LYNES QUASHIE-IDUN vs. GBEDEMAH [1973] 1 GLR 191

CASES REFERRED TO

(1) In re Cheesman [1891] 2 Ch. 289; 60 L.J.Ch. 714; 64 L.T. 602; 39 W.R. 497, C.A.

(2) In re a Solicitor [1961] 1 Ch. 491; [1961] 2 W.L.R. 698; [1961] 2 All E.R. 321; 105 S.J. 347.

(3) Storer & Co. v. Johnson (1890) 15 App.Cas. 203; 60 L.J.Ch. 31; 62 L.T. 710; 38 W.R. 756, H.L.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiffs, as solicitors against the defendant as a client, for summary judgment under Order 14, r. 1 for ¢18,066.50 being the outstanding balance of fees, wherein the defendant applied for an order referring the bill to be taxed. The facts are fully stated in the ruling.

COUNSEL

Joe Reindorf (with him R. I. Quansah) for the plaintiffs.

S. A. Okudzeto for the defendant.

JUDGMENT OF ABBAN J.

The plaintiffs are solicitors and, by their specially endorsed writ, they are claiming from the defendant the outstanding balance of their professional charges for acting for the defendant in certain court cases and in appearing for him at the Jiagge Assets Commission.

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The amount the plaintiffs are claiming is ¢18,066.50. The defendant even though he does not deny that the plaintiffs are entitled to some fees, disputes the amount of the bill and contends that the bill should be referred to a taxing officer for taxation by virtue of the Legal Profession Act, 1960 (Act 32).

In the present application, learned counsel for the plaintiffs has asked for summary judgment to be entered against the defendant under Order 14, r. 1 of the Supreme [High] Court (Civil procedure) Rules, 1954 (L.N. 140A), and has also opposed any reference to the taxing officer. Counsel submitted that the defendant’s conduct in not applying to the court within one month of the delivery of the bills was an indication that he had agreed to those charges; and he is therefore estopped from applying for reference to the taxing officer.

As a matter of fact, one of the defendant’s letters written to the plaintiffs, and dated 16 August 1971, shows that the defendant accepted the charges more than twelve months ago but pleaded for time to pay. In view of this, learned counsel further submitted that the provisions of section 31 of Act 32 cannot apply and the court should not, at this stage, refer the bill to any taxing officer, but judgment should be entered for the amount endorsed on the writ.

The submissions of the plaintiffs’ counsel appear to be well-founded, so far as the interpretation of section 31 of the said Act is concerned. However, learned counsel for the defendant argued that although it is true that twelve months have elapsed since the last of the three bills involved was delivered to the defendant, the court still has general jurisdiction to refer the matter to the taxing officer. Counsel contended that comparison of the bill dated 28 June 1969 and the one dated 18 November 1969, attached to the defendant’s affidavit, shows that the plaintiffs are claiming twice for the services they rendered in respect of proceedings before the Jiagge Assets Commission.

It is also plain, counsel submitted, that the plaintiffs are charging fees for an action which they brought in the High Court to set aside the Jiagge Assets Commission’s report, and which action the plaintiffs had to withdraw, because they did not give one month’s statutory notice to the Attorney-General before issuing the said writ. Counsel argued that this was a mistake on the part of the plaintiffs who, as solicitors, were supposed to know the law with regard to the issuing of writs against the Republic. Learned counsel therefore submitted that it is not fair, in these circumstances, to allow the plaintiffs to charge fees for their own mistake.

I must observe that even though the defendant cannot now ask for reference of the bill to the taxing officer under section 31, I think he can still make the said request under section 33 of the Act. The said section 33 of Act 32 provides as follows:

“No reference shall be directed upon application made by the party to be charged after judgment has been obtained in any suit for

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the recovery of the fees of the lawyer 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 is made.”

It is therefore clear that I have power even at this eleventh hour to refer the bill to the taxing officer, if only the defendant is able to prove to my satisfaction that there are “special circumstances” which justify taxation.

I have given due consideration to the submissions of both counsel, and I think there is some substance in the submission of learned counsel for the defendant. The two bills attached to the defendant’s affidavit bear out the contentions of the defendant, and I am inclined to the view that the matters pointed out by learned counsel for the defendant ought to be scrutinized by a taxing officer. Indeed, having regard to the size of the bill, there seem to be possible over-charges. I should not be taken to have decided that the bill is too high. It is likely that it can be justified by the plaintiffs. What I am saying is that it is possible that it may be substantially reduced on taxation.

I therefore hold that this is a case of “special circumstances” within the meaning of section 33 of the Legal Profession Act, 1960 (Act 32). After all, the said Act does not define the words “special circumstances.” Thus, the court is supposed to have absolute discretion in each case, to decide whether or not the matters put forward by an applicant should constitute “special circumstances.” The standard to be applied will also not be the same. It may differ in each case. In In re Cheesman [1891] 2 Ch. 289 at p. 292, C.A. Lindley L.J. said:

“The Court cannot lay down a hard and fast rule not imposed by the Act; it must judge in each case whether there are special circumstances such as to make it right and reasonable that the bill should be taxed although it has been paid.”

See also the case of In re a Solicitor [1961] 1 Ch. 491, which was cited by learned counsel for the defendant.

I should point out that quite apart from the Legal Profession Act, 1960, the court, in exercising disciplinary control over its officers, has an inherent jurisdiction to order taxation of the bill of a solicitor at any time, provided special circumstances are shown. The Act cannot be said to have impliedly curtailed this inherent jurisdiction in any way. In the case of Storer & Co. v. Johnson (1890) 15 App.Cas. 203, the House of Lords held that although there was no power under the Solicitors Act, 1843 (6 & 7 Vict., c. 73), to order taxation of part of a solicitor’s bill, such an order could be made under the court’s inherent jurisdiction. In reading his judgment, Lord Halsbury L.C. at p. 206 had this to say:

“I think it is quite clear that the Solicitors Act did not deprive the Court of the jurisdiction which they always possessed to do justice

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in the premises when dealing with one of their own officers, and that they might therefore order that the costs should be taxed, although not in terms of the Solicitors Act …”

As I have said, certain parts of the bill of the plaintiffs ought to be looked into. I have therefore come to the conclusion that the defendant has established such “special circumstances” which justify the invocation, not only of section 33 of the Legal Profession Act, 1960, but also of the court’s inherent jurisdiction. In the circumstances, I am of the view that the defendant is entitled to an order for taxation, notwithstanding the fact that he has already made part-payment of the charges.

Consequently, I order that the bill of the plaintiffs should be and is hereby referred to the taxing officer of this court. The taxed bill must be filed in court by the taxing officer within two weeks. Further hearing of the application is adjourned to 15 January 1973.

DECISION

Order accordingly.

S.Y.B.-B.