Haigh v Ousey (1857) 7 El. & Bl. 578 119 EngRep
A solicitor had acted for the client in the matter of Walker v Ousey and Others, and subsequently sued the client for non-payment of the bill. The client’s plea was that no signed bill that complied with the statute. The bill failed to state which Court the solicitor had acted in.
The client motioned for a non-suit on the basis that no signed bill of costs had been delivered because the bill that had been provided did not include sufficient information. The client objected to part of the bill, namely the charges under the heading “yourself ats Walker”, which contained descriptions of “Attending on the charges of plaintiff’s attorneys herein”, “writing for particulars”, “instructions to defend” and “Agent perusing correspondence, and attending plaintiff’s attorneys; conferring and inspecting original writ; arranging amount of costs; when, under the circumstances, plaintiff’s attorneys agreed to accept 19s. 6d. in discharge of debt and costs”.
Manisty for the client obtained a rule Nisi in Hilary Term on the grounds that the bill of costs did not state the Court and was not in accordance with the statute.
The Court held that the bill was not inadequate because it was reasonably clear to the client that the business was conducted in one of the Superior Courts at Westminster. Applying Keene v Ward, it was held that the test was whether there were sufficient materials for the client to obtain advice about taxation, and even if the section of the bill objected to had been bad, it would not have invalidated the rest of the bill.
Erle J said that Keene v Ward and Cook v Gillard established that a client does not have a right “to use astuteness perversely to misunderstand” the information contained in a bill, and that “The true principle, it seems to be, that the bill should give such reasonable information as would easily enable the client to ascertain if the charges are right”. Erle J also made the following observations:
“The principle laid down in Ward v Keene that all that is required is that the bill should supply sufficient materials for advice, is not, I think, any where disputed; but it is said that in applying it, we must consider it indispensable that a solicitor on reading the bill may be able without asking for further information, to advise whether the items are overcharged; and that for this purpose if any of the items are for business in court, it is indispensable that the court should be named. Now I am sure no bill that contained charges for anything beyond mere steps in a cause ever did contain this full information. No person on earth by reading a bill of costs without further information can tell what is a fair charge for such an item as “advising you”. It may have been a minute’s work; it may have required a week’s careful consideration. No man, unless there were interminable prolixity in the bill, could tell from the bill alone what is the fair charge for matters depending on the quantum meruit, that is, for almost everything except mere steps in a cause. It seems to me that the statute with regard to solicitors’ bills ought to be construed on the principle on which we act with regard to particulars of demand. The bill should give reasonable information; if the client wants more he may demand it. Formerly, the law has been administered as if it were the object of the Act to enable a fraudulent client to defeat his solicitor on a mere matter of form which it would be ludicrous to suppose to have misled in point of fact. But in Cooke v Gillard, after an elaborate review of the law, a rule was laid down, applying which to this bill I find no item insufficient. But I am further of the opinion that, supposing there was one bad item, it would not prevent the plaintiff from recovering for the rest. The doctrine that it would is founded on what was thrown out in Ivimey v Marks that a solicitor applied to for advice cannot tell whether the sums which he thinks overcharged form one−sixth of the whole, unless he sees all the items. It may be desirable that he should be able to tell this; but the evil arising from enabling a client to lie in wait with a formal objection, and dispute the whole bill because of the absence, as to some one item, of information which he never asked for or needed, greatly outweighs this. To decide that one bad item vitiates the whole bill is to affirm that the legislature intended a fraudulent client might lie in ambush with a technical point until the moment of trial.”
Lord Campbell CJ
Lord Campbell CJ said that:
“the bill must disclose on the face of it sufficient information as to the nature of the charges”.
He went on to say that:
“Complaints have sometimes been made that solicitors are not at liberty to recover the fair remuneration for their services as freely as any other persons. It may be necessary to subject them to some regulations; but they have just ground for complaint if those regulations are vexatious, preventing the fair recovery of a just demand. I do not think that the Legislature intended to throw on a solicitor the burthen of preparing a bill such that another solicitor on looking at it should, without any further statement, see on the face of the bill all information requisite to enable him to say if the charges were reasonable”.
Crompton J, noting that there was a conflict in prior decisions, said of a solicitor’s bill that “I think it would be a very dangerous rule to require the description to be such as to enable a person of competent skill on reading the bill to say, ex facie, whether it is reasonable. I think it should be sufficient if it contains such reasonable information as, coupled with what the client must be able to tell him, would be sufficient to enable him to judge.”
Haigh v Ousey (1857) 7 El. & Bl. 578 119 EngRep is the most famous English case on the law of lawyer’s bills, and is cited in all of the textbooks on legal costs. It confirmed the correctness of previous decisions that affirmed that an exactness of form is not required, and that the client’s own knowledge of the matter means that it is not necessary for a solicitor’s bill to provide significant detail of the work performed.
This case emphasises that a bill will be adequate as long as it is reasonably clear what the client is charged for. The idea that another person viewing the bill should be able to assess whether the charges are reasonable was rejected. The Court affirmed the principle that it is not simply by looking at a bill that a lawyer can advise whether to seek taxation, but rather than the client must provide the lawyer with information about the work performed in order to obtain advice about the charges.