Ho Cheng Lay v Low Yong Sen

• Judge: Kan Ting Chiu J
• Judgment Date: 09 March 2009
• Neutral Citation: [2009] SGHC 56
• Citation: [2009] SGHC 56
• Defendant Counsel: P Padman (K S Chia Gurdeep & Param)
• Published date: 12 March 2009
• Plaintiff Counsel: Lee Chin Seon (C S Lee)
• Date: 09 March 2009
• Docket Number: Originating Summons No 1070 of 2008
• Court: High Court (Singapore)
• Subject Matter: Legal Profession,Section 6 Limitation Act (Cap 163, 1996 Rev Ed),Payment of bills of costs,Bill of costs,Special circumstances to allow taxation,Time limit for taxation,Section 122 Legal Profession Act (Cap 161, 2001 Rev Ed)

9 March 2009

Kan Ting Chiu J:

1 I granted an application that a solicitor presents five bills for taxation. The solicitor is the defendant, Low Yong Sen, who is not in practice currently, and the applicant is the plaintiff, Ho Cheng Lay, his former client.

2 The plaintiff became a client of the defendant in June 1998 when he appointed the latter to act for him in his divorce. At that attendance, the defendant who was then practising as the sole proprietor of Y.S. Low & Partners (“YSL&P”) obtained from the plaintiff a warrant to act in the divorce proceedings dated 15 June 1998 captioned “Divorce Proceedings And Ancillary Matters”.

3 Subsequently, the defendant also acted for the plaintiff in other matters, as described in four other warrants to act dated 27 July 1998, 12 October 1998, 11 May 2000 and 20 June 2000 with the captions “Personal Protection Order Proceedings (SS 1519/1998)”, “Criminal Proceedings (DAC 27967/98)”, “Matrimonial Proceedings (Summons-In-Chambers Proceedings)(SIC 750799/2000)” and “Matrimonial Proceedings (Summons-In-Chambers Proceedings)(Variation of Order of Court dated 19 July 1999)”.

4 In November 2001, the plaintiff’s divorce proceedings were concluded, and his matrimonial house was sold, and the proceeds were to be shared equally with his former wife. When the plaintiff went to collect his share of the proceeds, the defendant paid over to him $7,107.86 by a cheque dated 16 November 2001 and retained $40,250.00 from the plaintiff’s share of the proceeds as payment of his costs. At the same time, the defendant issued to the plaintiff a “Completion Account” which showed that the plaintiff’s net share of the proceeds of $52,398.87 was reduced to $7,107.86 after the deduction of six bills of YSL&P (one dated 12 October 2001 and five dated 9 November 2001). The defendant contended that the plaintiff had agreed to the deduction. The plaintiff on the other hand denied this and claimed that he complained about the excessive charges and asked for copies of his bills. He did not get them, but only had sight of the bills in the course of proceedings of the Disciplinary Committee hearing his complaint against the defendant. The defendant disputed this by producing a copy of a letter from YSL&P dated 26 November 2001 to Liang Poh & Boh Lim, the solicitors acting for the plaintiff at that stage, forwarding the Completion Account together with the bills. Notably, there was no mention in YSL&P’s covering letter that the bills had been delivered to the plaintiff previously or that he had agreed that they be paid out of the sale proceeds.

5 The Disciplinary Committee proceedings referred to in the foregoing para are DC/SEC/05/2004. The Committee’s findings are reported in The Law Society of Singapore v Low Yong Sen Vincent [2006] SGDSC3. After a hearing over five days, the Committee delivered its findings on 10 February 2006. Two of the Committee’s findings are of particular relevance to the present application. Firstly, the Committee did not accept the defendant’s evidence that the plaintiff had agreed to allow him to deduct his fee from the sale proceeds[note: 1]. Secondly, the Committee found that the defendant had over charged the plaintiff in five bills (which are now the subject matter of the present application [note: 2]). Following the Committee’s findings, the Council of the Law Society reprimanded the defendant and ordered him to pay penalties amounting to $22,500 and costs of $40,000. The defendant did not apply to Court to set aside the Council’s order.

6 After receiving the decision of the Disciplinary Committee, the plaintiff did not have the means to engage solicitors to act for him and applied for legal aid to take up his complaint over the bills. In January 2008, the Legal Aid Bureau referred the application to Mr Lee Chin Seon for his opinion. Mr Lee looked into the matter actively and rendered his opinion in June 2008, whereupon legal aid was granted in the same month. Following that, Mr Lee filed the present application on behalf of the plaintiff in August 2008.

7 The defendant resisted the application on three grounds[note: 3]:

(i) the application was out of time under s 122 of the Legal Profession Act (Cap 161 2001 Rev Ed) (“LPA”);

(ii) by reason of the plaintiff’s laches, he is prejudiced in that he has disposed of his files; and

(iii) the application is time-barred under s 6 of the Limitation Act (Cap 163 1996 Rev Ed).

8 Section 122 reads:

After the expiration of 12 months from the delivery of a bill of costs, or after payment of the bill, no order shall be made for taxation of a solicitor’s bill of costs, except upon notice to the solicitor and under special circumstances to be proved to the satisfaction of the court.

9 It is to be noted that there are three elements to the operation of the provision, (i) the delivery of a bill of costs, (ii) the payment of the bill, and (iii) the existence of special circumstances.

10 In the course of arguments before me, Mr Lee submitted that the bills were not proper bills under s 122. The bills were YSL 2144/01 “Re: Divorce Proceedings No. 2685 of 1998”, bill YSL 2145/01 “Re: Summons-in-Chambers Application SIC No. 751220/2000”, bill YSL 2146/01 “Re: Summons-in-Chambers Application SIC No. 750799/2000”, bill YSL 2147/01 “Re: Criminal Proceedings DAC 27967/98” and bill YSL 2148/01 “Re: Personal Protection Order Proceedings SS 1519/98”, each containing the statement “Towards account of our retainer inclusive of disbursements” and the amount charged i.e. $10,250.00, $5,000.00, $5,000.00 and $15,000.00 respectively.

11 The plaintiff cannot take that point after making the application for taxation. By filing the application, he acknowledged that there were bills to be taxed. If the plaintiff disputed the validity of the bills, he should have sought a declaration that the bills delivered were not proper bills and he was not under any liability to pay them.

12 That does not mean that the form and contents of the bills are not relevant to the determination of the application. This is so because if a bill presented is lacking in particulars, that is a factor in favour of requiring it to be taxed.

13 A vast majority of solicitor-and-client bills are paid without taxation. Unlike bills drawn for taxation, which are governed by Order 59 of the Rules of Court (R5 2006 Rev Ed), there are no provisions for bills not drawn for taxation.

14 What are the requirements for such bills? This has not been addressed in any reported decision in Singapore. The courts of England, however, have dealt with this question for a long time. In Keene v Ward (1849) 13 QB 515, Patteson J stated at p 521 that:

In requiring the delivery of an attorney’s bill, the Legislature intended that the client should have sufficient materials for obtaining advice as to taxation …

15 Patteson J’s statement was referred to and followed in subsequent cases. In Haigh v Ousey (1857) 7 E & B 578, Lord Campbell CJ ruled that a bill must disclose on the face of it sufficient information as to the nature of the charges, and cited Patteson J’s ruling as authority.

16 Keene v Ward and Haigh v Ousey were discussed in the much more contemporary decision of the English Court of Appeal in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 where Ward LJ stated:

31 What help can we get from this trilogy of cases [Keene v Ward, Haigh v Ousey and Cook v Gillard (1852) 1 E & B 26] where the dispute arose in contentious business not because of any insufficiency in the description of the work done but because of a want of identification of the court in which the business was conducted? We must bear in mind the statutory background, viz: (i) the client’s only protection against overcharging was to seek taxation; (ii) the bill to be taxed was the bill as delivered (‘refer such bill … to be taxed’); (iii) if less than one-sixth was taxed off that bill, the client paid the costs of taxation; (iv) the Georgian statute stating that jurisdiction to tax was given to the court in which the greater part of the business had been done and that different scales of charges prevailed in different courts had been repealed: now taxation could take place in all of the superior courts on substantially the same principles and on a uniform scale of charging.

32 Against that background the principles to be deduced from those cases appear to me to be these. (1) The legislative intention was that the client should have sufficient material on the face of the bill as to the nature of the charges to enable him to obtain advice as to taxation. The need for advice was to be able to judge the reasonableness of the charges and the risks of having to pay the costs of taxation if less than one-sixth of the amount was taxed off. (2) That rule was, however, subject to these caveats: (a) precise exactness of form was not required and the rule was not that another solicitor should be able on looking at the bill, and without any further explanation from the client, see on the face of the bill all information requisite to enable him to say if the charges were reasonable; (b) thus the client must show that further information which he really and practically wanted in...