IN THE SUPREME COURT OF THE Case No CL 43/06
TURKS AND CAICOS ISLANDS
KIMBERLEY JUNE COX-BAKER Plaintiff
JIMMY CHARLES BAKER First Defendant
JUNE BUGGING ME LTD Second Defendant
Heard 19 June 2007
For the Plaintiff: Mr J Rutley
For the Defendants: Mr J Katan
RULING ON TAXATION
1. There appears to be no up to dale guidance on the taxation of civil bills inter partes. Its absence creates problems for new and visiting judiciary and practitioners alike. The following judgment is given after consultation with the Chief Justice, Registrar, and the President of the Bar Council.
2. The following principles will be applied in the absence of special circumstances. Any departure from them must be justified by the claiming party.
3. Except for visiting overseas counsel brief fees are not allowed. Practitioners will be allowed an hourly rate, without a separate mark up for care and control.1
1Island Concrete v O’Neill Action No CL 15/97
4. The hourly rate may vary according to the considerations set out in Order 62 Appendix 2 Part I.2
5. That means that payment will not necessarily be allowed at the rate for the practitioner who actually did the work. Payment will be allowed at the rate appropriate to the grade of practitioner justified by the nature of the work.
6. The hourly rate is determined not by the description of the attorney involved (e.g. senior associate, partner), but by his experience in the relevant field. In Island Concrete v O'Neill, the rate allowed for work in 1997 was $250 for an experienced junior. Allowing for inflation, the following hourly rates will be allowed for work done in 2006-7:
1 - 4 years call/admission3
$200 - $225
5-6 years call/admission
7 + years call/admission
$350 - $400
QC up to
In general, the rates allowed for work done between 2004 and 2006 will be $50 per hour less.
7. The costs claimed must be both “reasonably incurred” and “reasonable in amount”.4 The current English concept of proportionality is merely a restatement of a long established rule that costs are not “reasonable” if they are disproportionate to the value or importance of the subject matter.
8. No payment will be allowed for work that could have been done by a non fee-earner (for example faxing or copying of documents, issue of proceedings, delivery of documents and the like).
2Island Concrete v O'Neill ante
3 from first call or admission, in whatever jurisdiction
4Civil Rule 62.12
9. On a change of carriage, whether a change of firm or merely of the individual within the firm, no payment may be recovered inter partes for the new practitioner reading the file.
10. Attorneys are presumed to know the law. Time spent on legal research will not be allowed unless the point is unusual.
11. While travelling (particularly by air between Providenciales and Grand Turk) time cannot usually be spent in preparation of the current or another case. Such time will be allowed inter partes at one half of the hourly rate.
12. As a final check it is necessary to consider the total sum reached by multiplying the hours allowed by the appropriate hourly rate, to see whether it is disproportionate. It so, it will be unreasonable and must be reduced.
13. Mr Rutley’s objections may be summarised as:
1. the hourly rate charged was too high;
2. the hours claimed are excessive; and
3. the overall total is disproportionate to the values involved.
14. At first the matter was dealt with by Mr Carlos Simons, QC. It did not justify a leader, but this appears to be acknowledged because his time has been claimed at the same rate as for Mr Katan.
15. The hourly rate is claimed at $425. Mr Rutley pointed out that his charging rate is considerably less than that. For this jurisdiction, he undervalues himself. Mr Katan was called in England in 1990, and admitted here in 2001. For work justifying an attorney of this experience, the appropriate hourly rate is $400. The real issue is whether the nature of the work required an attorney of his experience.
16. This was not a simple case.
1. The dispute was over a family run business of considerable value. Its sale has recently been agreed at $525,000.00. Mrs Baker claimed to have a controlling shareholding.
2. At first the work was urgent. Mrs Baker obtained an injunction to restrict dealing with the company’s property. Mr Baker’s attorneys had to react urgently and drop everything else. They had to respond to a 5 page affidavit with 96 pages of exhibits.
3. The documents were substantial. The preliminary issue was heard over 3 days. Apart from the disputes of fact, it involved consideration of the law relating to the transfer of shares and estoppel.
On those facts, the matter justified an attorney of Mr Katan’s experience. I shall allow $400 per hour.
17. The total claimed is just over 52.1 hours.
18. Up to July 26 the hours claimed are reasonable and necessary.
19. July 27-August 21 2006
The time spent speaking to the client, the accountant and Mr Rutley is mixed up with that claimed for preparing Mr Baker’s affidavit in reply. Doing the best I can, I calculate that at total of some 3 hours was spent on this. It seems to have been done piecemeal, as further information came in. Consequently the draft had to be constantly amended. As between party and party I disallow 1 hour.
20. 21 August 2006
Faxing copies of affidavits to other parties and the court is not fee earner’s work. 0.3 hours disallowed.
21. 24 August 2006
1.2 hours claimed for legal research is disallowed for the reason given in paragraph 8.
22. September 6, 7 and 8
Mr Katan claims 16.4 hours for final preparation and two days hearing. In total, this is not unreasonable; but inevitably some of this time will have been spent travelling and dealing with matters not strictly party and party. I disallow 1.5 hours.
23. 13 September 2006
Drafting a request for particulars is chargeable in the main action. It is not covered by the order made 27 September. 1.3 hours disallowed.
24. 52.1 hours were claimed. 5.3 hours have been disallowed. The balance of 46.8 hours at $400 totals $ 18, 720.
25. As a final check, I consider whether that total is disproportionate to the value of the matter in dispute. The business appears to be worth $525,000. The total is not therefore disproportionate.
Costs of taxation
26. The total hours claimed, including 30 minutes final preparation and 45 minutes hearing is 9.25 hours.
27. Faxing documents is not a fee-earner’s work. The total of 0.40 hours claimed for November 28, December 27, April 16 and May 8 are disallowed.
28. Letters chasing the court are not chargeable inter partes. 0.20 hours on November 3 disallowed.
29. The telephone discussion with the Registrar and the filing of a revised bill were necessary because the original bill was arithmetically incorrect. This is not recoverable inter partes. 1.6 hours claimed for February 15 and 19 March disallowed.
30. The response to points of dispute was unnecessarily long. Attorneys should assume that taxing officers are familiar with the principles of taxation. 1 hour disallowed.
31. 1.5 hours preparation for taxation is adequate in total. A further 30 minutes on the day is disallowed.
32. 9.25 hours were claimed. 3.7 hours have been disallowed. I allow the balance of 5.55 hours at $400, a total of $2220.
33. Total costs allowed are therefore
On the original bill: $18,720
Costs of taxation : $ 2.220
Dated 26 June 2007
G W Martin