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Three key concepts emerge from an examination of the abovementioned rules.
(a)
First, the basic criterion for allowing a client to tax down his solicitor's bill is
unreasonableness in relation to incurring the costs or their quantum.
(b)
Secondly, consideration of what would be recoverable from the other side on a
party and party taxation is an important determinant of reasonableness or
unreasonableness. If the costs would be allowable on such a taxation, they are
costs which were necessary or proper for the attainment of justice or for
enforcing or defending the client's rights and so would generally be reasonable.
Indeed, in most cases costs which pass those tests might be thought, in the
absence of some contrary indication, to be impliedly approved by the client.
(c)
Approval by the client is the third important concept. Where a client has
expressly or impliedly given his approval beforehand for the incurring of the
costs in the amounts in question, it would generally be reasonable (in the
absence of special circumstances) to hold the client to that approval. It would
generally be unfair, for instance, to disallow a solicitor's recovery of
disbursements made (to a barrister or otherwise) made with the client's prior
approval.
Similar concepts, especially involving prior express approval of a barrister's fees by a
solicitor taken to be acting with the client's authority, underlie the Bar's opposition to
adopting a rule of the kind canvassed in Proposal 54. Moreover, it is provided in a
Schedule to Order 62 that :-
"Except in the case of taxation under the Legal Aid Ordinance (Cap 91) and taxations of fees
payable by the [Government], no fee to counsel shall be allowed unless (a) before taxation its
amount has been agreed by the solicitor instructing counsel; and (b) before the taxing master
issues his certificate a receipt for the fees signed by counsel is produced to him."
Notes
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