Robertha Magnus Usher v Hermita Cawich

• Jurisdiction: Belize
• Judge: Farnese, J.
• Judgment Date: 03 November 2023
• Court: Supreme Court (Belize)
• Year: 2023
• Docket Number: CLAIM No. CV 36 of 2020

Between:

[1] Robertha Magnus Usher

(doing business as Robertha Magnus Usher & Associates)

Claimant/Ancillary Defendant

and

[1] Hermita Cawich

Defendant/Ancillary Claimant

CLAIM No. CV 36 of 2020

IN THE HIGH COURT OF BELIZE

Appearances:

Rt. Hon. Dean O. Barrow, SC for the claimant/ancillary defendant

Mr. Allister Jenkins for the defendant/ancillary claimant

DECISION

Farnese, J.

1 Ms. Cawich hired Mrs. Magnus Usher as her attorney in divorce proceedings. Mrs. Magnus Usher brought this claim to recover payment of $42,492.50 plus court fees, interest and costs for her services. Ms. Cawich disputes the bill for those services on the basis that they do not reflect the Fee Agreement she signed. In particular, Ms. Cawich contends that she should not have been charged an hourly rate for work done to file an injunction. She also asserts that some of the fees charged were for work done after she instructed Mrs. Magnus Usher to discontinue the claim, and that she paid for an application for maintenance to be filed that was not. Relying on subsection 33(6) of the Legal Profession Act, 1 Ms. Cawich has filed an ancillary claim to set the Fee Agreement aside on the grounds that it is unfair and unconscionable in the circumstances. Alternately, she argues that the amount she was charged under the Fee Agreement is unfair and unconscionable given the total of what she has already paid to Mrs. Magnus Usher surrounding the end of her marriage.

2 For the reasons outlined below, I find that Ms. Cawich owes $31,867.50 under a Fee Agreement she entered into with Mrs. Magnus Usher to pursue a matrimonial property claim. When an objective test is applied to the ordinary meaning of the words in the Fee Agreement, and after considering the overall purpose of the Fee Agreement and the factual and regulatory context, I find that the injunction application was to be charged on a contingency basis. I further find that Ms. Cawich agreed to pay the amount owing even though she aborts or settles the matrimonial property claim.

Issues

3 Three issues must be resolved in this dispute:

• a) Was Ms. Cawich billed according to what the parties agreed?

• b) If yes, is the agreement unfair and unconscionable?

• c) What, if any, amount is owed to Mrs. Magnus Usher under the Fee Agreement?

Analysis

Was Ms. Cawich billed according to what the parties agreed?

4 To resolve this dispute, I must look at the Fee Agreement to decide what the parties agreed would be the method of payment for Mrs. Magnus Usher's services. This process engages well

established principles of contract interpretation. These principles have been summarized by Hoffman J. as follows: 2

• (1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

• (2) The background was famously referred to by Lord Wilberforce as the “matrix of fact,” but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

• (3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

• (4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] A.C. 749.

• (5) The “rule” that words should be given their “natural and ordinary meaning” reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191, 201:

  “if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”

5 Because the Legal Profession Act subjects the fees Mrs. Magnus Usher can charge for her services to some regulation, it informs the court's interpretation of the Fee Agreement. There is no statutory

requirement that a lawyer enter into a fee agreement with their clients, but if they do, that agreement must be in writing. 3 The Act respects the parties' rights to freely negotiate the fees to be paid for services. The court will only interfere in circumstances where the agreement is unfair and unconscionable, 4 or where renumeration is paid on terms not specified in the agreement. 5 If the parties do not have a fee agreement, disputes over bills can be taxed. 6 Bills issued pursuant to a fee agreement, however, cannot be taxed. 7 It is important to understand that these two processes are different. The Act empowers the taxing officer to “make the order as he deems fit with regard to the costs of reference.” 8 The taxing officer has much more discretion than I do in the present application to adjust the amount owing

6 Ms. Cawich has the burden to prove that Mrs. Magnus Usher's bill for services was either contrary to their fee agreement or unfair and unconscionable. Provided the bill was properly drafted and served on the client, Mrs. Magnus Usher is not required to justify the contents of the bill in the “first instance” provided the invoice is in the correct form. 9 I interpret this subsection of the Legal Profession Act as a rebuttable presumption that the work invoiced was in fact completed. The court does not require evidence that the work invoiced was completed as Ms. Cawich does not dispute that Ms. Magnus Usher completed the injunction application on her behalf.

7 Ms. Cawich's main objection to her bill is that she was charged an hourly rate for work completed towards an injunction application to prevent her ex-spouse from dealing with assets subject to her matrimonial property claim. She believes that the Fee Agreement specifies that Ms. Magnus Usher would do this work on a contingency basis.

8 When an objective test is applied to the ordinary meaning of the words in the Fee Agreement and after considering the overall purpose of the Fee Agreement and the factual and regulatory context, I find that the injunction application was to be charged on a contingency...