Wakilii

Matovu & Matovu Advocates v Jyotibala & 2 Others (Miscellaneous Application 29 of 2021)

High Court · [2024] UGCOMMC 29 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to have advocate-client bill of costs taxed
Decision
Application for leave to tax advocate-client bill of costs dismissed as time-barred under the Limitation Act

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an advocate-client relationship existed by implication based on the drafting of sale agreements naming the applicant firm, and the contractual provision that each party bears its own costs. However, the application for leave to tax the bill of costs was dismissed as time-barred. The cause of action for recovery of legal fees arose on completion of the last legal service in April 2013, and the six-year limitation period under the Limitation Act expired in April 2019. The application filed in June 2021 was over two years out of time.

Outcome

Application for leave to tax advocate-client bill of costs dismissed as time-barred under the Limitation Act

Facts

The applicant law firm claimed to have been retained by the late Mr. Harshad Damani in December 2012 to negotiate and finalise the sale of two parcels of land totalling 677 hectares to M/s Trinity Transporters and Distributors Limited for UGX 1,672,860,000. The applicant prepared two sale agreements: one dated 12 November 2012 and a novation agreement dated 18 April 2013 modifying the payment terms. The deceased died without paying the legal fees. The applicant served an itemised advocate-client bill of costs on the estate on 21 December 2020, seeking leave to have it taxed. The respondents, as administrators of the estate, opposed the application on grounds that the claim was barred by limitation and that the applicant had not proven it was retained by the deceased.

Issues

  1. Whether the applicants furnished proof of instructions to act on behalf of the deceased client.
  2. Whether the demand for recovery of legal fees is barred by limitation.
  3. Whether the applicants complied with the legal requirements for the grant of leave to tax the advocate-client bill of costs.

Orders

  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Consultative Case Stated — Nature and Procedure
At common law a consultative case stated is a procedure by which a court can ask another court for its opinion on a point of law and can be made at any time during proceedings before a final determination has been made. A registrar may refer a matter to the High Court when deemed proper to do so and a Judge may either dispose of the matter or refer it back to the Registrar with such directions as he or she may think fit. The higher court cannot receive additional evidence on the stated case. Where a case is stated after aspects of the decision have been made, the Court may reverse, affirm or amend the determination in respect of which the case has been stated. It is essential that the Registrar has made the necessary findings of fact on which the question(s) of law to be stated will be based.
Contract Law — Advocate-Client Retainer — Proof of Retainer
Without a retainer, an advocate has no contractual claim to costs and disbursements from a client. The party alleging the existence of a contract bears the onus of proof. If the advocate is seeking to recover fees from a client, the onus is on him or her to prove the retainer. The absence of a written retainer immediately puts the advocate at a disadvantage. Where there is a conflict as to the authority between the solicitor and the client, without further evidence, weight must be given to the affidavit against, rather than the affidavit of, the solicitor.
Contract Law — Advocate-Client Retainer — Implied Retainer
An implied retainer exists where one party expresses an offer to contract to the other party who subsequently accepts through his acts of acquiescence. An implied retainer can only arise where on an objective consideration of all the circumstances, an intention to enter into such a contractual relationship ought fairly and properly to be imputed to the parties. The court will readily imply a retainer if, viewed objectively, the parties' conduct is consistent only with the advocate being retained to act for the respondent.
Contract Law — Limitation — Advocate's Fees — Commencement of Limitation Period
Being a claim in contract, recovery of advocates' fees is subject to the law on limitation. The limitation period for recovery of advocates' fees is six years from the date on which the cause of action accrued. In the case of claims founded on contract, time for limitation purposes runs from the date of breach. Where the retainer is an entire one, the obligation arises when the work is completed. The advocate's cause of action for recovery of fees arises on completion of the last legal service.
Civil Procedure — Advocate-Client Bill of Costs — Taxation — Limitation
The commencement of a costs assessment is an action on a cause of action within the context of the law of limitation. Although there cannot be a recoverable sum of money through court proceedings until the costs have been assessed, the advocate's right to initiate the process of doing so is recognised as a right of action. It is not a mere procedural mechanism for resolution of the quantum and subsequent enforcement of the right to recover legal fees. The procedure of assessment of costs is premised on the underlying advocate-client contractual relationship. That process does not confer a right independent of contract to the recovery of legal fees by a law practice from its client, and neither does it immunise the recovery of legal fees and costs from the operation of The Limitation Act. It is the underlying right and title to the debt, and not the cost assessment process, which is subject to The Limitation Act.

Legislation cited (12)

Cases cited (33)

  • DPP (Travers) v Brennan [1998] 4 IR 67
  • Halfdan Greig & Co A/S v Sterling Coal and Navigation Corporation (The Lysland) [1973] 1 Lloyd's Rep 296
  • Lakhman Bhimji v Manor Developments Ltd (Miscellaneous Application No. 105 of 2010)
  • Danish Mercantile Co Ltd v Beaumont Co Ltd [1951] Ch 680
  • Coshott v Barry [2009] NSWCA 34
  • Griffiths v Evans [1953] 1 WLR 1424
  • Murray v Richard Slade and Company Ltd [2021] EWHC B3 (Costs)
  • Re Paine (1912) 28 TLR 201
  • Allen v Bone (1841) 4 Beav 493
  • Blyth v Fladgate [1891] 1 Ch 337
  • Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523
  • Pegrum v Fatharly (1996) 14 WAR 92
  • Caliendo v Mischon de Reya [2016] EWHC 150 (Ch)
  • Parrott v Echells (1839) 3 JP 771
  • Pinley v Bagnall (1782) 3 Doug KB 155
  • Gray v Wainman (1823) 7 Moore CP 467
  • Cameron v Baker (1824) 1 C & P 268
  • Hall v Laver (1842) 1 Hare 571
  • Reynolds v Howell (1873) LR 8 QB 398
  • Anderson v Boynton (1849) 13 QB 308
  • Southall v Keddy (1858) 1 F & F 177
  • Dean v Allin & Watts [2001] 2 Lloyd's Rep 249
  • Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048
  • Stack v Dowden [2007] 2 AC 432
  • Coshott v Lenin [2007] NSWCA 153
  • Gould v Johnson (1702) 2 Salk 422
  • Midland Bank Trust Co Ltd v Hett Stubbs and Kemp [1978] 3 All ER 571
  • In re Romer & Haslam [1893] 2 QB 286
  • Edwards v Bray [2011] QCA 72
  • Allen v Ruddy Tomlins & Baxter [2019] QCA 103
  • Coburn v College [1897] 1 QB 702
  • Mulindwa Yekoyasi v Attorney General [1985] HCB 70
  • Katuramu K Moses v Attorney General [1986] HCB 39

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Matovu & Matovu Advocates v Jyotibala & 2 Others (Miscellaneous Application 29 of 2021) [2024] UGCommC 29 (10 January 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.