Ho Cheng Lay v Low Yong Sen

[1] I granted an application that a solicitor presents five bills for taxation. The solicitor is the defendant, Low Yong Sen, who is not in practice currently, and the applicant is the plaintiff, Ho Cheng Lay, his former client.

[2] The plaintiff became a client of the defendant in June 1998 when he appointed the latter to act for him in his divorce. At that attendance, the defendant who was then practising as the sole proprietor of Y.S. Low & Partners (“YSL&P”) obtained from the plaintiff a warrant to act in the divorce proceedings dated 15 June 1998 captioned “Divorce Proceedings And Ancillary Matters”.

[3] Subsequently, the defendant also acted for the plaintiff in other matters, as described in four other warrants to act dated 27 July 1998, 12 October 1998, 11 May 2000 and 20 June 2000 with the captions “Personal Protection Order Proceedings (SS 1519/1998)”, “Criminal Proceedings (DAC 27967/98)”, “Matrimonial Proceedings (Summons-In-Chambers Proceedings)(SIC 750799/2000)” and “Matrimonial Proceedings (Summons-In-Chambers Proceedings)(Variation of Order of Court dated 19 July 1999)”.

[6] After receiving the decision of the Disciplinary Committee, the plaintiff did not have the means to engage solicitors to act for him and applied for legal aid to take up his complaint over the bills. In January 2008, the Legal Aid Bureau referred the application to Mr Lee Chin Seon for his opinion. Mr Lee looked into the matter actively and rendered his opinion in June 2008, whereupon legal aid was granted in the same month. Following that, Mr Lee filed the present application on behalf of the plaintiff in August 2008.

[7] The defendant resisted the application on three grounds[note: 3]:

[8] Section 122 reads:

[10] In the course of arguments before me, Mr Lee submitted that the bills were not proper bills under s 122. The bills were YSL 2144/01 “Re: Divorce Proceedings No. 2685 of 1998”, bill YSL 2145/01 “Re: Summons-in-Chambers Application SIC No. 751220/2000”, bill YSL 2146/01 “Re: Summons-in-Chambers Application SIC No. 750799/2000”, bill YSL 2147/01 “Re: Criminal Proceedings DAC 27967/98” and bill YSL 2148/01 “Re: Personal Protection Order Proceedings SS 1519/98”, each containing the statement “Towards account of our retainer inclusive of disbursements” and the amount charged i.e. $10,250.00, $5,000.00, $5,000.00 and $15,000.00 respectively.

[11] The plaintiff cannot take that point after making the application for taxation. By filing the application, he acknowledged that there were bills to be taxed. If the plaintiff disputed the validity of the bills, he should have sought a declaration that the bills delivered were not proper bills and he was not under any liability to pay them.

[12] That does not mean that the form and contents of the bills are not relevant to the determination of the application. This is so because if a bill presented is lacking in particulars, that is a factor in favour of requiring it to be taxed.

[13] A vast majority of solicitor-and-client bills are paid without taxation. Unlike bills drawn for taxation, which are governed by Order 59 of the Rules of Court (R5 2006 Rev Ed), there are no provisions for bills not drawn for taxation.

[14] What are the requirements for such bills? This has not been addressed in any reported decision in Singapore. The courts of England, however, have dealt with this question for a long time. In Keene v Ward (1849) 13 QB 515, Patteson J stated at p 521 that:

[15] Patteson J’s statement was referred to and followed in subsequent cases. In Haigh v Ousey (1857) 7 E & B 578, Lord Campbell CJ ruled that a bill must disclose on the face of it sufficient information as to the nature of the charges, and cited Patteson J’s ruling as authority.

[16] Keene v Ward and Haigh v Ousey were discussed in the much more contemporary decision of the English Court of Appeal in Ralph Hume Garry (a firm) v Gwillim [2003] 1 WLR 510 where Ward LJ stated:

[19] In fact, the plaintiff had not done anything to effect payment of the bills. The bills were paid because the defendant had, without his consent, applied a large portion of the sale proceeds towards the payment of the bills.

[20] Does this form of transaction amount to the payment of the bills? This issue was considered in In re Jackson [1915] KB 371. The facts of the case are set out in the headnote to the report:

[21] The application was granted by a Master, but was set aside on appeal by a judge in chambers. On further appeal to the Divisional Court, the application was ordered to go back to the Master for further inquiry into the circumstances the solicitor received and retained the 100l. obtained from the client’s debtor. Rowlatt J explained at p 383 that:

[23] In the present case, the defendant had no interest in the sale proceeds. When he presented his bills he only had a claim for his fees. The plaintiff had not agreed to pay him and the defendant had not sued for them. There was no judgment debt to set off against the sale proceeds. It can be argued that the defendant’s action constituted a breach of trust in respect of that part of the sale proceeds that he used to pay to bills. It cannot be said that the plaintiff had paid the bills when the deductions were made without his agreement and consent.

[24] Having established that the five bills were deficient in content and had not been paid, one obstacle remained in the application for them to be taxed. Under s 122, a bill that has been delivered for more than 12 months would not be taxed except under special circumstances. The special circumstances are not set out, and there are no judicial discussions on that in the context of s 122.

[26] “Special circumstances” in the context of s 41 was discussed by Bowen LJ in In re Boycott 29 Ch D 571 at p 579, where he said:

Bowen LJ’s view on special circumstances within s 41 was applied to the same phrase in s 37. In In re Norman (1886) 16 QBD 673, Lord Esher MR, Lindley LJ and Lopes LJ referred to and adopted Bowen LJ’s view in In re Boycott.

[27] I do not see any reason for not applying the same approach to the treatment of “special circumstances” in s 122.

[28] Were there, then, any special circumstances? Several matters should be taken into consideration:

[29] The defendant, on the other hand, argued that the bills should not be taxed now because that would prejudice him. He pleaded in his affidavit dated 5 September 2008:

[30] One would ask why the defendant disposed of the file when he should have known that further action may be taken in relation to the bills and the deducted payments following the Disciplinary Committee proceedings.

[31] In any event, not all the records are lost. The report of the Disciplinary Committee referred to the timesheets, attendances notes and a mitigation plea that the defendant produced during the Disciplinary Committee hearing. Unlike the defendant, the Disciplinary Committee does not destroy these documents, and the defendant can have access to them. He can also obtain copies of any cause paper he needs from the relevant court files. With these documents, the defendant should have no trouble in drawing his bills for taxation (I am informed that he had drawn the bills after I made my order).

[32] Taking all the foregoing matters into account, I found that there are special circumstances for me to order the bills to be taxed.

[33] Is the right to taxation under s 122 time-barred? The defendant contended that it is time-barred under s 6(1) of the Limitation Act which reads:

and submitted that:

[34] This line of argument is flawed and unsustainable. While a retainer creates a contractual relationship between a solicitor and his client, that does not mean that all the rights and liabilities between solicitor and client are solely contractual in nature. Legislation such as the LPA confer statutory rights and impose duties on the parties.

[35] The plaintiff’s right under s 122 to have the bills taxed is a statutory right. It may expire 12 months after the delivery of the bills, and not after six years as the defendant submitted. However, the 12-month limitation period does not apply when there are special circumstances. As I have found that there are special circumstances, the plaintiff’s right to have the bills taxed is not time-barred under s 6 of the Limitation Act or s 122 of the LPA.

[36] For all the reasons above, I granted the plaintiff’s application. The defendant is not satisfied with my decision and has appealed against it.

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[note: 1]Para 105

[note: 2]Para 106

[note: 3]Respondent’s Submissions para 3

[note: 4]Respondent’s Submissions para 12(a) and (b)