Karin Murray v Clough Long and Company
 JMSC Civ 30
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Pusey J. J (Ag.)
CLAIM NO. 2017HCV 00376
Mr. Seyon T. Hanson instructed by Seyon T. Hanson and Co. for the Claimant
Mr. Donavon Malcolm instructed by Clough Long and Co. for the Defendant
Bill of Cost - Retainer Agreement — Disputed attorney's fees — Refusal by attorney to have bill of cost taxed — Whether court has jurisdiction to refer bill to Registrar of the Supreme Court for taxation after limitation period — Legal Profession Act Section 24(4)
The claimant, a former client of the defendant company, a law firm, by a Fixed Date Claim seeks the following orders:
I) That all Bills and Invoices with respect to work done by the said firm with respect to Karin Murray and George Murray from the 1 st day of March 2013 to December 2014, be referred to the Taxing Master, the said Invoices being:
a. Solicitor and Client's Bill of Cost dated 20 th day of March 2013 in the sum of
b. Solicitor and Client's Bill of Costs dated 9 th day of April 2013 in the sum of
c. Solicitor and Client's Bill of Cost dated 24 th day of January 2014 in the sum of
II) That the sum of Two Million Nine Hundred Thousand Dollars ($2,900,000.00) paid by the Claimant on account of the said invoices be applied to the sum due in the event that the taxed amount on the bills is in excess of this sum. In the event the taxed amount is less than the sum of Two Million Nine Hundred Thousand Dollars, said sum to be repaid to the Claimant with interest at the rate of ten percent per annum;
III) Cost to the Claimant to be agreed or taxed.
The claimant and her late husband were clients of Jennifer Messado and Company, Attorneys-at-Law. The claimant resides in England and visits Jamaica periodically as she conducts substantial businesses here.
The claimant and her late husband were involved in litigious matters in Jamaica and were referred by Jennifer Messado and Company to the firm of Clough Long and Company to act on their behalf in one of the litigations.
The arrangement for the payment of fees to Clough Long, which is not disputed, was that bills were submitted to Jennifer Messado who settled those bills from moneys standing to the credit of the claimant in her possession.
The financial arrangements for the services of the defendant company are contained in a Retainer, expressed in letter dated March 1, 2013. The Retainer stipulated that $500,000.00 was to be paid and utilized to provide the service at specified rates per hour, disbursements were to be paid within 30 days of presentation of the bill and when the initial $500,000.00 was exhausted, a further sum of $500.000.00 was to be paid and utilized in the same way. Failure to pay any further $500,000.00 sums would result in the retainer being terminated.
Of significance to the issues before the court, the Retainer also provides;
In the event that you do not accept our bill(s) presented to you, or should you for whatsoever reason terminate our retainer and/or services herein and do not accept our bill(s) presented as a consequence, it is agreed that the fees, amount payable, will be the amount as found to be due, owing and payable on A Bill of Cost taxed by the Registrar of the Supreme Court, under the Civil Procedure Rules.
The Bill of Costs so taxed shall be deemed to be our Bill to You; and the amount specified therein, plus the costs of its preparation and taxation shall be accepted by you as the amount due and payable to us by you.
Between March 1, 2013 and December 2014 two bills were tendered to Jennifer Messado and Company dated March 20, 2013 and April 9, 2013, which were paid without demur. A third bill dated January 24, 2014 was not paid.
The claimant alleges that she was never advised by Jennifer Messado and Company about the amounts of the first two bills. She learned about the extent of the bills in 2014 after the final bill was rendered and she raised her objections. In her opinion the bills were excessive and what was already paid ($2,900,000.00) was sufficient to settle her obligations to the defendant. She asked that the bills be taxed pursuant to the Retainer agreement and the defendant has refused to go to taxation.
The claimant was absent from Jamaica for some time between 2014 – 2016 as Mr. Murray became terminally ill and subsequently died. The claimant contends that Mr. Murray's illness and the ongoing litigation absorbed her time and she was unable to deal with the issue of the bills until after Mr. Murray's death in 2016.
The matter for which Clough Long and Company was retained was not concluded in favour of the claimant. The Retainer was terminated by the claimant when the case ended at first instance, although it went on appeal. The defendant contends that this is the reason the claimant is disputing the bill.
The defendant wrote to the claimant to settle its fees and when she objected the defendant filed suit in the Parish Courts to recover the fees. The claimant is defending that action. The matter has been stayed pending the outcome of this matter.
The issues to be decided are;
— Does the court have jurisdiction to refer these Bills of Cost to the Taxing Master for taxation, after 12 months have elapsed since the presentation of the Bills pursuant to the Legal Profession Act
— Whether part-payment of the bill, ‘on account’ from time to time when presented, exclude the operation of the Legal Profession Act or the Retainer
The Legal Profession Act (‘the Act’) sets out the circumstances in which a Bill of Cost should be referred for taxation to the Taxing Master. It provides,
- (2) Subject to the provisions of this Part, any party chargeable with an attorney's bill of fees may refer it to the taxing officer for taxation within one month after the date on which the bill was served on him. (3) If application is not made within the period of one month aforesaid a reference for taxation may be ordered by the Court either on the application of the attorney or on the application of the party chargeable with the fees, and may be ordered with such directions and subject to such conditions as the Court thinks fit. (4) An attorney may without making an application to the Court under subsection (3) have the bill of his fees taxed by the taxing master after notice to the party intended to be charged thereby and the provisions of this Part shall apply as if a reference for such taxation has been ordered by the Court. 24. No reference shall be directed upon application made by the party to be charged after judgment has been obtained in any suit for the recovery of the fees of the attorney or after expiration of twelve months after the bill has been served except under special circumstances to be proved to the satisfaction of the Court to which application for reference has been made. Emphasis mine
The Bills of Cost in this matter were rendered from time to time and according to the claimant, the first 2 bills came to her attention more than 12 months after they were rendered. The court therefore, has to examine the circumstances of the claimant to see if they amount to ‘special circumstances’, within the meaning of section 24 of the Act, that could allow the Bills of Cost to be referred.
The defendant company has not exercised any right under the Legal Profession Act quoted above. It refused to have the bills taxed pursuant to the Retainer. Instead, it made demand for payment and upon non-payment, it filed suit in the Parish Court for the Corporate Area seeking to recover its fees.
In written submissions, the claimant argues that there is no dispute that the defendant was retained by the claimant after having been engaged by Jennifer Messado and Company and that bills submitted to Mrs. Messado were settled. They however, question the reasonableness of the bills tendered on the basis that were excessive. They argue that the bills, in keeping with the terms of the Retainer should be submitted to the Registrar for taxation as they are disputing the bills and the services of the defendant were terminated. These two factors, they contend, trigger the provisions of the Retainer regarding taxation, quoted above....
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