Israel Bruce Claimant v Wilwia Black-Williams Clifford Williams Defendants
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Corbin Lincoln M (Ag),Fidela Corbin Lincoln |
| Judgment Date | 13 July 2015 |
| Judgment citation (vLex) | [2015] ECSC J0713-3 |
| Docket Number | Claim No. SVGHCV2014/0040 |
| Court | High Court (Saint Vincent) |
| Date | 13 July 2015 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Master Fidela Corbin Lincoln (Ag.)
Claim No. SVGHCV2014/0040
Attorneys-at-law — Remuneration — Contingency Fee Agreements — Whether Enforceable at common law — Whether Attorney-at-Law entitled to Reasonable Fees for Work done.
Israel Bruce is an attorney-at -law called to the Bar in this jurisdiction in or around 2012. Mr. Bruce commenced this claim against the defendants to recover the sum of US$10,000.00 (EC$26,700.00) as damages for breach of an oral contingency fee agreement allegedly made with the defendants for the provision of legal services.
The 2nd defendant became ill during the course of his employment with Royal Caribbean Cruise Lines. He engaged the services of Lipcon Marguiles, Alsina and Winkleman P.A, ("Lipcon") — a US law firm — to represent him in his claim against his former employer. The matter went to arbitration and the claimant was awarded a substantial sum.
Lipcon provided a "Closing Statement" showing the net sum payable to the 2nd defendant after deduction of attorney's fees, costs and other expenses. The 1st defendant, the wife of the 2nd defendant, states that she had several queries about the 'Closing Statement' and therefore began to engage in discussions with Lipcon with respect to same.
The claimant asserts that the 1st defendant attended his chambers and entered into an oral contingency fee agreement for him to provide legal representation to the defendants in relation to the negotiations with Lipcon. The claimant asserts that the 1st defendant agreed that the defendants would pay him 20% of all monies he secured in excess of the net award which the 2nd defendant was informed would be paid to him.
The defendants strenuously dispute almost every aspect of the claimant's version of events. The 1st defendant gave affidavit evidence on behalf of the defendants. The 1st defendant states that she is a police officer. The claimant saw her at the Magistrates Court and enquired about the 2nd defendant's case against his former employer. She does not know how he became aware of the 2nd defendant's case but she discussed the matter with him, told him about her dissatisfaction with the closing statement provided by Lipcon and informed htm of her intention to write them a letter. She states that the claimant offered to let her use his letterhead for the letter so that the letter could appear more professional. She therefore returned to the police station, wrote down the details to be included in the letter on a sheet of paper and took the paper to the claimant's office. She made several attempts to contact the claimant to follow up on the letter. Each time she contacted the claimant to get a copy of the letter he could not provide her with a copy or he avoided her.
The defendants assert that they did not enter into an oral contingency fee agreement with the claimant. In any event, even if as alleged by the claimant there was an oral contingency agreement entered into among the parlies, such an agreement is unenforceable.
Following unsuccessful efforts to settle the matter at mediation, the learned Master, having considered the issues in dispute, ordered that the matter be dealt with summarily and directed the parties to file affidavits and submissions.
The Civil Procedure Rules 2000 {"CPR") Part 15 states:
"The court may give summary judgment on the claim or on a particular issue if it considers that the -
(a) claimant has no real prospect of succeeding on the claim or the issue; or
(b) defendant has no real prospect of successfully defending the claim or the issue."
In Swain v Hillman [2001] 1 All ER 91 1 Lord Woolf MR, in discussing Rule 24.2 of the UK CPR rules -equivalent to the CPR 15.2 — stated:2
"Under r 24.2, the court now has a very salutary power, both to be exercised in a claimants favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of being successful or succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or, as Mr. Bidder QC submits,
they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success."
He continued3
'It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know this as soon as possible….
"Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. As Mr. Bidder put it in his submissions, the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily."
Swain v Hillman was cited with approval in Three Rivers District Council v. Governor and Company and Bank of England No. 3 [2001] UKHL 164, where Lord Hope explained the rule thus:
"The rule… is designed to deal with cases which are not fit for trial at all; the test of 'no real prospect of succeeding' requires the judge to undertake an exercise of judgment; he must decide whether to exercise the power to decide the case without a trial and give summary judgment; it is a discretionary power; he must then carry out the necessary exercise of assessing the prospects of success of the relevant party; the judge is making an assessment not conducting a trial or a factfinding exercise; it is the assessment of the case as a whole which must be looked
at; accordingly, the criterion which the judge has to apply under CPR Pt 24 is not one of probability; it is the absence of reality.'"
Having regard to the principles of law I must now consider whether this is an appropriate case for summary judgment.
The claimant's statement of claim avers that the claimant entered into an oral contingency fee agreement with the 1st defendant. The statement of claim does not contain any averment that the claimant entered into a contract with the 2nd defendant or that the 1st defendant was acting as the servant and or agent of the 2nd defendant when she purportedly entered into the oral contract with the claimant. There are no pleaded facts which disclose the basis upon which it is asserted that a contract was made between the claimant and the 2nd defendant or how the 2nd defendant became a party to the contract which the claimant asserts was made with the 1st defendant.
A claimant's statement of case must include all the facts on which the claimant relies. A claimant cannot rely on any allegation or factual argument not set out in his statement of case unless the court gives permission.5
As the claimant's pleadings stand, there are no facts establishing the formation of a contract between the claimant and the 2nd defendant and the claim therefore discloses no grounds for bringing a claim against the 2nd defendant for breach of a contract.
In the circumstance, I find that the claimant has no prospect of succeeding in his claim against the 2nd defendant for breach of contract.
There are substantial disputes in the evidence before the court including, but not limited to, whether the services of the claimant were engaged at all, if in fact his services were engaged, how and when this was done, what work the claimant did and whether the claimant's work produced any benefit to the defendants.
It is however not necessary to address and resolve the conflicting evidence at this stage since an important point of law arises for consideration towit even assuming that the claimant entered into an oral contingency fee agreement with the 1st defendant as alleged, is the agreement enforceable?
Counsel for the defendants provided written submissions on this issue. Counsel submits that an oral contingency fee agreement for legal services is unenforceable at common law and there are no statutory provisions in this jurisdiction which permit such agreements. Counsel cites the case ofGeddes v McDonald Milligen6 as authority for the proposition that even in Jamaica where such agreements are permitted by statute it is a requirement that the agreement must be in writing.
The claimant's written submissions have not addressed this issue at all notwithstanding that the claimant was aware that this was the point of law being raised by the defendants and notwithstanding service of the defendants' submissions.
At the hearing counsel for the claimant was invited to respond to the defendants' submissions on this point but counsel was unable to provide any rebuttal. Rather, counsel for the claimant appears to have conceded the point but submitted that the claimant should nonetheless be remunerated for the work done.
Notwithstanding what appears to have been a concession on this point, I must still examine the meri of the defendants' submission.
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