Claim No: SCBW 449208
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: MacLeod v. Westhaver, 2016 NSSM 38
BETWEEN:
DUMKE MacLEOD
Claimant
- and -
PAUL ARTHUR WESTHAVER
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Bridgewater, Nova Scotia on May 2, 2016
Decision rendered on May 3, 2016
APPEARANCES
For the Claimant Tabitha Webber
For the Defendant self-represented
BY THE COURT:
1 The Claimant is a law firm in Bridgewater. The Defendant is a former client.
2 The Claimant is suing to collect a legal account.
3 Although he did not file a defence, the Defendant (hereafter “the client”) appeared and opposed the claim.
4 Although the matter was not commenced as a taxation, I propose to treat it as if it were a taxation, and determine whether the account is justified and reasonable.
5 The claim seeks a total of $4,396.00 arising out of three accounts for work in connection with a family dispute. The particular accounts are:
a. January 16, 2015 $460.00
b. June 9, 2015 $2,096.00
c. July 30, 2015 $2,300.00
6 The client had provided a $250.00 retainer initially, which was applied to the first bill.
7 The total bill to the client reflects $4,030 in fees, $10.00 in disbursements, with the balance ($606.00) representing HST.
8 The file was started by Tabitha Webber, a lawyer with between six and seven years of experience at the time she took on the client’s case. She was billing at $200.00 per hour. She did all of the work reflected in the first invoice, and believed the file to be concluded. Shortly thereafter, she went on a maternity leave. Another lawyer, Ms. Erica Green took over her practice for the duration.
9 During the maternity leave, the client returned to the firm and required further work. Ms. Green took the matter on, and readied a case for Family Court. My understanding is that the case was not actually commenced, as attempts were being made to negotiate.
10 When Ms. Webber returned at the end of June, she issued the second invoice for all of the work done by Ms. Green. She also took over the file and did further work, amounting to some 12.3 hours. She issued a bill at the request of the client, who decided to take over his own case because the expense was getting out of hand for him. Ms. Webber gave a courtesy discount of $460.00 to reduce the fees to $2,000.00. There had also been a discount of $160.00 in fees applied to the first bill.
11 The client believes the account overall to be unreasonable. He claims that he and Ms. Webber had initially agreed to an estimate of $2,000.00 for the work. He says that he was not kept informed on a regular basis of what was going on, and the expense that was accruing. When he learned that he owed more than $4,000.00 he stopped all work and asked for his file. Ms. Webber gave him a copy of the file, without charge.
12 The client says that he cannot afford to pay this amount. When he first retained the firm, he had just declared bankruptcy. While the debt to the firm is not captured by the bankruptcy, this arguably demonstrates that he was financially strapped and could not afford a large legal bill.
13 The ability of the client to pay is always a factor in the taxation of a lawyer’s bill. A bill should be proportional to what is at stake, and reasonable in all of the circumstances. A number of factors should be considered, including this non-exhaustive list:
a. the lawyer’s efforts to secure speed and avoid expense for the client,
b. the nature, importance, and urgency of the case,
c. the skill, labour, and responsibility involved,
d. counsel's terms of retention, including an authorized contingency agreement, terms for payment by hourly rate, and terms for value billing;
e. Whether proceedings were taken that were unnecessary (such as by overcaution or merely error);
f. If too much time was spent on any particular step, or overall, which reflects poorly on the lawyer’s skill;
g. The results achieved;
h. The client’s ability to pay;
i. The client’s expectations.
14 It is difficult to be critical of the lawyers for not having achieved all that the client wanted. Negotiation is an uncertain process.
15 Nor is there anything to indicate that the lawyers were not skilful, or did anything unnecessary.
16 The docket entries show numerous emails and meetings with the client, which satisfies me that the client was informed as to what the lawyers were doing on his file. It is hard to tell whether the client was kept up to date on how his bill was mounting, although he had to have known that time was being spent.
17 I find that the lawyers involved understood that the client was not financially strong, and owed him a duty to minimize the expense, if possible. I am also aware of how emotional family issues can be, and it is likely that this client gave instructions to the firm to do the work that they did.
18 In looking at the docket entries, there are a lot of entries involving small increments of time - such as .2 or .3 of an hour - for emails and telephone calls, or listening to a voicemail message. I believe there is a general tendency to round up time actually spent, with the result that a couple of simple phone calls and emails can start to cost the client hundreds of dollars.
19 I note that the firm gave courtesy discounts totalling $620.00, which would partially offset any rounding errors. Even so, I am concerned that the bill does not entirely reflect the client’s ability to pay and the restraint that the lawyers might have exercised. I can appreciate that a $4,396.00 legal bill, on top of the $250.00 that he already paid, is a lot for someone in the position of the client.
20 On the evidence I am not satisfied that the lawyers gave any binding estimate of $2,000.00. The nature of the case would have made estimates impossible. No one could have known how much work or time would be involved. It is possible that the figure of $2,000.00 was mentioned. Clients sometimes ask how much a particular job might cost, on average. But very few lawyers are prepared to give an estimate that might limit what they can charge.
21 However, I do accept that the lawyers probably did not keep the client as fully advised as they might have, about how costs were escalating. The client claims that he did not see the June bill until Ms. Webber sent the July bill, which (if true) means that he received a fairly large bill all at once.
22 in all of the circumstances, I am inclined to reduce the bill slightly. As mentioned, the entire bill was for fees of $4,030.00, plus disbursements of $10.00 and HST. I find that a more reasonable amount would have been $3,500.00 for fees. I am accordingly allowing the firm $3,500.00 for fees, $10.00 for disbursements, plus HST of $526.50, minus the $250 already paid, for a total still owing of $3,786.50. There will be an order accordingly.
23 The Claimant has incurred costs to issue the claim and have it served, totalling $238.74. As the Claimant has had substantial success, the Defendant should pay these costs.
Eric K. Slone, Adjudicator