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Mamando v Lumusa Local Government Council [1998] PGNC 156; [1998] PNGLR 278 (13 August 1998)

[1998] PNGLR 278

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PHILIP MAMANDO

V

LUMUSA LOCAL GOVERNMENT COUNCIL

WAIGANI: WOODS J
7 July and 13 August 1998

Facts

The plaintiff, a lawyer, rendered to his client, the defendant, a memorandum of his fees for professional services. There was no agreement between the parties as to the plaintiff’s engagement and remuneration. The plaintiff’s memorandum of fees did not provide detailed particulars of the nature of services provided and the costs incurred. The plaintiff however sued to recover his fees.

Held

1. In the absence of an agreement with his client as to his fees as required by s 66 of the Lawyers Act ("the Act") and his failure to provide sufficient and relevant particulars as required by s 62 of the Act and Order 22 Rule 4a of the National Court Rules, the plaintiff can not be entitled to judgment.
   

Cases cited

Re Marsland v Marsland [1902] St R Qd 219.

Smith v Buller [1875] UKLawRpEq 26; [1875] LR 19 Eq 473.

Counsels

Plaintiff in person.
No appearance for the defendant.

13 August 1998

WOODS J. The plaintiff has issued a writ of summons claiming for monies owing by the defendant for services rendered. The plaintiff is a lawyer in practice and is suing on a fee note for legal services rendered to the defendant between January 1996 and January 1997. He claims that he rendered the fee note to the defendant in January 1997 and the defendant has failed to pay the amount. The services referred to in the memorandum of fees was for legal work done in connection with a case numbered OS 55 of 1996 Lipu, the President of Lumusa Local Government Council and The Council v the Electoral Boundaries Commission & The State. Reference to the National Court file shows that this was a case involving the application on behalf of the people of the Lumusa area in the Baiyer Area of Western Highlands to be included within the Western Highlands Electorate area for the National Elections. It appears that the plaintiff acted for the Lumusa Council in this case and was successful. The memorandum for fees is for a total of K200,000.00 for the work plus K8,066.70 for disbursements. There is no detail attached to the fee note apart from the lists of letters written and dates of conferences and court attendances with the round total assessment, there is no figures noted against each item as there would be in a Bill for Taxation. The plaintiff submits that he only has to submit the general bill and the defendant having failed to pay he can rely on the bill and obtain a judgement for the total claimed.

However I find that as the defendant is a people’s representative body supported by public monies there is a duty on the court to require appropriate evidence of the work performed analogous to a Bill as rendered for taxation and the court would expect to see the appropriate agreement for services as the obligation is clearly to be paid for from public funds. In the circumstances I would expect that there has been some agreement for services as noted in the Lawyers Act s 66:

(1) A lawyer may make a written agreement with his client as to his remuneration in respect of contentious or non-contentious business done or to be done by him.

I would also expect to see an appropriate resolution from the Council to support the agreement to provide legal services. Whilst there is provision in Subsection (3) for a client to apply before a judge on motion that the agreement is unfair or unreasonable, the defendant has made no application here. In fact the defendant has failed to appear and defend the matter when it came to court. The court had previously refused an application by the plaintiff for a default judgement. However I feel that there is a duty on lawyers and the Court to consider carefully the level of remuneration for legal services rendered especially when the services rendered are not necessarily covered by standard scale costs. In this case there appears to have been no agreement for remuneration nor has the plaintiff been able to refer to minutes of proceedings of the defendant Council whereby the Council agreed by resolution to brief the plaintiff with an estimate of the amount required for the work.

At first glance I consider that the amount of K200,000.00 is a large amount for the handling of one case about electoral boundaries. Initially of course there is no reference in the memorandum of fees to whether the case was successful and whether there was any order as to costs on the basis that the plaintiff may have been successful in the case. Upon being asked the plaintiff agreed in court that the case was successful and there was an order for the Electoral Boundaries Commission and the State to pay the Council’s costs and upon being asked further the plaintiff admitted that the costs had been taxed at the sum of K20,874.00 in favour of the Council. If that was the case then that was to cover the party-party costs and that would mean that the plaintiff is claiming for solicitor-client costs in the vicinity of K180,000. This seems quite a large amount in comparison considering that under Taxation of Costs the costs allowed are deemed to be all that are necessary to enable the adverse party to conduct litigation and no more. Any further costs incurred for conducting the litigation are sometimes regarded as luxuries. See Smith v Buller [1875] UKLawRpEq 26; [1875] LR 19 Eq 473. It is incorrect to suppose that for the same work a larger charge can be made in a solicitor-client bill of costs than in a party-party bill. See Re Marsland v Marsland [1902] St R Qd 219. And see Griffith CJ in that case: ‘The rule is that for the same work there must be the same remuneration on whichever basis the taxation is had but there is much work properly chargeable as between solicitor and client which ought not to be allowed as between party and party. For that additional work the client is bound to pay his solicitor a proper remuneration but for the same work there should be the same measure of remuneration’.

And per Real J ‘if the taxing officer has allowed in a party-party Bill for all the work necessarily and properly performed, to make any extra allowance for the same work would in reality be allowing for work which had never been performed’.

I am unable to conceive how solicitor-client costs can be around K180,000.00 for a case that was taxed at K20,874.00. There has been no agreement between the plaintiff and the Council presented to the Court for costs, nor has there been any reference to a resolution by the Council to instruct the plaintiff and any amount considered for that work.

I find that in the circumstances of this case there is an obligation on the Court to both expect an agreement for the payment of solicitor-client costs and to expect a lawyer to prove the work done and services provided when taking legal proceedings for the recovery of costs if such is not based already on a certificate of costs following a taxation.

The Lawyers Act s 62(1) says:

"(1) A lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a Bill of Costs has been delivered in accordance with this Act.

(2) A bill shall contain the particulars required by the Rules of Court."

The rules of court in Order 22 Rule 49 then say:

"(1) A Bill shall contain particulars of:

(a) the work done by the lawyer, his servants and agents

(b) the disbursements made

(c) the costs claimed for the work done."

The memorandum of fees only comprises a list of activities with a general figure of K200,000.00. For the purposes of the Lawyers Act and the National Court Rules the memorandum should contain the relevant particulars of the work done and how the costs accrue for the items similar to a Bill as rendered for taxation. The principles are quite clear that the form of a bill of costs is substantially the same whether for taxation between party and party or between solicitor and own client. An analysis of this bill of fees shows that there were attendances on a total of 63 days whether it was conferences or court days or merely writing a letter, however from the round figure assessed at the end this calculates at over K3,000 per day regardless for whether it was for attendance at court or merely writing a letter.

I find that the whole memorandum of fees presented here as the basis of the claim is grossly excessive and does not comply with the Lawyers Act and the rules of court.

I dismiss the claim.