MacLeod v. Harrington, (1995) 69 B.C.A.C. 1 (CA)

• Judge: Southin, Hinds and Finch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 21, 1995
• Jurisdiction: British Columbia
• Citations: (1995), 69 B.C.A.C. 1 (CA);1995 CanLII 2345 (BC CA);131 DLR (4th) 15;14 BCLR (3d) 201;69 BCAC 1;45 CPC (3d) 105

MacLeod v. Harrington (1995), 69 B.C.A.C. 1 (CA);

    113 W.A.C. 1

MLB headnote and full text

J. Raymond MacLeod (appellant) v. The Public Trustee of British Columbia on behalf of Michael Nathan Harrington, an infant (respondent)

(CA018401)

Indexed As: MacLeod v. Harrington

British Columbia Court of Appeal

Southin, Hinds and Finch, JJ.A.

December 21, 1995.

Summary:

The solicitor for an infant whose medical malpractice suit against a hospital was settled appealed two orders of Thackray, J., of the British Columbia Supreme Court. The first order fixed the contingency fee of the solicitor at 11.5 percent of the settlement. The second order awarded the Public Trustee special costs of the proceedings against the solicitor.

The British Columbia Court of Appeal, Southin, J.A., dissenting, dismissed the appeal.

Barristers and Solicitors - Topic 853

Duty to court - Liability for costs - Fail­ure to disclose - [See second Infants - Topic 6126 ].

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - Finch, J.A., of the British Columbia Court of Appeal opined that there was no authority in s. 31 of the Infants Act for the approval of a contingency fee contract at or before the commencement of a law suit on the in­fant's behalf, whether the fee would exceed $10,000 or not - The only statutory auth­ority at that stage was in s. 16.4(1)(b) of the Act, wherein the court could grant the infant capacity to enter into the contract - When an order was sought under s. 16.4(1)(b), the court should have before it a copy of the proposed contingency fee contract - Granting an order under s. 16.4 did not preclude a subsequent inquiry into the fairness of the fee - See paragraphs 244, 249 to 253.

Barristers and Solicitors - Topic 3130

Compensation - Agreements - Contingent fees - Review and approval - An infant's solicitor, retained under a contingency fee agreement, settled the infant's action - The British Columbia Court of Appeal held that the court had inherent jurisdiction to review the contingency agreement and consider whether the fee was reasonable, whether or not the agreement was approved in principle by a previous court order, or the agreement involved an infant - The court's inherent jurisdiction was not curtailed by ss. 71(1)-(4) and 78(8)-(9) of the Legal Profession Act - Here, the court had parens patriae inherent jurisdiction - Further, the court had jurisdiction under s. 31(7) of the Infants Act and Supreme Court Rule 6(14) - See paragraphs 175 to 208.

Barristers and Solicitors - Topic 3131

Compensation - Agreements - Contingent fees - Reasonable percentage fee - A disabled infant sued a hospital for negli­gence respecting his birth - The mother was impecunious - The solicitor, an ex­peri­enced senior counsel, would be re­sponsible for disbursements if the action failed and accepted considerable risk in representing the infant - The issues of liability (hotly contested) and damages were complex and difficult - The solicitor spent approxi­mately 260 hours on the file and reached a good settlement on the eve of the sched­uled 10 day trial - The solici­tor was entitled to be well compensated - The British Columbia Court of Appeal affirmed that reduction of the contingency fee from 33⅓ (claimed under the agree­ment) to 11½ percent was reasonable - See para­graphs 209 to 211, 239 to 256.

Courts - Topic 2221

Jurisdiction - Consent - General - The British Columbia Court of Appeal stated that a concession by counsel could not give a court jurisdiction which it did not otherwise possess - See paragraph 185.

Infants - Topic 6126

Legal proceedings - Approval of settle­ments and judgments - Practice - Finch, J.A., of the British Columbia Court of Appeal commented on the correct practice to follow when an application was made under s. 31(7) of the Infants Act to approve a settlement proposed on an in­fant's behalf, after proceedings have been commenced and where the proposed set­tlement was for more than $10,000 - See paragraphs 253 to 255.

Infants - Topic 6126

Legal proceedings - Approval of settle­ments and judgments - Practice - The British Columbia Court of Appeal stated that when applying for approval of a pro­posed settlement of an infant's claim and of the amount of a lawyer's contingency fee, the lawyer must make full and com­plete disclosure to the Public Trustee and the court of all experts' reports, estimates, correspondence, offers to settle and any other information that might be relevant to the granting of the approvals sought - The lawyer must be scrupulously careful to ensure the accuracy to any information provided to the court - The failure to adhere to the foregoing may constitute reprehensible conduct warranting the im­position of special costs against the solici­tor personally - See paragraph 234.

Infants - Topic 6128

Legal proceedings - Approval of settle­ments and judgments - Legal fees - [See both Barris­ters and Solicitors - Topic 3130 and Barris­ters and Solicitors - Topic 3131 ].

Practice - Topic 7385

Costs - Costs in trust proceedings - Costs to the Public Trustee - [See Practice - Topic 7454 ].

Practice - Topic 7407

Costs - Solicitor and client costs - Power to award solicitor and client costs - The British Columbia Court of Appeal held that a judge of the Supreme Court had jurisdiction, either inherently or under Supreme Court Rule 57(1), to award so­licitor and client costs, now known as special costs - See paragraphs 214 to 218 - The court further held that the inherent jurisdiction of the court to award special costs included the power to determine the amount of the special costs - See para­graphs 236 to 237.

Practice - Topic 7451

Costs - Solicitor and client costs - Enti­tlement to - General - The British Col­umbia Court of Appeal discussed the appropriate circumstances which warranted the awarding of special costs (solicitor and client costs) - See paragraphs 215 to 229.

Practice - Topic 7454

Costs - Solicitor and client costs - Enti­tlement to - Improper, irresponsible or un­conscionable conduct - The solicitor rep­resenting an infant plaintiff under a con­tingency fee agreement appeared as a party, personally represented by successive counsel, seeking court approval of the agreement and the fee - He failed to dis­close that the same issue was pending before another judge - The trial judge disbelieved the solicitor respecting the number of hours spent on the infant's case, which was settled before trial - The judge found the solicitor withheld from his own counsel, who therefore withheld from the Public Trustee, relevant information con­cerning the magnitude of the infant's claim - The British Columbia Court of Appeal affirmed that the solicitor's conduct was reprehensible, warranting special costs to the Public Trustee - See paragraphs 212 to 235.

Cases Noticed:

Coggs v. Bernard (1702), 2 Ld. Raym. 909; 92 E.R. 107, refd to. [para. 3].

DeSousa v. Kuntz (1989), 42 B.C.L.R.(2d) 186 (C.A.), refd to. [para. 97].

Gold v. Stover (1920), 60 S.C.R. 623, refd to. [para. 99].

Deans v. Armstrong (1983), 46 B.C.L.R. 273 (S.C.), consd. [paras. 112, 191].

Ladner Downs v. Thauberger, [1983] 5 W.W.R. 522; 47 B.C.L.R. 121 (S.C.), consd. [paras. 112, 188].

Wellesley v. Beaufort (Duke) (1827), 2 Russ. 1; 38 E.R. 236, affd. (1828), 2 Bli.(N.S.) 124; 4 E.R. 1078 (H.L.), refd to. [para. 132].

Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), refd to. [para. 134].

Electrical Trades Union v. Tarlo, [1964] 2 All E.R. 1 (Ch. D.), refd to. [para. 137].

Solicitor, Re A, [1961] Ch. 491; [1961] 2 All E.R. 321, refd to. [para. 137].

Storer & Co. v. Johnson (1890), 15 App. Cas. 203, refd to. [para. 137].

Harrison et al. v. Tew, [1990] 1 All E.R. 321 (H.L.), refd to. [para. 138].

Glover v. Glover (No. 1) (1980), 29 O.R.(2d) 392 (C.A.), refd to. [para. 142].

Young v. Young (1990), 50 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 145].

Birchall, Wilson, Re v. Birchall (1880), 16 Ch. D. 41 (C.A.), consd. [para. 161].

Taylor's Application, Re, [1972] 2 All E.R. 873 (C.A.), consd. [para. 163].

Barbour's Settlement Trusts, Re, [1974] 1 All E.R. 1188, refd to. [para. 164].

Harrington (Guardian ad litem of) v. Royal Inland Hospital (1994), 89 B.C.L.R.(2d) 165 (S.C.), refd to. [para. 173].

Aylmer, Re (1887), 20 Q.B.D. 258 (C.A.), refd to. [para. 185].

Ottawa & New York Railway v. Cornwall (Township) (1916), 30 D.L.R. 664 (S.C.C.), refd to. [para. 185].

Stiles v. Workers' Compensation Board (B.C.) (1989), 38 B.C.L.R.(2d) 307 (C.A.), refd to. [para. 215].

Young v. Young, [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 49 R.F.L.(3d) 117, refd to. [para. 216].

Everywoman's Health Centre Society (1988) v. Bridges (1991), 54 B.C.L.R.(2d) 294 (C.A.), refd to. [para. 221].

Nygard International Ltd. v. Robinson (1990), 46 B.C.L.R.(2d) 103 (C.A.), refd to. [para. 222].

Garcia v. Crestbrook Forest Industries Ltd. (1994), 45 B.C.A.C. 222; 72 W.A.C. 222; 9 B.C.L.R.(3d) 242 (C.A.), refd to. [para. 224].

Leung v. Leung (1993), 77 B.C.L.R.(2d) 314 (S.C.), refd to. [para. 224].

Fullerton et al. v. Matsqui (District) et al. (1992), 19 B.C.A.C. 284; 34 W.A.C. 284; 74 B.C.L.R.(2d) 311 (C.A.), refd to. [para. 224].

Statutes Noticed:

Infants Act, 1830, 11 Geo. 4, & 1 Will. 4, c. 65, sect. 26 [para. 119].

Infants Act, R.S.B.C. 1979, c. 196, sect. 9, sect. 16.4, sect. 31 [para. 114]; sect. 31(7) [para. 201].

Law and Equity Act, R.S.B.C. 1979, c. 224, sect. 2 [para. 120].

Law Society Rules (B.C.), Part 12, sect. 1050 [para. 117].

Legal Profession Act, S.B.C. 1987, c. 25, sect. 71(1), sect. 71(2), sect. 71(3), sect. 71(4), sect. 71(5), sect. 78(1), sect. 78(2), sect. 78(3), sect. 78(8), sect. 78(9) [para. 115].

Rules of Court (B.C.), Supreme Court Rules, rule 6(2), rule 6(3), rule 6(10), rule 6(14) [para. 116]; rule 57(1) [para. 217].

Statute Law Amendment Act, S.B.C. 1966, c. 45, sect. 9 [para. 121].

Authors and Works Noticed:

Annual Practice 1991, (1990), vol. 1, p. 1291 [para. 156].

British Columbia, Law Reform Commis­sion, Minors' Contracts (1976), p. 11 [para. 122].

Supreme Court Practice - see Annual Practice.

Wade and Bradley, Constitutional and Administrative Law (10th Ed. 1985), p. 65 [para. 134].

Whitebook - see Annual Practice.

Counsel:

Thomas R. Berger, Q.C., and Gary A. Nelson, for the appellant;

Barry D. Kirkham, Q.C., and H. Maconachie, for the respondent.

This appeal was heard in Vancouver, British Columbia, on October 30 and 31, 1995, before Southin, Hinds and Finch, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on December 21, 1995, and the following opinions were filed:

Southin, J.A., dissenting - see paragraphs 1 to 171;

Hinds, J.A. - see paragraphs 172 to 238;

Finch, J.A. - see paragraphs 239 to 257.