Starlite Ceramic Industry Ltd v Hiap Huat Pottery

JurisdictionSingapore
JudgeChoor Singh J
Judgment Date21 February 1973
Neutral Citation[1973] SGHC 6
Date21 February 1973
Docket NumberSummons in Chambers No 797 of 1972 (Suit No 2057 of 1971)
Published date19 September 2003
Defendant CounselGiam Chin Toon (Ong Swee Keng & Co)
CourtHigh Court (Singapore)
Plaintiff CounselHarry Elias (Drew & Napier)

This is an application by the plaintiffs for a review of the taxation of their bill of costs and the question raised is whether or not a fee for `getting up` done before the issue of the writ should be allowed.

The plaintiffs issued the writ in these proceedings on 17 December 1971 claiming $12,383.45 on dishonoured and non-accepted bills of exchange which were for goods sold and delivered.
The writ was served on the defendants on 27 December 1971. The defendants entered appearance on 3 January 1972 and on 4 January 1972 they paid into court the sum of $10,299.03. The plaintiffs accepted the amount paid into court in full settlement of their claim, took the said sum out of court and discontinued the proceedings. The solicitors for the plaintiffs then taxed their bill of costs which included an item of $700 for `getting up` done before the issue of the writ. The registrar disallowed this item. The plaintiffs object to this disallowance and they want me to review the taxation and allow the said item.

The contention of counsel for the plaintiffs that they are entitled to a fee for the `getting up` done by their solicitors before the issue of the writ raises questions of considerable practical importance and does not appear to have been the subject matter of any prior judicial determination in Singapore.


It is necessary to consider the principles upon which a solicitor is remunerated for prosecuting or defending an action and the general principles applicable when taxation of costs is reviewed by the court.
A solicitor`s bill is subject to taxation although it may not always be taxed and the taxation of a bill of costs may proceed on one of three basis. These bases which are clearly explained in the case of Giles v Randall [1915] 1 KB 290 differentiate as between (a) party and party costs, (b) solicitor and client costs, and (c) solicitor and own client costs. A detailed consideration of the principles underlying the segregation of the solicitor`s costs into these three classes or headings is not necessary for the purposes of this case. It is sufficient to state that the costs falling under heading (a) are taxed in the strictest manner in conformity with the Rules of the Supreme Court whilst those falling under headings (b) and (c) are taxed on a more generous scale, those under heading (c) being taxed on the principle that all reasonable costs and expenses should be allowed to the solicitor consistent with the retainer given to him by his client.

It is clear from the principle laid down in Smith v Buller (1875) LR 19 Eq 475 that the costs chargeable under a taxation as between party and party

are all that are necessary to enable the adverse party to conduct the litigation and no more. Any charges merely for conducting the litigation more conveniently may be called luxuries and must be paid by the party incurring them.



It follows that a solicitor is entitled to costs of such work as was reasonably necessary for the prosecution or defence of his client`s case.


This somewhat modifies the dicta of the Court of Appeal in the case of Richardson v Richardson [1895] P 346 to the effect that:

the object of giving costs was to indemnify the successful party against the expense to which he had been put by the unsuccessful party,



for one might infer from these observations that an award of costs on a party and party basis is in the nature of a complete indemnity, which is not the case.


Another general rule is that the court will not interfere with the discretion of the taxing officer upon a mere question of quantum if the taxing officer has exercised his discretion after considering all the circumstances and if no question of principle arises.
Re Kana Moona Syed Abubakar (decd) [1940] MLJ 4 Aitken J said at page 7:

... the rule that a judge must not interfere with the decision of a taxing officer on a mere question of quantum, unless very exceptional circumstances are present, is both settled and of long standing. I suppose that a judge would be justified in reducing a very exorbitant charge, in the unlikely event of the Registrar allowing one; and Smith v Buller,lends some support to that proposition. Per contra I suppose that a judge would be justified in allowing more than the Registrar has allowed, if the Registrar`s disallowance amounted to an affront to reason and common sense ...



And 12 years later Thomson J (as he then was) expressed the same view in Chin Cham Sen v Foo Chee Sang [1952] MLJ 99 , at p 100:

... It is well settled in England that as a general rule the court will not interfere with the discretion of a taxing officer upon a mere question of quantum if the taxing officer has exercised his discretion after consideration of all the circumstances and if no question of principle arises (see Re Estate of Ogilvie [1910] P 242) ...



Similar views were expressed by Gordon-Smith JA in Malayan Trading Co v Lee Pak Yin [1941] MLJ 207 at p 209:

... It is, I think, unnecessary to quote any authorities in regard to the powers, and I would add, assumed competency, of a judge sitting in appeal on a taxation matter, as it is well settled that in regard both to quantum and to the exercise of a discretion vested in a taxing master, it is only when such discretion has been exercised on a wrong principle or the quantum allowed is obviously wrong that a judge will interfere ...



The dispute in the present case is not on quantum.
It raises a question of principle, namely whether a solicitor is entitled to costs for work done before the issue of the writ. In England it is well settled that such costs are available to a solicitor. It was decided as far back as 1881 in Harrison v Leutner (1881) 16 Ch D 559 that a solicitor is entitled to `costs of all work in preparing, briefing or otherwise relating to affidavits or pleadings, reasonably and properly and not prematurely done, down to the time of any notice which stops the work` and that `the Taxing Master, having regard to the circumstances of each case, must decide whether the work was reasonable and proper and the time for doing it had arrived`.

In Windham v Bainton (1888) 21 QBD 199 the court held that master had a discretion to allow charges and expenses properly incurred by the defendant in procuring evidence where the plaintiff, having given no notice of trial, subsequently discontinued the action.
Manisty J observed at p 201 that:

if the costs and expense of procuring evidence were properly and reasonably incurred, I think it makes no difference that they were incurred before notice of trial, and Stephen J concurred with this opinion.



In Slingsby v A-G (1918) 119 LT 104 the Court of Appeal held that the burden is upon the party bringing in a bill of costs and claiming to be allowed the amount charged therein to show that the same is fair and reasonable and ought to be allowed; it is not for the taxing officer to allow the amount claimed merely because it has been paid or because the unsuccessful party to the proceedings has not adduced evidence to show that the charge is excessive.


Quite often a good deal of work is done in the initial stages of the case and costs thereof might very well be regarded by the taxing master as necessary and proper.
In fact, even where the evidence is collected, in whole or in part, before the action is commenced, the solicitor will not be prejudiced, if the costs of collecting...

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