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The consultation response
There was general support
for Proposal 57, including from the Bar Association, and
the Working Party recommends its adoption.
The only resistance came from the BSCPI which sought to rely on the same arguments
as those advanced against Proposal 54 as justifying retention of the para 2(5) rule.
The Working Party does not accept the applicability of those arguments in the context
of Proposal 57.
(a)
At the heart of the Bar's opposition to Proposal 54 (and the Working Party's
decision to recommend against its adoption) is the principle that a solicitor's
prior agreement of fees with a barrister ought, in the absence of exceptional
circumstances, to be upheld and treated as the solicitor's (and through him, the
client's) recognition of the reasonableness of such fees.
(b)
Proposal 57 is concerned with taxation of the fees of the other side's counsel.
Obviously neither the paying party nor his solicitors made any prior agreement
with the other side's counsel as to the incurring of such fees or their amount.
The Working Party can see no reason why this should be judged other than
according to the usual principles applicable to inter partes taxations.
Recommendation 131: Proposal 57 (for the abolition of a special rule
governing taxation of counsel's fees) should be adopted.
Notes
Supporters included the Bar Association, the Law Society, the DOJ, the APAA, the HKFLA, the
HKMLA, the BCC, the JCGWG, the High Court masters, one set of barristers' chambers and two
solicitors' firms.
Subject, of course, as discussed in relation to Proposal
54, of the client's right to challenge the
solicitor's disbursement of such fees applying the principles set out in O 62 r 29.
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