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Supreme Court of Vanuatu |
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IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.118 of 1999
BETWEEN:
HUDSON & SUGDEN
Plaintiff
AND:
HOLDING REDLICH
Defendant
Coram: Before Mr Justice Oliver A. Saksak sitting in Chambers
Mr Robert Sugden for the Plaintiff
Mr John Malcolm for the Defendant
JUDGEMENT ON TAXATION OF COSTS
Introduction
The Plaintiff applied for taxation of costs on a Solicitor-Own client basis.
The Bill is a long one consisting of some 257 items claimed for work done by the Plaintiff over a period of 5 years from 8th September 1994 to 21st December 1999. The Plaintiff was appointed by the Defendant to act on behalf of the Defendant as agent in relation to Civil Case No.156 of 1994, Margot Hillel -v- Iririki Island Resort Ltd. The Plaintiff has prepared his Bill on the basis of vt20,000 per hour as the going rate in Port Vila and Vanuatu. The defendant filed Objections on 28th February 2000 objecting to time and costs claimed in every item in the Plaintiff's Bill.
The hearing of the taxation application took place in Chambers on the following dates:
(a) 23rd March 2000 in the morning;
(b) 24th March 2000 in the afternoon;
(c) 27th March 2000 in the morning;
(d) 31st March 2000 in the afternoon;
(e) 6th April 2000 in the afternoon;
(f) 7th April 2000 in the afternoon;
(g) 10th April 2000 in the afternoon;
(h) 11th April 2000 whole day;
(i) 12th April 2000 whole day;
(j) 13th April 2000 in the afternoon, and
(k) 14th April 2000 in the afternoon.
The Plaintiff addressed the Court in respect of every claim item by item with submissions and replies, objections and submissions were received on behalf of the Defendant to every claim.
Assessment
The assessment that follows have been made after considering what I have understood from the objections of the Defendant to be the issues which are as follows:-
(1) The Rate-
The Court takes judicial notice of the going rate in Port Vila and in Vanuatu is vt20,000. See Civil Case No.16 of 1996 VCMB -v- Edwin Lessegman.
This rate is claimable both for professional and non-professional time. All claims or part thereof that have been disallowed have been found to be unreasonably incurred.
(2) The Contract-
The Defendant wrote to the Plaintiff on 30th August 1994 advising the Plaintiff that they have been instructed to request that the Plaintiff act as the Defendant's agent. The Plaintiff replied by letter dated 9th September 1994 advising the Defendant that he had no conflict of interest and that he was willing to act. This letter was written on the letterhead of Hudson & Co as Barristers, Solicitors & Notaries Associated with Blake Dawson Waldron. On 17th October 1994 the Defendant wrote to the Plaintiff advising that the Plaintiff had been appointed to act as the Defendant's agent in respect of Civil Case No.156 of 1994. As to what the Defendant meant by that I do not know, but in the ordinary sense of the word one of the meaning of the word 'agent' is that he is a representative. Was the Plaintiff therefore the Defendant's mere representative in Vanuatu for the purposes of Civil Case No.156 of 1994? Leaving this issue to one side first I have to answer the issue of whether or not by the Plaintiff's appointment as agent a contract for services was entered into. The Defendants say that no contract arose. I do not agree. Paragraph 2 of the Defendant's letter states:
"Please take ALL ACTION required to protect our mutual client's interest in this matter ……" (emphasis added)
By this it is clear to me that a contract had arisen making the Plaintiff more than just a mere agent. Further, to instruct the Plaintiff to take all action required to protect their client's interests in the matter implies that the Plaintiff was being instructed to do all that was reasonable for the sake of protecting their client's interest. The further implication is that whatever costs the Plaintiff incurred in the process, as long as they were reasonable and were reasonably incurred, he would be re-imbursed.
(3) Which Rates should be Applicable?
The Defendant does not accept the Plaintiff's costs as he was engaging a firm of Solicitors who were associated with an Australian Legal Firm that the scale of costs applicable in Australia would be the relevant scale of costs used here.
Firstly Civil Case No.156 of 1994 was a proceedings issued and heard in the Courts of Vanuatu. Therefore the rate of costs applicable in Vanuatu which is vt20,000 per hour is the appropriate rate to be applied. Secondly the Plaintiff wrote a letter to the Defendant on 1st of December 1994 this time not on the previous letterhead but on their own letterhead of just Hudson & Co as Barristers, Solicitor's and Notaries. Mr Sugden advised in paragraph one that he had recently joined Hudson & Co as a partner and that he would have conduct of their file. From the date of receipt of that letter it should have been apparent to the Defendant that Hudson & Co were no longer working in Association with Blake Dawson Waldron and should have either withdrawn or revoke their appointment of the Plaintiff as agent, or take the initiative to ask the Plaintiff to give an indication of what costs or rate he would be charging at the end of the day. The Defendant did not do that. Their silence on the issue must be taken as implying that they agreed to the Vanuatu hourly rate of vt20,000 per hour for work reasonable done.
(4) Incoming Faxes-
These were objected to by the Defendant but as they have been awarded as disbursements in previous cases such as Hudson & Co -v- GPC CC No.7 of 1997, I see no reason why these cannot be allowed.
(5) A simple Slip and Fall case–
The Defendant claims that this is a simple slip and fall case and the time expended by Mr Sugden including the many hours of research and preparation as expressed in the statement of claim is excessive and unfair. This in my view contradicts the instructions of the Defendant in their letter to the Plaintiff on 17th October 1994. I have found that on several occasions the Plaintiff had to send follow-up correspondences to press the Defendant to provide answers to issues directly relevant to some aspects of the case. Such actions could have been avoided if the Defendant had responded each time and specifically as to what was required. Repetitive actions should be taken as reasonable in view of the Plaintiff's instructions that he had to do all thing's required to protect the best interests of the client being Mrs Hillel. He could not have acted or done anything short of that as to do so would have amounted to professional negligence or in-competence. As the trial judge, whilst I agree that this was a simple slip and fall case, there were however complex legal issues that needed much time, research and preparation. Any careful and expeditious lawyers would take much time, research and preparation on the case such as this. But again only what was reasonable and reasonably incurred by the Plaintiff have been allowed.
Now as regards the Bill of Costs -
(1) Disbursements
Item
Description of Item
VT Allowed
VT Disallowed
2
IDD fax charge
430
6
IDD fax charge
430
7
Incoming fax
200
8
IDD fax
639
10
Travel
200
11
Incoming fax
300
12
Travel
200
13
Photocopies
Secretary attendance
550
1,667
Travel
200
14
IDD Fax
645
15
IDD Fax
213
16
Fee on Writ
6,000
20
IDD fax & local fax
Nil
415
21
Incoming fax
100
24
IDD fax & local fax
400
26
IDD fax
213
27
Incoming & IDD fax
915
IDD phone call
860
28
Incoming fax
300
29
Secretary attendance
1,667
IDD fax
1,290
31
Incoming fax
200
34
IDD fax
213
36
Fax charge
200
38
Fax charge
400
42
Fax charges
100
43
IDD fax
213
44
IDD fax
645
45
Incoming fax
100