Pereira Linus Barnabas t/a Linus Law Chambers v Wong Shin Kwong

• Court: Magistrates' Court (Singapore)
• Judge: Patrick Tay Wei Sheng
• Judgment Date: 20 May 2020
• Neutral Citation: [2020] SGMC 29
• Citation: [2020] SGMC 29
• Docket Number: Bill of Costs No. 37 of 2019
• Hearing Date: 10 January 2020,11 February 2020
• Plaintiff Counsel: Pereira Linus Barnabas (Linus Law Chambers)
• Defendant Counsel: Ng Lip Chih (Foo & Quek LLC)
• Subject Matter: Civil Procedure,Costs,Taxation,Non-contentious business
• Published date: 12 June 2020

Deputy Registrar Patrick Tay Wei Sheng:

The applicant is a solicitor of 39 years standing. He was instructed by the respondent (the “seller”) in two ultimately unsuccessful attempts to sell a business at a price of up to $780,000. He rendered a separate bill in respect of each attempt. Following some delay, the seller paid the bill for the first attempt and asked to have the bill for the second attempt taxed. The applicant now presents a bill of costs in the following sums for the taxation of his solicitor-and-client costs in respect of the second attempt: $12,500 for work done other than for taxation (“Section 1”); $1,250 for work done for taxation (“Section 2”); and $281 for disbursements (“Section 3”).

The seller disputes the bill and contends that the sums should be $3,000 for Section 1 and $61 for Section 3, with no award made for Section 2. He argues that the applicant did not document the work done for the second attempt, and that the work done simply duplicated that for the first attempt. He adds that the bill relates to work that “pre-dates” the signing of the warrant to act for the second attempt (“WTA”).

Neither party filed any affidavit in support of their positions in this taxation. Rather, they agreed to proceed on their written submissions and the documents that they exhibited therein. Neither party raised any objections as to the authenticity of those documents.

Formalities

The WTA sets out the agreement of the seller as follows:¹

… I conf‌irm and agree that your fee for so acting for me in this matter [ie, the second attempt] shall be f‌ixed at $15,000.00 plus all reasonable disbursements (including stamp and search fees) to be incurred by you on my behalf Dated this 5th day of January 2017

It does not assist the seller that the WTA was signed only after the applicant had commenced work on the second attempt. An agreement for the remuneration of a solicitor for non-contentious business may be made “before or after or in the course of the transaction of any non-contentious business” (s 109(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”)). The WTA fulfils the formalities requirements of s 109(4) of the LPA: it is in writing and signed by the seller. It is also undisputed that the seller had prior to executing the WTA instructed the applicant orally, and that the WTA had been executed in the terms of that instruction. On its face, the WTA is thus enforceable as a remuneration agreement (see Law Society of Singapore v Ang Chin Peng and another [2013] 1 SLR 946 at [29]).

Fairness and reasonableness

Nevertheless, the court has a broad jurisdiction over a bill of costs for non-contentious business that is based on a remuneration agreement. Where the amount claimed is unfair or unreasonable relative to the work done, the court may cancel the remuneration agreement or reduce the amount payable thereunder (s 109(6) of the LPA). The guiding principle is that a solicitor “must charge the client fairly for work done” (r 17(1) of the Legal Profession (Professional Conduct) Rules 2015 (No. S 706); see also Jemma Trust Co Ltd v Liptrott [2004] 1 WLR 646).

The rationale for such judicial supervision over non-contentious business is that the client may not understand the nature and extent of the work undertaken on the matter. The taxing officer is an independent reviewer of the remuneration agreement that forms the basis of the bill of costs (Law Society of Singapore v Ang Chin Peng and another [2013] 1 SLR 946 at [34]).

… it is only the Solicitor, and not the client, who fully appreciates the nature and extent of the work to be undertaken on the matter. The Solicitor thus enjoys an advantage and it would be unfair to the client to be straitjacketed, without any available recourse, to the fee agreement. Understandably therefore, this provision permits the client to have the agreement reviewed by an independent person, ie, the taxing officer of the court. In every instance, the Solicitor must satisfy the test of fairness or reasonableness of the amount charged in relation to the services rendered.

The Legal Profession (Solicitors’ Remuneration) Order (Cap 161, O 1, 2010 Rev Ed) (“LP(SR)O”) sets out a list of factors that go to the fairness and reasonableness of the remuneration of a solicitor for non-contentious business:

Non-contentious business

2. The remuneration of a solicitor in respect of business other than contentious business shall be such sum as is fair and reasonable having regard to all the circumstances of the case, and in particular the following circumstances: (a) the importance of the matter to the client; (b) the skill, labour, specialised knowledge and responsibility involved on the part of the solicitor; (c) the complexity of the matter and the difficulty or novelty of the question raised; (d) where money or property is involved, the amount or value thereof; (e) the time expended by the solicitor; (f) the number and importance of the documents prepared or perused, without regard to length; and (g) the place where, and the circumstances under which, the services or business or any part thereof are rendered or transacted.

These factors are not unlike the general factors considered in a taxation under Appendix 1 to O 59 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). But the LP(SR)O places special emphasis on the factor of urgency, and permits a solicitor to charge additional remuneration for special exertion for business that is carried through in an exceptionally short space of time:

Additional remuneration for special exertion

3. In respect of any business which is required to be, and is, by special exertion, carried through in an exceptionally short space of time, a solicitor may charge additional remuneration for the special exertion according to the circumstances.

In my view, the $12,500 claimed by the applicant for Section 1 is neither unfair nor unreasonable. The...