Section 53
Section 53
(1)
The High Court shall have the like jurisdiction as the inherent jurisdiction of the High Court in England (in relation to a solicitor) to make an order for the delivery by an advocate and solicitor of a bill of costs and for the delivery up, or otherwise in relation to, any documents in his possession, and for the taxation of the bill when delivered. The jurisdiction hereby conferred on the High Court shall also extend to cases in which no business has been done by the advocate and solicitor in the High Court.
(2)
A Court of a Magistrate shall have the same jurisdiction as the High Court to make orders making such provision as is mentioned in subsection (1) in cases where the bill of costs or the documents relate wholly or partly to contentious business done by the advocate and solicitor in the Court of a Magistrate.
(3)
In this section and in sections 54 and 56, “advocate and solicitor” includes the executors, administrators and assignees of an advocate and solicitor.
Action to recover advocate and solicitor’s costs 54.
(1)
Subject to the provisions of this Act, no action shall be brought to recover any costs due to an advocate and solicitor before the expiration of one month from the date on which a bill of those costs is delivered in accordance with the requirements mentioned in subsection (2); but if there is probable cause for believing that the party chargeable with the costs —
(a)
is about to quit Brunei Darussalam, to become bankrupt or to compound with his creditors, or
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(b)
is about to do any other act which would tend to prevent or delay the advocate and solicitor obtaining payment, the High Court may, notwithstanding that one month has not expired from the delivery of the bill, order that the advocate and solicitor be at liberty to commence an action to recover his costs and may order that those costs be taxed.
(2)
The requirements referred to in subsection (1) are that the bill shall —
(a)
be signed by the advocate and solicitor or, if the costs are due to a firm, by one of the partners of that firm, either in his own name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so signed and refers to the bill; and
(b)
be delivered to the party to be charged with the bill, either personally or by being sent to him by post to, or left for him at, his place of business, dwelling-house, or last known place of abode, and, where a bill is proved to have been delivered in compliance with those requirements, it shall not be necessary in the first instance for the advocate and solicitor to prove the contents of the bill and it shall be presumed until the contrary is shown, to be a bill bona fide complying with this Act.
(3)
Where a bill of costs relates wholly or partly to contentious business done in the Court of a Magistrate and the amount of the bill does not exceed $500 the powers and duties of the court under this section and sections 55 and 56 in relation to that bill may be exercised and performed by any Court of a Magistrate in which any of the business was done.
Taxation on application of party chargeable or advocate and solicitor 55.
(1)
Where before the expiration of one month from the delivery of an advocate and solicitor’s bill an application is made by summons, motion or petition by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be taxed and that no action be commenced on the bill until the taxation is completed.
(2)
Where no such application is made before the expiration of the period mentioned in subsection (1), then, on an application being made by the advocate and solicitor or, subject to subsections (3) and (4), by the party
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chargeable with the bill, the court may on such terms, if any, as it thinks fit
(not being terms as to the costs of the taxation), order —
(a)
that the bill be taxed; and
(b)
that no action be commenced on the bill, and that any action already commenced be stayed until the taxation is completed.
(3)
Where an application under subsection (2) is made by the party chargeable with the bill —
(a)
after the expiration of 12 months from the delivery of the bill; or
(b)
after a judgment has been obtained for the recovery of costs covered by the bill; or
(c)
after the bill has been paid, but before the expiration of 12 months from the payment of the bill, no order shall be made except in special circumstances and, if an order is made it may contain such terms as regards the costs of the taxation as the court may think fit.
(4)
The power to order taxation conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.
(5)
Every order for the taxation of a bill shall require the taxing officer to tax not only the bill but also the costs of the taxation and to certify what is due or by the advocate and solicitor in respect of the costs of the taxation.
(6)
If after due notice or any taxation either party to it fails to attend, the officer may proceed with the taxation ex parte.
(7)
Unless —
(a)
the order for taxation was made on the application of the advocate and solicitor and the party chargeable does not attend the taxation; or
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(b)
the order for taxation or an order under subsection (8)
otherwise provides, the costs of a taxation shall be paid according to the event of the taxation, that is to say, if one-fifth of the amount of the bill is taxed off, the advocate and solicitor shall pay the costs, but otherwise the party chargeable shall pay the costs.
(8)
The taxing officer may certify any special circumstances relating to a bill or to the taxation of a bill, to the High Court which may make such order as respects the costs of the taxation as it may think fit.
Taxation on application of third parties 56.
(1)
Where a person other than the party chargeable with the bill for the purposes of section 55 has paid, or is or was liable to pay, a bill either to the advocate and solicitor or to the party chargeable with the bill, that person or his executors, administrators or assignees may apply by summons, motion or petition for an order for the taxation of the bill as if he were the party chargeable with it to the High Court which may make the same order (if any)
as it might have made if the application had been made by the party chargeable with the bill.
(2)
Where the court has no power to make an order by virtue of subsection (1) except in special circumstances it may, in considering whether there are special circumstances sufficient to justify the making of an order, take into account circumstances which affect the applicant but do not affect the party chargeable with the bill.
(3)
Where a trustee, executor or administrator has become liable to pay a bill of an advocate and solicitor, then, on the application by summons, motion or petition of any person interested in any property out of which the trustee, executor or administrator has paid, or is entitled to pay, the bill the
High Court may order —
(a)
that the bill be taxed on such terms, if any, as it thinks fit;
and
(b)
that such payments, in respect of the amount found to be due to or by the advocate and solicitor and in respect of the costs of the taxation, be made to or by the applicant, to or by the advocate and solicitor, or to or by the executor, administrator or trustee, as it thinks fit.
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(4)
In considering any application under subsection (3), the court shall have regard —
(a)
to the provisions of section 55 as to applications by the party chargeable for the taxation of an advocate and solicitor’s bill so far as they are capable of being applied to an application made under that subsection;
(b)
to the extent and nature of the interest of the applicant.
(5)
If an applicant under subsection (3) pays any moneys to the advocate and solicitor, he shall have the same right to be paid that money by the trustee, executor or administrator chargeable with the bill as the advocate and solicitor had.
(6)
Except in special circumstances, no order shall be made on an application under this section for the taxation of a bill which has already been taxed.
(7)
If the court on an application under this section orders a bill to be taxed, it may order the advocate and solicitor to deliver to the applicant a copy of the bill on payment of the costs of that copy.
Supplementary provisions as to taxations 57.
(1)
Every application for an order for the taxation of an advocate and solicitor’s bill or for the delivery of his bill and for the delivery up by him of any documents in his possession, custody or power shall be made in the matter of that advocate and solicitor.
(2)
The certificate of the taxing officer 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 it. The court may make such order in relation to the certificate as it thinks fit, 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.
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Charging orders 58.
(1)
Subject to subsection (2), any court in which an advocate and solicitor has been employed to prosecute or defend any suit, matter or proceeding may at any time —
(a)
declare the advocate and solicitor entitled to a charge on any property recovered or preserved through his instrumentality for his taxed costs in relation to that suit, matter or proceedings; and
(b)
make such orders for the taxation of those costs and for raising money to pay or for paying them out of the property recovered or preserved as the court thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate and solicitor.
(2)
No order shall be made under subsection (1) if the right to recover the costs is barred by any written law relating to limitations.
Special provisions as to contentious business done in Courts of
Magistrates 59.
(1)
The remuneration of an advocate and solicitor in respect of contentious business done by him in a Court of a Magistrate shall be regulated in accordance with sections 44 to 58, and for that purpose those sections shall have effect subject to the following provisions of this section.
(2)
The Registrar of the Subordinate Courts shall be the taxing officer of a Court of a Magistrate but any taxation of costs by him be reviewed by a Magistrate on the application of any party to the taxation.
(3)
The amount which may be allowed on the taxation of any costs or bill of costs in respect of any item relating to proceedings in a Court of a
Magistrate shall not, except in so far as rules of court may otherwise provide, exceed the amount which could have been allowed in respect of that item as between party and party in those proceedings.
(4)
For the purposes of this section, the amount which may be allowed on the taxation of any costs or bill of costs in respect of an item as between party and party in relation to proceedings in a Court of a Magistrate shall, subject to rules of court, be such amount as the taxing officer, or, in the
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case of a review under subsection (2), a Magistrate, shall determine to be reasonable having regard to the nature of the proceedings and the amount of the claim and any counterclaim.
Costs of Government 60.
Nothing in the Act shall affect the right, which is hereby declared, of the Government when represented by any of such persons as are mentioned in section 20(1)(a) to recover costs awarded to it in or respecting any cause or matter. In any such cause or matter the costs of the Government shall be taxed in accordance with any rules in force for the time being for the taxation of the fees and costs of advocates and solicitors as if an advocate and solicitor of the Supreme Court who is not in the service of the Government had appeared on behalf of the Government.
Saving for certain other written law 61.
Nothing in this Part shall affect any other written law not expressly repealed by this Act which authorises the making of subsidiary legislation or the giving of directions with respect to costs, or which provides that any such subsidiary legislation or direction made or given under any previous written law shall continue in force.