Piper & Samuda & Benk-Coker (Pamela) v DYC Fishing Ltd

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A. , PANTON, J.A. , DOWNER, J.A:
• Judgment Date: 03 July 2003
• Neutral Citation: JM 2003 CA 31
• Judgment citation (vLex): [2003] 7 JJC 0301
• Court: Court of Appeal (Jamaica)
• Date: 03 July 2003

IN THE COURT OF APPEAL

BEFORE:

THE HON MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE BINGHAM, J.A THE HON. MR. JUSTICE PANTON, J.A

BETWEEN:

PIPER AND SAMUDA (A Firm)

1 ^ST .PLAINTIFF/APPELLANT

PAMELA BENKA-COKER

2 ^ND PLAINTIFF/APPELLANT

AND:

D.Y.C. FISHING LTD.

DEFENDANT/RESPONDENT

Charles Piper and Emile Leiba instructed by Piper and Samuda for the appellants

Christopher Dunkley, Marina Sakhno and Coleen Brown-Blake instructed by Cowan, Dunkley Cowan for the respondent

LEGAL PROFESSION - Fees - Fees for professional services - Whether there was an agreement to amount of fees to be charged - Whether agreement unfair and unreasonable - Whether there should be taxation by Registrar or Court - Legal Profession Act, s. 21

DOWNER, J.A.

1 Introduction

2 The appellants, who are Attorneys-at-Law, filed suit against the respondent company, D.Y.C. Fishing Ltd. regarding fees for professional services. In the Statement of Claim the sum of $913,683.50 was claimed by the first appellant and $660,000 claimed by the second appellant. The interest rate on both sums was fixed at 21%. Appearance was entered on 25 ^th July and a Defence was filed 20 ^th September, 2001.

3 Prior to the service of the Statement of Claim it seems that two invoices were served on the respondent on June 20, 2000 and October 18, 2000. They are at pages 30 and 34 of the Record. Both invoices are supported by time sheets showing the attorney-at-law from the firm of the first appellant who rendered professional services, the time spent, the rate per hour and the costs. The Writ of Summons and Statement of Claim were filed on 20 ^th December, 2000.

4 The Defence raised an important point of law and it is necessary to set it out. It reads as follows at page 11 of the Record:

• "1. The Defendant denies owing to the Plaintiffs the sum of One Million Five Hundred and Seventy Three Thousand Six Hundred and Eighty Three Dollars and Fifty Cents ($1,573,683.50), for professional services rendered and denies the particulars thereof, as alleged and set out in the Statement of Claim, or at all.

• 2. Save and except that the Defendant agreed to engage the legal services of the Plaintiffs and to pay therefor fair and reasonable fees, the Defendant denies having at any material time any written or oral agreement with the Plaintiffs specifically with respect to the quantum of their fees."

5 An important distinction is adverted to in paragraph 2 above. While there is a written contract exhibited, with respect to the first appellant, at page 21 of the Record, there is no such contract with respect to the second appellant. When section 21 of the Legal Profession Act ("the Act") is analysed later in this judgment it will be shown that to be applicable there must be a written contract. On the basis that there was no written contract with the second appellant, the part of the Statement of Claim relating to her should be struck out as showing no cause of action.

6 Then paragraphs 3 and 4 of the Defence raised issues of law with particular reference to section 22 of the Act. These paragraphs read:

• "3. The Defendant says that the fees charged and/or claimed by the Plaintiffs appear to be unfair and unreasonable in the circumstances of the Defendant's legal business with these Plaintiffs.

• 4. By letter dated August 21, 2001 the Defendant's Attorneys-at-Law requested the Plaintiffs to have their Bill of Fees prepared and taxed in accordance with the Legal Profession Act and to date hereof the Plaintiffs failed, neglected or refused to comply with the said request."

7 Suffice it to say that the issues of law raised have been the subject matter of two recent appeals in this Court namely W. Bentley Brown v. Raphael Dillion and Sheba Vassel (1985) 22 J.L.R. 77 and Barrington Frankson v. Monica Longmore Motion No. 13/99 [Downer, Langrin, Panton JJA] delivered July 31, 2000. The ratio decidendi in both cases was that a reference to the Registrar as the Taxing Officer may be the appropriate procedure in every instance where Recovery of Fees is in issue, pursuant to Part V of the Act. This must be so because of section 43 of the Judicature (Supreme Court) Act which reads:

• "43. Subject to the provisions of this Act and of the Civil Procedure Code and of rules of court, any Judge of the Supreme Court may order what matters in proceedings in the Court shall be investigated by the Registrar, and may direct the Registrar to take accounts and make enquiries, and may give such assistance and direction to the Registrar therein as he thinks fit:

  Provided that any persons aggrieved by any act or decision of the Registrar may appeal thereupon to the Court. All acts and proceedings of the Registrar under the provisions of this section shall be subject to ratification by the Court, and when so ratified shall be binding on all parties in the same way as an order of the Court."

8 An alternative procedure for reference to the Registrar is by reliance on the inherent jurisdiction of the Court which was preserved pursuant to section 5(1 )(b) of the Act. Be it noted that a reference to the Registrar as taxing officer is the preferred procedure to enlist her expertise in computing the appropriate fees on an attorney-at-law and client basis. When she has completed her computation, the matter is considered by the Court and a final determination is made.

9 The next stage in the proceedings was that the appellants invoked the jurisdiction of the Supreme Court by an Amended Motion For Judgment. The material part of that motion states at page 13 of the Record:

• "1. The Defence filed herein on September 20, 2001, be struck out on the ground that same does not reveal any reasonable cause of Defence or alternatively on the ground that the Defence is frivolous and vexatious and is an abuse of the process of the Court.

• 2. Judgment be entered for the First Plaintiff in the amount of $1,182,951.01 arrived at as follows...

• 3. Judgment be entered for the Second Plaintiff in the amount of $847,803.30 arrived at as follows:..."

10 This brings us to the third basis for referring the matter of fees to the Registrar. It runs thus at the following sections of the Judicature (Civil Procedure Code) Law (the "Code"). Section 442 reads:

• "442. Except where by Law is expressly provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment."

11 Then section 448 is crucial. The very experienced judge must have been aware of it. It reads:

• "448. Upon a motion for judgment, the Court may draw all inferences of fact, not inconsistent with the finding of the jury, and if satisfied that it has before it the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, may give judgment accordingly, or may, if it is be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as if it may think fit."

12 The particulars in paragraphs 2 and 3 of the Motion at page 13 of the Record indicate a Bill of Fees, not a contract for a gross sum or a percentage or otherwise: also that the appellants in the Motion above were relying on the statutory provision of section 191 of the Code to strike out the defence and section 442 of the Code to award them the amounts in the Statement of Claim. The Motion was heard by Smith, J, as he then was, and it is of importance to set out his judgment in full. At pages 96–97 of the Record it reads:

"The Court on the application of Mr. Piper granted an amendment to the Notice of Motion to add the words "or alternatively on the ground that the Defence is frivolous and vexatious and is an abuse of the process of the Court" immediately after the word Defence.

The Court granted the amendment and submissions made on the alternative ground. It has considered all the submissions of Counsel including Section 21 of the Legal Profession Act, in particular Sections 21(1) and (2). Mr. Piper submitted that where fees were payable under an Agreement, same shall not be subject to provisions of this part relating to taxation. How can the Court be satisfied that a sum is reasonable or unreasonable if there was not a certain sum?

When one looks at documentary evidence in Court including Time Sheets submitted by Mr. Piper it is reasonable for a client to say that I have certain questions, I want to know why a Junior Counsel wasn't assigned to do this.

I am of the view he would be entitled to ask certain questions as to the Statement of Account.

I will exercise my inherent Jurisdiction and direct that the matter be referred to the Registrar of the Supreme Court with a view to her taxing the Client/Own Attorney Bill of Costs.

Leave to appeal granted, if necessary

In my inherent jurisdiction, I will stay the proceedings pending the taxation."

13 It is this judgment which is the subject of the instant appeal. It might have been helpful if the learned judge had indicated that he was dealing with a Motion for Judgment pursuant to section 442 of the Code. Had that been done there might have been less misunderstanding in this case.

14 Implicit in the judgment was that the learned judge ruled in favour of the Defence. By referring the matter for taxation, the judge was acknowledging that paragraph 4 of the Defence was well founded. To reiterate, that paragraph reads at page 11 of the Record:

• "4. By letter dated August 21, 2001 the Defendant's Attorneys-at-Law requested the Plaintiffs to have their Bill of Fees prepared and taxed in accordance with the Legal Profession Act and to date hereof the Plaintiffs failed, neglected or...