Zuliani et Al v Viera
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Byron, J.A. |
| Judgment Date | 23 March 1992 |
| Neutral Citation | KN 1992 CA 1 |
| Court | Court of Appeal (Saint Kitts and Nevis) |
| Date | 23 March 1992 |
| Docket Number | Civ. Appeal No. 5 of 1991 |
Court of Appeal
Robotham, C.J. Byron, J.A., Joseph, J.A. (Ag.)
Civ. Appeal No. 5 of 1991
George Newman Q.C., T. Byron, and H. Browne, for the appellants
Time Kendall Q.C., L. Moore, E. Ferdinand, for the respondent.
Costs - Recovery of sums due on bill of costs — Respondent a qualified lawyer but not enrolled as a barrister and solicitor — Retained by appellants as corporate counsel — Performed services not included in retainer agreement — Whether respondent can recover costs for services rendered — West Indies Associated States Supreme Court (St. Christopher and Nevis and Anguilla) Sct, 1975, No. 17 of 1975, ss. 20, 77.
This action was by the respondent, a solicitor, for the recovery of sums due on a Bill of Costs for work done between 1983 and 1988. In the statement of claim the three appellants were alleged to be jointly liable on the said Bill of Costs.
On 3rd April, Singh J. gave judgment against each appellant, severally, for items on the bill and ordered that these items be taxed by the Registrar of the High Court on the delivery of individual bills to be filed by the respondent with the Registry of the court.
The respondent qualified as a lawyer in 1983 and returned to St. Kitts. Before he was enrolled as a Barrister and solicitor in accordance with the law he was engaged as personnel manager of the Royal St. Kitts hotel and Casino. of himself and the other appellants.
In October 1993 to May 1985 the first-named on his own behalf, on behalf of the second-named appellant and Transamerica Invest Inc. a Cayman Corporation, retained the respondent as corporate counsel at a monthly retainer of $3000.00. The trial judge found as a fact that the third-named appellant was not incorporated until 30th September 1987.
The trial judge found that the respondent performed services not included in the retainer agreement which could be briefly and partially summarised as:
1) Conveyancing:
i) in relation to a transfer of title of a 16.9 acre parcel on which the first appellant was operating the Royal St. Kitts Hotel and Casino from the first appellant, to a Cayman Corporation and then to the 2nd appellant;
ii) in relation to transfer of title of a 3.4 acre parcel from the Frigate Bay Development Corporation to the first appellant, then to the second appellant;
iii) in relation to transferring and amalgating transfers of land from the first and second appellant in one title in favour of the third appellant.
2) Mortgage financing
i) in relation to preparation of a debenture for a loan which in the end was not advanced;
ii) in relation to writing opinions and vetting caveats for registration, and removing caveats for the second appellant;
3) Consultations, and disbursement for telephone calls and photocopying.
It is a matter of some significance that the first appellant was the signatory for the other appellants was on all the conveyancing documents, and there were some he signed on behalf of both the transferer and transferee. The relationship between the parties eventually deteriorated and the judge found that the first-named appellant asked the respondent to submit a bill which was done.
In Misc. Suit No. 2 1989 the court after full argument by the appellants and respondent dismissed the respondent's application to have bill of costs taxed in relation to the above matters.
The respondent then brought these proceedings.
The Relevant Statutes:
The West Indies Associated States Supreme Court (Saint Christopher, Nevis And Anguilla) Act, 1975 No.17 of 1975 section 78 prescribes:
“Subject to the rules of court, the law and practice relating to solicitors, and the taxation and recovery of costs in force in England shall extend to and be in force in he state and apply to all persons lawfully practicing herein as solicitors of the court.”
It was generally accepted that this provision was effective to enact in St. Kitts the law currently in force in England on this subject being The Solicitors Act, 1974 and the Solicitors Remuneration Order 1972 S.I. 1972 No. 1139. These provisions have to be read with the Rules of the Supreme Court Order 62. The provisions of these acts which are relevant to this appeal are:
The Solicitors Act, 1974 section 69:
“(1) Subject to the provisions of this Act, no action shall be brought to recover any costs due to a solicitor before the expiration of one month from the date on which bill of those costs is delivered in accordance with the requirements mentioned in subsection (2);
(2) The requirements referred to in the subsection (1) are that the bill:
(a) must be signed by the solicitor, or if the costs are due to a firm, by one of the partners of that firm, either in his own name or in the name of the firm or be enclosed in or accompanied by, a letter which is so signed and refers to the bill; and
(b) be delivered to the party to be charged with the bill, either personally or by being sent to him by post to, or left for him at, his place of business, dwelling-house, or last known place of abode; and where a bill is proved to have been delivered in compliance with those requirements, it shall not be necessary in the first instance for the solicitor to prove the contents of the bill and it shall be presumed, until the contrary is shown, to be a bill bona fide complying with this Act.”
The Solicitors' Remuneration Order 1972 section 3 (2):
“Before the solicitor brings proceedings to recover costs on a bill for non-contentious business he must, unless the costs have been taxed, have informed the client in writing:
(i) of his right under paragraph (1) of this article to require the solicitor to obtain a certificate from The Law Society; and
(ii) of the provisions of the Solicitors Act, 1974 relating to taxation of costs.”
The appellants contend that the respondent was in breach of conditions precedent to commencing these proceedings in that:
1. He failed to deliver the Bill of Costs to the parties to be charged in accordance with section 69 of the Solicitors Act, 1974 and accordingly, the judge should have dismissed the action on the original bill rather than give judgment on bills to be served as a result of his order.
2. The respondent failed to inform the appellants in writing of their right to require the respondent to obtain a certificate from the Law Society and/or of the provisions of the Solicitors Act relating to the taxation of costs in accordance with the Solicitors Remuneration Order 1972 section 3(2) (i) and (ii) and accordingly the action should have been dismissed for his failure to comply with these mandatory provisions of the legislation.
A. Counsel for the appellants submitted that the bill was delivered to the first appellant only, and not the other two appellants, and under the statutes delivery to each appellant was mandatory and it was the duty of the court to rule in favour of the appellants on this issue because there was no evidence that there was delivery in accordance with the provisions of the statute.
Questions of service of documents are questions of fact. A court is entitled to make findings of fact in accordance with missions in the pleadings.
In this case the statement of claim alleged in paragraph 1: “…The respondent duly performed the work and services and incurred the disbursements itemized in his Bill dated 11th July, 1988 to the defendants which said bill was signed by the respondent and delivered along with a covering letter on the 12th day of July, 1988 to the first-named defendant in is own behalf and also as principal officer of the second-named and third-named defendants.”
The three appellants who entered a joint defence pleaded to that allegation as follows:
Para. 1:
“The defendants admit that they received a bill dated 11th July, 1988 but deny that they are in any way indebted to the plaintiff.”
Despite the ingenuity of counsel's argument that there is a difference between the requirements of the law to deliver the bill in a particular way and an admission that the bill was received which does not necessarily connote that the receipt was in circumstances which complied with the statutory provisions the specific pleadings as to the delivery and receipt of the bill could only bear the meaning that the appellants admitted that the bill had been delivered to each of them.
In any event the facts found by the trial judge including the way in which the two companies traded through the first-named appellant and the fact that this very bill had previously been the subject of proceedings in the High Court for an order for its taxation indicate that the bill was delivered to all three appellants. I would therefore reject this argument.
B. Counsel for the appellant also challenged the delivery on the ground that the bill was defective and...
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