BILL OF CHARGES
The service of a
proper bill of charges on a client is a condition for recovery of fees from
client except where there is a valid agreement between the parties in respect
of payment of the fees.
This can be made
through the following –
FEES BY AGREEMENT
A legal
practitioner is entitled to make a written agreement with his client in respect
of any professional business done or to be done by him for a sum – SBN
Plc. v. Opanubi (2004) 15 NWLR 437. Such agreement should appear fair
and ought to be such that was not made under circumstances of suspicion of an
improper attempt by the solicitor to benefit himself at the client’s expense.
Such an
agreement is usually jealously regarded by the court and the tendency is to
lean in favour of the client and put the burden of justifying its propriety on
the legal practitioner. However, settlem,ent of a bill of costs between a
solicitor and a cl;ient upon a special agreement precludes an order being made,
upon application, for taxation. The agreement must first be set aside by action
before the matter of taxation can be re-opened. There will also be situations
where although no real contract can be founded on by the legal practitioner,
there might be quasi-contract or other circumstances giving rise to fees
claimed on a quantum meruit basis – Scarth
v. Rutland (1888) L.R.I.C.P 642; Claire v. Joseph (1902) 2 KB 369 at 376.
FEES THROUGH BILL OF CHARGES
The recovery of
a legal practitioner’s charges where it is necessary to rely on a bill of
charges is subject to sections 16 to 19 of the Legal Practitioners Act. By the
provisions of section 16(1) of the Act, a legal practitioner shall be entitled
to begin an action in court of competent juriosdiction. However, section 16(2)
provides that a legal practitioner shall not be entitled to begin an action to
recover his charges – Re Whitcombe (1844) 14 L.J Ch. 19.
Although the
general rule is that the legal practitioner is not entitled to begin an action
to recover his charges as provided in section 16(2)(b), however, section 16(3)
provides that in any case in which a legal practitioner satisfies the court on
an application made either ex parte or,
if the court so directs, after giving the prescribed notice.
APPLICATION BY CLIENT FOR BILL OF CHARGES
Section 16(4) of
the Legal Practitioners Act enables the client to apply for delivery of bills
to him. It provides that the court may, if it thinks fit, on the application of
the client –
(a)
Order a legal practitioner to deliver his bill
of charges to the client;
(b)
Make an order for the delivery up of, or
otherwise in relation to any documents in
the control of the legal practitioner which belong to or were received
by him from or on behalf of the client;
And
the court may punish for contempt any legal practitioner who refuses or fails to
comply with such an order.
RETAINERSHIP
Rule 43 of the Rules of Professional
Conduct has to do with retainer. It is a payment made to the legal practitioner by a client, and could be
general or special.
1. GENERAL RETAINER – This exists where a legal practitioner is instructed to handle all
problems in an area of law or on every area of law during an agreed period of
time. Under the general retainer, the
legal practitioner is precluded from accepting to advice in or appear in any
proceedings detrimental to the interest of the client paying the retainer
during that period.
2. SPECIAL RETAINER – This exists where the legal practitioner is instructed to handle a
single matter, for example, where a legal practitioner is instructed to represent
a client in a lease transaction to draft the lease agreement and obtain
Governor’s consent.
CHARGING FEES
A legal practitioner cannot charge
arbitrary fees, but only fees that are in the provisions of the law. The fees a
legal practitioner can charge are regulated by the Legal Practitioners Act,
1975 and the Rules of Professional Conduct.
The Legal Practitioners Remuneration
Committee is empowered by Section 15 of the Legal Practitioners Act, 1975 to
make orders regulating fees of legal practitioners. In furtherance of the power, the Committee
passed the Legal Practitioners (Remuneration for Legal Documentation and Other
Land Matters) Order 1991. The Order
contains remuneration of legal practitioners in land matters and other legal
documentation matters.
BILL OF CHARGES
The solicitor
must prepare a bill for the charges containing particulars of the principal
items included in the bill and signed by the solicitor (if it is a firm, by one
of the partners or in the name of the firm) – section 16(2)(a) of the Legal Practitioners Act.
There is no
specification on how the prepared bill of charges should look like, but it
should most likely be in the form of an invoice or statement containing the
charges, and must be signed by the solicitor preparing the bill.
The rule on
preparing detailed particulars of charges may be summarised as follows –
1.
A solicitor should endeavour to prepare a
detailed bill of charges with all the particulars of work done, cost, expenses
and disbursements.
2.
Where the bill of charges does not contain the
particulars, it should be objected to by the client otherwise he will be deemed
to have waived his right.
3.
Where the bill does not contain detailed
particulars and it is objected to, the court will hold that the bill does not
comply with the requirement of the Legal Practitioners Act, and cannot sustain
an action for recovery of professional charges.
The following
should constitute the particulars of the principal items of the bill of charges
–
1.
The bill of charges should be headed to reflect
the subject matter. If it is in respect of litigation; the court, the cause and
the parties should be stated.
2.
The bill of charges should contain all the
charges, fees and professional disbursements for which the legal practitioner
is making a claim. Professional disbursements include payments which are
necessarily made by the legal practitioner in pursuance of his professional
duty such as court fees, witness fees, etc, if paid by him.
3.
Charges and fees should be particularized, for
example –
a)
Perusing documents and giving professional
advice;
b)
Conducting necessary (specified) inquiries or
using a legal agent in another jurisdiction for a particular purpose;
c)
Drawing up the writ of summons and statement of
claim or defence;
d)
Number of attendances in court and the dates;
e)
Summarised statement of the work done in court,
indicating some peculiar difficult nature of the case (if any), so as to give
an insight to the client as to what he is being asked to pay for; and
f)
The standing of the solicitor at the bar in
terms of years of experience and/or rank with which he is invested in the
profession – Savannah Bank of Nig. Plc. v. Opanubi (2004) All FWLR (Pt. 222) 1587 at 1610.
4.
It is required to give sufficient information in
the bill to enable the client to obtain advice as to its taxation and for the
taxing officer to tax it. It is therefore necessary to indicate against each of
the particulars given in the bill of charges a specific amount, taking into
account the status and experience of the legal practitioner and the time and
efforts involved.
SERVICE OF BILL ON CLIENT
The bill of
charges must have been served on the client personally or left for the client
at his last known address or sent by post addressed to the client at his last
known address – section 16(2)(a) of the Legal
Practitioners Act.
The reason is to
give the client an opportunity to settle the bill of charges, if the charges
are unobjectionable.
There are three
(3) ways by which the service may be effected –
1.
By personal service. This means that the bill of
charges may be physically and personally handed to the client.
2.
By leaving it at the client’s last known
address. This address may be the last business or residential address known by
the client rather than being assumed.
3.
By post to the client’s last known address.
A PERIOD OF ONE MONTH MUST EXPIRE AFTER
DELIVERY
After delivery
of the bill to the client by whatever means mentioned above, the period of one
month beginning with the date of the delivery of the bill must expire before an
action is instituted to recover the charges.
One month in
this context does not mean thirty days or thirty-one days, rather it means a
calendar month. Section 18 of the
Interpretation Act states that ‘month’ means calendar month reckoned to the
Gregorian calendar. A calendar month is a complete month in the calendar and in
computing it; one must look at the present calendar rather than counting days.
A calendar month ends upon the same day in the next ensuing month having the same
number as that on which the computation began, that is, the corresponding day
in the next month. But if the next ensuing month has not the same number as
that on which the computation began, then the calendar month ends on the last
day of the next ensuing month, for example March 31 to April 30.
There are,
however, circumstances which may make the court reduce or lessen the period of
one month within which a solicitor is expected to wait after service of the
bill, before the commencement of the action against the client – section 16(3) of the Legal Practitioners
Act. These are –
1.
That the solicitor delivered a bill of charges
to the client;
2.
That on the face of it, the charges appear to be
proper in the circumstances; and
3.
That there are circumstances indicating that the
client is about to do some act which would probably prevent or delay the
payment to the legal practitioner of the charges.
The place of
institution of action is the State High Court. But it must be the High Court
where the legal practitioner in question usually carries on his practice or
usually resides or in which the client in question usually resides or has his
principal place of business or, in the case of a legal practitioner authorized
to practice by warrant, the High Court of the State in which the proceedings
specified in the application for the warrant were begun – section 19(1) of the Legal Practitioners Act.
A summary of the
above procedure is as follows –
1st step – The legal
practitioner prepares a bill of charges.
2nd step – The bill of
charges is signed by the legal practitioner (if it is a firm, by a one of the
partners or in the name of the firm).
3rd step – The bill of
charges must be served on the client personally or by post to his last known
address.
4th step – The legal
practitioner must wait for one month before proceeding to court.
5th step – Where the client
defaults in paying the fees, the legal practitioner takes writ against the
client at the High Court where the firm operates.
WHEN FEES MAY BE TAXED
Section 17 of the Legal Practitioners Act
provides for the application for the taxation of bills of charges delivered by
the legal practitioner to the client.
Section 17 provides that as a general
rule, where an application for the taxation of a bill of charges is made to the
court by a client within one month from the date on which the bill of charges
was delivered to him, the court shall order the bill to be taxed and that no
action to recover the charges shall begun until the taxation is completed.
However, where a
direction for providing for security is given under section 16(3) and security
is not given in accordance with the direction, an order for taxation shall not
be made.
Section 17(2) also provides that the
court may, if it thinks fit on an application made after one month of the
delivery of the bill of charges by the legal practitioner or the client (except
where he had failed to give security as directed), order that the bill be taxed
and also order that until the taxation is completed, no action to recover the
charges mentioned in the bill shall be begun and any such action already begun
shall be stayed.
However, section 17(3) of the Legal Practitioners Act provides that no such order shall be
made –
(a)
in any case, after the period of twelve months
from the date on which the bill in question was paid;
(b)
except in a case where the court determines that
there are special reason for making such an order, if twelve months have
expired since the date of the delivery of the bill or if judgment has been
given in an action to recover the charges in question.
PROCEDURE FOR TAXATION
Section 18 of the Legal Practitioners Act
provides for the procedure for taxation.
Section 18(1) provides thus –
“The taxation of a bill of charges shall be in accordance with the
provisions of any order in force under section 15 of this Act; and where no
such order is in force or any item falling to be taxed is not dealt with by the
order, the charges to be allowed on taxation of the item shall not exceed such
as are reasonable having regard to the skill, labour and responsibility
involved and to all circumstances of the case”.
The procedure
for taxation is governed by the rules of court and the taxation takes place before
a taxing officer who may be the Chief Registrar of the Court, or any other
suitable person appointed by the Court for the purpose.
The taxing
officer may, where he deems it appropriate, refer the taxation to the court, he
shall so refer it, and the court may –
a)
Proceed itself to tax the bill and notify to the
taxing officer the amount declared and stated in his certificate; or
b)
Refer the taxation back to the taxing officer
with its discretion in the matter.
On completion of
the taxation of a bill, the taxing officer shall forthwith declare the amount
due in respect of the bill and shall file in the records of the court a
certificate signed by him stating that amount; and any party to the taxation
shall be entitled, on demand, to have issued him free of charge an office copy
of the certificate – section 18(4) of the Legal Practitioners Act.
If any party to
the taxation is dissatisfied with the determination other than the amount
notified by the court, he may within 21 days from the date of determination or
filing, appeal to the court – section
18(5) of the Legal Practitioners Act.
If the amount
determined by the court as charges is less than the amount of the bill by
one-sixth of the bill or more, then the legal practitioner is liable to pay the
cost of the taxation; otherwise, it is the client that will pay the cost – section 18(7) of the Legal Practitioners Act.
SAMPLE OF A BILL OF CHARGES
FROM: (Name and
Address of Firm)
TO: (Client)
Re: (that is,
whether it is Subject Matter; or Court; or Parties; or Nature of Brief)
Date: (Insert
recent date)
|
Date
|
Particulars
|
Disbursements
|
Expenses
|
Fees /
Charge
|
|
|
1.
Correspondences drafted.
2.
Pleadings drafted.
3.
Court briefs drawn up.
4.
No. of Court appearance: days, nature of
activity on appearance date, etc.
5.
Meetings attended.
6.
Errands made, e.g. visits to land registries,
CAC etc.
7.
Perusing documents (types).
8.
Peculiar difficulties of case.
9.
Others.
|
|
|
|
|
|
|
|
|
|
TOTAL N ________________________________
___________________
Signature of Solicitor.
NOTE: Detail of each activity and work
done by the Solicitor should be listed.
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