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Yam v Wong [2003] SBCA 11; CA-CAC 017 of 1999 (10 September 2003)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT

The appellant successfully appealed in this Court and was awarded costs against the respondent. His bill of costs was served upon the respondent but they were not paid so he sought taxation by the registrar of the Court of Appeal. This was heard on 9 August 2003 and the appellant sought an indication of the scale of costs the registrar intended to use. In written reasons published on 19 2003, the Registrar adjourned the taxation to allow the appellant to produce evidence of rates of remuneration of practitioners to assist in the determination a proper level of taxation

He stated his reasons as follows:

“What do the rules say about taxation and scales of cost? The short answer is very little indeed. The rules say the Registrar shall be the Taxing Officer. This is no scale of costs and no other guidance or indeed restriction on what costs should be allowed. In essence then I have completed and unfettered discretion to decide the quantum of costs. The question of where the cost lie and on what basis have already been decided by the full Court.”

The appellant’s solicitor wrote to eleven other firms of lawyers inviting them to submit details of their charge out rates to the registrar. It appears that four availed themselves of the opportunity. Using that information at the adjourned hearing on 30th April 2003 the registrar referred to the comment of Payne J in Dwyer v Dwyer [1976] 2 All ER 1 and concluded

“I therefore intend to fix the rate of remuneration in this taxation by reference to the market rates that presently prevail in this jurisdiction. The evidence before me is that hourly rates vary from $400 to over $1,000.... these are the rates that members of the public are already paying. It is not a question of my artificially inflating the earnings of legal practitioners in Solomon Islands. This is the range which is already considered by the litigating public. I acknowledge there will be firms who charge much more that any “scale rate” I fix and there are probably firms who charge less. However, I am considering what should be a fair rate ... In doing that I arrive at a figure of $700 per hour.

I propose to continue the taxation in this matter using a remuneration rate of $700 per hour for admitting Legal Practitioners, $500 for provisionally admitted Legal Practitioners and $100 for clerks.”

The respondent applied to set aside the registrar’s ruling on the grounds that he has no power to fix the scale of fees to be charged, that his discretion as to the amount to be allowed on taxation is limited to consideration of individual items billed and that his determination was reached without considering the relevant facts.

The application was heard by the Chief Justice and he delivered his judgment on 11 August 2003. He saw the questions for determination to be whether the registrar, in fixing the rates of remuneration as he did, was fixing a scale of costs and, if he was, whether he had the power to do so. He continued:

“It is undoubtedly true to say that the Registrar, as taxing officer, has been given the power to assess costs payable to or by a party in an action, and to tax such costs when required to do so. The Registrar’s powers in this regard are discretionary and they are exercised according to the rules of Court or orders and direction from the Court. In the present case, the Court of Appeal granted costs to the appellant. There are however no Court of Appeal rules as to the scale of costs and so the Registrar is left with the order of the Court that the appellant must have his costs. How is the Registrar to exercise his discretion in such a case? The starting point must be the Act and the Rules providing the jurisdiction under which the Registrar, as taxing officer, is to exercise his discretion. Whilst the Act empowers the Court to order costs, the limits within which such costs in the Court of Appeal are to be fixed have not been set. In the absence of the Rules on costs, the power to fix the scales lies in the Court. The decision to do so, in our case, appears to be one that can only be done by the Court. Once that is done, the taxing officer is then able to exercise his discretion to fix whatever amount, in the exercise of his discretion, which is quasi-judicial, to assess the amount as he sees fit.

There is no scale of costs in place. It would seem from the Act, that the present means of dealing with the question of cost in the Court of Appeal is that where the Court, simply orders ‘cost to a party’, .it .is incumbent on that party to apply to a single Judge to fix the limit within which the taxing officer is to assess the costs”.

The learned Chief Justice relied on the provisions of section 19 (g) that the power to make any order or direction incidental to an appeal maybe exercised by any judge of the Court. His view was that the registrar was, in fact, setting a scale of costs which was the exercise of a discretionary power he has not been given by the Act or Rules of Court. He concluded:

“Thus in my judgment, until the Court of Appeal (Costs) Rules are put in place, the Court retains the power to fix the scale of cost or fix the limit within which the Registrar as a Taxing Office, should exercise his discretion in fixing the appropriate rate of remuneration for Legal Practitioners and Clerks in Solomon Islands.” Having reached that conclusion he did not consider it necessary to decide the reasonableness of the amounts determined by the registrar.

The appellant summarises the issues as:

“The central issue is whether the Taxing Officer has a discretion to tax the costs in this appeal on the basis that he would allow costs in accordance with remuneration rates determined by him. In determining this issue, two secondary issues arise, namely-

a) was the taxing officer fixing a scale of costs when he determined the hourly rates that he proposed to allow:

b) if he did fix a scale of costs, did he have jurisdiction to do so?”

The Act gives no guidance on costs in civil appeals. However, rule 23 (f) provides that the Court may make such order as to costs as it sees fit. Rule 46 (1) provides that the Registrar shall be the Taxing Officer but the reminder of the rule provides the means of challenging such taxation and gives no further guidance on the scope of the registrar’s powers.

By section 29, the president of the Court of Appeal has power to make Rules but no cost rules have been made.

It is hard to understand how the registrar is to carry out his duty to tax costs without determining a proper level of remuneration. The learn Chief justice is correct in his view that the Court has the power to set limits on the amount or method of determining costs but we do not agree that, in the absence of a scale of costs, the only way in which the level of costs may be limited is by seeking an order from the single judge.

As Chief Justice found, the power to assess and to tax cost is clearly given to the registrar and, in the exercise of that power, he has a discretion as to the correct levels of costs he will allow. What the Chief Justice seeks to do is to limit the registrar’s discretion so he may only work within a scale of costs. Consequently, when no scale is set by the Rules, the Court must determine the limits within which each taxation is to be fixed. That would effectively mean that the Court will have to assess the proper level in each individual case. We agree that the Court has such a power and will no doubt exercise it when ever necessary but we do not consider it is practical nor it is a duty the Court should undertake in every case. It also carries the unhappy consequential risk of considerable variation in the level of costs allowed from case to case.

We cannot agree with that conclusion. The registrar has a discretion to tax the costs in such a way that reasonable costs in which a way that reasonable costs are allowed. In order to determine what is reasonable he must consider the circumstances of the case and the proper levels he will allow.

What the registrar was doing in the present case was to give all indication, based on his enquiries, of what he, in his discretion, considers proper and reasonable to allow for the various items in the bill of costs. Whilst it could be suggested that his ruling, by stating the level that he intended to allow in his appeal, would, if adhered to in subsequent taxations, effectively set a scale, we do not consider that he was in fact setting a scale. Far from that, he is not bound to follow this in future cases although in the interests of consistency it will be likely that he will.

There are numerous case in other jurisdictions emphasising the wide discretion given to a registrar in such cases and we do not consider it necessary to cite them.

The present circumstances in this country mean that any fixed scale of costs is likely to become out of date very quickly. It is probable that the levels decided by the registrar will themselves soon need to be reviewed. He will need to ensure that by the proper use of his discretion he can mitigate the effect of falling exchange rates of rising inflation. The method he employed is a sensible and effective one and it may well need to be repeated if circumstances change. Legal practitioners may consider that, in any future request to supply information to assist him in his determination, it is their interests and those of the profession as a whole to ensure they provide the information requested. It is only by doing so doing that the registrar will be able consistently to tax costs at a fair and proper rate.

The appeal is allowed and the registrar shall tax the costs in this case using the levels of remuneration he has assessed as reasonable. The respondent must also pay the cost of this appeal.