that the learned Registrar, in accepting taxation on a brief fee basis, had then (very understandably) disallowed the itemised amounts claimed in respect of work which would otherwise be covered by a brief fee - such as preparation, travel, waiting and appearance at the hearing. I have, therefore, re-instated those matters, subject to a reduction on one (see below).

Plaintiff's counsel said to me that he had not claimed the full amounts for the itemised pieces of work because he was also claiming a brief fee. In particular he said that the hourly rate of $250 was a notional one, based upon what was normally allowed, and not his real rate, which was considerably higher ($325 - $350 per hour). He further submitted that the practice of brief fees was entrenched and that my approach represents a divergence from the established practice of which he had no wanting. He therefore asked that I remit the matter to the Registrar, so that he could put in a new bill for taxation to reflect the real cost of the work done.

I do not think that that would be appropriate. In the first place there is no evidence before me that the practice of illusory brief fees is entrenched. The applicant took firm objection every time the defendant's counsel made any representation as to the existing practice, and I cannot apply a different standard to that which he insisted upon. Moreover, the general principles set out above are obvious and of long-standing, and counsel should have been aware of them.

In any event. I consider that the amount allowed by the learned Registrar was (subject to the changes made on my review) appropriate for this particular case. It represents 36 hours work, which is what this case warranted. In particular I consider that, despite the assertions of the plaintiff and the findings of the learned Registrar, the principal matter was essentially straightforward. There was no dispute of fact. The pleadings were just copied from earlier proceedings, as was the evidence. The costs of those earlier proceedings were not the subject of this taxation and it would, of course, be wholly wrong to incorporate them in some way by the back-door. The matter itself never went beyond the first hearing of the Originating Summons, when the Chief Justice dismissed it as res judicata. That hearing lasted no more than half a day.

I can see that the approach which counsel for the plaintiff asks me to adopt might be analogous to the long-standing English practice of dividing a solicitor’s costs into two elements: (a) the direct cost of the work done, which is expressed as an hourly rate sufficient to cover the salary (or, in the case of an equity partner, the notional salary), and the appropriate share of the general overheads, of the person or persons doing the work; and (b) an uplift for the general care and conduct of the proceedings. The care and conduct uplift is expressed as a broad-brush percentage, which is intended to reflect all the relevant circumstances of the case, including its difficulty, complexity, importance and so on. On a taxation the taxing officer allows an hourly rate based on the salary of an average solicitor in an average firm in the area concerned, and then anything about the case which was not average will be reflected in the mark up for care and concern. All of that is helpfully explained in Johnson & Ors. -v- Reed Corrugated Cases Ltd. [1992] 1 All ER 169.

If that was what was being attempted, the bill was not expressed in that way, and the learned Registrar was not invited to proceed on that basis. Had she been, I cannot accept that she would have allowed $250 per hour as representing the average direct costs (i.e. salary + overheads). Moreover, if the brief was thought of as a mark up for care and conduct, it represented an uplift of 175%, which was clearly excessive for this case: in England the mark up for an average case is 50%, rising to 100% only for the most exceptional cases (see Johnson -v- Reed (supra) at p. 184). But in any event, in his written response to the defendant's contentions, the plaintiff's counsel expressly says that the $250 hourly rate:

”... does not distinguish between what is accepted as the A and B element of a Notary's {sic) charging rate, it is a composite rate encompassing both elements.”

In the face of that I can only conclude that the notional brief fee represented double recovery.

In any event. I am by no means persuaded that the English system (which I think has now been swept away there by the new Civil Procedure Rules) is appropriate for a jurisdiction such as this. I would have thought it much preferable for work, to be assessed on the basis of a simple, undivided hourly rate. The Registrar can then allow an hourly rate appropriate to the work, and that may differ between average and complex cases. That is the approach I have adopted on this review, and in doing so I find that the hourly rate of $250, which the learned Registrar in fact allowed, was entirely appropriate for this matter.

2.             Subsidiary Points

I have, for ease of reference, numbered the itemised elements of the bill, so that item 1 is ‘'Receiving instructions etc.,” while the final item is “Drafting Order, service and lodgment at Court," which J have numbered 22. I have numbered the disbursements separately, as (i) to (viii). It would have been preferable if the items had been numbered by the draftsman of the bill.

Item 6

I accepted the argument that a letter reporting to the client should be disallowed. While talcing instructions is obviously a necessary part of the expense of any action, I consider that things like reporting to the client are really to be considered as administrative matters encompassed in the overhead element in the hourly rate of charge.

Item 12

I reinstated this following on from the disallowance of the brief fee, but I only allowed 51,000, because that is all I consider appropriate for an application to list the matter, particularly in light of the amount allowed for preparation under item 11. Moreover, I considered that, on the system then in operation, the matter could have been listed at call- over with less trouble.

Items 13 & 14

I reinstated these in the full amounts as a consequence of disallowing the brief fee.

Item 18.

I considered that the cost of preparing the bill for taxation is an administrative expense, and is taken to be included in the overheads element built into the hourly rate. In this respect it is treated as no different from typing: see Johnson -v- Reed, (supra) at p. 188

Disbursements, Item (vii)

The defendant contended that the filing fee should be allowed only in proportion to the amount awarded on taxation. The filing fee is calculated under item 32 of Schedule III of the Civil Procedure Ordinance. It is $50 for the first $1,000 of the bill as drawn, and $25 for every $1,000 (or part thereof) after that. In this case it was $875 on a bill of $34,882.86 (although the bill in fact totaled $35,757.86). I consider that the normal practice on taxation should be to allow the full filing fee, as that is what the applicant has to pay to bring the matter on. However, in exceptional cases, where items should never have been claimed, I think it proper to pro-rate the allowable amount to reflect that. In this case the “brief fee” element should never have been in the bill, which should have been lodged at $15,757.86. I therefore allow a fee of $50, plus 15 x $25, for a total of $425.

3.             Interest

Mr. Rogerson invites me to award interest on the amount awarded. I do not think that I have power to under the local legislation as it stands. Nor can I import the English provisions, interest on judgment debts being governed by sections 123 and 142 of the Civil Procedure Ordinance. However, for the purpose of the calculation of interest under s. 142, I specifically hold that the revised award of costs takes effect from the date of the original certificate (7th January 1998), and so execution may be levied for the revised sum together with interest at 6% from that date. I simply note that if a writ of execution is issued which includes an element for interest so calculated, only payment of tire full amount will satisfy' that writ. For the avoidance of doubt, I discharge the previous informal stay on issuing a writ of execution.

4.             Costs of the Review

I considered that the defendant had been successful overall on the review, and that it would be inappropriate to apportion the costs between the detailed points on which he won and lost. I assessed the costs summarily on Mr. Keeble’s application in the sum of $2,000. That sum is to be offset against the amount allowed on the taxation.

5.             Summary

I have set out the details of the amounts allowed in an attached schedule, numbering tire items consecutively as explained above. Except for the items specifically dealt with above, the figures are taken from the learned Registrar’s notes on the original bill, which I understand represent the amount allowed by her.

In summary I allow $9,012.50 for profit costs, and $1,123.50 for disbursements, giving a total of $10,136. Offsetting the costs of the review gives a recoverable total of $8,136.

Dated this 18th day of November, 1999.

Richard Ground

Chief Justice

SCHEDULE OF COSTS ALLOWED ON

REVIEW

1.

1,000

 

2.

1,000

 

3.

nil

 

4.

375

 

5.

150

 

6.

nil (disallowing $62.50)

 

7.

nil

 

8.

nil

 

9.

62.50

 

10.

nil

 

11.

1,000

 

12.

1,000 (reinstated in part)

 

13.

1,250 (reinstated)

 

14.

1,500 (reinstated)

 

15.

500

 

16.

375

 

17.

62.50

 

18.

nil (disallowing $500)

 

19.

125

 

20.

375

 

21.

125

 

22.

112.50                                                  TOTAL:

$9,012.50

Disbursements

 

(i)

200

 

(ii)

nil

 

(iii)

70

 

(iv)

6.50

 

(v)

256

 

(vi)

51

 

(vii)

115

 

(viii)

425 (reduced from $875)                  TOTAL

$1,123.50

TOTAL ALLOWED                         $10,136