Waldock v. Bissett, (1992) 13 B.C.A.C. 203 (CA)

Judge:Southin, Wood and Rowles, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:May 22, 1992
Jurisdiction:British Columbia
Citations:(1992), 13 B.C.A.C. 203 (CA)

Waldock v. Bissett (1992), 13 B.C.A.C. 203 (CA);

    24 W.A.C. 203

MLB headnote and full text

Humphrey E. Waldock and Guy J. Collette (appellants) v. Robert Bissett (respondent)


Indexed As: Waldock and Collette v. Bissett

British Columbia Court of Appeal

Southin, Wood and Rowles, JJ.A.

May 22, 1992.


A client and lawyer verbally agreed to a 25% contingency fee in a motor vehicle negligence action. After discussions respect­ing the lawyer's concerns for mounting disbursements, over which there was a con­flict as to who was responsible to pay them, the client agreed in writing to a 40% con­tingency fee. The client obtained judgment for $122,669.50. The Registrar held that the 40% contingency fee was invalid; the lawyer was bound by the earlier agreed 25%. The lawyer appealed.

The British Columbia Supreme Court dismissed the appeal. The lawyer appealed.

The British Columbia Court of Appeal allowed the appeal, but denied the lawyer costs.

Barristers and Solicitors - Topic 3126

Compensation - Agreements - Contingent fees - General - A contingent fee agree­ment was dated May 13, 1988, when s. 99 of the Barristers and Solicitors Act gov­erned agreements - On June 1, 1988, the Legal Professions Act came into force - It was not until September 7, 1990, after taxation proceedings were commenced, that the new Act was expressly limited to agreements dated after June 1, 1988 - The British Columbia Court of Appeal applied ss. 35 and 36 of the Interpretation Act and held that the applicable procedure was an application to the Registrar under the new Act using the substantive test under s. 99 of the old Act - See paragraphs 1 to 11.

Barristers and Solicitors - Topic 3131

Compensation - Agreements - Contingent fees - Reasonable percentage fee - A client and lawyer verbally agreed to a 25% contingency fee in a motor vehicle negligence action - Following a conflict over liability for mounting disbursements, the client agreed in writing to a 40% fee - The client recovered judgment of $122,669.50 - The British Columbia Court of Appeal held that 40%, although high, was not "unfair and unreasonable" per se - A small sum of money was at stake and the risks were high - The judgment was obtained 10 months after the agreement, during which time the client did not com­plain - However, the lawyer's failure to advise the client that he had no obligation to increase the fee percentage rendered the second agreement unfair - The court declined to exercise its discretion to cancel the second agreement, but chose to deprive the lawyer of costs on his successful appeal - See paragraphs 12 to 45.

Cases Noticed:

Lyddon v. Moss (1859), 4 DeG. & J. 104; 45 E.R. 41, refd to. [para. 28].

Commonwealth Investors Syndicate Ltd. v. Laxton (1990), 50 B.C.L.R.(2d) 186 (C.A.), refd to. [para. 32].

O'Sullivan v. Management Agency and Music Ltd., [1985] 3 All E.R. 351 (C.A.), refd to. [para. 35].

Statutes Noticed:

Attorney General Statutes Amendment Act, S.B.C. 1989, c. 64, sect. 17 [para. 3].

Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, sect. 99 [para. 3].

Interpretation Act, R.S.B.C. 1979, c. 206, sect. 35(c), sect. 36(1)(c) [para. 8].

Legal Professions Act, S.B.C. 1987, c. 25, sect. 78(1), sect. 78(2), sect. 78(8), sect. 78(9), sect. 78(10) [para. 3].


Joanne S. McKee, for the appellants;

Patrick F. Lewis, for the respondent.

This appeal was heard on March 3, 1992, at Vancouver, B.C., before Southin, Wood and Rowles, JJ.A., of the British Columbia Court of Appeal.

On May 22, 1992, Southin, J.A., delivered the following judgment for the Court of Appeal.

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