SUPREME COURT Order For Reference Of Solicitors’ Costs

Press, Volume CVIII, Issue 31765, 23 August 1968, Page 6

SUPREME COURT Order For Reference Of Solicitors’ Costs

Whether Horace Stanley Papps, a retired businessman, was liable for the costs of work done for him by two Christchurch solicitors, Robert Bruce Shand and David HenryHicks, between June, 1961, and September, 1964—in connection with a claim brought by Mr Papps against the Christchurch legal flrm of Raymond, Donnelly and Company—was argued in the Supreme Court yesterday. Mr Papps, through Mr M. G. L. Loughnan, denied an agreement, as claimed by Mr Hicks, that he would be responsible for the whole of the costs incurred in connection with his claim against Raymond. Donnelly from the time Messrs Shand and Hicks were first instructed, as agents of a Wellington solicitor, George Israel Joseph. Mr Hicks (Mr G. S. Brockett) sought, and was granted by Mr Justice Perry, an order under the Law Practitioners Act that his bill of costs be referred to the registrar for taxation, so that the amount payable could be ascertained. Medical Evidence His Honour, in making such order, directed “in view of medical evidence on Mr Papps’s condition" that reference not take place before the end of August—an affidavit having been filed by Dr K. Erber that Mr Papps was “suffering from mental depression,” but would be fit to attend a court then. His Honour, in his decision, referred to a letter, on the file of affidavits, written by Mr Hicks to Mr Papps in March, 1965, saying: “We formally record the arrangement already made between us, that you will be responsible for the whole of the costs incurred by this firm in connection with your claim, from the time the matter was first raised when we were instructed as agents." Although Mr Papps now said that he never conceded that td be the position, or accepted liability, said his Honour, he had not replied, verbally or in writing, repudiating Mr Hicks's letter at the time.

“I think there is ample evi dence, subsequent to that date, which shows that Mt Papps did, in fact, accept lia bility, although the parties were never able to reach agreement as to the amount," his Honour said.

Approach To Registrar Mr Brockett said that at one stage Mr Papps had ap proached the then registrai of the Supreme Court (Mr J L. W. Gerken) —who gave evi dence in the case yesterdayseeking advice as to “whal would be a fair thing as regards quantum?" “If Mr Papps had not accepted liability for the costs, why would he have gone to Mr Gerken, even in an unofficial way, to discuss quan turn?” Mr Brockett said.

On the history of the matter, Mr Brockett said that in 1961 Mr Papps, wishing to pro ceed against Raymond, Don nelly, had instructed a Wellington solicitor, Mr Joseph, who employed Mr Shand as his agent—but in July, 1964, Mr Joseph withdrew from acting for Mr Papps. Between that date, and September, 1964, negotiations took place between Mr Papps and Mr Shand, and subsequently Mr Hicks (who became the principal of the firm), concerning costs incurred by Mr Shand and Mr Hicks while acting as agent for Mr Joseph, and Mr Hicks’s costs for continuing to act as solicitor instructed directly by Mr Papps. “Accepted Liability” Mr Brockett referred to a payment, on June 21, 1961, by Mr Papps (from his company, Avon Chambers, Ltd), to Mr Shand in the sum of £2OO before the action against Raymond, Donnelly was issued, “Mr Shand not having been prepared to issue proceedings unless he had moneys in hand.” | Mr Papps’s action against Raymond, Donnelly was heard before Mr Justice Wilson in December, 1965, and was subsequently taken to the Court of Appeal.] This payment, said Mr Brockett showed that Mr Papps knew and accepted that he had a liability to pay Mr Shand even though he was then, technically, an agent of the Wellington solicitor. Mr Brockett next traversed Mr Hicks’s letter to Mr Papps in March, 1965: “We formally record the arrangement made between us, that you will be responsible for the whole of the costs ...” Mr Brockett said: “Mr Hicks says he discussed matters with Mr Papps, came to an arrangement with him, and sent him that letter. Mr Papps admits that he got the letter but now says: ‘At no time have I con-

ceded that the agreement implied therein ever existed’.” Respondent’s Case

Mr Loughnan, after agreeing that the Court was concerned with Mr Papps’s liability or otherwise for the costs, and not their quantum, said it was Mr'Papps’s contention that they were an account incurred by the Wellington solicitor. “The applicant says Mr Papps agreed otherwise, Mr Papps says he did not," Mr Loughnan said. “The applicant says discussion took place and agreement was reached. This is denied.”

There was insufficient weight of evidence to tip the balance in the applicant’s favour. Mr Loughnan submitted. His Honour, after the parties had agreed to his decision of the matter on the affidavits, plus Mr Gerkin’s evidence, then gave feis decision as stated. On the evidence, said his Honour, the quantum of the costs had been in dispute, not liability. , After Mr Brockett had said the matter was not pressed, his Honour made no order as to the costs of the hearing.