The CFI’s decision in Mark Sutherland v CRB (a firm) [2022] HKCFI 3382 has been reported: [2023] 1 HKLRD 1.

The decision contains discussion of solicitor / client taxations generally [60]-[75], ways in which firms can assist the court in preparing such bills for taxation (including by draft narrative statements) [66]-[69], issues commonly arising [71] and the circumstances in which a judge or master will provide the appropriate forum [72]-[74] – essential reading for practitioners in the space.

The decision arose from the plaintiff’s application by originating summons (OS) for orders to tax unpaid solicitors’ bills totalling $1.6 million. The plaintiff resisted payment on the basis that he had not signed a retainer with the firm. He further contended that the bills were ‘interim’ such that his application was in time for the purposes of section 67 of the Legal Practitioners Ordinance. Thirdly and at the eleventh hour, the plaintiff sought a stay of the OS pending disposal of a parallel writ action in which he alleged professional negligence.

The Court rejected submissions that a signed agreement was required to entitle a solicitor to recover costs in contentious business [33]. It had ‘no hesitation’ in finding a retainer implied by the plaintiff’s conduct in continuing to instruct the defendant firm, at the hourly rates proposed in the unsigned agreement [34]-[36]. Alternatively, the defendant firm was entitled to recover on a quantum meruit basis which would have generated the same hourly rates [37]. Bills issued when the firm ceased to act were final in nature and set time running for the purposes of section 67 [45]-[46]. It was not the appropriate forum to determine negligence [47]-[50] but the firm had ‘reasons to submit’ that the allegations were ‘no more than spurious, unsavoury, scandalous and cynical attempts to postpone payment’ [56]. There was no reason to stay the OS [77]-[78] and taxation was to be permitted on terms that the bills be paid to the firm in part and into Court in part [81].

Sebastian Hughes, Josh Baker and Norton Rose Fulbright acted for the successful defendant firm.