Husbands v Warefact Ltd

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Bingham of Cornhill
Judgment Date19 March 2003
Neutral Citation[2003] UKPC 23
Docket NumberAppeal No. 74 of 2001
Date19 March 2003

[2003] UKPC 23

Privy Council

Present at the hearing:-

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hutton

Lord Millett

Lord Walker of Gestingthorpe

Appeal No. 74 of 2001
Parry Husbands
Appellant
and
Warefact Limited
Respondent

[Delivered by Lord Bingham of Cornhill]

1

This appeal against a decision of the Court of Appeal of the Eastern Caribbean Supreme Court raises a novel question: it is whether Queen's Counsel practising in St Lucia may deduct, from money which he holds on behalf of a client, fees for professional services due to him from that client.

2

Mr Parry Husbands QC is the appellant. He is a distinguished man and a former Attorney-General of St Lucia, who has now been a silk in St Lucia for 15 years and was the senior partner in a firm of barristers, solicitors and notaries, Husbands, Hinkson & La Corbinière, practising in Castries.

3

The respondent, Warefact Limited ("the company") is a company incorporated and registered in St Lucia. Its managing director was Mr Lincoln St Rose. It owned a commercial building in Bridge Street, Castries, known as the Voice Building.

4

At trial there were significant issues of fact between Mr Husbands and the company, but having heard oral evidence from Mr Husbands and Mr St Rose (and also Mr Cornell Charles) the trial judge (Neville Smith J) made clear and decisive findings of fact which, although challenged on appeal, the Court of Appeal (Byron CJ (Ag.), Satrohan Singh and Redhead JJA) refused to disturb. Mr Husbands, appearing in person, sought to re-open a number of factual issues before the Board, but he showed no grounds why the Board should depart from its ordinary practice of declining to review concurrent findings of fact in the courts below ( Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508) and the findings were fully justified by the evidence. It is therefore possible to summarise the facts as the judge found them to be.

5

In the course of discussing another building owned by the company, Mr Cornell Charles asked Mr St Rose about the company's intentions regarding the Voice Building. Mr St Rose consulted his fellow-directors and informed Mr Cornell Charles that the company was willing to sell it to Mr Charles' company, J Q Charles Limited ("the purchaser"). Mr Husbands had been professionally involved in the purchase of the Voice Building by the company, but had had nothing to do with the sale proposal until Mr St Rose asked him to attend a series of about four meetings held between the company (represented by Mr St Rose and Mr Husbands) and the purchaser (represented by Mr Cornell Charles and Mr Ferrel Charles) to negotiate the sale. Mr Husbands attended both as negotiator and adviser. The meetings culminated in agreement that the purchaser should buy the Voice Building from the company for EC$3,750,000.

6

A written agreement giving effect to this transaction was prepared and executed. It was dated 4 October 1995. The agreement acknowledged that a deposit had been lodged in the clients' account of the purchaser's solicitors and provided for payment of the deposit and the balance of the purchase price to the company's solicitors on completion. A deed dated 23 March 1996, intended to dispose of current litigation between the company and a third party concerning the Voice Building, was executed before Mr Husbands acting as a notary. A second agreement in writing was made, dated 20 May 1996, to defer the date for completion. This agreement provided for the deposit to be paid to "P. J. Husbands Esquire Clients' Account", for the staged payment to the company of sums amounting to EC$700,000 and for payment on completion of the outstanding balance of EC$2,862,500. There was a further agreement, of which no copy was produced in evidence.

7

In addition to attending and taking part in the negotiating meetings, Mr Husbands also vetted the deed and the agreements. He attended on about six occasions before the Registrar in relation to the paying off by the company of a debt incurred on the purchase of the Voice Building, and attended before the Mayor of Castries on four occasions to settle the company's arrears of taxes. He rendered other, more minor, professional services.

8

Although, regrettably, Mr Husbands did not acknowledge the receipt of money from the purchaser until Mr St Rose was in the course of giving evidence before the judge, and had indeed put such receipt in issue in the proceedings, it is clear that he received the following sums:

4 October 1995

EC$ 187,500.00

20 May 1996

100,000.00

3 June 1996

200,000.00

18 June 1996

100,000.00

25 June 1996

100,000.00

EC$ 687,500.00

9

While the facts are not entirely clear, it appears that in June or July 1996 Mr Husbands orally intimated to Mr St Rose that his fee for his services in this matter would be EC$250,000. This figure represented 6.6% of the sale price. Mr St Rose considered the figure excessive and rejected it, but offered a fee of EC$100,000. This was unacceptable to Mr Husbands, who refused to haggle. In a curt letter dated 23 July 1996 the company terminated Mr Husbands' engagement and asked for a statement showing the deposits he had received on the company's behalf and the disbursements he had made. Instead of complying with this request, as he plainly should have done, Mr Husbands replied that he would give an account when his fees had been paid and not before. A fee of EC$11,867.60 tendered to him for notarial services was rejected. A request that he should hand over to the company's new solicitors the money belonging to the company in Mr Husbands' client account was rebuffed.

10

On 25 October 1996 the company issued proceedings against Mr Husbands claiming an account of all sums received by him to the account of the company and payment of all sums due to the company, with interest. Mr Husbands served a defence making very limited admissions and seeking the dismissal of the claim with costs. He counterclaimed for fees earned by him in relation to the sale of the Voice Building, now in the sum of EC$490,000. The company served a defence to Mr Husbands' claim.

11

On the second day of the hearing at first instance, Mr Husbands amended his counterclaim so as to reduce his claim for fees from EC$490,000 to EC$250,000, the figure shown in a bill dated 21 June 1996 and the figure for which he had earlier asked the company. In the bill the services described above were said to have been rendered "as counsel". Mr Husbands also, for the first time, produced a statement of account. That showed the receipt by Mr Husbands of EC$687,500 (particularised above) and the disbursement by him, on behalf of the company, of EC$520,628.98 to the Registrar and the Castries City Council. A total of EC$166,871.02 remained in his hands.

12

The trial judge made a painstaking and comprehensive assessment of the fees reasonably due to Mr Husbands for the work he had done, and concluded that the sum properly due was EC$73,697.50. The assessment was one which, subject to the questions discussed below, the judge was entitled to carry out, either on a quantum merit basis or under section 19(1) of the Legal Practitioners Ordinance (see paragraph 14 below). Mr Husbands contended before the Board that he should have been awarded a fee based on a percentage of the sale price and not a fee based on time spent, but the basis of his fee was not the subject of agreement at any stage and the Board finds no error in the judge's approach. The judge ordered Mr Husbands to pay to the company EC$93,173.52, the balance of the money which he held on the company's behalf, with interest at 6% from 3 September 1996. The judge touched briefly on an argument advanced by the company that section 5(3) of the Legal Practitioners Ordinance prohibited the recovery of any fees by Mr Husbands, but rejected the argument for want of evidence.

13

On Mr Husbands' appeal, the Court of Appeal dismissed his challenge to the judge's factual findings and assessment of the fees due. The company cross-appealed, contending that the judge's award of fees was excessive, that the...

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