Subbaiyammah A/P Kanna Naidu v Tetuan Geethan Ram (Sebuah Firma Guaman yang Berdaftar Dengan Majlis Peguam Malaysia) (BA-17D-1-04/2024)

The Plaintiff and the Defendant have vide an Order of the High Court (“Consent Order”) mutually agreed that invoices bearing nos. 000417/012/2023 and 000417/012/2024 (“Previous Invoices”), both issued by the Defendant, be taxed before the Registrar of the High Court. Pursuant to the Consent Order, the matter proceeded to be heard before me.

After hearing both parties, and having perused all the relevant cause papers and/or documents available before me or which that I have access to, I taxed and allowed an amount of RM55,882.00 being the total fees and disbursements vis-à-vis all works done and services provided by the Defendant, to be payable by the Plaintiff.

What follows are my reasons.

The Plaintiff (“Former Solicitor”) is the former solicitor of the Defendant (“Client”). The cause before me arose out of the Client’s dissatisfaction over the professional fees and disbursements charged by the Former Solicitor, which led to the former having filed an Originating Summons (“OS”) against the latter, seeking the Previous Invoices to be taxed.

The solicitor-client relationship between the parties began as early as year 2018. The Client had on 31.12.2018 executed a Warrant to Act appointing and authorising the Former Solicitor to act for her in relation to a claim on behalf of her son vis-à-vis a road accident involving herself (membawa satu prosiding atau tuntutan bagi pihak anak saya berhubung dengan kes kemalangan jalanraya yang melibatkan diri saya) (“Warrant to Act”).

From a cursory glance at the Warrant to Act, one will find it rather confusing. However, from the perusal of the relevant police reports and notes of proceedings which were exhibited by the Former Solicitor in its Affidavit in Reply dated 30.05.2024 (“Affidavit in Reply”) [note that this Affidavit in Reply was earlier prepared by the Former Solicitor in reply to the Client’s Affidavit in Support of the OS dated 18.04.2024 (“Affidavit in Support”)], the brief was for the purpose of a civil claim against the driver (“Backhoe Driver”) cum owner (“Backhoe Owner”) of a backhoe (“Backhoe”) in relation to a road accident (“Road Accident”) involving the Backhoe Driver cum Backhoe Owner and one Wong Jun Cheng, the biological son of the Client (“Client’s Son”).

The Road Accident occurred on 29.12.2018 when the Client’s Son was hit by the Backhoe, which, at that juncture and before the commencement of the civil suit, purported to have encroached into the lane upon which the Client’s Son was riding his motorcycle, and resulted him in serious injury. This led to the filing of a civil suit in the Sessions Court of Shah Alam vide case No. BA-B53KJ-54-09/2019 (“the 2019 Suit”). A search on the Court’s e-Filing system will reveal that the 2019 Suit was being brought in the name of the Client’s Son.

The Client’s Son however succumbed to blood cancer some time after the 2019 Suit being initiated. The Former Solicitor was then being instructed to withdraw the 2019 Suit while the Client obtains a Letter of Administration over the estate of the Client’s Son (“the Letter of Administration”) from the High Court. An application for the Letter of Administration was subsequently filed vide case No. BA-31NCvC- 57-01/2021 (“the LA Application”).

After being granted the Letter of Administration, the Former Solicitor was instructed to re-initiate the civil claim based on the same Road Accident, now in the name of the Client in the capacity of the mother, dependant and personal representative of the estate of the Client’s Son. The second civil suit was filed in the Sessions Court of Shah Alam vide case No. BA-B53KJ-28-05/2021 (“the 2021 Suit”).

The trial of the 2021 Suit took a total of four days. The learned Sessions Court Judge eventually found the Backhoe Driver and Backhoe Owner (“the 2021 Suit Defendants”) to be 100% liable as against the Client’s Son over the Road Accident (“the 2021 Sessions Court Decision”). Unhappy with the outcome, the 2021 Suit Defendants lodged an appeal to the High Court vide case No. BA-12B- 61-09/2023 (“HC Appeal”).

In the meantime, the 2021 Suit Defendants too filed an application at the Sessions Court of Shah Alam for the 2021 Sessions Court Decision to be stayed or alternatively, the insurance agency covering the Backhoe will release only 30% of the total judgement sum to the Client, and the Former Solicitor shall retain the balance 70% as stakeholder pending the disposal of the HC Appeal (“Stay Application”). The Former Solicitor averred that both parties before the Sessions Court eventually agreed for the amount of the total judgement amount that was to be released to the Client be increased from the aforesaid 30% to 50%, and that the Former Solicitor will only hold 50% in balance thereof, as stakeholder. This led to the withdrawal of the Stay Application.

The Former Solicitor further averred that just two days before the hearing of the HC Appeal, the Client decided to retain a different set of solicitors. This was not denied by the Client. The Client appointed Messrs. Kiranjit Randhawa & Co, advocates and solicitors (i.e. the same counsel representing the Client in the instant taxation proceedings), to act for her in the HC Appeal. In other word, the Former Solicitor was being discharged.

The Client was then being served with the Previous Invoices.

It is apposite to pause at this juncture to state that through her Supplemental Affidavit, the Client had made a submission pursuant to s. 129 of the Legal Profession Act 1976 (“LPA 1976”), that she will pay the fees after them being taxed.

The Previous Invoices, albeit issued on a different date, resemble each other in terms of their final charges.

Invoice bearing No. 000417/012/2023 is dated 18.12.2023 (“the 2023 Invoice”). It took up a total of two pages. The first page depicted that pursuant to the outcome of the 2021 Sessions Court Decision, the Client was being awarded a total of RM164,436.84 inclusive of interest, and following the withdrawal of the Stay Application, an amount of RM82,218.42 equivalent to 50% of the total judgement sum had already been released to the Client. The Former Solicitor retained the other half i.e. RM82,218.42.

The 2023 Invoice then proceeded with the deduction of fees incurred, from the said other half the Former Solicitor had retained. The deductions are as follow:

legal fees in the amount of RM32,887.36;

(ii) advances given to the Client in two occasions, in the total amount of RM10,000.00; and

(iii) work done for the HC Appeal and the Stay Application (which was stated under the general heading of the HC Appeal) in the amount of RM20,200.00. [18] After the deduction of the foregoing which is in the amount of RM63,087.36, the 2023 Invoice concluded with “Total amount to be released to client pending appeal” indicating that the Client be entitled to and will only be released the balance of RM19,131.06. The wording “pending appeal” indicated that there may still be further fees being imposed. [19] The approach of making deduction like to Former Solicitor had taken in the 2023 Invoice assumes that there had already been agreement between the Client and the Former Solicitor on the exact figure to be charged under each and every heads. This is a point the Client contested. In any event, as mentioned earlier, both parties have agreed for the Consent Order to be recorded so that the 2023 Invoice be taxed. This issue is therefore of no bearing on the outcome of the instant taxation. [20] The second invoice bearing No. 000417/012/2024 is dated 15.01.2024 (“the 2024 Invoice”). This time, the Former Solicitor dropped the former approach as it did in the 2023 Invoice. The 2024 Invoice was prepared in a more straightforward, commercial sense, in that it lay down in detail (it was relatively clearer than that in the 2023 Invoice), the fees and disbursements incurred. The total fees and disbursements incurred is the same amount as stated in the 2023 Invoice. The Client was required to pay RM63,087.36. They include:

work done for (a) the 2019 Suit, (b) the LA Application and (c) the 2021 Suit in the amount of RM32,887.36;

(ii) work done for (d) the Stay Application and (e) the HC Appeal in the amount of RM20,200.00; and

(iii) advances given to the Client in two occasions, in the total amount of RM10,000.00. Chronology of Proceedings and Housekeeping [20] During the course of case managements, in light that there are two Previous Invoices to be taxed, I have instructed the Former Solicitor to prepare and forward to the Client a bill of costs for all the works done and services provided by it, for the Client’s remark and/or revision. The Former Solicitor shall then cause the bill of costs so remarked and/or revised by the Client to be filed in this Court. My objective of giving such an instruction is so that this Court be appraised of the position that the Client had took or intend to take, on whether she has any objection over any particular fee or disbursement stated in the bill of costs imposed by the Former Solicitor, and if so, whether the Client’s objection is on principle, or merely on the issue of quantum. [21] Other than the aforementioned, both parties have also been instructed to file their respective affidavits. The Client was instructed to file her Affidavit through which she will be expected to adumbrate clearly her complaints or qualms over the fees or disbursements imposed. The Former Solicitor will then be accorded with the opportunity to reply, through which it should explain the basis on how the figure stated in the said bill of costs was formulated. The Former Solicitor should also be expected to furnish relevant documents to support its averments. All these were for the Court to have a better idea on the reasonableness of the fees and disbursements imposed. [22] Be that as it may, when the matter was heard before me, I am told by the learned counsel of the Former Solicitor that the bill of costs prepared by it earlier was filed in an unmarked form (“Fresh Bill of Costs”). There was no comment and/or revision of the Client over it. The Former Solicitor attributed the course of action taken by it i.e. to file the unmarked Fresh Bill of Costs, to the failure on the part of the Client to revert despite being served with the Fresh Bill of Costs. I pause to note that I have no misgiving over such an course taken because the filing of the Fresh Bill of Costs was consistent with one of my instructions in that the Former Solicitor will be at liberty to proceed with the filing thereof if the Client failed to respond within a stipulated timeframe. The Client on the other hand appeared to have no objection over the said course taken as well. [23] The Former Solicitor too brought to my attention that a notice was filed to inform this Court and the Client that, the Former Solicitor had intended to use its Affidavit in Reply which it had earlier prepared in reply to the Client’s Affidavit in Support of the OS dated 18.04.2024, for the purpose of the instant taxation (“Notice of Intention”). The Former Solicitor explained that this was flowing from the failure on the part of the Client to file any affidavit despite clear instructions from this Court. [24] When the learned counsel for the Client was invited to respond, learned counsel explained that he was unaware of the instruction of the Court. He then requested for an extension of time to be given for the Client to file her affidavit. This was however vehemently objected by the Former Solicitor. Former Solicitor took the position that ample opportunity and time had been given to the Client and the Client shall not be allowed to capitalise on that. [25] After taking into account the arguments of both parties, I made a ruling that no extension of time will be given to the Client to file any affidavit. In making such a ruling I have took into account the fact that from the date the Consent Order was recorded before the learned Honourable Judge, up until the hearing of the instant taxation, a period of about four months have lapsed. The Client’s counsel was never absent during the sessions for case management prior to the hearing of the instant taxation when the instructions were given. All instructions given by this Court during the case management sessions had been acknowledged by the learned counsel for the Client. The learned counsel had never in any occasion stated that he was not aware of the Court’s instruction, or that he was not able to understand the instructions given. To give the Client more opportunity and time to prepare her affidavit or to give her remark on the Fresh Bill of Costs, will, in my view, delay the matter even further and the Former Solicitor who had yet to be paid will inevitably be seriously prejudiced. [26] Nonetheless, I have made it clear to the parties that as taxing officer, I will not only take into consideration all the documents presented to me by the parties, but also other relevant documents which were on record and that I have access to, in order to determine the reasonableness of the fees and disbursements imposed. [27] My position is founded upon the findings of his Lordship the late Chong Siew Fai J (as his Lordship then was) where his Lordship had in the case of Hongkong & Shanghai Banking Corp v Timor Electric Cable & Wire Sdn Bhd & Ors [1992] 1 MLJ 779 endorsed the English case Computer Machinery Co Ltd v Drescher and others [1983] 3 All ER 153 that in determining the issue of costs, the Court has unfettered discretion to admit any evidence it considered relevant. The relevant dicta of his Lordship the late Chong Siew Fai J (as his Lordship then was) in Timor Electric Cable (supra) reads: One further matter I would deal with. In the course of the submissions, it was contended for the fifth defendant to the effect that affidavits filed on behalf of the plaintiff and not expressly or specifically mentioned as relating to the two summonses dated 21 March 1990 and 4 September 1990 should not be used in considering any of the two summonses. I wish to say this: I have not dismissed the action under the summons dated 21 March 1990 but have given leave under O 21 r 3 to the plaintiff to discontinue the action. If I had in any way been influenced by any of the affidavit evidence complained of, it was purely on the question of costs. In Computer Machinery Co Ltd v Drescher & Ors 3, there was no trial, and on the issue of costs it was held that there was no rule which prevented evidence relevant to costs from being considered though it had not already been admitted, and that it was a matter for the court in its unfettered discretion to admit any evidence which it considered relevant (at p 158). In our instant case, the affidavit evidence was filed in court except that no notice of intention to use thereof was given. (emphasis mine) [28] The learned High Court Judge (as his Lordship then was) had deftly summarised the English court’s findings in Computer Machinery (supra) in a simple, straightforward sentence. However, I find it useful to quote some portion of Computer Machinery (supra) in order to be able to properly grasp the significance of the English case. The portion which I thought relevant for the purpose of the instant taxation is reproduced as follow: It very soon became plain that there was in effect a preliminary point. Counsel for the first three defendants contended that none of the documents obtained on discovery was admissible on the issue of costs, and that nothing should be admitted unless it was in evidence on the motions. … … My recollection over the last 15 years is that it is common enough for the parties, without objection, to refer to correspondence and other documents when costs come to be argued after judgment has been given and this has not been limited to correspondence before action brought, or to correspondence or other documents which have been put in evidence during the trial. It is far from uncommon for some document which has no probative value on what is in issue at the trial nevertheless to be of considerable relevance on costs. Furthermore, I cannot in principle see why all viva voce evidence should be excluded. If what is stated in correspondence is to be considered on the argument on costs, I do not see why something which orally falsifies or varies part of the correspondence should be excluded merely because it is oral. Of course, if this is put into an affidavit it then ceases to be presented orally: but the point cannot depend on the precise form in which the evidence is tendered. Now s 51(1) of the Supreme Court Act 1981 provides that the costs of and incidental to all proceedings in the High Court 'shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid'. By RSC Ord 62, r 2(4) the powers and discretion of the court must be exercised in accordance with Ord 62; but neither in this nor in the 1981 Act can I see anything which prevents evidence relevant to costs from being considered if it has not already been admitted during the trial. The matter, I think, is one for determination by the judge when considering how to exercise his discretionary power to determine by whom and to what extent the costs are to be paid. I do not consider that the judge is fettered by any rule which would exclude evidence if it is oral, or if it consists of correspondence taking place after and not before action brought. If the evidence is admissible, why should it not be admitted? I do not think that such a rule would open the floodgates to the adduction of a mass of new evidence when arguing costs after judgment has been given. In most cases there will be little or nothing to add; but in those cases where something material is tendered I do not think that it ought to be shut out by any general rule. The matter is one for the judge who has to decide the issue, and if one party seeks to adduce evidence which is of little or no cogency in relation to costs the judge, if he admits it, may reflect his view of it in the order for costs that he makes. … I do not attempt any comprehensive statement of the law. This will have to emerge as further cases on the point occur, though at the present rate of progress that will take a long time. I have, however, said enough to explain why in the present case I reached the conclusion that I should not exclude the evidence proffered by counsel for the plaintiff company, even if it had not been in evidence on the motion. To some of the documents in his bundle counsel for the first three defendants had no objection. To most of them he objected on the grounds that they should not be admitted on costs, and to one of them he objected on the ground that it was not admissible at all. This last document I excluded; but I admitted the others. If there had been any objection to their authenticity, I should have required them to be proved; but as there was not, I admitted them purely on the issue of costs. (emphasis mine) [29] Based on the above extract, the English court had concluded that the discretion remains with the taxing master who presides in a taxation proceeding, to decide whether to take into account any given evidence, notwithstanding such evidence was not admitted during trial, so long as it was exercised purely for the purpose of determining the issue of costs. One could however infer from the above quoted excerpt that, not all evidence the taxing master thought relevant will be indiscriminately admitted. There appeared to be one class of evidence which is not admissible at all for the purpose of taxation of costs – one that its authenticity is objected to by the other party and remain unproved by the party who sought to adduce it. [30] I do not think that the learned High Court Judge (as his Lordship then was) who cited and endorsed Computer Machinery (supra) in Timor Electric Cable (supra) had intended to exclude the other principles which I have quoted and observed above. This is notwithstanding the same was not explicitly mentioned in his grounds. In fact, the preceding dicta of the learned High Court Judge (as his Lordship then was) before citing Computer Machinery (supra), i.e. “If I had in any way been influenced by any of the affidavit evidence complained of, it was purely on the question of costs” echoed with the overall tone the English court sang in Computer Machinery (supra). [31] It can also be observed that unlike Computer Machinery (supra), the learned High Court Judge (as his Lordship then was) in Timor Electric Cable (supra) had made no reference to any provision of law in reaching the conclusion as his Lordship did. That being the case, to the best of my knowledge, there is no provision or case laws expressly prohibiting or rejecting the position of law in relation to taxation of costs taken in Computer Machinery (supra) and endorsed locally in Timor Electric Cable (supra). [32] With the above being said, for the purpose of the instant taxation, I am prepared to not only be confined by the documents exhibited by the parties through their affidavits. I have told the parties that I am prepared to take into considerations the relevant cause papers and documents filed or produced by the Former Solicitor while representing the Client in her previous suits, no matter the parties have referred to them or even filed them before this Court, or otherwise. The relevant cause papers and documents I mentioned in the foregoing are which that were filed in the Court’s e-Filing system via the case numbers as mentioned above. [33] I do not think that my position which I am taking above has prejudiced the Client or the Former Solicitor in any way. They formed part of the public records and I could not imagine how the public records will be challenged on its authenticity. My focus is not on the authenticity of the contents of each and every documents or cause papers filed, but rather, it is on the fact that these documents or cause papers have been filed in the Court’s e-Filing system. They are ones which were filed to advance the Client’s claim in the 2021 Suit and, with the benefit of hindsight, had in fact resulted in an outcome favouring the Client completely. These cause papers are, in my view, vital to determine the costs the Former Solicitor is entitled to. They should be reflective of the works done – and the value attached to it – by the Former Solicitor. [34] By holding such a view I have not mentioned that the works done by the Former Solicitor in the number of drafts prepared but discarded, or documents which the Former Solicitor advised to be not relevant or not useful in the Client’s case and were eventually did not form part of the records, are also relevant. But these are documents which should have been produced by the Former Solicitor and I am not going to speculate that they are done. My focus now is therefore, on what was on the record i.e. the Court’s e-Filing system. [35] Other than that, it is pertinent to note that in its written submission, the Former Solicitor had not only referred to its Affidavit in Reply, but had also made reference to the Affidavit in Support as well as the Client’s Affidavit in Rebuttal dated 20.06.2024 replying to the Affidavit in Reply (“Affidavit in Rebuttal”). However, in its written submission in reply, learned counsel for the Former Solicitor relied on Thirupathy A/L Muniandy v Bintumathy A/P Ramakrishnan [2019] 1 LNS 1234, HC and argued that the failure of the Client to file any notice of intention to use affidavit would mean that she is precluded from referring to any of the Affidavit in Support or Affidavit in Rebuttal. Former Solicitor also relied on the celebrated case of Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29, CA over the failure on the part of the Client to file any affidavit. There are no further explanation provided for on the relevancy of this particular case. I assume that the Former Solicitor intended to rely on it so that the Client be treated as having accepted the contents of the Affidavit in Reply of the Former Solicitor, and probably the reasonableness of the Fresh Bill of Costs as well. [36] At the outset, I have to comment that I am wary of the applicability of Thirupathy (supra) in the instant taxation proceedings as it relates to a matrimonial dispute. Ng Hee Thong (supra) on the other hand relates to the issue as to whether a grant of leave to withdraw with liberty to file afresh is appropriate in the circumstances of such case. Both the aforementioned cases certainly do not relate to the power of a taxing officer in dealing with taxation of bill of costs. Secondly, the same exact issue of failure to file any notice of intention to use affidavit had actually been considered in Timor Electric Cable (supra). The learned High Court Judge (as his Lordship then was) while having observed that no such notice of intention was filed but nonetheless prepared to referred to them for the purpose of taxation. Learned counsel for the Former Solicitor did not raise any cogent authority which expressly denies such position of law. In any event, guided by the principles identified in Computer Machinery (supra) and Timor Electric Cable (supra), I am prepared to refer to the Affidavit in Support and the Affidavit in Rebuttal, both prepared by the Client for the purpose of the OS, whenever the occasion requires. [37] Besides the foregoing, it must be noted here that in the second parapraph of the Consent Order provided that the Former Solicitor do furnish documents referred to in its Previous Invoices to the Client for the purpose of taxation. I observed that up until the hearing of the taxation, the Former Solicitor did not file any bundle indicating the documents referred by it in its Previous Invoices. The Client made no objection or protest over it. Nonetheless, as mentioned earlier, I am prepared to refer to the cause papers and documents which are on record and that I have access to in order to determine the issue of costs. I do not think it is equitable for the Former Solicitor to be penalised such that the Former Solicitor be taken as having opted to waive its entitlement to certain costs, simply for the reason that no document was ever produced for the reference of this Court. The Fresh Bill of Costs [38] Now on the Fresh Bill of Costs filed by the Former Solicitor. [39] The Fresh Bill of Costs appeared to have been prepared in accordance with Form 117 of the Rules of Court 2012. It is made up of two general headings, namely “Penyediaan (A) [Getting Up (A)]” and “Perbelanjaan hangus/sendiri (B) [Out of Pocket Expenses (B)]”. [40] Under the head “Penyediaan (A)”, the Former Solicitor adumbrated the works done in relation to the 2019 Suit, the LA Application, the 2021 Suit, the Stay Application and the HC Appeal (collectively referred to as “Five Major Works”). Following the description of the Former Solicitor in the Fresh Bill of Costs, the Five Major Works done can be summarised as follow:

for the 2019 Suit and the 2021 Suit:

to secure the relevant documents in relation to the civil suit i.e. the police reports, outcome of the investigation, medical reports, the Client’s Son’s employment related documentations;

to peruse and analyse the documents and to seek professional medical advices; and

to attend client, to interview witnesses, and to prepare for trial, including the relevant cause papers and/or submissions,

(ii) for the LA Application: to prepare the relevant cause papers for the purpose of obtaining the Letter of Administration,

(iii) for the Stay Application: to peruse and prepare affidavits in relation to the Stay Application,

(iv) for the HC Appeal:

to peruse the Record and Memorandum of Appeal by the senior counsel of the Former Solicitor, Dato’ Geethan Ram;

to conduct legal research and prepare written submission which took up to 132 pages;

to prepare of oral submissions by the senior counsel of the Former Solicitor, Dato’ Geethan Ram. [41] However, for all the descriptions of works done which spanned over almost three pages of the Fresh Bill of Costs, the Former Solicitor had merely stated a figure of RM48,705.36 for fees imposed under the head of “Penyediaan (A)”. There were no breakdown – not even what we can observe from the 2023 Invoice and 2024 Invoice – on what exactly are the charges for each of the Five Major Works the Former Solicitor had done, let alone the itemized fees for the works particularised under each of them. In other words, the Former Solicitor merely provided a global sum for charges under the head “Penyediaan (A)”. [42] For costs incurred under head “Perbelanjaan hangus/sendiri (B)”, the Former Solicitor did provide a detailed breakdown. They include filing fees of all the cause papers, the attendance fees for Court (which the learned counsel for the Former Solicitor explained that the fee was about RM30.00 per session), fees in relation to the medical reports and orthopaedic specialist report, quotations for lower limb prosthesis, retainer fee (the Former Solicitor termed it as “open file” fee (kos membuka fail)) amounting to RM150.00, stationary and postage charges, printing and telecommunications charges, as well as the cost for Warrant to Act amounting to RM50.00. The moneys advanced to the Client in the total of RM10,000.00 were too being included under this heading. The total expenses incurred under head “Perbelanjaan hangus/sendiri (B)” therefore sums up to RM14,382.00. [43] Therefore, the total amount the Client was charged pursuant to the Fresh Bill of Costs is RM63,087.36. This is the exact figure found in the 2023 Invoice as well as the 2024 Invoice. [44] The only difference is that the expenses and disbursements have been separated from the total fees incurred under each of the Five Major Works and placed under head “Perbelanjaan hangus/sendiri (B)”, and that the costs imposed for the Five Major Works were stated in a single lump sum. [45] During the hearing of the taxation proceeding, learned counsel for the Former Solicitor upon being highlighted with the issue stated above, appeared to have acknowledged the defect in the Fresh Bill of Costs in the sense that it is not any more elaborate than the Previous Invoices. [46] Learned counsel for the Former Solicitor courteously suggested that a more comprehensive, detailed bill of costs to be filed. [47] I nonetheless proceeded with the taxation for the same reason I have relied upon when I dealt with the request of the learned counsel for the Client for more time to file her affidavit – I do not want to delay the matter further. [48] The Former Solicitor has however provided a breakdown in a manner as it was presented in the Previous Invoices, in its written submission. [49] Through the written submission, the Fresh Bill of Costs was being explained in a more detailed manner compared to the Previous Invoices and further with expenses and disbursements separated from the legal fees. [50] For the ease of reference, the table below depicts the difference between the Previous Invoices, the Fresh Bill of Costs and the explanations found in the Former Solicitor’s written submission (“Table A”): Invoices Item 2023 Invoice 2024 Invoice Fresh Bill of Costs written submission 2019 Suit RM32,887.36 inclusive of disbursements RM32,887.36 inclusive of disbursments RM48,705.36 excluding disbursements RM30,705.36 LA Application 2021 Suit Stay Application RM20,200.00 RM20,200.00 RM3,000.00 HC Appeal RM15,000.00 Disbursements not stated not stated RM4,382.00 RM4,382.00 Advancement RM10,000.00 Total RM63,087.36 [51] In light that there is no difference in the Fresh Bill of Costs and the Previous Invoices in relation to its total bill, I do not see how the parties will be prejudiced on the basis that this taxation proceeded upon the Fresh Bill of Costs. [52] This is not a case where the Former Solicitor had ballooned up the fees in the Fresh Bill of Costs compared to what it had initially asked for in the Previous Invoices so as to attract issues of discrepancies between the first and second bills as what had transpired in Siew Kuen Williams v Yong Siew In [1984] 1 MLJ 95, HC, United Malayan Banking Corp. Bhd v Sykt. Perumahan Lus Sdn. Bhd. [1991] 1 CLJ 594, HC or even the Singapore’s High Court case of Lee Hiok Ping & Ors v Lee Hiok Woon & Ors [1989] 1 MLJ 156. [53] After all, since this is a matter of taxation of bill of costs, s. 132 of the LPA 1976 provided that the bill of costs for taxation shall be drawn in the manner provided by the Rules of the High Court: 132 Bill of costs to follow rules of court Bills of costs for taxation as between advocate and solicitor and client shall be drawn in the manner provided by the Rules of the High Court, and the taxation shall be governed by the Rules. (see: Sin Yeap Holdings (M) Sdn Bhd v Hasan Sabri & Hashim Nazri [2023] 7 CLJ 313, HC at para [14(v)]; see also: S. P. Veloo & Co v Affin Bank Berhad [2017] 1 LNS 1042, CA at paras [11], [13] & [25]) (note: certain provisions of the LPA 1976, including s. 132 mentioned above, and a few others to be cited below, had since been amended by the operation of Legal Profession (Amendment) Act 2025 (“Act A1755”) with effect from 09.05.2025. However, in my view, the effect of the amendments does not have any bearing upon the instant taxation in the context the relevant provisions were cited) [54] There is, however, one point that I do not think I can ignore. As could be seen earlier, the Former Solicitor took a different approach in the preparation of the Fresh Bill of Costs in contrast with the Previous Invoices. The Fresh Bill of Costs which is presented as a lump sum in its “Penyediaan (A)”, is however on the other hand being dissected, so to speak, in the Former Solicitor’s written submission. [55] I am very sceptical if I can be allowed to rely on the written submission of the Former Solicitor in order to derive the breakdown of the Fresh Bill of Costs for the purpose of taxation. I found that the explanations found in the written submission are not inherently in conflict with the Fresh Bill of Costs, but they are, at best, submissions from the bar. I must be wary in attaching any value over the written submission as far as the taxation of costs is concerned, without the support of any other evidence or document on record. There is no rule – to the best of my knowledge – which allows a solicitor to further provide its breakdown through a mere written submission. [56] I am not stating that the Former Solicitor had departed from the Fresh Bill of Costs, but rather, the Former Solicitor had in its written submission did what it had not earlier done in the preparation and filing of the Fresh Bill of Costs. There appeared to be a “second bill of costs” presented in the form of written submission and I do not think I should be allowed to tax based on the so called “second bill of costs”. Should the Former Solicitor did not do anything of such sort, I am prepared to tax solely on the Fresh Bill of Costs. I admit that if that is the case I will be facing a much more taxing task. [57] Now the Former Solicitor had provided in its written submission a different aspect to look at the Fresh Bill of Costs. I have held the view that they are submissions from the bar. What we have before us are the Previous Invoices, and I think they are helpful in order for me to overcome the hurdle above. If the amounts stated in the Former Solicitor’s written submission could be traced back to or found its root in the Previous Invoices, then I do not think the Client will be prejudiced in any way should I refer to them. If the amounts stated are however inconsistent and gravely departed from the Previous Invoices such that it is inherently improbable, then cadit quaestio, the amounts stated in the written submission will not be referred to at all. My concern now is if I am allowed to refer to the Previous Invoices for the aforementioned purpose. [58] I will have to first analyse the value or weight of the Previous Invoices. The fact of this instant taxation is that the Consent Order had prescribed that the Previous Invoices be taxed. There is no order to the effect that the Previous Invoices be deemed of no effect. There is also no indication whatsoever that the Client had ever asked for a bill containing detailed items after being served with the Previous Invoices through the affidavits filed by the Client for the purpose of the OS, implying that s. 121(a) of the LPA 1976 does not come into play. As a corollary thereof, the Previous Invoices are still pretty much valid and I do not think I can disregard the probative values attached on the contents of the Previous Invoices. [59] Then we have s. 121(c) of the LPA 1976 which reads: 121 Where remuneration of advocate and solicitor not subject of agreement

Where the remuneration of an advocate and solicitor in respect of contentious business done by him is not the subject of an agreement made pursuant to section 116, the solicitor’s bill of costs may at the option of the advocate and solicitor either contain detailed items or be for a gross sum: Provided that - …

if a gross sum bill is referred to taxation, whether under this section or otherwise, nothing in this section shall prejudice any rules of court with respect to taxation and the advocate and solicitor shall furnish the taxing officer with such details of any of the costs covered by the bill as the taxing officer may require. [60] I referred to the aforesaid s. 121(c) for a reason. From the reading of the said paragraph (c), a taxing officer (or taxing master) when being referred with a gross sum bill has the power or jurisdiction to order details of the costs covered by the said gross sum bill to be furnished by the solicitor concerned. I am not ignorant that the instant taxation proceeds upon the Fresh Bill of Costs and therefore it cannot by any means be regarded as “gross sum bill” as envisaged under s. of the LPA 1976. I am also by no means saying that the Fresh Bill of Costs is a gross sum bill. [61] What I am doing now is to state my understanding that, if a taxing officer like I am is empowered to ask for more detail for bill which is presented in a gross sum, for the purpose of the instant taxation where the circumstances is that the Fresh Bill of Costs when being presented was in the form of lump sum, then I should not be precluded from referring back to the Previous Invoices for the detail of each and every charge over the Five Major Works done by the Former Solicitor. Furthermore, following the principles of Computer Machinery (supra) and Timor Electric Cable (supra), there are no rule or authority prohibiting me from doing so. At the risk of repetition, there is no agreement or order that the Previous Invoices be rendered otiose or of no further effect, and that both the Previous Invoices and the Fresh Bill of Costs are not contradictory. [62] With my finding that the Previous Invoices are still pretty much very relevant, I will in turn analyse the Previous Invoices with the amounts stated in the written submission of the Former Solicitor in respect of each of the Five Major Works. Firstly, based on the Table A above, the difference between the amount stated in the written submission and the Previous Invoices in terms of the 2019 Suit, LA Application and 2021 Suit is RM2,182.00. The difference in terms of the Stay Application and HC Appeal on the other hand, is RM2,200.00. The two said differences sum up to RM4,382.00. This is exactly the amount fall under disbursements which was not stated in either of the Previous Invoices. [63] The outcome of the calculation renders credence to the fees imposed in respect of each of the Five Major Works as stated by the Former Solicitor in its written submission. I do not see any attempt of the Former Solicitor to depart from its Fresh Bill of Costs, or it being the endeavour of the Former Solicitor to surreptitiously introduce any further costs or fees it omitted or failed to include in the Fresh Bill of Costs, through its written submission. Instead, it appeared to be a genuine attempt by the Former Solicitor to elaborate what it failed to explain in the Fresh Bill of Costs. [64] Therefore, in the process of taxation of the Fresh Bill of Costs which the detail in respect of each of the Five Major Works is found wanting, since the amount stated in the written submission of the Former Solicitor is, more probable than not, be simply based on the Previous Invoices, and in the absence of any ill motive on the part of the Former Solicitor (in fact, I do not find any iota of bad intention, not to mention no objection was ever raised by the Client), I do not think I will do the Client any injustice in referring to the written submission of the Former Solicitor to identify the fees imposed in respect of each of the Five Major Works. Principles on Taxation of Costs [65] Both parties before me relied on O. 59, r. 16(1) of the Rules of Court 2012 as well as r. 11 of the Legal Profession (Practice and Etiquette) Rules 1978 (“LPPER 1978”) for the principles applicable in the taxation of bill of costs. The said provisions respectively read: O. 59, r. 16(1), Rules of Court 2012 Order 59 Costs …

Basis of assessment (O. 59 r.16)

In assessing the costs payable in relation to any item, the Court shall have regard to all relevant circumstances, and in particular to-

the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;

the skill, specialized knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel;

the number and importance of the documents, however brief, prepared or perused;

the place and circumstances in which the business involved is transacted;

the importance of the cause or matter to the client;

where money or property is involved, its amount or value;

any other fees and allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question. … r. 11, LPPER 1978

Fees for litigious or contentious matters In determining the amount of fee for litigious or contentious matters involving representation of a client in Court, it is proper to take into consideration-

the time, labour and skill required;

the novelty and difficulty of the question involved;

whether acceptance of the particular employment will preclude his appearance for others of which he has a reasonable expectation;

the customary charges of the profession for similar services,

the amount in controversy,

the benefit resulting to the client for the services;

the character of the employment-whether casual or for an established client, and

the special position or seniority of the particularly advocate and solicitor. [66] It is understandable with regard to the position taken by the Client in relying on the above provisions. However by taking the same approach, the Former Solicitor had actually put itself in a disadvantaged situation. It is trite that costs assessed on a party-to-party basis are certainly lower than costs between a solicitor and his own client. This is consistent with the dicta of the case of Golden Star & Ors v Ling Peek Hoe & Anor and Another Appeal [2024] 6 CLJ 487 where her Ladyship Mary Lim FCJ speaking for the Federal Court had the occasion to observe: [46] … 31 The indemnity principle, however, does not result in an indemnity in the full or literal sense. The legal costs recoverable by the successful party from the losing party are more often than not less than the actual legal fees incurred as between the successful party and his solicitor. This is because the indemnity principle is also subject to a series of rules governing how recovery of costs is quantified, and those rules operate such that a full indemnity for legal costs is only recoverable by parties to litigation in exceptional circumstances (for example, where there is a contractual agreement between the parties to this effect). … (emphasis mine) [67] I do not propose to state that in citing O. 59, r. 16(1) of the Rules of Court 2012 as the Former Solicitor did in its written submission, the Fresh Bill of Costs will then be assessed in the manner that the considerations are limited to the matters mentioned under r. 16(1). The Former Solicitor too appeared to have overlooked the findings of his Lordship Mohd Nazlan Mohd Ghazali J (now JCA) in Farah Ahmed Naji Al-Shahaf (A Minor suing by her Father and Litigation Representative Ahmad Naji Musa Al-Sahhaf) v Dr Lee Weng Seng & Ors [2022] MLJU 3674 where his Lordship took the position that O. 59, r. 16(1) of the Rules of Court 2012 applies only to party and party costs (see para [27]). The Former Solicitor certainly did not want the Fresh Bill of Costs to be taxed on a party-to-party basis. [68] I am also reserved as to whether I should base my taxation upon r. 11 of the LPPER 1978. LPPER 1978 is the product of the Bar Council exercising its power under s. 77 of the LPA 1976 for the purpose of “regulating the professional practice, etiquette, conduct and discipline of advocates and solicitors” as could be seen in the pre-amended sub-s. 77(1) thereof. The LPPER 1978 therefore, in my opinion, binds the solicitors as against the client, but not taxing officer presiding the taxation proceeding. I am by no means trying to say that r. 11 of the LPPER 1978 is of no relevance. After all, solicitors are expected to have in their mind r. 11 of the LPPER 1978 when drawing up a bill and taxing officers should be entitled to refer to them. I am simply stating that I am not agreeable with the proposition that the matters mentioned in r. 11 of the LPPER 1978 are exhaustive, if that was the position taken by the parties before me. [69] It is therefore necessary for me to identify the proper provision, or source of law, so to speak, applicable upon me in determining the instant taxation. As cited earlier, s. 132 of the LPA 1976 provided that the taxation of bill of costs shall be governed by the Rules (to wit, the Rules of the High Court, but was amended pursuant to Act A1755 to be the “Rules of Court 2012”). Reference to the Rules of Court 2012 is therefore warranted. [70] O. 59, r. 17(2) of the Rules of Court 2012 reads: Order 59 Costs …

Costs payable to a solicitor by his own client (O. 59 r.17)

…

On the determination of a solicitor's bill to his own client (except a bill with respect to non-contentious business and a bill payable pursuant s. 5 of the Legal Aid Act 1971), all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred. … [71] Based on the said r. 17(2), “all” costs stated in the Fresh Bill of Costs “shall” be allowed. The wordings employed apparently go beyond the matters stipulated expressly in either O. 59, r. 16(1) of the Rules of Court 2012 or even r. 11 of the LPPER 1978. [72] The only matter which I have to take into account is whether the costs incurred are of an unreasonable amount, or if the costs are being unreasonably incurred. If I am allowed to assign nomenclatures for the two aforementioned matters, I would say that the wordings “… are of an unreasonable amount” relates to the “quantum” aspect of the Fresh Bill of Costs, while “… or have been unreasonably incurred” relates to the “principle” aspect. [73] With the above being said, I now turn to analyse the Fresh Bill of Costs. As mentioned earlier, I am prepared to refer to the amount in respect of each of the Five Major Works stated in the written submission of the Former Solicitor, which are in congruence with the Previous Invoices, to tax the Fresh Bill of Costs. Precautionary Note [74] I would also like to emphasise that, lest I be accused of crossing the boundaries of my jurisdiction as a taxing officer, my remark and/or comment in respect of the authorities which I have cited above and which I may cite in the latter part of this written grounds can not be taken to mean that I have made any ruling or finding on the principles applicable. At any rate, I do not think my discretion or jurisdiction extends to that which is akin to a High Court Judge in making any comment or remark or even depart from any founded binding principle. All I am doing now is to ascertain the principles I should be founded upon for the purpose of taxation. Analysis on the Fresh Bill of Costs - Penyediaan (A) [75] As mentioned earlier, the Fresh Bill of Costs is constituted of two major headings i.e. Penyediaan (A) and Perbelanjaan hangus/sendiri (B). The first division, to wit, Penyediaan, or Getting Up, was defined in the book “The Law of Costs in Civil Proceedings” (Dr. Andrew Chew Peng Hui (2017), 2nd Ed., Sweet & Maxwell Malaysia) as follow: [14.007] Getting-up refers to getting-up the case for trial or appeal as the case may be. It includes legal research or “considering the authorities” as the item normally appears in the bill of costs for taxation and perusing the evidence and preparing for the hearing and appeal. In one case Dzaiddin SCJ talked of “getting-up” the authorities. It has been treated as the equivalent of the brief fee and as included in advocacy fee. “Simply put,” Rhodzariah Bujang JC (as her Ladyship then was) said, “getting-up fees are payment for the work done by the solicitor in pursuing or defending a claim in court”. [76] There were several factors affecting the quantum of getting up. Plethora of authorities were cited on behalf of the Former Solicitor. I am however not entirely certain as to why are they being cited since in the written submission of the Former Solicitor, they were only being mentioned in passing. I nevertheless have not overlooked them. They are: Southern Finance Co Bhd v Zamrud Properties Sdn BHd (No 3) [1998] 7 MLJ 168, HC; Union Insurance Malaysia Sdn Bhd v Chan You Young [2003] 7 CLJ 50, HC; Yii Suok Ting v Sibu Municipal Council [1995] 4 CLJ 108, HC; and Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Ors [2013] 10 MLJ 805, HC. Although these are cases decided on a party-to-party basis, they somehow indicated matters which the Court may take into consideration in determining the issues of costs on a solicitor and client basis. However, guided by the principles I observed earlier, the factors mentioned in the cases cited are by no means exhaustive. [77] Courts have also consistently hold that there is no hard and fast rule in relation to the determination of costs. Costs awarded may vary according to the factual matrix of each case (see: Southern Finance Co Bhd v Zamrud Properties Sdn Bhd (No 3) [1998] 7 MLJ 168 at p 172, row C; Positive Well Marketing Sdn Bhd v OKA Concrete Industries Sdn Bhd [2014] 10 MLJ 385, HC at para [16]; JP Finance (M) Bhd v Tanswan Brothers Enterprise Sdn Bhd & Ors [1994] 1 MLJ 47, HC at p 54, row G). Again, the Courts in the cases mentioned in the foregoing sentence when finding such principle were invited to determine costs on a party-to-party basis. I however am not able to see why the same principle does not equally apply in the situation where the Court is invited to determine costs, on a solicitor and client basis.

(A) the 2019 Suit, LA Application and the 2021 Suit [78] The Former Solicitor imposed a fee of RM30,705.36 for the 2019 Suit, LA Application and the 2021 Suit. The three matters were apparently distinctive yet the Former Solicitor included them under one single charge. [79] I observed that the Client did not ever aver that any of the three matters mentioned above was being done pro bono or ex gratia. The LA Application, as much as it appeared to be a prerequisite before the commencement of the 2021 Suit, can never be treated as part and parcel of the 2021 Suit. After all, the Letter of Administration benefits the whole of the estate of the Client’s Son, and not only for the purpose of the 2021 Suit. It has effect as against the world. The Former Solicitor is in my view entitled to remuneration or legal fees for the purpose of the LA Application itself. [80] It is therefore not inappropriate for me to first identify the possible fee imposed for the LA Application, and deducting it from the total of RM30,705.36, to derive therefrom and determine the reasonableness of the fees imposed for the 2019 Suit and 2021 Suit. [81] Learned counsel for the Client in his written submission submitted that LA Application is a straight forward matter in that it is not a contested application. He then took the position that the customary charges for the LA Application is in the range of RM3,000.00 to RM4,000.00. [82] I respectfully disagree. [83] It is no doubt that the LA Application is a run of the mill issue, at least it is the case for any legal practitioner. I am aware that for most of the legal establishment, cause papers for an application for a letter of administrator are mostly prepared by pupils undergoing the statutory prescribed nine months pupillage period. I venture to say some were even being prepared by legal clerks who are not legally qualified. However, that cannot by any means be taken that the LA Application has only low value attached to it. This is especially so in light that the Client is a lay person with no legal background, and at that moment was presumably still under bereavement (to wit, the Client’s Son passed on the 22nd of Mei 2020 and the LA Application was filed on the 22nd of January 2021). The LA Application if being looked in the context of the circumstances will more or less provide a peace of mind to the Client in anticipation of the 2021 Suit. [84] Based on the knowledge I gained through my brief stint as a practicing advocate and solicitor, the rate in Klang Valley for an application for letter of administration typically cost somewhere between RM6,000.00 to RM8,000.00. The range of RM3,000.00 to RM4,000.00 as mentioned by the learned counsel of the Client is usually the legal fees for the purpose of obtaining a Grant of Probate in the same area, due to the relatively lesser paperwork compared to an application for a letter of administration. Even so, such price range is only possible when the counsel being retained is a junior practitioner, who, owing to price war in competing for a share in the already competitive market, is willing to take up the brief for such an amount. As far as I am concerned, even an application of a Grant of Probate typically costs RM5,000.00, exclusive of disbursements. [85] Based on the Court’s e-Filing system, I realised that for the purpose of the LA Application, the Former Solicitor had also filed an application for the requirement of sureties under s. 35 of the Probate and Administration Act 1959 (Revised 1972) to be dispensed with. The cause papers filed were also in order and the LA Application was disposed, quite efficiently, within a period of 6 weeks from the date it was filed (I note that based on the minutes of the case, the matter can be disposed during the first case management itself but for the requirement that physical attendance of the Client being the applicant in the LA Application was needed). I therefore hold that the amount of RM7,000.00 is an appropriate fee for the purpose of the LA Application. [86] Now on the 2019 Suit and the 2021 Suit. Taking into account the deduction of the fee for LA Application as I taxed above from RM30,705.36 which the Former Solicitor had billed, the Former Solicitor can be assumed to have imposed RM23,705.36 for the 2019 Suit and the 2021 Suit (“Taxation with Higher LA Fee”). Nonetheless, for the sake of completeness, I too considered the difference between the fee suggested by the Client (i.e. RM4,000.00) and the said RM30,705.36. If that is the case, the Former Solicitor had presumably imposed RM26,705.36 for the 2019 Suit and the 2021 Suit (“Taxation with Lower LA Fee”). [87] As mentioned earlier, the 2019 Suit and the 2021 Suit relates to a claim arising out of a motor vehicle accident involving the Client’s Son. Motor vehicle accidents inevitably fall under the civil jurisdiction of a Sessions Court [see s. 65(1)(a) of the Subordinate Courts Act 1948 (Revised 1972)]. In my knowledge, Sessions Court matters, depending on the complexity of the case, typically cost between the range of RM15,000.00 and RM30,000.00 in Klang or Shah Alam. Matters which concluded after a full trial will cost even more. The fee imposed by the Former Solicitor in respect of the 2019 Suit and 2021 Suit, no matter one is to look at Taxation with Higher LA Fee or the Taxation with Lower LA Fee, is within the said range. [88] In the instant case, by merely looking at the police reports in preparation of the 2019 Suit or the 2021 Suit, one would see that there were already two conflicting versions even before the suits were commenced. The Former Solicitor is expected to be prepared for it and to apply its skill in terms of cross examination, in order for the Client’s cause be ventilated effectively. With the benefit of hindsight and as a matter of fact, the Sessions Court in finding 100% liability on the part of the Backhoe Driver and Backhoe Owner indicated quite clearly that the Former Solicitor had indeed successfully challenged the credibility of witnesses who were hostile to the Client’s case, and convinced the Sessions Court Judge in believing the Client’s side of story, on a balance of probability. This must itself be reflective in the Fresh Bill of Costs. [89] I have not overlooked the fact that there were two suits in total being filed over the span of three years. Although I agree with the submission of the Client that the two suits are based on the same cause of action, I have to acknowledge that it is a norm that a solicitor charge a fee for action filed but aborted half way. Should the same action being filed for the second time, a fresh fee will be imposed. If the Former Solicitor had done so, it cannot be said that it is being unreasonable. However, the Former Solicitor before me seem to be not going to that extent. Former Solicitor instead appeared to have treated the 2019 Suit and 2021 Suit as one single action and the Client have been charged only once. This is a commendable approach in my view. [90] Other than that, I realised through the minutes of the 2021 Suit as found in the Court’s e-Filing system that the 2021 Suit was once being struck out on the ground that the 2021 Suit was being filed pursuant to s. 8 of the Civil Law Act 1956 (Revised 1972) despite the Road Accident was not the cause of death of the Client’s Son. This is purely on the question of law and the Client certainly cannot be attributed in anyway for the event that transpired. The Former Solicitor as it rightly did in my opinion, did not impose any fee for the work it done in opposing to the striking out application. My emphasis is not on this but rather on the conduct of the Former Solicitor in that it had without further ado, approached and reached an agreement with the solicitors acting for the 2021 Suit Defendants so that the 2021 Suit was being reinstated within five days, of course, with the condition that the Former Solicitor to file the necessary amendment over its cause papers. The attitude of the Former Solicitor in relation to the 2021 Suit must also be attached with proportionate value and be reflected in the Fresh Bill of Costs. [91] Founded upon the foregoing, the fees imposed by the Former Solicitor, in respect of the 2019 Suit and 2021 Suit, regardless of whether it being looked in the context of Taxation with Higher LA Fee or Taxation with Lower LA Fee, appeared to be reasonable, except for one matter which I will touch in the latter part of this written grounds. [92] There is another approach to taxation. I could treat as if the 2021 Suit had yet to begin and estimate the possible amount that the Sessions Court may compensate based on the injuries suffered by the Client’s Son, by relying on the Revised Compendium of Personal Injury Awards issued by the Bar Council. With the quantum derived I should be able to estimate the possible legal fees in proportion thereto. I could then be able to work out the legal fees which the Former Solicitor is expected to inform the Client prior to the commencement of the 2021 Suit. The legal fees so derived can be my basis of taxation. However, I do not think this approach is of any assistance. It has in fact, contradictory to the principle identified by his Lordship Syed Ahmad Helmy JC (as his Lordship then was) in Union Insurance Malaysia (supra) (see p 70, row b – c), although Union Insurance Malaysia (supra) was decided in the context of party and party costs. What is of paramount importance is that I should determine the reasonableness of the costs imposed which, as alluded earlier, I thought reasonable except for one matter which I will elaborate later. [93] On the reality aspect, since the Fresh Bill of Costs was issued following works done and services rendered pursuant to a claim relating to a motor vehicle accident, I am aware that solicitors handling running down or motor vehicle accident matters typically take a cut of about 20% to 30% of the total compensation paid by the insurance company insuring the liability of the motor vehicle causing the tort. The percentage is the same whether or not the matter proceeded to a full trial. This arrangement is logical in the sense that matters resolved amicably will typically result in lower compensation, which if compared to compensation awarded after a full trial, is proportionate to the works required to be done. The aforesaid range of 20% to 30% was in fact confirmed by the learned counsels of both parties during the course of hearing. [94] The above arrangement implies that solicitors handling motor vehicle accident matters will not know how much to expect in terms of their legal fees until the matter was finally resolved either amicably or through full trial. It may be that they will end up getting nothing, should the victim of the accident fail in his claim. Arrangement of such appeared to be based upon contingency, flying in the face of s. 112(1)(b) of the LPA 1976, if the lawyer concerned did not know how to work around it. [95] However, as unlawful or inappropriate as it may seem, I understand that the arrangement of taking a cut from the compensation paid is the norm practiced since long ago. The Bar Council even proposed to pass Legal Profession Conditional Fee (Personal Injury) Rules to overcome the prevalent issue (I understand that it has yet to be passed as of to date). The norm has been practiced by solicitors across the country up until this day. It appeared to be the practice accepted by the local market (for if it is otherwise, such practice would have been abolished long ago following the supply and demand nature of the market), and I cannot turn a blind eye on the elephant in the room. [96] Former Solicitor had exhibited the sealed order of the 2021 Sessions Court Decision. The total liquidated damages awarded, excluding interests, sums up to RM145,496.00. If a 20% cut is taken by the Former Solicitor, the Former Solicitor will take home about RM29,099.20 (I will term it as the “Ideal Rate” for convenience). This is already higher than the figure in respect of Taxation with Higher LA Fee and even Taxation with Lower LA Fee. No matter how one is to look at it, whether if one is to take the Taxation with Higher LA Fee (i.e. RM23,705.36) or Taxation with Lower LA Fee (i.e. RM26,705.36), it cannot be said that they are unreasonable for they are already lower than the Ideal Rate. [97] Even if one is to take the 20% take-home sum of the Former Solicitor to be inclusive of both legal fees and disbursements, the Ideal Rate of RM29,099.20 after deducting disbursements for, say, RM2,000.00 (making the balance thereof to be RM27,099.20), will still be higher than Taxation with Lower LA Fee (i.e. RM23,705.36) and Taxation with Lower LA Fee (i.e. RM26,705.36). With what the Former Solicitor had imposed after taking into account the fees for the LA Application already lower than both scenarios, I find it hard to conclude that the fees imposed are unreasonable. [98] With the aforesaid I do not see any necessity to determine the reasonableness in the event the cut taken by the Former Solicitor is 30% of the total judgement sum. The observation that one can make is that with the fees that the Former Solicitor after taking into consideration the prevailing market rate, so to speak, to be already higher than what the Former Solicitor had charged in the Fresh Bill of Costs, I fail to see how the amount stated therein is unreasonable (except for one matter which I will touch later). [99] The aforementioned approach of finding the cost imposed on the Fresh Bill of Costs to be reasonable on the ground that the Former Solicitor, while being entitled to ask for more, had instead settled for a lesser fee, is not one which is alien in the field of taxation. His Lordship Quay Chew Soon J in the case of Saw Woei Chin (Wasi Harta Pusaka Saw Chin Huat, Si Mati) v Lim Seang Lee (Beramal di bawah Nama dan Gaya Tetuan Lim Seang Lee & Associates) [2023] 8 CLJ 966, HC had the occasion to say: [49] The sheer length of time spent on attending to the matter and the labour involved must be considered in arriving at the fee assessed. Based on the estimated time cost as set out above, the total billable fees are: (i) RM1,320,000 + (b) RM38,000 + RM2,250 = RM1,360,250. I understand that these figures are rough estimates and purely illustrative. But they do bring home the point that the fees of RM735,166.72 claimed by the receiving party are not unreasonable nor unfair, when viewed in the light of total billable fees. (emphasis mine) [100] Learned counsel for the Client’s attempt to understate the value to be attached to the Former Solicitor’s work, by relying on the case of Giga Engineering (supra) and Canopee Investment Pte. Ltd. & Ors v Landmarks Holdings Bhd. & Ors. [1990] 1 MLJ 292, HC in making the impression that “running down actions could be considered to be the simplest of cases” is to no avail. Mere citation of case laws is insufficient to disprove the reasonableness of the costs incurred under the head of the LA Application, 2019 Suit and the 2021 Suit which I think the Former Solicitor had successfully established (but for one matter which will be elaborated later), since every matter must be treated with its peculiar context. [101] Before moving on to the next issue there is one thing that I wish to touch upon. I am aware that Hamid Sultan Abu Backer J (as his Lordship then was) in Alex Ting Kuang Kuo v Credit Corporation (M) Sdn Bhd [2012] 9 CLJ 352 suggested that in taxing of solicitor-client costs, the Court should first determine what the costs would be in costs ordered on a party-to-party basis, and thereafter based upon the foregoing to determine the costs payable for the getting up. His Lordship appeared to have accepted that solicitor and client costs typically does not exceed double of what the parties should initially entitled to in a party and party costs (see sub-para [13](b) row F – G, (e) and (f)). The learned Judge further relied on Canopee Investment (supra) in that a taxing officer may rely on the scale costs for the subordinate court in order to ascertain the party-to-party costs of a particular matter. [102] If that can be the case, the Former Solicitor should not be entitled for more than RM16,150.00 for the conduct of the 2021 Suit. This is because party-to-party costs awarded at the end of 2021 Suit is merely RM8,075.00 (the sum of RM1,625 being the suing cost and RM6,450 being the advocacy cost) based on the sealed order of the 2021 Sessions Court Decision. This particular figure of RM8,075.00 is obviously based on the scale fee or scale costs stated in O. 59, r. 23 of the Rules of Court 2012. [103] With the greatest respect to the learned Judge, I have to say that his Lordship in Alex Ting (supra) in making such a finding had failed to take into account Union Insurance Malaysia (supra). This rendered lesser weight on the authority or reliability of Alex Ting (supra). [104] Syed Ahmad Helmy J (as his Lordship then was) had in Union Insurance Malaysia (supra) found that: The guiding principle aforesaid essentially means that if a case involves a dispute over RM100 million, the costs awarded to the successful party cannot be calculated as say 5% of the sum in dispute which would be RM5 million! The principle, however, does not end just there. The principle must also, as a matter of course, conversely mean that if the sum in dispute is small, the costs awarded need not necessarily be minimal. To illustrate an example, if an appeal is made to the High Court against the decision of a magistrate where the sum involved is only RM11,000, this does not mean that the costs allowed for the appeal in the High Court should only be restricted to say 5% or 10% of the claim awarded. This is so because taxation of costs does not solely depend on the quantum of the claim or the amount of damages recovered in a particular case. The sum involved is only a factor which has to be taken into consideration with other factors as encapsulated in O. 59 Appendix 1 Part X para. (2) of the Rules of the High Court 1980. … An analysis of the decision would undoubtedly reveal that, VC George J in Canopee Investment’s case made two generalisations in arriving at the decision. Firstly, he ruled that the registrar in exercising his discretion in taxing costs should, as a starting point, consider the fixed scale of costs under O. 48 r. 12 of the Subordinate Courts Rules 1980. This conclusion in my view and with the utmost of respect to the learned judge is totally erroneous, flawed and unfounded and I say so for the following reason:

The principles applicable in the process of taxation for a matter conducted in the High Court is enshrined in O. 59 Appendix 1 Part X para. (2) of the Rules of the High Court 1980 and not in the Subordinate Courts Rules 1980. It is patently clear that the Subordinate Courts Rules cannot be applied for matters conducted in the High Court. If the intention of the Rules Committee was for the taxing officer to have regard to the fixed scale of costs provided for cases handled in the subordinate courts, they could very well have expressly stated so in O. 59. In the absence of any such expression of the Rules Committee's intention, the court cannot of its own motion re-write the legal position and propound that the lower courts scale should be considered when taxing the costs for a superior court matter;

The Rules of the High Court 1980 gives the taxing officer a discretion when fixing costs for a matter, which is unlike the Subordinate Courts Rules 1980 which provides a fixed scale that must be followed by the registrar of the Subordinate Courts. From this, it becomes abundantly clear that the Rules of the High Court and the Subordinate Courts Rules are entirely dissimilar and inconsistent in that the former does not provide a fixed scale of costs to be awarded for pursuing a claim. If the taxing officer is required to commence the process of taxation with reference to the fixed scale of costs in the Subordinate Courts Rules, the inevitable result would be that the Registrar of the High Court loses the discretion granted to the taxing officer by the Rules of the High Court; and

The taxation of costs in the High Court does not correlate to the amount in dispute or the amount of damages awarded as decided in the cases of Ketua Pengarah Hasil Dalam Negeri v. Damansara Jaya Sdn Bhd[1999] 7 CLJ 481and Pang Kok v. Leong Fock Hap & Anor[1997] 1 CLJ Supp 232. The fixed scale provided for by the Subordinate Courts Rules, conversely, is directly proportional to the size of the claim. VC George J himself, in addressing the scale of costs in the Subordinate Courts Rules, states that it is 'in proportion to the quantum of the subject matter of the action'. This evidently is contrary to the principles of taxation applied when taxing matters conducted in the High Court. (emphasis mine) [105] Although Syed Ahmad Helmy J (as his Lordship then was) in Union Insurance Malaysia (supra) made the above findings in the context of criticising the approach taken in Canopee Investment (supra) by first identifying the scale fee in the subordinate court and then add it up proportionately to meet the value of the subject matter in the High Court in order to determine the applicable costs, I find it hard to disagree with the proposition of his Lordship that, should Rules Committee intended the scale fee applicable in subordinate court’s matter to be equally applicable to taxing officer exercising power under O. 59, r. 17(2) of the Rules of Court 2012, it would have stated so in clear wordings. The word “all” in the said r. 17(2) would not be drafted in such an unqualified manner. Other considerations would have been included in the said r. 17(2) rather than merely the two matters i.e. the reasonableness of the amount and the reasonableness of the incurrence of amount. [106] At any rate, reading Alex Ting (supra) as a whole, I understand the methodology of taxation as identified by the learned Judge is a mere guideline in that the taxing officer is not plucking figures from the air. The approach taken by Alex Ting (supra) if being applied in a more extreme manner, say, not more than 1.5 times of the applicable scale fee (this is a calculation method found in Golden Star (supra) at para [36], when the Federal Court referred to the English case of Quartz Hill Gold Mining v Eyre (1883) 11 QBD 674, although strictly speaking Golden Star (supra) is not the authority for taxation of solicitor-client bill of costs), the fee the Former Solicitor is entitled to charge will be far lesser. I do not think the learned Judge intended the formula his Lordship employed in Alex Ting (supra) to be applied universally, without regard to the circumstances of each case. I therefore do not intend to tax the Fresh Bill of Costs based on the methodology introduced by the learned Judge in Alex Ting (supra). [107] Now on the issue which I have stated above that I will touch. It is on the cost of Warrant to Act and retainer fee (the Former Solicitor termed it as “open file” fee (kos membuka fail)) which the Former Solicitor stated in Perbelanjaan hangus/sendiri (B). They sum up to RM200.00. I observed that based on Form 117 of the Rules of Court 2012, item No. 2 entitled “Out of Pocket Expenses (B)” merely stated items which are merely expenditures. It made no mention of the Warrant to Act or the kos membuka fail. [108] Warrant to Act or the kos membuka fail are for me, aptly fall under the item of “Taking instructions from client for the hearing” under the Penyediaan (A) division. The justification of the Former Solicitor in separating Warrant to Act or the kos membuka fail and charge them under Perbelanjaan hangus/sendiri (B) is wanting. I am not able by any imagination comprehend the reason behind it. [109] After all, the Legal Profession Conditional Fee (Personal Injury) Rules proposed by the Bar Council had provided that a minimum retainer fee be imposed separately. It appeared to be part of the legal fees chargeable for running down matters, placed under a different head, to “bypass” the prohibitory wordings of s. 112(1)(b) of the LPA 1976 (see the explanation in Bar Council Circular No. 184/2010 dated 01.07.2010). [110] I am not saying the Former Solicitor is doing what envisaged in the above Bar Council Circular. But the Warrant to Act or the kos membuka fail in the sum of RM200.00 appeared to be part of the legal fees, and they should not be “double charged”, so to speak, under a different heading. In light that they have been included in Perbelanjaan hangus/sendiri (B), I taxed off the said amount from the fees imposed for the 2019 Suit, LA Application and 2021 Suit. I too taxed off the amount of RM5.36 because it was awkwardly being included and I am unable to comprehend the reasonableness in it. [111] In the upshot, for the 2019 Suit, the LA Application and 2021 Suit, I taxed off a total of RM205.36 and allowed only RM30,500.00.

(B) the Stay Application [112] The Former Solicitor charged a fee of RM3,000.00 under this heading. [113] The Former Solicitor elaborated in its written submission that it was instructed to object to the Stay Application and have filed affidavit in reply for that purpose. [114] As mentioned earlier, the Stay Application was filed after the 2021 Sessions Court Decision, pending the disposal of the HC Appeal. Based on the notice of application for the Stay Application, the defendants in the 2021 Suit had proposed an alternative solution in that the Former Solicitor is to hold 70% of the judgement sum and release only 30% to the Client. [115] I have to mention that issues arising out of Stay Application pending the disposal of an appeal are mostly over legal questions. The affidavit in reply to the Stay Application corroborated the foregoing sentence. The principles applicable to Stay Application are trite. It is only on how the case was presented and at any rate, they are usually on the discretion of the presiding judge hearing the application, and not so much on the skill and expertise of the solicitors concerned. This is an application which we could see everyday and it is certainly not unusual. [116] At any rate, the Stay Application was eventually being withdrawn with both parties agreeing that the Former Solicitor to hold 50% of the judgement sum instead of the initially prayed 70%. This is made possible of not only the effort of the Former Solicitor but also the willingness of both parties. The holding of 50% is also beneficial for the interest of the Former Solicitor in that there had already been advancement being made to the Client in the amount of RM10,000.00, and the Former Solicitor is able to make deduction from the fees it held as stakeholder, as could be seen in the 2023 Invoice. This is a factor which I thought relevant in that the Client cannot be asked to pay for something which the Former Solicitor somehow enjoyed certain benefit of it. It would have been different if the Stay Application was withdrawn unconditionally in that the Client will be released 100% of the judgement sum. [117] I therefore made only allowance on the works done by the Former Solicitor in the preparation of the affidavit in reply to the Stay Application and the effort of initiating a negotiation – and also being successful in that both parties got what they want. [118] The cost on this Stay Application is therefore being allowed on only RM1,000.00.

(C) the HC Appeal [119] The Former Solicitor imposed a fee of RM15,000.00 for the HC Appeal. [120] I wish to state at the outset that I do not think it is unreasonable for the Former Solicitor to impose a separate fees for the HC Appeal, and also the Stay Application. After all, as much as they appeared to be in furtherance of the 2021 Suit, they are certainly distinctive of each other and are governed by different principles. [121] Back to the HC Appeal. It is pertinent to reiterate that the conduct of the HC Appeal was eventually being taken over by Messrs. Kiranjit Randhawa & Co, advocates and solicitors. This was however done 2 days before the date fixed for the hearing of the HC Appeal. Works required to be done for the HC Appeal was, more probable than not, being completed at that juncture. The only matter that’s left at that moment is for the counsel to submit orally before the Honourable High Court Judge presiding the HC Appeal. It is therefore not equitable for the Client to assert that the Former Solicitor should only be entitled a discounted fee for what the Former Solicitor had done on the reason that it had been discharged. The Client must take the responsibility and also to bear the risk that must necessarily follow in engaging a different set of solicitors in the eleventh hour. [122] I must express my concern in that it is not unusual in this country for a client to decide to drop his solicitor on record half way when the work was almost complete. If the Client is allowed to switch counsel in the situation where work was nearly completed, as what transpired in this case, without the repercussion of having to pay to the Former Solicitor at least 80%, if not all, the fees the Client may have to pay if the change of solicitor did not occur, then I may find myself endorsing and encouraging the action of switching solicitors at the whims of the client concerned. [123] In other words, I am of the view that the Former Solicitor should be entitled to costs as if the change of solicitor did not occur, subject to deduction being made on the costs incurred for the Former Solicitor to appear in person and submitting orally. I am of the view that this particular condition must be taken into account as there are vast difference between (a) preparing for oral submissions; and (b) the actual oral submissions. One may be well prepared but fumbled during the actual hearing. It may also be the case where the solicitor concerned is not able to answer questions posed by the Judge presiding the appeal or the hearing. [124] As I am prepared to tax the Fresh Bill of Costs in respect of HC Appeal based on the aforesaid, I do not think it is necessary to consider the difference between the written submission prepared by the Former Solicitor and that which was prepared by the Client’s new solicitor. The effect is the same in that it makes no difference whether the Former Solicitor had been discharged or otherwise. [125] Now on the issue of taxation. Based on my experience, if any given case proceeded to the appellate stage at the High Court and was handled towards the end of the appeal by the same solicitor having the conduct of the case in the subordinate court, fees will typically be charged within the range of RM8,000.00 to RM12,000.00. The fees vary depending on the complexity of the issues raised but it is not illogical to conclude that more often than not, engaging a different set of solicitors to conduct an appeal will cost at least 50% more than the situation were the same set of solicitors is being engaged. [126] It is therefore apposite to have a look at the issues to be dealt with at the HC Appeal. I have had the occasion to peruse the Memorandum of Appeal filed by the defendants in the Sessions Court and appellant at the HC Appeal. The grounds complained of are, briefly:

on the failure of the learned Sessions Court Judge to properly appreciate the evidence and demeanour of witnesses before her, including the failure to appreciate the result of “Refer to Magistrate” of the Investigation Officer concerned. Complaints of these sort are mostly question of fact and the principles surrounding the admission of them by the learned Sessions Court

(ii) appeal against the quantum in respect of the failure of the learned Sessions Court Judge to make deduction for pain and suffering and living expenses albeit the Client’s Son had only survived for 2 years after the Road Accident, among other issues relating to assessment of damages. This concerns question of law. [127] I then proceeded to analyse the Sessions Court Judge’s grounds of judgement. I find that the issues mentioned in the Memorandum of Appeal were that which have been ventilated before the Sessions Court Judge. In dealing with the issue of quantum of damages which I identify as a question of law above, the learned Sessions Court Judge had the occasion to rely on plethora of authorities concerning the issues raised. This is indicative of the proposition that the law behind the issue raised had been dealt with by other Courts and therefore, certainly, cannot be treated as something “novel”. It is also not necessary the case that the research and submission done on such issue must be “extensive”, as the Former Solicitor wanted the HC Appeal appeared to be in my eyes. [128] With the aforesaid, I venture to say that submissions before the High Court should be relatively effortless despite it takes up to 132 pages as the Former Solicitor argued. Long winded submissions do not necessary mean that the case is complex. It may be indicative that the solicitor concerned is not able to articulate or submit in a more effective way, but I am not prepared to go to that extent and I have to make it clear that I am by no means affected by this particular statement in the taxation of the costs payable in terms of the HC Appeal. [129] I too observed that the Former Solicitor did not provide any further explanation or elaboration as to how the hearing at the HC Appeal will be such that it requires all works done and foundation laid during the hearing before Sessions Court to have to be re-established or reconstructed, so to speak. [130] I find that the Former Solicitor had associated the senior counsel, Dato’ Geethan Ram with each and every works done under the head of HC Appeal. This appeared to be the justification behind the charging of RM15,000.00 for the HC Appeal. While that may be the case, I have to state my observation that there is nothing before me which indicate that it is the Client’s intention that she must be represented by Dato’ Geethan Ram in the HC Appeal. Rather, I see it as being a matter which the Former Solicitor had taken on its own volition. The Client cannot be billed for something which the Former Solicitor had on its own volition done, because it is not something which is not reasonable in any given case, that the solicitors appointed be expected to provide the best service it is able to offer. In other words, the Former Solicitor, if it really relied on Dato’ Geethan Ram in the HC Appeal, is just doing what it is expected to do. It cannot by any means be taken that the Client must automatically be liable to pay for a higher fee. The Client cannot be placed in a situation where she has to incur more cost, unnecessarily. [131] On the aspect of feasibility, the Notes of Proceedings of the 2021 Suit reveal that the whole trial was conducted by the senior associate of the Former Solicitor, Ms. Lavanyia Raja. She is therefore the person more acquainted with the facts of the Road Accident and the trial compared to Dato’ Geethan Ram even though Dato’ Geethan Ram is more seasoned and experienced member of the Bar. If Ms. Lavanyia Raja is able to conduct trial, and she has done so fully on her own, she should be equally capable of conducting an appeal which resulted from such trial. [132] Therefore, Ms. Lavanyia Raja should be expected to conduct the HC Appeal no matter one is to look into the economical aspect or even the practical aspect in the disposal of the HC Appeal. This is not an unreasonable expectation. Even High Court Judges who heard the matter before them are expected to conduct the assessment of damages themselves (see the Pekeliling Hakim Besar Malaya Bil. 2/2021 (Circular of Chief Judge of Malaya No. 2/2021) dated 30.03.2021) on the reason that their Lordships are the better candidate since their Lordships heard the trial. I do not see how this principle cannot be equally applied to how solicitors may conduct their case. [133] The participation of Dato’ Geethan Ram is in my opinion, quite unnecessary. The Former Solicitor in opting to get the involvement of Dato’ Geethan Ram, especially in the light that there is no material before me indicating that it was a special request of the Client, must therefore bear the relevant costs and expenses associated with it. [134] Other than that, as alluded earlier, the range of fees imposed by the same set of solicitors having conduct in trial for the appeal of such trial is between RM8,000.00 and RM12,000.00. I too find that distinction must necessarily be made between works done in preparation of the hearing and the works done in the actual hearing itself for the non-exhaustive scenarios which I have mentioned above. This too must be accounted in the final fees imposed by the Former Solicitor in respect of the HC Appeal. [135] I therefore taxed off an amount of RM5,000.00 and allowed only the amount of RM10,000.00 being fees imposed for the HC Appeal. I pause to state that the fact that the learned High Court Judge in the HC Appeal awarded RM10,000.00 to the Client who succeed should not have bearing upon the instant taxation. The learned High Court Judge may have ordered so on a different consideration. It should be looked in isolation to the considerations of the instant taxation, therefore I find it quite prejudicial to the Client for me to based my taxation upon such Order. Analysis on the Fresh Bill of Costs - Perbelanjaan hangus/sendiri (B) [136] The Former Solicitor imposed an amount of RM14,382.00 under this heading. I find them not to be inherently unreasonable. I therefore allowed the whole of it. [137] There is one point which I would like to mention. In his written submission, learned counsel for the Client argued that the Former Solicitor had failed to adduce any evidence proving each and every expenditure it had mentioned in Perbelanjaan hangus/sendiri (B). It was contended that there is no receipt being exhibited. It was also argued that no supporting document was ever produced by the Former Solicitor to substantiate the other items mentioned in the Perbelanjaan hangus/sendiri (B). [138] Relying on s. 101 of the Evidence Act 1950 and the case of Tenaga Nasional Berhad v Perwaja Steel Sdn Bhd [1995] 4 CLJ 670, learned counsel for the Client submitted that nothing should be allowed under this heading. I have to mention that during the course of oral submissions, learned counsel appeared to have accepted expenditures incurred in the filing of cause papers, and confine its contention to the other costs such as costs for medical and specialist report, as well as telecommunication, printing, postage and stationary fees. Learned counsel also disputed the authenticity of the advancement of RM10,000.00. [139] I wish to state at the outset that Tenaga Nasional Berhad (supra) is of no relevance to taxation and thereof does not assist the Court in dealing with this issue. The issue at hand should be the applicability of s. 124(3) of the LPA 1976 in respect of the Fresh Bill of Costs which the learned counsel for the Client had failed to address. The said subsection (3) reads: 124 Prohibition to sue for costs until delivery of bill of costs

…

…

Where a bill of costs has been delivered in accordance with subsection (1), the bill of costs shall be presumed to be a bill of costs bona fide complying with this Act until the contrary is proven. [140] The above provision accords the Fresh Bill of Costs issued by the Former Solicitor a special status such that the contents thereof be presumed bona fide unless the contrary is proven by the Client. Hamid Sultan Abu Backer JCA had the occasion to analyse s. 124(3) of the LPA 1976 in S. P. Veloo (supra) where his Lordship said: [22] As we have stated earlier that a solicitor's bill of costs has special protection by statute and section 124 gives the protection. It does not require the solicitor to prove the contents and it shall be presumed until the contrary is shown a bill bona fide complying with this Act. The emphasis is 'bona fide '. If the bill is established to be not bona fide then the court's role to intervene is not ousted. There appears to be no cases directly on point related to the factual matrix of this case so far on the meaning of 'bona fide '. A grossly unconscionable or unreasonable bill may attract the jurisprudence of bona fide. In cases where it can be shown that the solicitor had done contentious work without fees agreement and the charges are excessive or exorbitant sum for the work a case can be made out provided there is evidence given by senior litigation solicitors on that issue, etc. and there can also be a subsequent complaint for misconduct before the Disciplinary Board. That is to say, though the LPA 1976 gives protection to solicitors in respect of bills unlike other profession, misconduct on issues of excessive or exorbitant bill can be a subject matter of complaint sufficient to protect the client. Thus, the LPA 1976 on the issue of bills protect the lawyers and has also a mechanism to protect the clients. This may not be the case in other professions. (emphasis mine) [141] I note that s. 124 of the LPA 1976 relates to the requirement of a solicitor to deliver bill of costs as a condition precedent to the commencement of action for recovery of costs. It precedes s. 126 of the LPA 1976 which relates to an order for a bill of costs to be taxed. [142] Notwithstanding the foregoing observation, I could not see how s. 124(3) of the LPA 1976 cannot be equally applied to the Fresh Bill of Costs which was prepared in contemplation of the instant taxation. The Fresh Bill of Costs, no matter how one is to look at it, was a bill of costs issued by a practicing solicitor. It was delivered so that the Client be expected to pay for the charges. At any event, as examined earlier, the Fresh Bill of Costs complements with the Previous Invoices and it will be unreasonable to hold the view that the Fresh Bill of Costs was issued mala fide. [143] The case of Saw Woei Chin (supra) relates to an appeal following taxation by the senior assistant registrar over the bill of costs prepared in Form 117 (see para [2]). s. 124(3) was nonetheless applied by the learned High Court Judge on the said bill of costs. His Lordship Quay Chew Soon J found that: [64] Firstly, a distinction must be drawn between: (i) the burden of proving the bona fide of the bill of costs, and (ii) the burden of proving the reasonableness and fairness of the bill of costs. … … [66] Thirdly, in respect of proving the contents of a bill of costs, the law is clear that once a solicitor has delivered the bill of costs to the client, the contents are presumed to be bona fide and there is no necessity to prove its contents. In the present case, the receiving party's bill of costs dated 8 March 2023 has been delivered to the paying party through his solicitors, as requested by the paying party. (emphasis mine) [144] Back to the issue at hand, I find that what the Client has really done is to dispute the authenticity of the contents of the Fresh Bill of Costs. In other words, she took the position that the Former Solicitor must do more than just stating the amount in the Fresh Bill of Costs. The Client did not exhibit any document or even bring my attention to any cause papers that were on record so as to cast even an iota of suspicion on the veracity of the contents of the Fresh Bill of Costs. [145] The course taken by the Client is flimsy. She had disregarded the issue that the onus is really upon her under s. 124(3) of the LPA 1976 if she wants to challenge the authenticity or the veracity of the contents of the Fresh Bill of Costs. Only in the circumstances where the Client successfully discharge her burden in proving the contrary, the item can be stripped off its protection layer, so to speak. [146] As long as this was not done, the Client cannot do more than to challenge the reasonableness of the amount imposed, or the reasonableness of the incurrence of costs. Even this was not done by the Client. She did not argue the reasonableness of each particular charge imposed under Perbelanjaan hangus/sendiri (B), or that the said particular charge was being unreasonably incurred. The Client did not even attempt to – not even in its written submission – dispute that the recovery of the advancement of RM10,000.00 by the Former Solicitor through the Fresh Bill of Costs is unreasonable. [147] On my part, I find the disbursement incurred are reasonable. They are indeed required in the advancement of all the Five Major Works or for matters which are incidental thereto. I pause to note that, as could be seen from the minutes of the 2021 Suit as well as the grounds of the learned Sessions Court Judge, the Former Solicitor had even contemplated – and certainly with the instruction of the Client, for it must be an accepted norm that an advocate and solicitor cannot act without the instruction of the Client – the possibility of getting a lower limb prosthesis (see para [109] of the Sessions Court Judge’s grounds in the 2021 Suit – accessible via the e-Filing system of the HC Appeal, in encl. 5, p. 40) even though the Client’s Son did not opt for it eventually since he passed away later. This added credence to the reasonableness of the incurrence of fees for specialist report and quotation for the lower limb prosthesis. [148] On the issue of court attendance, I have to admit that my initial impression is that they are part and parcel of the legal fee and should be included under Penyediaan

(A). However, upon scrutiny, the first division i.e. “Getting Up (A)” in Form 117 of the Rules of Court 2012 did not have any item specifically related to attendance in court. Attendance in court being charged separately appeared to be the accepted practice within the legal fraternity. Her Ladyship Khadijah Idris JC (now J) in Lim Kien Seng & Anor v Lim Kai Hee & Ors [2019] MLJU 625, HC allowed RM700.00 per session in terms of attendance in Court incurred in the 2010s. The Former Solicitor during the hearing confirmed that each of the attendance it charged RM30.00. The amount is not at all unreasonable. I therefore allow the costs the Former Solicitor charged for its attendance in court. [149] I therefore allowed the costs incurred in Perbelanjaan hangus/sendiri (B) in full without any deduction. I would like to reiterate that I have made the necessary adjustment in respect of the Warrant to Act and the kos membuka fail charged under this head, by deducting the same amount of RM200.00 in fees imposed for the 2019 Suit, LA Application and the 2021 Suit. I therefore do not disturb the amount of RM200.00 imposed under this Perbelanjaan hangus/sendiri (B). Interest [150] Learned counsel for the Former Solicitor asked for interest to be imposed on the outstanding legal fees, at the rate of 5%, calculated from December 2023. I am not exactly sure why it must commence from December 2023, but from the Affidavit in Support, the 2023 Invoice was dated 18.12.2023. The Former Solicitor appeared to be attempting to impose interest from the date of delivery of the bill. [151] Learned counsel relied on s. 133 of the LPA 1976 which reads: 133 Registrar may allow interest on money disbursed by counsel The Registrar may allow interest at any rate and from any time as he thinks fair and reasonable on moneys disbursed by an advocate and solicitor for his client, and on moneys of the client in the hands of the advocate and solicitor and improperly retained by him. [152] Reading s. 133 of the LPA 1976 on the face of it will show that, for the purpose of instant taxation, interest may be imposed on moneys disbursed by an advocate and solicitor. The only items stated in the Fresh Bill of Costs which fall under this category appeared to be the moneys advancement in the total of RM10,000.00 given to the Client. I do not think s. 133 of the LPA 1976 could extend to legal fees other than that which was disbursed by the Former Solicitor out of his own pocket. [153] In any event, I understand that what I am doing now is to tax the Fresh Bill of Costs. It is not a suit in determining the final rights of the parties. Taxed Fresh Bill of Costs will have to be finalised by a certificate of registrar, and a judgement must be entered against sum so certified under s. 135 of the LPA 1976. So long as judgement is never entered for the sum so certified, I do not think that I have the jurisdiction to impose interest on the total legal fees. For ease of reference, s. of the LPA 1976 stated that: 135 Certificate of taxing officer final The certificate of the Registrar by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered by such certificate, and the Court may make any order in relation to the certificate it considers fair and reasonable, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs. [154] Learned counsel then reproduced the headnote of the United Malayan Banking (supra) case in support of her proposition. It was again being cited in passing. No further elaboration whatsoever was accorded. However, a closer reading of the case of United Malayan Banking (supra) will reveal that Edgar Joseph Jr J (as his Lordship then was) granted interest on moneys which were in fact disbursed by the solicitors concerned to finance the client’s litigation: And, indeed, under s. 133 of our Legal Profession Act 1976, taxing solicitors are entitled to request the Court to allow interest on disbursements advanced on the overdraft rate which the taxing solicitors have in fact to bear. It was pointed out by Counsel for the taxing solicitors, without challenge, that the contemporary correspondence indicated that taxing solicitors had in fact financed the clients' litigation relying on an overdraft account for this purpose. … And as already noted, taxing solicitors had in fact financed the clients' litigation relying on an overdraft account. Accordingly, reason and justice point to the conclusion that taxing solicitors should be awarded interest on the disbursements and costs incurred by them on behalf of the clients. [155] Reverting to the matter at hand, I do not think by simply having an outstanding legal fee would mean that the Former Solicitor had financed the Client’s litigation. It connotes something more i.e. moneys which are not conditional upon works done or services provided, but are rather disbursed or forked out in the contemplation that the moneys will unequivocally be returned by the Client. Only moneys of such nature are what I think I am entitled to impose interest pursuant to s. 133 of the LPA 1976. [156] Reading the Fresh Bill of Costs, moneys which fall under the abovesaid category is the advanced money amounting to RM10,000.00. The issue now is should I exercise my discretion to impose interest on such amount? [157] As observed earlier, Former Solicitor intended interest to run from the date of delivery of the 2023 Invoice. The first page of the 2023 Invoice as already explained above, indicates quite clearly that at the time the 2023 Invoice was issued, there had already some money being held by the Former Solicitor as stakeholder. The money so held is sufficient to account for the whole legal fees imposed by the Former Solicitor, let alone the amount of RM10,000.00. After deduction the whole legal fees, there are still some balances releasable to the Client. [158] I could not overlook the possibility of the Former Solicitor to deposit the sum it held as stakeholder with fixed deposit earning interest over it. After all, Courts are consistent that moneys held by a stakeholder lawyer need not be accounted for any interest and the stakeholder lawyer is entitled to keep it if there were interest. He is not required to pay it to the client unless the moneys are the “client’s money”, and not “stakeholder money”, so to speak. I find the following citation by the Supreme Court in Toh Theam Hock v Kemajuan Perwira Management Corp. Sdn. Bhd. [1987] 2 CLJ 26, SC rather interesting. It was highlighted by the late Hashim Yeop Sani SCJ (as his Lordship then was) that: The view that the appellant cannot be held accountable for the interest would also seem to be consistent with the notes on r. 2 of the Solicitors' Accounts Rules 1967 shown to us by Mr. Lim Kean Chye where the following appears: Stakeholders Although r. 2 of the Solicitors' Accounts Rules, 1967, lays down that for the purpose of those Rules money held by a solicitor as stakeholder is "client's money" and must be paid into a client account, in the Council's opinion (which is supported by the advice of Leading Counsel) when a solicitor holds money as a stakeholder the stake money does not belong to any specific client until the happening of the deciding event, and the solicitor can keep any interest earned thereon. Neither s. 8 of the Solicitors Act, 1965, nor the Solicitors' Accounts (Deposit Interest) Rules, 1965, apply to it. (emphasis mine) (see also: Kuan Shin v Ng Aik Kee & Ors [2018] 8 CLJ 566, HC) [159] I am not implying that the Former Solicitor should deposit the stakeholder money into a Fixed Deposit account in return for interest. The point I wished to make is simply this: if the Former Solicitor think that he is entitled to interest over the RM10,000.00, he can do so by depositing the money into a Fixed Deposit account. The money is with the Former Solicitor anyway. It is not that the Former Solicitor could use the money it held as stakeholder for its own benefit, but depositing the money into a Fixed Deposit account – which is known for having very low risk for some return which is certain – is not something which is illogical or unlawful. I venture to say that the risk are the same if the moneys were not deposited in the Fixed Deposit account – such that the relevant bank still hold the money – now in the Savings account which returns almost negligible interests. It is therefore not logical to say that moneys deposited in a Fixed Deposit account be considered as the solicitor concerned having used the money for his own benefit. [160] At any rate, whether or not the Former Solicitor had deposited the moneys received in a Fixed Deposit account or otherwise, I do not think it is equitable for the Client to be liable for any interest for the money advanced amounting to RM10,000.00, because the moneys were already in the possession of the Former Solicitor and the Client is not in any position to use them. [161] I therefore refused to exercise my discretion in granting interest under s. 133 of the LPA 1976. Costs of Taxation [162] Now on the issue of costs following the taxation of the Fresh Bill of Costs. [163] s. 134(1) of the LPA 1976 stipulated the different scenario on how costs at the end of taxation proceedings be paid: 134 Costs of order of taxation payable by solicitor

In case any order for taxation is made upon the application of the party chargeable or liable, or of the advocate and solicitor, the costs of the order and taxation, except when the order has been made after the expiration of one year, shall be paid according to the event of such taxation –

if the bill when taxed is less by a sixth part than the bill delivered, then the solicitor shall pay the costs;

if the bill when taxed is not less by a sixth part, then the party chargeable or liable, if the application is made by him, or if he attends the taxation, shall pay the costs. [164] As mentioned earlier, I have taxed off a total of RM7,205.36 from the Fresh Bill of Costs. The balance thereof is more than “one-sixth” of the initial fees imposed. Therefore, by virtue of paragraph (b) above, the costs for the taxation must be borne by the Client. [165] Having considered the effort and work the learned counsel for the Former Solicitor had put into leading to the disposal of the instant taxation proceedings, it is my considered opinion that costs on a party-to-party basis, in the amount of RM1,000.00 is fair and reasonable. The Client is hereby ordered to pay the said costs of RM1,000.00 to the Former Solicitor. Conclusion and Postlude [166] Before concluding, I wish to state that I am aware of the proposition of law found by his Lordship Tee Geok Hock J in Sin Yeap Holdings (supra) in that fees for different matters are not to be lumped up in a single bill of costs. I however do not think that the principle applies here in the taxation of the Fresh Bill of Costs because, unlike Sin Yeap Holdings (supra), there are no non-contentious matters in the Fresh Bill of Costs. [167] In the upshot, the Fresh Bill of Costs is taxed as follow: No. Details Taxed Amount (RM) PENYEDIAAN (A) [GETTING UP (A)]

the 2019 Suit 30,500.00

the LA Application

the 2021 Suit

the Stay Application 1,000.00

the HC Appeal 10,000.00 sub-total 41,500.00 PERBELANJAAN HANGUS/SENDIRI (B) [OUT OF POCKET EXPENSES (B)] sub-total 14,382.00 Grand Total 55,882.00 Costs for Taxation 1,000.00 Interest for Fresh Bill of Costs not allowed [168] I wish to make it clear that in making the foregoing taxation, I have not deducted any costs paid or reimbursed by the insurance company insuring the Backhoe which the said insurance company paid in accordance with the order of the 2021 Sessions Court Decision or the order of the High Court in the HC Appeal (“Reimbursed Costs”). My duty here is only to tax the Fresh Bill of Costs. [169] That being the case, I wish to comment that the Client before making any payment or the Former Solicitor before making any formal demand of the taxed costs must account for the Reimbursed Costs and make necessary deduction therefrom if the same was already received by the Former Solicitor. This is so that the Former Solicitor do not being compensated twice for one work. [170] In my view, the Reimbursed Costs should be treated as reimbursing the Client for any legal fee she paid in conjunction with the 2021 Suit or the HC Appeal. In any event, the order of the Sessions Court or even the High Court in the HC Appeal are drawn up between the Client and the Backhoe Driver cum Backhoe Owner. Moneys paid pursuant to such orders, whether for costs or interest, are toward and for the benefit of the Client. It is by no means in derogation of the duty of the Client to pay legal fee, but if the Client was awarded costs, such costs should rightfully be used to set off against any legal fee she is liable to pay to her own solicitor i.e. the Former Solicitor. It should not be treated as “bonus” or “extra”, so to speak, for the benefit of the Former Solicitor. [170] In any event, I have to remind myself that I am merely a taxing officer and do not have any jurisdiction beyond the instant taxation proceeding such that the Former Solicitor be ordered to do what it should do in terms of the Reimbursed Costs – that matter falls in a wholly different realm and it has no bearing in the instant taxation proceeding. [171] The Client is required to file a Taxation Certificate pursuant to s. 135 of the LPA

Date: 10th June 2025 (HENRY HO YIT YAO) Senior Assistant Registrar High Court of Malaya Shah Alam Counsels:- For the Plaintiff:- Muhammad Ashrul Haikal bin Ashri of Messrs. Kiranjit Randhawa & Co Advocates & Solicitors Suit 718, 7th Floor Menara Mutiara Majestic, No. 15, Jalan Othman, Section 3, 46000 Petaling Jaya, Selangor Darul Ehsan. For the Defendant:- Lavanyia A/P Raja of Messrs. Geethan Ram Advocates & Solicitors Suite No. 5, L15-05, PJX Tower, No. 16A, Persiaran Barat, 46050 Petaling Jaya, Selangor Daeul Ehsan.