Master Robertson

4.31: Application to deal with delay
4.33: Dismissal for long delay
10.22: Action for payment of lawyer’s charges

Case Summary

The Plaintiff, a former barrister and solicitor, commenced the underlying Action in 2014 to recover his unpaid legal fees, disbursements, and other charges (the “Action”). The Defendant/Applicant applied to dismiss the Action for delay under Rules 4.31 and 4.33.

Master Robertson noted that a lawyer who wants to recover his or her legal fees has two forms of action available: (1) the lawyer can sue as any other creditor can, or (2) the lawyer can have the accounts assessed by the assessment officer, formerly referred to as “taxation”. The latter remedy is usually followed because it is cheaper, simpler, faster, and the assessment officer is well-equipped to consider the terms of the retainer, the work done, the fees charged, and the disbursements and other charges incurred.

Master Robertson emphasized that if a lawyer chooses the former option, to sue, Rule 10.22 provides that no Judgment is to be entered in default of defence without the Court’s permission, which sometimes means that the Action is then subsequently also referred to the assessment officer because Judges and Masters in Chambers are not well-equipped to review solicitors’ accounts. Master Robertson highlighted that Rule 10.22 further says that no Order of Costs with respect to the Action (by Statement of Claim) is to be made unless the Court specifically orders so.

Notwithstanding the foregoing, the Plaintiff chose to sue his former client back 2014 and, as Master Robertson noted, had not done much more than getting through the pleadings stage of the Action. After reviewing the relevant jurisprudence, Master Robertson concluded that the Applicant had met the criteria under both Rules 4.33 and 4.31 and accordingly dismissed the Action.

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