Tan Yi Lin Cheryl v Tan Yew Fai (trading as Y F Tan & Co) [2022] SGHC 47

Introduction

This is an application by Ms Cheryl Tan Yi Lin (the “Applicant”) seeking an order to refer for taxation 17 bills issued to her by her solicitor, Mr Tan Yew Fai (the “Respondent”), from 2018 to 2021. The Respondent had periodically issued these bills to the Applicant for rendering his legal services in three civil suits: HC/S 263/2018, HC/S 584/2019 and AD/CA 3/2021 (an appeal from HC/S 584/2019).

The law on taxation of solicitor’s bill

The court has the power to refer the bills for taxation under s 120(1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). This power is subject to s 122 of the LPA. These two provisions read as follows:

The Applicant filed the present Originating Summons No 1013 of 2021 (“OS 1013/2021”) for an order for taxation on 7 October 2021. Twelve of the 17 invoices were issued more than 12 months before the application to refer the bills for taxation. In addition, the Applicant had made full payment for all 17 invoices. Therefore, under s 122 of the LPA, the court cannot make the order sought unless the Applicant is able to prove to the court’s satisfaction that there are special circumstances that justify referring these 17 bills for taxation.

Background facts

The Respondent is a solicitor practising as a sole proprietorship under the name of Y F Tan & Co. The Applicant is a widow with an eight-year-old son. Her highest educational qualification is a diploma from the Singapore Polytechnic.

In early 2018, the Applicant engaged the Respondent as her solicitor to resolve disputes with two insurance companies following the death of her husband. The Applicant commenced proceedings against two insurance companies: Aviva Ltd (“Aviva”) in HC/S 263/2018 (“Aviva Suit”) and AIA Singapore Pte Ltd (“AIA”) in HC/S 584/2019 (“AIA Suit”). The subject matter of the Aviva Suit and the AIA Suit concerned the insurance policies the Applicant’s late husband had taken out and which Aviva and AIA had declined to pay out to the Applicant upon her husband’s death.

The Respondent did not provide a letter of engagement for either suit, but provided an identical Warrant to Act (“WTA”) for each suit. The WTA for the Aviva Suit was signed on 6 February 2018 and the WTA for the AIA Suit was signed on 16 May 2019. The WTA did not identify an hourly rate for the Respondent’s services nor an estimate of the fees. The main text of the WTA is reproduced below:

In April 2019 the Aviva Suit was settled shortly after the specific discovery stage. The Respondent invoiced the Applicant a total of S$106,000 for his professional fees in handling the Aviva Suit. The summary of the invoiced fees is as follows:

After the settlement of the Aviva Suit, the Applicant commenced the AIA Suit in or around May 2019. Eventually, the AIA Suit proceeded to trial which lasted two and a half days, with an additional day for closing submissions. The Applicant lost the AIA Suit and filed an appeal (AD/CA 3/2021) against the decision (“AIA Appeal”).

The Respondent invoiced the Applicant a total of S$458,000 in professional fees for the AIA Suit and the AIA Appeal. The summary of the invoiced fees is as follows:

On or around 25 March 2021, the Applicant sought a second opinion on the AIA Appeal and asked the Respondent to pause work so she could reconsider whether to continue with the AIA Appeal. During this time, the Applicant was informed that the Respondent had overcharged her.

On 10 April 2021, the Applicant requested the Respondent to tax his bills.

After the Applicant requested the Respondent to tax the bills, the Respondent informed the Applicant in a letter dated 12 April 2021 (“12 April Letter”) to instruct another law firm to take over the conduct of the AIA Appeal. In the 12 April Letter, the Respondent also requested that the Applicant “file and serve the required Notice of Change of Solicitors by Wednesday, 14 April 2021, 4.00pm, failing which [he] will be compelled to take up the necessary application to discharge [himself] from further acting for [the Applicant] in [the AIA Appeal], without further notice”.

The Respondent’s firm filed AD/SUM 2/2021 on 20 April 2021 to seek the court’s permission to be discharged from acting for the Applicant as there were no firm instructions from the Applicant regarding the AIA Appeal. Further, the relationship between the Respondent and the Applicant had broken down irretrievably. The Respondent’s application was granted by Woo Bih Li JAD on 14 May 2021.

The Applicant filed OS 1013/2021 on 7 October 2021 for an order to tax all 17 of the bills she had paid. At the time of filing, 12 out of 17 of the bills were more than 12 months from the time of delivery of those bills.

The parties’ cases

The Applicant’s case

The Applicant submits that there are four areas of “special circumstances” under s 122 of the LPA:

(a) The Applicant did not know of her rights to taxation;

(b) There was apparent overcharging by the Respondent;

(c) The Respondent failed to comply with the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) r 17; and

(d) The Respondent failed to comply with PCR r 26.

Lack of knowledge of right to taxation

The Applicant submits that she did not know of her rights to taxation or that she could withhold payment as the Respondent had failed to explain what “taxation” was to her when he was retained as her solicitor. The Applicant only understood the proper meaning of the term and her rights after new solicitors advised her on or around 14 June 2021. This was after the Respondent had discharged himself as her solicitor on 14 May 2021. The Applicant argues that her lack of knowledge that she could ask the Respondent to tax his bills amounts to a “special circumstance” under s 122 of the LPA.

Apparent overcharging

The Applicant alleges that she was overcharged by the Respondent.

Fourth and in a similar vein, there was a high degree of similarity between the supporting affidavits filed for the Summonses for specific discovery in the Aviva Suit and the AIA Suit (HC/SUM 3890/2018 and HC/SUM 6249/2019 respectively). The Applicant estimates the two supporting affidavits were around 55% to 84% similar. Yet, after billing the Applicant S$20,000 for the specific discovery application in the Aviva Suit, the Respondent billed the Applicant another S$16,000 for the specific discovery application in the AIA Suit. According to Appendix G, Part IIB row 5, a specific discovery application should be no more than S$14,700 after applying a 30% uplift.

Breach of PCR rule 17

The Applicant alleges that the Respondent has breached PCR r 17 on the following grounds.

First, when the Applicant claimed that the Respondent had overcharged her on 10 April 2021, the Respondent’s failure to inform the Applicant in writing of her right to apply to the court to have the bills taxed is in breach of PCR r 17(5).

Third, the Respondent failed to provide an hourly rate in breach of PCR r 17(3)(a). The Respondent also told the Applicant not to discuss the bills with anyone, which hindered the Applicant’s ability to make a meaningful comparison of the Respondent’s fees.

Finally, while the Applicant accepts that the Respondent had provided “detailed billing” and “repetitive explanations in his cover letters”, these were inadequate in enabling the Applicant to determine how the Respondent arrived at the amounts charged for the work done. The Applicant argues that the Respondent’s “laboriously detailed invoices gave the impression a great volume of work had been done while obscuring the absence of critical requirements for understanding an invoice”, such as the unit of calculation, ie, the per hourly rate or the amount charged per task.

Breach of PCR rule 26

The Applicant alleges that the Respondent “abandoned [the Applicant] with immediate effect in the throes of the AIA Appeal” as he expected the Applicant to find a replacement law firm within two working days of the 12 April Letter. Consequently, the Applicant’s filing of OS 1013/2021 was delayed, as her new solicitors had to focus on addressing the AIA Appeal first. Thus, the Respondent caused significant and foreseeable harm to the Applicant’s interests and contravened PCR r 26(5) and r 26(6).

The Respondent’s case

The Respondent argues that there are no “special circumstances” under s 122 of the LPA that would justify an order for taxation.

Lack of knowledge of right to taxation

The Respondent avers that he had explained in detail every paragraph of the WTA when the parties met on 6 February 2018. In the course of explaining the WTA, the word “taxation” was explained to the Applicant to mean “an assessment by the court of the Respondent’s firm’s fees” in the event the Applicant required so. The Respondent submits that these assertions are reflected in his Attendance Notes, which state “YF explained Warrant To Act in detail to Cheryl Tan who signed 1 copy.”

Apparent overcharging

The Respondent raises the following points to rebut the Applicant’s contentions that she was overcharged by him.

First, the Respondent’s bills were sufficiently detailed to ensure that the Applicant had sufficient knowledge of the work details in the 17 bills and the corresponding amounts.

Second, the Applicant did not raise any objections about the bills, in quantum or in the work for which she had been billed, before she made full unconditional payments, or at least not too long after the said payments. Further, the Applicant made payments promptly, unconditionally and with reasonable satisfaction of the work provided to her. As evidence of the Applicant’s satisfaction, the Respondent points to the Applicant’s behaviour after reaching a successful settlement in the Aviva Suit when “she even attempted to recommend a client” to the Respondent.

Breach of PCR rule 17

Breach of PCR rule 26

The Respondent’s firm filed AD/SUM 2/2021 on 20 April 2021 for permission to be discharged as the Applicant’s solicitor (see [13] above). The court order was obtained on 14 May 2021 before Woo Bih Li JAD. The Respondent submits this as evidence that his discharge was reasonable and not in breach of PCR r 26.

Issues to be determined

The central issues to be determined are as follows:

(a) First, what constitutes “special circumstances” which would justify an order for taxation pursuant to s 122 of the LPA?

(b) Second, were there any such “special circumstances” in this case? In this regard, the following sub-issues to be determined are as follows:

(i) Did the Applicant know of her right to taxation?

(ii) Can “special circumstances” in this case be established on other grounds, namely apparent overcharging or other infringements of the PCR?

My decision

The applicable law

It is trite that determining whether there are “special circumstances” pursuant to s 122 of the LPA is a fact-sensitive inquiry (Kosui Singapore Pte Ltd v Thangavelu [2015] 5 SLR 722 (“Kosui”) at [61]). In Kosui at [61], Vinodh Coomaraswamy J listed a few examples of circumstances that were found to be sufficiently special on the facts of the specific cases:

(a) Prolonged negotiation over fees between solicitor and client after which the client applies for taxation: see Wee Harry Lee v Haw Par Brothers International Ltd [1979–1980] SLR(R) 603 (“Harry Wee”) at [14].

(b) A disciplinary committee’s finding that the solicitor has in fact overcharged: see Ho Cheng Lay v Low Yong Sen [2009] 3 SLR(R) 206 (“Ho Cheng Lay”) at [5].

(c) An impecunious client who requires time to secure a grant of legal aid in order to apply under s 120: see Ho Cheng Lay at [6].

(d) A bill which fails to provide sufficient information, even when supplemented by what is subjectively known to the client, to enable the client to make an informed decision on whether or not to seek taxation: Ho Cheng Lay at [17]; see also Harry Wee at [13].

(e) The fact that the solicitor, without his client’s knowledge or consent, appropriated funds belonging in equity to the client in order to pay the bills: Ho Cheng Lay at [23].

(f) Duress, pressure or fraud by the solicitor: Sports Connection Pte Ltd v Asia Law Corp [2010] 4 SLR 590 (“Sports Connection”) at [35], citing In re Hirst & Capes [1908] 1 KB 982 at 996.

In Marisol Llenos Foley v Harry Elias Partnership LLP [2021] SGHC 188 (“Marisol”), the plaintiff had engaged the defendant law firm, Harry Elias Partnership LLP (“HEP”) to represent her in her divorce proceedings. The plaintiff filed an originating summons seeking an order for taxation under s 120 of the LPA for four of the six invoices she had earlier paid. Philip Jeyaretnam JC (as he then was) found at [44]–[46] that there were four special circumstances in the case that justified an order for taxation under s 122 of the LPA:

(a) The plaintiff did not know of her right to tax the bills.

(b) HEP, the law firm whose bills the plaintiff was seeking to send for taxation, did not comply with PCR r 17(5).

(c) The plaintiff was “in an anxious state of mind, and, being concerned about being left in the lurch by HEP should she not pay the bills within the stipulated period of 14 days, paid them in haste”.

(d) HEP’s bills, “taken together with their accompanying cover letters, were lacking in particulars, both in terms of the work done to date and in how each bill related to the anticipated overall bill, whether by reference to an original estimate or a revised estimate.”

The above lists of special circumstances are not exhaustive. Coomaraswamy J in Kosui at [62]–[63] explained that what counts as special circumstances in any given case will depend on how the facts in that case justify referring the bill for taxation even though one or both of the disqualifying events under s 122 of the LPA has already set in:

The relevant principles and the legislative intent of s 122 of the LPA were emphasized by George Wei J in H&C S Holdings Pte Ltd v Gabriel Law Corp [2018] SGHC 168 (“H&C Holdings”) at [50]–[52]:

Twelve of the bills, ie, all six bills relating to the Aviva Suit and six bills from the AIA Suit, were more than a year old. Hence, these 12 bills have two disqualifying events. The remaining five bills from the AIA Suit have one disqualifying event as they were promptly paid within a year. Therefore, in view of the disqualifying events in the present case, the Applicant must show that the special circumstances had a rational connection to her payment of the bills and her failure in sending the bills for taxation within 12 months of their delivery.

Factors constituting special circumstances

Lack of knowledge of right to taxation

While the importance of the Applicant’s right to taxation is not in doubt, counsel for the Applicant and the Respondent differ on whether an applicant’s lack of knowledge of his right to taxation alone constitutes a “special circumstance” sufficient to excuse the applicant’s conduct in allowing one or both disqualifying events under s 122 of the LPA.

The Applicant relies on Marisol ([37] supra) in support of her position that the lack of knowledge of one’s right to taxation constitutes a “special circumstance” excusing the Applicant’s payment of the bill under s 122 of the LPA.

The Respondent argues that Marisol does not stand for the proposition that an applicant’s lack of knowledge of his right to taxation automatically constitutes a “special circumstance”. The Respondent sought to distinguish Marisol on the facts, arguing that the issue of taxation only arose because of other circumstances, namely that (a) the plaintiff had raised clear-cut, to-the-point queries about her bills (Marisol at [42]); and (b) HEP had conceded that all their invoices lacked details and particulars (Marisol at [10]).

The Respondent also adduced contrary authority in H&C Holdings ([39] supra), where Wei J accepted at [110] that the clients were not aware and were not informed of their right to taxation, but nevertheless held that there were no special circumstances which had a rational connection to the expiration of the 12-month period and the clients’ payment of the bill.

Having carefully considered the above authorities, I find that an applicant’s lack of knowledge of his right to taxation, in and of itself, is insufficient to constitute a “special circumstance” to trigger taxation of the bill through the operation of s 122 of the LPA. Otherwise, as long as the letter of engagement or WTA between the client and solicitor lacked the word “taxation” or words explaining that the bill can be assessed by the court, the client is entitled to an almost automatic right to send the bill for taxation notwithstanding the operation of any one of the two disqualifying events in s 122 of the LPA. In essence, this raises a presumption in favour of the client, which the solicitor must then disprove with conclusive evidence that he had, in fact, explained the meaning of “taxation” to the client. This cannot be the intention of Parliament for enacting s 122 of the LPA. The better interpretation is that an applicant’s lack of knowledge of his right to taxation is one part of a holistic assessment in determining whether the circumstances were so “special” as to justify an order for taxation notwithstanding the operation of any one of the disqualifying events in s 122 of the LPA.

The holdings in Marisol and H&C Holdings can be reconciled. In Marisol, the plaintiff’s lack of knowledge of her right to taxation only came to the fore as the plaintiff had raised queries about her bills. This triggered the solicitor’s obligation under PCR r 17(5) to inform the plaintiff of her right to have her bills taxed. In this regard, I agree with the Respondent that the issue of taxation only becomes relevant when the Applicant has raised queries about her bills. Where there was no such query by the Applicant, as was the case in H&C Holdings, then the issue of the Applicant’s knowledge of her right to taxation diminishes in significance. This also appears to be the reasoning of the court in H&C Holdings at [110]:

Therefore, it is entirely consistent to conclude that the Applicant’s knowledge of her right to taxation is one of the factors to consider when determining whether the rationale behind the “special circumstances” requirement for leave under s 122 of the LPA has been addressed. This would also be consistent with how the other facts of overcharging and breaches of the relevant rules of the PCR have been treated by the courts (see [51] and [52] below).

Overcharging

Counsel for the Applicant and the Respondent agreed that a mere allegation of overcharging, without more, cannot satisfy “special circumstances” within the meaning of s 122 of the LPA. I wish to state that an allegation of overcharging forms the underlying premise for an applicant wanting to have his bill taxed. Thus, where an applicant applies for an order for taxation, there will invariably be allegations of overcharging. Therefore, if overcharging alone could constitute a “special circumstance”, this would render the meaning of a “special circumstance” otiose. Every applicant who wishes to send his bill for taxation can simply assert that he has been overcharged in order to send the bill for taxation. This is an absurd result that could not have been contemplated by the drafters of the LPA. This was also acknowledged by Steven Chong J (as he then was) in Sports Connection ([36(f)] supra) at [37] and Wei J in H&C Holdings at [63] in which Wei J stated:

The better view was elucidated by the Court of Appeal in Koh Kim Teck v Shook Lin & Bok LLP [2021] 1 SLR 596 at [66] that overcharging is a factor militating in favour of “special circumstances”.

Other special circumstances

Similarly, a breach of the relevant rules of the PCR is one of the factors to consider when determining whether there are “special circumstances” under s 122 of the LPA, and does not on its own give rise to a finding of “special circumstances” (see H&C Holdings at [110]).

Conclusion on the factors constituting special circumstances

To recapitulate, having perused the points and authorities raised by both parties, I find that the following non-exhaustive factors, if proven in the present case, would militate towards a finding of “special circumstances” under s 122 of the LPA:

A finding of “special circumstances” under s 122 of the LPA involves a holistic assessment of all the above factors and circumstances of the case, bearing in mind the justice of the case and the legislative intent of s 122 of the LPA. The presence of any one of the factors alone does not ipso facto lead to a finding of “special circumstances”.

Whether there were “special circumstances” in the present case

Whether the Applicant knew of her right to taxation

Preliminarily, I highlight that the Applicant did not raise queries about any of the first 16 invoices which she paid up promptly until 10 April 2021. The Applicant was at least satisfied with the six bills for the Aviva Suit as she did not raise any issue in 2019 until 2021. Because of this, I find that the obligation under PCR r 17(5) to inform the Applicant of her right to taxation was not triggered. Correspondingly, whether the Applicant knew of her right to taxation is not of huge import in the final analysis of whether “special circumstances” were present.

Nevertheless, considering that a large portion of the Applicant’s submissions centred on this point, I shall first proceed to consider the Applicant’s knowledge of her right to taxation.

On the face of the evidence, I am satisfied that the Applicant knew of her right to taxation. I shall set out my reasons for this finding below.

(1) The 10 April 2021 Email

It is evident that by 10 April 2021, the Applicant knew that she could resort to taxation in order to remedy the overcharging she felt was present in the bills. I reproduce the email the Applicant sent to the Respondent on 10 April 2021 at 11.54pm (“10 April Email”) below:

The Applicant sought to prove that she did not know the meaning of taxation when she sent the 10 April Email on the following grounds:

(a) The Applicant had relied on a friend to help her draft the 10 April Email to the Respondent.

(b) On 7 April 2021, the Applicant asked her friend, Ms LiShi, what taxation meant in a WhatsApp conversation. The Applicant asked variously:

(i) “… taxes is it tax fm last yr?”;

(ii) “Like wat tax invoice r”;

(iii) “U mean I should hv tax invoice fm mr Tan?”

(iv) “What is taxed? V confused.”

(c) On 13 April 2021, the Applicant wrote the following email to one Davynn Quek:

(d) On 20 May 2021, during a WhatsApp conversation with the Respondent, the Applicant asked the Respondent, “Mr Tan, actually u also can file the taxation right. … Or u waiting for me to file only. … I must go file 1st issit.”

(e) On 21 May 2021, the Applicant met the Respondent and surreptitiously tape-recorded their conversation (“21 May Meeting”). During the meeting, the Applicant (“A”) asked the Respondent (“R”) to explain the meaning of taxation to her:

Despite her knowledge of taxation, the Applicant’s behaviour after she sent the 10 April Email does not seem to suggest that she was truly dissatisfied with the bills. She was unable to provide a satisfactory explanation for her behaviour that she was unhappy with the bills. I set out the salient facts below:

(a) On 12 April 2021, the Respondent sent the Applicant a letter to (i) clarify his practice of rendering bills, (ii) state that there has been a breakdown of trust between solicitor and client, and (iii) urge the Applicant to appoint another law firm to take over the conduct of the AIA Appeal within two days.

(b) On 15 April 2021, the Respondent sent the Applicant a second letter (“15 April Letter”). At paragraph 2(ii) of the letter, the Applicant was informed of her right to taxation in writing:

(c) On 20 May 2021, the Respondent issued to the Applicant his final bill for the work done in the AIA Appeal (“20 May Bill”). In this bill, the Respondent invoiced the Applicant S$42,000 in professional fees, plus another S$5,000 as disbursements. After deducting S$24,000 in discounts and initial payments, the Applicant was required to pay a balance of S$23,000.

(d) The next day, on 21 May 2021, the Applicant paid the 20 May Bill via bank transfer. This was a deviation from her prior indication to pay via cheque.

(e) On 21 May 2021, the Applicant met the Respondent at the latter’s firm and tape-recorded their conversation.

It is puzzling why the Applicant would pay the 20 May Bill within one day of receiving it if she had strongly believed that she was overcharged by the Respondent. From the 10 April Email, it is clear that the Applicant already knew that taxation could address her concern of overcharging. The Respondent had also expressly explained in the 15 May Letter that the Applicant has a right to apply to the court to have the bills taxed. Logically, a reasonable person in the Applicant’s shoes who was so aggrieved by the bills she received would not have paid a bill amounting to S$23,000 so instantaneously, especially after knowing she may go to the courts to have recourse in the form of taxation. Further, at that point in mid-April 2021, 12 months had yet to elapse from the time of delivery for six of the bills, namely, Invoices Nos. 5 to 10 of the AIA Suit.

The Applicant claims that she paid the Respondent for the 20 May Bill as she was afraid that the Respondent would not hand over her documents to her. I find that the Respondent successfully refuted the Applicant’s claim on the following grounds:

(a) The Respondent handed over the Applicant’s most important documents, namely, the Applicant’s original insurance policies, before the Applicant made the payment. The Respondent asserts that the only documents he had not yet given to her were the trial bundles for the AIA Suit as they were very thick.

(b) The Applicant expedited her payment for the 20 May Bill by making an instant bank transfer rather than her prior indication to pay via cheque. The Applicant’s voluntary expedition of her payment is evidence that she was not worried about not being able to collect her trial bundles.

(c) In any event, the trial bundles for the AIA Suit were not usable for the AIA Appeal. Thus, there was little reason for the Applicant to be worried that the Respondent would not return the documents to her.

(d) In a letter dated 20 May 2021 which was emailed to the Applicant together with the 20 May Bill (“20 May Letter”), the Respondent requested the Applicant to collect her documents from the Respondent’s firm. The description of the various documents to be collected spanned close to three pages. Given the Respondent’s explicit request for the Applicant to collect her documents and the accompanying level of detail he provided, I find that there was little reason for the Applicant to have worried that he would not return the documents to her. While the Applicant avers that the documents referred to in the 20 May Letter only contained personal documents, I am not convinced that the circumstances at that time led the Applicant to fear that her court documents would not be returned to her and that this fear was so strong as to induce her to transfer S$23,000 immediately to the Respondent. If indeed that was her real concern, she would have informed the Respondent that the payment of the last bill was made on the condition that all documents belonging to her be returned to her. This was not the case here.

Having regard to the above, I find that the Applicant was unable to proffer a satisfactory explanation for her puzzling behaviour in paying the 20 May Bill notwithstanding her knowledge of her right to taxation.

Further, the Respondent’s refusal to answer the Applicant’s queries on the meaning of taxation at the 21 May Meeting (see [59(e)] above) can be explained by the circumstances. By 21 May 2021, the Respondent had already applied to discharge himself as the Applicant’s solicitor. The Respondent’s state of mind then was that since the parties were no longer in a solicitor-client relationship, it was best for him to stay silent given the parties’ souring relationship. In any case, I find that the Applicant’s questions about taxation during the 21 May Meeting have little probative value as to her knowledge, since the meeting was tape-recorded surreptitiously and the objective evidence, namely her 10 April Email, already proves that the Applicant knew of her right to taxation by then. It seems that the Applicant feigned ignorance of the meaning of taxation for a self-serving purpose to entrap the Respondent who was unaware that the meeting was being tape-recorded by her.

Based on the evidence above, I find that the Applicant knew of her right to taxation. There was no satisfactory explanation for her failure to act on her knowledge and send the bills for taxation.

(2) Clause 2 of the Warrant to Act

The only reference to “taxation” in the Respondent’s WTA was in the second paragraph of the WTA (“Clause 2”), which I reproduce below:

First, clause 40 in Marisol starts with an express qualifying word to the client’s right to taxation, namely “notwithstanding”. Second, the focus of the clause in Marisol is the resolution of the dispute over the bills, ie, that the dispute should be referred to the Law Society of Singapore for mediation or arbitration. This draws attention away from the fact that taxation is a court-driven measure and gives the impression that the client’s only recourse in the event of any dispute over the bills is to go for mediation or arbitration. Correspondingly, it would have been difficult for a lay client to infer the meaning of taxation, ie, that it was a method by which the court assessed the solicitor’s bills.

Comparing the provisions on taxation in the WTA and the letter of engagement in Marisol, I find that lay clients may, from the wording of Clause 2 of the WTA, infer the meaning of taxation as a method by which the court assesses the solicitor’s bills. Unlike clause 40 in Marisol, the wording of Clause 2 makes it clear that taxation is conducted by the court in the event the Applicant disputes the bill. Admittedly, I accept that Clause 2 is unbalanced in the sense that it only states the bill may be higher but not lower if the Applicant were to send it for taxation. In this way, as I pointed out to the Respondent during the hearing of the oral submissions, Clause 2 warns the Applicant of the risk that the Respondent may re-draw the bills or interim bills which may reflect higher amounts for the purpose of taxation by the court. Nevertheless, this does not detract from the fact that Clause 2 states specifically that taxation by the court is an option “[s]hould [the Applicant] dispute the amounts of any bills or interim bills”. In this way, Clause 2 can clearly be differentiated from clause 40 in Marisol to support my finding that the Applicant knew of her right to taxation when she signed the WTAs.

I am also unable to accept the Applicant’s submission that the Respondent’s failure to provide a letter of engagement contributes to a finding that the Applicant did not know of her right to taxation. The mere fact that there was no formal letter of engagement does not necessarily mean that the Applicant did not know of her right to taxation or that she otherwise could not understand her rights in that regard. One must look at the substance of the parties’ relationship, including references to “taxation” in other documents like the WTA and contemporaneous evidence that the meaning of “taxation” had been explained to the client (see [71(a)] below). These were present in this case.

(3) Distinguishing Marisol from the present case

Given that the Applicant relied heavily on Marisol ([37] supra) in her written and oral submissions, I shall elaborate on why the findings in Marisol cannot be applied in the present case. In my view, Marisol can be distinguished from the facts in the present case on the following grounds:

(a) In Marisol, it was not disputed that HEP had failed to inform the plaintiff of her right to taxation (at [40]). Here, the evidence supports that the Applicant knew of her right to taxation. In addition to my findings regarding the 10 April Email above, I note the following to support my findings:

(i) The Respondent’s Attendance Notes from their first meeting mentioned that he explained the WTA to the Applicant (see [29] above). This is contemporaneous evidence which the court cannot ignore.

(ii) It is possible for a lay client to infer the meaning of taxation from Clause 2 of the WTA (see [69] above).

(iii) In any case, the Respondent informed the Applicant that she has a right to have the bills taxed in the 15 April Letter (see [61(b)] above).

(b) The plaintiff in Marisol only sought to send four out of the six bills she had paid for taxation under s 120 of the LPA (Marisol at [6]). Further, the plaintiff had sent the seventh bill for taxation upon learning of her right to taxation (Marisol at [5]). Thus, the behaviour of the plaintiff in Marisol is drastically different from the behaviour of the Applicant in the present case. The Applicant in the present case knew, by 10 April 2021 and at the latest by 15 April 2021, that taxation was a means by which she could address the issue of overcharging by the Respondent. However, the Applicant did not send the bills for taxation then. She sat on her hands for over a month, and even more bafflingly, paid the balance of the 21 May Bill within a day upon receipt of the bill. It was only five months after paying the 21 May Bill that she commenced the present proceedings to tax all 17 bills. This runs contrary to common sense and the pronouncement of Wei J in H&C Holdings ([39] supra) at [56] that “the first port of call” where a client is unhappy with a bill he has been presented with is to have the bill taxed.

(4) Conclusion on whether the Applicant knew of her right to taxation

Having considered the totality of the evidence, I find that the Applicant knew of her right to taxation, ie, that it was a court-driven mechanism that could address her concern of overcharging. Accordingly, Marisol does not apply in the present case. I have also distinguished Marisol on other grounds related to the wording of the specific taxation-related clauses to support my finding that the Applicant knew of her right to taxation. Finally, I have also noted the bizarre behaviour of the Applicant if she truly believed she was overcharged, especially when compared to the plaintiff in Marisol. This forms further grounds for me to find that there were no “special circumstances” bearing a rational connection to her failure to apply for taxation within the 12-month time limit or to her payment of bills that she was ostensibly unhappy with.

Whether there was apparent overcharging amounting to a “special circumstance”

My observations are entirely consistent with the remarks of the court in H&C Holdings at [62]–[63]:

In Kosui ([36] supra), the court found at [72] that the client had allowed each bill to be paid without objection out of the client’s deposit in circumstances where it was intimately aware of the work being done and was already in a position to raise a complaint if it thought the sums were unreasonable. The court at [74] also noted that the applicant did not express any unhappiness about the figure it was charged. On these bases, the court found at [99] that the allegation of overcharging was an afterthought and declined to find that there were “special circumstances”.

In Sports Connection ([36(f)] supra) at [36], the parties’ cases were summarised as follows:

Steven Chong J (as he then was) held in Sports Connection at [4] that a balance must be struck “‘between the need, on the one hand, to protect the client and … on the other hand, to protect the solicitor against late ambush being laid on a technical point by a client who seeks only to evade paying his debt’ (per Ward J in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 at [32(4)]).” Chong J also made the following findings at [39]–[41]:

Thus, in my determination on whether there was apparent overcharging, I consider various factors such as the nature of the dispute(s), the length of the preparation for the trial, the level of detail of the invoices presented and the client’s behaviour when he received the invoices. The level of detail in the invoices enables me to determine whether the client was in a position whereby he could take an informed view on the reasonableness or otherwise of the bills (see Sports Connection at [42]; H&C Holdings at [142]). The client’s behaviour allows me to separate genuine grievances of perceived overcharging from instances where the client felt, in retrospect, that the bill he paid was on the high side and initiated the application for an order for taxation to claw back the amount paid. When comparing the two situations, only the former case of genuine client dissatisfaction may outweigh the legislative concerns underpinning s 122 of the LPA. My approach is entirely consistent with the legislative purposes of s 122 of the LPA and the court’s pronouncements in H&C Holdings at [155]:

(1) Level of detail in the Respondent’s bills

Counsel for the Applicant contended that the bills lacked sufficient itemization and details to enable the Applicant to understand what she was paying for. First, counsel for the Applicant argues that the Applicant, as a diploma-holder and widow, lacked the intellectual capacity to understand the bills. Second, the bills were deceivingly detailed to confuse.

Respectfully, I am unable to accept these submissions. I find that the Respondent’s invoices contained sufficient details to enable the Applicant to understand what she was paying for, and to make an informed decision to pay all the invoices raised by the Respondent. While the Respondent did not provide the hourly breakdown of his work done, I find that this did not detract from the readability or comprehensibility of the bill for a person of the Applicant’s level of education. I set out below the first page of the 20 May Bill for illustration purposes:

Chong J’s pronouncement in Sports Connection is instructive in the present case, where he held in favour of the solicitor for “issu[ing] each invoice… [with] sufficient detail of the work done and how much the [a]pplicant was charged for each piece of work” (at [41]). Accordingly, I find that the Respondent’s invoices did not lack sufficient details to enable the Applicant to understand how the amounts she was charged were arrived at.

(2) The Applicant’s curious behaviour in making prompt payment despite her allegations of overcharging

I highlight the Applicant’s puzzling behaviour which I noted above (at [61]). If indeed the Applicant thought she had been overcharged, she would not have paid the 20 May Bill within one day of receiving it, without requesting for it to be taxed or without indicating that she had an issue with the reasonability of the charges. I reiterate that her claim that she paid the bill as she was afraid the Respondent would not return her documents to her was unconvincing and refuted by the Respondent (see [63] above). I also reject her claim that she felt compelled to pay because she was afraid of being charged a high interest rate of 5.33% on the unpaid fees. This is because Clause 3 of the WTA makes it clear that this rate would be charged only if fees remained unpaid after 30 days of the date of issue. In these circumstances, the Applicant could have withheld payment for a few more days, raised objections or queries, or sent the bill for taxation in the interim.

The crucial point is that by the time the 20 May Bill was sent to the Applicant, she already knew that sending the bill for taxation could address her concern of overcharging. By paying the bill, her behaviour is inconsistent with the behaviour of a client who had genuine grievances of overcharging. In contrast, the plaintiff in Marisol believed that she was overcharged and she, therefore, sent the seventh bill for taxation after learning of her right to taxation. Rather, the Applicant’s behaviour in the present case is more closely aligned with the following applicants in the cases where an order for taxation was not granted:

(a) In Sports Connection at [41], Chong J found that the fact that the bills were paid, coupled with the applicant’s lack of prior protest, suggested the applicant did not believe it was overcharged. The invoices issued also carried sufficient detail (see also [77] above). This bears similarity to the present case, where the Applicant (i) did not dispute the bills before 10 April 2021, (ii) paid the 20 May Bill despite voicing her dissatisfaction, and (iii) did not make any prior claims that the invoices were deficient.

(b) In Kosui at [74], Coomaraswamy J found that even though the applicant suspected it had been overcharged, the applicant did not express any unhappiness about the $715,580 figure as a whole. The applicant allowed without objection each bill to be paid out of the applicant’s deposit, and was intimately aware throughout of the overall work being done (at [72]). This is similar to the present case, where the Applicant did not express any prior dissatisfaction about the bills, some of which were over three years old, and was kept aware of the work done by the Respondent through his invoices.

Throughout all three years of the parties’ solicitor-client relationship, if the Applicant had thought that the Respondent’s bills were unreasonably high, either taken as a whole or in respect of any individual bill, she would have raised objections, or at the very least, some queries. The Applicant did not, up until 10 April 2021, and even after that, the Applicant paid the 20 May Bill. Thus, I echo Chong J’s findings in Sports Connection at [41] – the fact that the Applicant in this case did not raise any prior protest regarding the fees, coupled with her prompt payment of the fees even after raising objections in mid-April 2021, constitute evidence that the Applicant did not take the view that she was overcharged and/or that the Respondent’s bills were unreasonably high. It was significant that the dispute over the fees only emerged after the Applicant lost the AIA Suit. The Applicant was obviously not pleased with the end result, but this does not amount to special circumstances.

I also note that the work done for the Aviva Suit spanned more than a year, from the time the Applicant first engaged the Respondent in early April 2018 to its settlement in April 2019. In the Aviva Suit, the Applicant sued Aviva for the sum of S$2 million. When the matter was settled in her favour, the Applicant was extremely satisfied with the outcome and did not raise any query for the bills issued to her for the suit. As for the AIA Suit, the period of the Applicant’s instructions spanned two years from May 2019 to May 2021. When the sums charged for the Aviva Suit and the AIA Suit are viewed in context, and especially when viewed against the backdrop of the Applicant’s lack of protest when paying the bills, I find that the Applicant has not established “special circumstances” for overcharging which would outweigh the legislative concerns underpinning s 122 of the LPA.

The remaining evidence the Applicant adduced in favour of her assertion that she was overcharged is as follows:

(a) Around end-March or early April 2021, the Applicant spoke to a lawyer about potential fees for the AIA Appeal. In the process, the Applicant and the lawyer referred to the fees for the AIA Suit. The Applicant then realized she “had been greatly overcharged” for the AIA Suit.

(b) The Applicant sought a second opinion from various lawyers, including one Mr Sunil. Mr Sunil said the Applicant had been overcharged for the AIA Suit and the Aviva Suit.

(c) The Applicant claims that every lawyer she had approached was shocked at the quantum of the bills charged to her for the AIA Suit and the Aviva Suit.

The Applicant did not adduce affidavit evidence of Mr Sunil or any of the other lawyers she contacted. The Applicant’s assertions in this regard are therefore hearsay evidence, which I am unable to accept as admissible in support of her allegation that she was overcharged. The Applicant also did not make arguments on whether any of the exceptions found in ss 32 to 40 of the Evidence Act (Cap 97, 1997 Rev Ed) applied to render such evidence admissible.

The lawyers whom the Applicant purportedly consulted regarding her bills for the Aviva Suit and the AIA Suit would want to have access to all the documents to understand and ascertain the amount of work done by the Respondent before they could express an accurate opinion that there were overcharging. These lawyers would probably charge a consultation fee for this service. No evidence was adduced by the Applicant to show that she had consulted other lawyers on the Respondent’s bills. If indeed it was true that the Applicant had consulted other lawyers, her logical reaction on receipt of the 20 May Bill from the Respondent, which was a large amount of S$47,000, would be to refer this bill to one of the lawyers she had previously consulted to seek advice. Instead of doing that she immediately paid the 20 May Bill. Thus, her bare assertion that she consulted other lawyers about the Respondent’s bills may not be true.

Considering the totality of the facts and circumstances above, I find that the Applicant has failed to prove on a balance of probabilities that there was overcharging by the Respondent. Thus, the circumstances of the allegation of overcharging fail to satisfy “special circumstances” under s 122 of the LPA.

Whether there was a breach of PCR rule 17

The relevant portions of PCR r 17 are as follows:

I have already dealt with the issue of the details in the Respondent’s bills at [80] above. I found that the Respondent’s bills were sufficiently detailed to enable the Applicant to understand what she was paying for and to arrive at an informed decision to pay. It follows accordingly that there was no breach of PCR r 17(3) on these grounds.

Accordingly, as the fees for the Aviva Suit did not exceed the S$250,000 estimate, the obligation under PCR r 17(3)(d) is not triggered.

For the above reasons, I find that the Applicant has failed to show that the Respondent breached PCR r 17 and that this amounts to a “special circumstance” under s 122 of the LPA.

Whether the Respondent’s firm’s discharge as the Applicant’s solicitor was in breach of PCR rule 26

The relevant portions of PCR r 26 state as follows:

The Respondent’s firm applied via AD/SUM 2/2021 on 20 April 2021 to discharge itself as the Applicant’s solicitor. Woo Bih Li JAD granted the application on 14 May 2021. I find no reason to disturb Woo JAD’s finding that the Respondent’s firm’s discharge of itself was reasonable.

In any case, what is “reasonable notice” or “a reasonable amount of time” under PCR r 26 must be seen in the circumstances. On 25 March 2021, the Applicant called the Respondent instructing him to withdraw AD/CA 3/2021 without prior warning. That same day, the Respondent wrote to the Applicant confirming that work for the AIA Appeal was put on hold as per the Applicant’s instructions and requesting for firm instructions as soon as possible. On 8 April 2021, the Applicant requested another three weeks as she was looking for a second opinion. Later that same day, the Respondent wrote to the Applicant seeking further instructions on the AIA Appeal and clarification on the “second opinion” the Applicant was seeking. The Respondent also sought instructions on whether the Applicant intended for the Respondent’s firm to continue to pursue the appeal as her lawyers. Thereafter, in the 10 April Email (see [58] above), the Applicant expressed her intention to discharge the Respondent. The Respondent’s 12 April Letter must be seen in this context, as a confirmation of the Applicant’s intention to discharge her solicitor, the signs of which had already been present for at least a week before. Furthermore, although the Respondent in the 12 April Letter gave her two days to engage a new solicitor, the Respondent did not apply for a discharge until 20 April 2021, ie, 8 days later. The Respondent was officially discharged on 14 May 2021, ie, 22 days after the 12 April Letter. In these circumstances, reasonable time was actually given to the Applicant to engage a new solicitor. Thus, I am unable to find that there was a breach of PCR r 26 which would lead to a finding of “special circumstances” under s 122 of the LPA.

Conclusion on whether there were “special circumstances”

In the final analysis, the Applicant has failed to show on a balance of probabilities that there were “special circumstances” under s 122 of the LPA for the court to exercise its discretion to order the Respondent’s 17 bills for taxation.

Conclusion

In conclusion, the reasons for the dismissal of OS 1013/2021 are as follows:

(a) I accept that the Applicant knew at the time she signed the WTAs and also in April 2021 that the Respondent’s invoices could be taxed or assessed by the court if she was dissatisfied with them.

(b) The Applicant has failed to prove on a balance of probabilities that there was overcharging by the Respondent. The Applicant had paid all the 17 invoices of the Respondent promptly including the last bill although she alleged that she was overcharged.

(c) The Applicant has failed to prove on a balance of probabilities that the Respondent acted in breach of PCR r 17 or r 26.

Therefore, the Applicant has failed to show that there were “special circumstances” under s 122 of the LPA justifying the court’s exercise of its discretion to order that the Respondent’s 17 bills be taxed. Accordingly, I dismiss Originating Summons No 1013 of 2021.