Ladner Downs v. Brown

2003BCSC1004 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ladner Downs v. Brown, 2003 BCSC 1004 Date: 20030626 Docket: J980050 Registry: Vancouver Between: Ladner Downs Solicitors And Shari Rae Brown Client Before: District Registrar Blok Reasons for Decision Counsel for the Solicitors: Douglas R. Eyford Appearing on her own behalf: Shari Rae Brown Date and Place of Hearing: January 20 - 24, 2003 and May 23, 2003 Vancouver, B.C. A. Introduction [1] Shari Rae Brown was injured in a motor vehicle accident on December 20, 1991, when a taxi collided with her vehicle in the West End of Vancouver. Since that date Ms. Brown has been through examinations for discovery, an eight-day trial, a complicated appeal and, now, a review of her solicitors' accounts under the Legal Profession Act, the hearing of which took place over five and one-half days. [2] Ms. Brown is deeply dissatisfied with the overall result of her personal injury case and feels that a profound injustice has been done to her. That dissatisfaction has manifested itself in these review proceedings. B. Facts [3] The solicitor having primary conduct of this matter was Vincent Orchard, a litigator who was called to the Bar in 1976 and whose practice frequently involves personal injury matters. [4] Mr. Orchard first met Ms. Brown in June 1992. Ms. Brown was casting about for other counsel, having become dissatisfied with the work of her first counsel. Mr. Orchard was engaged by prospective new counsel to act as that lawyer's agent in interviewing Ms. Brown, who was unable to travel due to her back injury. Ultimately, however, that prospective counsel declined to take the retainer and Ms. Brown asked Mr. Orchard if he would take her case. He agreed to do so. [5] On July 8, 1992 he sent a contingency fee agreement for Ms. Brown to sign, together with medical and other authorizations. Mr. Orchard had already explained to her the nature of a contingency fee agreement when he met with Ms. Brown, as agent for the other counsel, in June 1992. [6] Ms. Brown signed the contingency fee agreement on July 14, 1992. The agreement contains typical terms. It provides for fees at the flat rate of 30% of the amount of any settlement or judgment, plus disbursements and taxes. [7] The contingency fee agreement also required that the client pay Ladner Downs interest on disbursements at the rate of 15% per annum. However, Mr. Orchard said that no interest was ever charged. [8] A further term of the agreement made clear that any appeal would be the subject of a separate agreement and that Ladner Downs had no obligation to act on an appeal unless an agreement was reached. [9] Ms. Brown said that the defendant taxi driver was entirely at fault for the accident. The taxi driver maintained that he was proceeding north on Jervis Street and that Ms. Brown's vehicle was in a lane on the west side, to his left, when her vehicle crossed in front of him, did a u-turn in the opposite laneway and came back out without stopping. Ms. Brown maintained that she never crossed Jervis Street and although she did a u-turn in order to turn her vehicle around, she had come to a complete stop in the lane, not on any part of the Jervis Street roadway. [10] Liability was thus very much in issue. [11] As to her injuries, Ms. Brown was taken to the Spinal Cord Injury Unit at Shaughnessy Hospital, where she was diagnosed with spondylolisthesis, a condition where one of her vertebra had slid out of alignment with the next. She was also diagnosed as having a left knee sprain. In a medical-legal report of December 2, 1994 the treating orthopaedic surgeon, Dr. Wing, states that spondylolisthesis was a pre-existing problem that had been significantly accentuated by the accident. He also said that surgery to stabilize the spine had a reasonable chance of helping Ms. Brown. [12] For a number of reasons Ms. Brown has never undergone the recommended surgery. [13] From the outset of the matter, therefore, the medical-legal issue was to establish the role that the accident had played in her present condition. [14] Mr. Orchard obtained the file from the previous solicitors, paying their disbursements and undertaking to protect their fees. Ms. Brown had indicated that she intended to have the account of the previous solicitors reviewed. Mr. Orchard commenced an action by filing a writ of summons and statement of claim. He also interviewed one of the witnesses to the accident and engaged a firm to photograph and diagram the scene of the accident. [15] At the time of the accident Ms. Brown had been working at the post office, on an on-call, casual basis. Thus after the accident she had no income because her injuries prevented her from working. Additionally, there was a problem with her first party insurance coverage, as her vehicle was insured by an out-of-province insurer and that insurer had declined to pay any benefits because of questions about Ms. Brown's permanent residence. [16] Because of this economic hardship to Ms. Brown, Mr. Orchard concluded that it was important to obtain as early a trial date as possible. He pressed defence counsel to file a statement of defence and to then set a trial date. Ultimately, the action was set down for a three-day trial commencing June 21, 1994. [17] As a result of Ms. Brown's difficult financial circumstances she asked Mr. Orchard, on several occasions, to press the defendants for an advance payment. Mr. Orchard did so, but his requests were refused. [18] Mr. Orchard conducted an examination for discovery of the taxi driver and attended at the examination for discovery of Ms. Brown. Lists of documents were exchanged and Ms. Brown's solicitors brought a successful application for production of some witness statements on which the defendants had claimed privilege. [19] Mr. Orchard retained a consulting engineer to assist him in the cross-examination of an opposing engineering expert. He also instructed an associate to carry out some research on the liability issue, which resulted in a legal memorandum dated May 6, 1994. This memorandum indicated that Ms. Brown's legal situation was a difficult one since the taxi driver travelling on Jervis Street would normally have had the right of way over a vehicle exiting from a lane. [20] The obtaining of clinical records was moderately complicated due to the number of physicians the plaintiff had seen both before and after the accident. Some of these records showed diagnoses in both 1980 and 1985 of spondylolisthesis in Ms. Brown's spine. Defence counsel relied on this and other evidence to argue that Ms. Brown had been less than forthright about her pre-existing back condition. [21] Several medical experts were engaged to prepare reports. Mr. Orchard felt compelled to engage additional medical experts because Ms. Brown had become critical of Dr. Wing, who had attended her both in the time following the accident and later in January, 1994 when he was consulted in the course of Ms. Brown's pregnancy. [22] In order to prepare the evidence for the pecuniary loss claims, the solicitors obtained records from Revenue Canada and the post office, as well as records relating to a drafting course which Ms. Brown was taking prior to the accident and which she completed after the accident. Her earnings history, however, was not strong, showing earnings from 1988 to 1993 ranging from $7,000 to $13,700. [23] The solicitors retained Mr. Hildebrand, an economic consultant, to prepare a report on prospective earnings losses. The solicitors also retained a rehabilitation consultant to prepare a report on future care costs. [24] Because of her nature and her circumstances, Ms. Brown was a demanding client and involved herself closely with all aspects of her case. In addition, however, she sought the assistance of the solicitors on matters outside of the retainer, including assistance in dealing with Saskatchewan counsel, whom she had retained to deal with the out-of-province insurer, as well as various requests for financial assistance, personal difficulties she had with, for example, the telephone company, and issues arising from Ms. Brown's welfare payments and the Ministry of Human Resources. It seems that the law firm even provided babysitting for Ms. Brown's daughter on occasion. [25] As the June, 1994 trial date approached it became clear to Mr. Orchard that the case was much more complex than originally thought. Liability was unclear and hard-fought and the medical evidence was more voluminous and complex than in many personal injury cases. On the latter point, defence counsel had requested the attendance of most of the plaintiff's experts for the purposes of cross-examination. Mr. Orchard therefore made inquiries about obtaining extra time for trial and, to that end, filed a trial certificate on May 26, 1994 indicating that his current estimate was that the trial would take four days, not the three days originally scheduled. [26] At about this point defence counsel made an offer to settle the matter for the sum of $25,000 and 25% of the plaintiff's costs, but set off by 75% of the defendants' costs. This would have meant only a very small sum being paid to the plaintiff. This offer was rejected. [27] Unfortunately, there was no judge available to hear the matter on June 21, 1994. The trial was rescheduled to March 1995. [28] An eyewitness had come out from Ontario to give evidence at the expected June 1994 trial. Counsel agreed to record his evidence in a video deposition, which was carried out that week. [29] Mr. Orchard used the additional time to obtain some new medical reports, refining further Dr. Wing's evidence in order to better meet the opinions of the defence medical expert. An updated report was also obtained from Mr. Hildebrand. [30] The trial of the action took place on March 6-10 and June 12-15, 1995 before Mr. Justice Holmes. [31] Holmes J. gave reasons for judgment on August 25, 1995. He rejected the plaintiff's evidence that she did not enter the Jervis Street roadway. He thus found that Ms. Brown failed to yield the right-of-way to the taxi. However, he also found that the taxi was proceeding at an excessive speed and, despite observing Ms. Brown's unusual manoeuvre, continued his fast approach, thus ensuring that he was in no position to avoid or minimize the impact when a collision became apparent. In the result, Holmes J. found that the plaintiff was predominantly the author of her own misfortune and assessed her fault at 60% and that of the taxi driver at 40%. [32] Damages were assessed in the total amount of $349,000, including $100,000 in non-pecuniary damages, $40,000 in past loss of income, $150,000 for loss of future earning capacity, $56,500 for cost of future care and $2,748.23 for special damages. The total of $349,000 was the assessment of damages prior to the liability apportionment. With the liability apportionment the net award to Ms. Brown was $139,699.30. A tax gross-up award of $9,200 and prejudgment interest of $1,591.94 were added later. The ultimate judgment totalled $150,441.24. [33] Costs, which were an important factor in this case, were awarded in accordance with the apportionment. Ms. Brown thus was awarded 40% of her costs, while the defendants obtained 60% of their costs. [34] Because of the significant eroding effect that the costs award had on Ms. Brown's recovery, Mr. Orchard brought an application to vary the costs award, which application was heard on October 12, 1995. In further reasons for judgment given November 15, 1995, Holmes J. varied the costs award such that Ms. Brown still received 40% of her costs and the defendants still received 60% of tariff items, but the defendants were now denied their disbursements. [35] A bill of costs was prepared and negotiations on costs ensued. These negotiations resulted in an agreement on the plaintiff's costs as presented, set off against the defendants' costs, with a net payment to Ms. Brown of $18,637.46. [36] Although Ms. Brown strongly disagreed with the trial judge's conclusion that she was in any way at fault for the accident, she accepted the advice of Mr. Orchard and instructed him not to appeal the decision. This instruction is confirmed in Mr. Orchard's letter to Ms. Brown of September 15, 1995. However, the defendants appealed, filing a Notice of Appeal on September 21, 1995. [37] As noted earlier, the contingency fee agreement did not apply to any appeal. Mr. Orchard stated that he and Ms. Brown agreed that Ladner Downs would represent her on the appeal on a fee for service basis. There is no written retainer agreement for the appeal. [38] The defendants' appeal dealt entirely with liability. Mr. Orchard brought a cross-appeal on damages, in particular on the award for loss of earning capacity, and also appealed the costs award. [39] The parties agreed to stay execution on condition that the judgment monies be held in a trust account pending the outcome of the appeal. Ms. Brown instructed Ladner Downs to consent to this stay of execution, a motion for which had been filed by the defendants. [40] The appeal books were prepared by the defendants. Sets of appeal books and transcripts were forwarded to Ladner Downs on January 12, 1996. A debate ensued as to the contents of the appeal books, with issues arising on the matter of photographs and certain other documents. The appeal books were ultimately finalized and filed on May 21, 1996. [41] Ms. Brown was sent a copy of the draft factum that was to be filed on her behalf. She insisted that the factum include an argument on liability in her favour. Mr. Orchard thus revised the factum to include an argument that if the court was inclined to vary liability it ought to do so in Ms. Brown's favour. [42] On February 22, 1996 the defendants made an offer to settle the case for $100,000. That offer was rejected by letter dated February 28, 1996, and a counter-offer of settlement was made for the full amount of the judgment, costs and interest that were then owing, which was $166,865.52. The counter-offer was not accepted. [43] In the course of discussing the defendants' offer of settlement the solicitors discussed with Ms. Brown the alternatives available to her and the financial consequences of those alternatives. Included in that discussion was a general discussion of the costs of the appeal. According to Mr. Shaw, who was Mr. Orchard's junior, a figure of $20,000 for these costs was used, but for illustrative purposes only. [44] Although the appellants' factum was due on June 20, 1996, it was not filed by that date. Ms. Brown was becoming impatient with the progress of the appeal, but ultimately agreed to an extension of time. The appellants' factum was filed on July 24, 1996. Unfortunately, as this now fell within Mr. Orchard's holidays, Mr. Orchard found himself in the position of also requiring an extension of time. The respondent's factum and the factum on cross-appeal were filed on September 19, 1996. The appellants filed their factum on the cross-appeal on October 3, 1996. A certificate of readiness was filed October 8, 1996. [45] On February 20, 1997 a five-justice division of the Court of Appeal released its decision in Flatley v. Denike (1997), 32 B.C.L.R. (3d) 97. This case established that where the defendant suffers no damage or loss but liability is divided, the defendant must pay the plaintiff's costs in accordance with the liability apportionment but the plaintiff is not liable to pay any portion of the defendant's costs. This case was brought to the attention of opposing counsel by Mr. Orchard with notice that it would be relied upon at the hearing of the appeal. [46] In April 1997 Ms. Brown asked her solicitors to make an application to the Court of Appeal for the admission of fresh evidence. The information conveyed by Ms. Brown was that Dr. Wing was now of the view that her spinal condition had deteriorated to such an extent that corrective surgery was no longer an option. Mr. Orchard replied that he would require very cogent evidence of such a change and that they would have to look into the matter. [47] Mr. Orchard discussed the matter with Dr. Wing, and Dr. Wing subsequently provided a letter to Mr. Orchard confirming his views. In that letter Dr. Wing said, "The only additional medical information that now has to be considered is that Shari is somewhat osteoporotic." He concluded as follows: It does not make a material difference to the surgical decision-making or outcome, but will require consideration from the technical perspective if surgery is undertaken. Further, there is a slightly greater risk of the surgery not healing as well first time because of this. To summarize, the situation regarding Shari's low back has not changed substantially... . [48] Mr. Orchard concluded that this information fell short of meeting the test required for a successful application to admit fresh evidence. [49] Relations between client and counsel became very strained at this point. Ms. Brown insisted that there should be a fresh evidence application and an adjournment of the appeal. Mr. Orchard strongly advised against it. Mr. Orchard also attempted to persuade Ms. Brown to reconsider settlement and, at minimum, to give him instructions to open a settlement dialogue with opposing counsel. To this end, Ms. Brown was informed that Ladner Downs was prepared to reduce its fees for the appeal to date from $30,000 to $10,000 if she would agree to a negotiated settlement. Ms. Brown refused to give any settlement instructions, insisting that she wanted $500,000 from her case. [50] Mr. Orchard considered that the solicitor-client relationship had deteriorated to such an extent that his firm could no longer continue to act for Ms. Brown on the appeal. He wrote a letter to Ms. Brown dated May 5, 1997 to that effect, suggesting that she contact two other experienced counsel, whom he named. Mr. Orchard indicated that if she had not obtained other counsel by May 14, 1997 they would have no alternative but to apply to the court to withdraw. [51] Ms. Brown consulted with the two other counsel, neither of whom wished to take on the case. Ms. Brown asked Ladner Downs to re-consider their position and Mr. Shaw, for the firm, wrote to convey the conditions under which Ladner Downs would continue to act for Ms. Brown. These conditions included not applying to have the appeal hearing adjourned, not applying to admit fresh evidence, and to proceed with the appeal as set out in the filed factums with the exception of an additional point on costs. Ms. Brown agreed to these conditions, in writing, on May 15, 1997. [52] An additional condition, that Ms. Brown provide Ladner Downs with settlement instructions, was withdrawn by agreement. Mr. Shaw had attempted to persuade Ms. Brown to give those instructions, but without success. [53] A memorandum dated May 9, 1997, recording the discussions with Ms. Brown, indicates that Mr. Shaw discussed with Ms. Brown various settlement scenarios utilizing a figure of $30,000 for the appeal fees and disbursements. For the purposes of settlement, Mr. Orchard was willing to write these amounts down from $30,000 to $10,000. Ultimately, however, Ms. Brown would not give her solicitors any settlement instructions. [54] The appeal was heard on June 18, 1997. Mr. Orchard was not called upon to respond on the appellants' liability appeal. He did, however, argue the cross-appeal on loss of earning capacity and Mr. Shaw argued costs. The Court of Appeal dismissed both the appeal and the cross-appeal, with the exception of the cross-appeal on costs, where the order below was varied, as argued by Ms. Brown's counsel, so as to remove Ms. Brown's requirement to pay 60% of the defendants' costs. [55] Mr. Orchard asked for leave to make further submissions on costs, which was granted. The parties then submitted further argument in writing. [56] On August 19, 1997 the Court of Appeal issued a memorandum indicating that the costs submissions raised the possibility of the Court having to reconsider an earlier decision, and that the determination on costs would thus be made by a five-justice division of the Court. [57] The re-constituted Court gave its reasons for judgment on September 25, 1997. The Court noted that Ms. Brown "obtained excellent representation at trial". The Court found, however, that no further basis had been established for the exercise of judicial discretion in favour of the plaintiff on the matter of costs, beyond what had already been decided. [58] Michael Ragona, Q.C. was lead counsel for the defendants at trial and on the appeal. Mr. Ragona is a senior litigator with years of experience in insurance defence matters. Testifying in the hearing before me, Mr. Ragona said that it was his view that the plaintiff's case had no merit whatsoever. He thought that the lawyers at Ladner Downs did "an admirable job". He thought that the result at trial was a lot more than the case was worth. [59] In her evidence, Ms. Brown said that the litigation was unduly long, having lasted six years. At the end of the day she received $60,000 and "Ladner Downs kept the remainder of the money". This, she said, was unjust in that the judgment she obtained was for $349,000. [60] Ms. Brown stated firmly that she did not accept any fault on her part for the accident. She did not acknowledge that her lookout was inadequate or that she failed to yield to the oncoming taxi. She was shocked at the trial outcome. [61] Ms. Brown held Ladner Downs responsible for what she felt were the trial judge's errors because Ladner Downs had introduced great "clutter" to the proceedings. She did, however, acknowledge that Mr. Ragona "did an extraordinarily good job". [62] Ms. Brown gave conflicting accounts on the matter of her instructions to Mr. Orchard to bring an appeal. Although she said that there was "no retainer", she also said she wanted Mr. Orchard to act on her behalf and to bring an appeal as it was her only hope of "straightening this out". I am, however, satisfied that she accepted the advice of Mr. Orchard and instructed him not to appeal. Once the defendants appealed, Mr. Orchard followed her instructions and, as the Notice of Cross-Appeal and respondent's factum reveal, asked that in the event the Court felt inclined to vary the liability apportionment it do so in Ms. Brown's favour. [63] Although in her submissions Ms. Brown stated that there was no retainer for the appeal, even if there is no written retainer agreement for the appeal it is beyond question that she engaged Ladner Downs to represent her in the appeal brought by the defendants. Importantly, Ms. Brown said that she knew full well that she was incurring further fees by reason of the appeal. She said that she felt she had to go on. [64] Ms. Brown felt that Ladner Downs did not act properly when later they told her that they could no longer act for her on the appeal. She felt that they were forcing her into a course of action because they did not want to proceed with the appeal. She said, however, that the "clutter and confusion" in the court below required the Court of Appeal's intervention to sort it out. [65] As noted at the outset, Ms. Brown feels a deep sense of injustice by reason of all these proceedings. She summarized her views by saying "I ended up with squat and my back is broken". C. The Accounts [66] Two accounts, each dated November 21, 1997, were rendered by Ladner Downs in this matter. [67] The total of the first account is $85,187.04. Fees billed were $45,132.37, disbursements totalled $32,071.83 and taxes totalled about $8,000. The fees were calculated by taking 30% of the judgment amount of $150,441.24, in accordance with the contingency fee agreement. [68] Of the $32,000 or so in disbursements Ms. Brown was reimbursed 40% from the defendants, amounting to about $12,000. [69] The second account of November 21, 1997 was for the appeal. In that account, fees were billed at $37,500. Disbursements total about $1,360. Taxes of about $5,300 make up the remainder of the total account of $44,209.19. [70] Other amounts were reimbursed from monies received, those being the accounts of Ms. Brown's first counsel and counsel retained in Saskatchewan to deal with her claim against the out-of-province insurer. Each of these accounts totalled about $1,100. [71] With costs at trial, costs of the appeal and interest, the total amount credited to Ms. Brown was $192,003.19. After deduction of the four accounts, detailed above, the net amount paid to Ms. Brown was $60,470.03. [72] These calculations were set out in detail in a letter from Mr. Orchard to Ms. Brown dated November 21, 1997. Ms. Brown signed that letter "agreed and acknowledged" on November 24, 1997. D. Discussion [73] Ms. Brown's complaints are many and varied, but the thrust of Ms. Brown's complaints is global in nature. She feels that it is unfair that she has ended up with the sum of $60,000 for an accident for which she was entirely without fault and which resulted in her back being "broken". Ms. Brown therefore challenges both the fees for trial and the fees for the appeal. 1. Trial [74] The fees at trial were billed according to the terms of a contingency fee agreement. Effectively, Ms. Brown wishes to have both the agreement examined under s.68 of the Legal Profession Act (the "Act") and the resulting fee reviewed under s.70 of the Act. [75] Section 68 of the Act reads, in part, as follows: (2) A person who has entered into an agreement with a lawyer may apply to the registrar to have the agreement examined. ... (5) On an application under subsection (2), the registrar must confirm the agreement unless the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into. ... (6) If the registrar considers that the agreement is unfair or unreasonable under the circumstances existing at the time the agreement was entered into, the registrar may modify or cancel the agreement. [76] The solicitors argue that Ms. Brown did not file an appointment for an examination of the contingency fee agreement within three months after the termination of their retainer, which the solicitors argue occurred after the trial judgment was rendered. [77] "Termination of the retainer" is the language used in the 1978 version of the Legal Profession Act. The current version of the Act starts the time running from the termination of the solicitor-client relationship, not from the time the retainer is terminated. In the absence of any authority, or even proper argument, on the subject, I tend to the conclusion that the current Act would apply to the circumstances of this case and that Ms. Brown would not be time-barred from filing an appointment to examine the contingency fee agreement. [78] Having said that, however, I have applied the tests set out in Commonwealth Investors Syndicate Ltd. v. Laxton (1990), 50 B.C.L.R. (2d) 186 at pp. 198-199 (C.A.), confirmed, with one modification, to apply to the revised legislation in Randall & Co. v. Hope (1996), 13 E.T.R. (2d) 257 (B.C.S.C.), and I have concluded that there are no facts before me on which I can conclude that the agreement was unfair or unreasonable under the circumstances existing at the time the agreement was entered into. [79] On the issue of fairness, there was simply nothing in the evidence which suggested that Ms. Brown failed to understand the fee agreement, that she was under any misapprehension about the agreement, that the solicitors exerted pressure on her of any sort, undue or not, or that they otherwise acted improperly or unfairly in any respect at the time the fee agreement was entered into. [80] I note, too, that Mr. Orchard explained to Ms. Brown the nature of a contingency fee agreement at the time he was acting as agent for prospective counsel. Since he did not have a financial interest in the matter at that time, the role he played in giving this advice was more akin to that of a lawyer giving independent legal advice. [81] On the matter of reasonableness, at the time of the agreement Ms. Brown had no means to pay a lawyer and therefore could not retain counsel unless it was done through a contingency fee agreement. At the time the agreement was entered into it would have been apparent that Ms. Brown's case presented a significant challenge on liability. Despite Ms. Brown's insistent position, the prima facie liability situation would have been in favour of the taxi driver, as he was the so-called "dominant" driver. [82] It may also have been known, at that time, that damages would present a challenge because of Ms. Brown's pre-existing spinal condition. [83] Ms. Brown's case was thus a difficult one. The evidence shows that one counsel declined her case. The percentage billed was a relatively standard one for these circumstances, at least standard for matters that proceed through to trial. [84] Mr. Orchard and his firm were thus faced with a range of possible outcomes that included a "nil" award, or a low award, after a trial of the issues. The firm agreed to carry disbursements for an impecunious client. The risks undertaken by the solicitors were therefore real and substantial. [85] I am therefore unable to conclude that the contingency fee agreement in question was unreasonable at the time it was made. I should note that in examining the issue of reasonableness I have generally considered the factors suggested by Master Joyce (as he then was) in Ewachniuk v. Mander, [1991] B.C.J. No. 4018. [86] Proceeding on the continued assumption that both the examination of the fee agreement and the review of the resulting account are in issue, I turn to the review of the account rendered for the trial proceedings. For the requirement that I proceed in this way see Long, Miller and Mullins v. Sawchuk, 2002 B.C.S.C. 542, at paragraph 63. [87] The second appeal in the Commonwealth Investors case, Commonwealth Investors Syndicate Ltd. v. Laxton (1994), 94 B.C.L.R. (2d) 177 (C.A.) ("Commonwealth No. 2"), sets out the appropriate criteria which a Registrar should follow in reviewing an account rendered pursuant to a contingency fee contract: Long, Miller and Mullins v. Sawchuk, supra at paras. 65-67. In Commonwealth No. 2 the court held that the purpose of the inquiry is to decide whether the agreement operates reasonably in the context. The question to be asked is whether the fee fixed by the agreement is reasonable and maintains the integrity of the profession. All the circumstances are to be considered, including the well-known factors stated in Yule v. City of Saskatoon (1955), 1 D.L.R. (2d) 540 (Sask. C.A.), the risks and expectations, and the terms of the fee agreement itself. [88] I can summarize my conclusion on these factors by stating my agreement with the Court of Appeal's observation that Ms. Brown obtained excellent representation at trial and with opposing counsel's observation that Ladner Downs "did an admirable job". The case was challenging and it was hard-fought. Defence counsel thought Ms. Brown should recover nothing and litigated accordingly. Mr. Orchard met the challenge and went the extra distance by applying successfully to vary the trial judge's initial costs order. The time spent by counsel was considerable: although he did not state the number of hours, Mr. Orchard testified that to the end of trial Ladner Downs had recorded time of a value of $134,000, for which fees of about $45,000 were billed. The result was as good as could reasonably have been hoped for in the circumstances. [89] Ms. Brown emphasizes that this was a simple case. The taxi hit her vehicle, the other driver admitted fault, her back was broken and her spine was crushed. Ladner Downs, she complains, complicated this simple case by introducing such "clutter" that the trial judge's focus was taken away from these simple facts. Introduction of clutter into her case also resulted in the lengthening of the trial from three to eight days and the consequent delays in the litigation. [90] I should observe here that "clutter", in the sense used by Ms. Brown, seems to mean any evidence that tends to show that Ms. Brown's version of events is not correct. She therefore complains about evidence from the defendant driver which might suggest he was not entirely at fault for the accident, any evidence from eyewitnesses or the opposing accident reconstructionist whose evidence tends against her, or medical evidence which describes her injuries in anything other than the most serious and irreparable terms. [91] Adding to Ms. Brown's view of her case is her tendency to use the most dramatic or extreme characterization possible to describe her situation. Thus the apparent admission by the taxi driver that he did not slow down, brake or sound his horn in response to his sighting of Ms. Brown's vehicle becomes an "admission of fault", that is, 100% fault. What Dr. Wing describes as a significant accentuation of a pre-existing condition where one of her vertebra had slid out of alignment with the next, although no doubt a serious condition in and of itself, becomes a "broken back" or a "crushed spine". A judgment for $150,441.24, which netted about $60,500 after deduction of fees and disbursements, becomes a judgment for $349,000 (the liability apportionment being ignored), of which Ms. Brown received $60,500 and "Ladner Downs kept the rest". A minor change in her back condition required, in Ms. Brown's view, an application to introduce fresh evidence in the Court of Appeal to show the "crushing of her spine", despite the fact that Dr. Wing wrote that "the situation regarding Shari's low back has not changed substantially". [92] Regrettably, Ms. Brown's apparent belief in these exaggerated characterizations contributes greatly to the sense of injustice she feels with the overall result. I very much doubt that anything could be said by anyone to dissuade her from this view. [93] Ms. Brown herself acknowledges that defence counsel mustered a substantial body of evidence and argument against her. This of course was "clutter" over which Mr. Orchard had no control. Mr. Orchard mustered evidence and argument to meet the case against Ms. Brown. There is nothing in the evidence which suggests anything excessive or inappropriate in the case presented by Mr. Orchard. [94] Ms. Brown complains about unduly lengthy litigation. The action was scheduled for trial for three days commencing June 21, 1994 but did not proceed on that date due to the unavailability of a judge. Although Ms. Brown points to changing estimates of trial length in an apparent attempt to fault counsel for the loss of the trial date, the unavailability of a judge on the scheduled date was the cause of the adjournment. This is simply an unfortunate sometime feature of our trial scheduling system. I am satisfied that the trial took place as soon as it reasonably could have, having regard to the forced adjournment in June 1994 and the evolution of the case from one of average complexity to one where all issues were extremely hard-fought. [95] Having regard to all of the circumstances of this case I am satisfied that the contingency fee agreement operates reasonably in the context of this matter and that the fees billed for the trial proceedings are reasonable. 2. Appeal [96] Ms. Brown's principal complaints with respect to the appeal are these: (a) the appeal was not prosecuted with despatch; (b) Mr. Orchard was reluctant to press for a reapportionment of liability in Ms. Brown's favour even though the testimony of the taxi driver showed he was completely at fault; (c) Mr. Orchard refused to apply to admit fresh evidence showing the progression of her injuries; and (d) her case, which should have been simple, has been magnified to such an extent that the Court of Appeal decision in Brown v. Black Top Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 has been cited in legal textbooks and other cases. [97] The timeline for the appeal has been set out previously. The only delay worthy of comment is the delay between the time the initial appeal books were sent to Ladner Downs in January 1996 and the ultimate finalization of those appeal books in May 1996. In between those dates a debate took place between counsel as to the contents of the appeal books. I am, however, unable to conclude that this delay was solely the fault of Ms. Brown's solicitors. Moreover, the remedy for delay would have been a hearing before the Court of Appeal Registrar, which would have added to the cost. [98] Although the appeal was put on the inactive list on September 23, 1996, an application was promptly made to restore the appeal to active status and an order to that effect was made October 2, 1996. [99] On the matter of the liability reapportionment, Mr. Orchard testified that it was his opinion that Ms. Brown had been about as successful as she was likely to be on liability, and to raise the issue too directly was to make it easier for the Court of Appeal to reapportion liability against her. [100] Ms. Brown agreed with this approach, at least initially, as evidenced by her approval of the factum that was prepared on her behalf. Strictly speaking, this should end the argument on this issue. [101] Although Ms. Brown maintained that Mr. Orchard's lack of enthusiasm for a complete re-opening of liability was not in her best interests, Mr. Orchard's approach was designed to protect the gains she had made, was based on a judgment call, and appears to have a sound basis. I see no grounds for criticism on this issue. [102] On the matter of the fresh evidence application, I am satisfied that Dr. Wing's report of May 4, 1997 provided no real basis for such an application to be made. Mr. Orchard owed a duty to the court, as counsel, not to bring a frivolous application, despite the insistence of Ms. Brown. Although Mr. Orchard's later reference to Ms. Brown's present physical state, in the application to vary costs, is criticized by Ms. Brown as being inconsistent, the basis on which the evidence was tendered on the later occasion was quite different. I find nothing to criticize in these actions. [103] Lastly, Ms. Brown takes issue with the apparent legal notoriety her case has achieved. This is really a restatement of Ms. Brown's complaint that the case was made much more complicated than it should have been, a complaint I have already discussed and dealt with. [104] There is the additional matter of a possible fee estimate of $20,000, which Ms. Brown has mentioned at times but which she did not emphasize in her final submissions. The first mention of this figure is said by Ms. Brown to have come from Mr. Orchard when the matter of a possible appeal was being discussed. She maintains that he said to her that he would not take the matter to appeal unless she had $20,000 available, which she did not have. Later, the figure of $20,000 was discussed with Ms. Brown in order to illustrate the net proceeds that would flow through to her using alternative settlement scenarios. At a later time the figure of $30,000 was used for similar purposes. I am satisfied that none of these discussions amounted to a firm estimate or commitment to a fixed fee. [105] I turn now to a review of the fees billed for the appeal, which must be assessed in accordance with the factors set out in s.71(4) of the Act. Although I have considered all of the necessary factors, only some require comment. [106] The liability issues on appeal were not complex, although the costs issues involved some new law and were moderately difficult as a result. The amount involved was not large by the standards of modern litigation, but it was of critical importance to Ms. Brown that the judgment be affirmed or improved upon, if possible. Lawyers at Ladner Downs invested a total of about 440 hours on the appeal file, which at normal hourly rates would have resulted in fees of $68,000. The result obtained was a favourable one for the client insofar as the trial judgment was affirmed, a judgment which, although Ms. Brown does not accept this, was favourable to her in all of the circumstances. The costs situation was improved upon to the extent that Ms. Brown was no longer liable to pay 60% of the defendants' costs. [107] I must also observe that during the time of the appeal Ms. Brown was a most difficult client. At times, relations with her solicitors were strained beyond the breaking point. Primarily, this stemmed from Ms. Brown's unyielding view that she was not at fault for the accident and from the unreasonable instructions she gave as a result of that view. This conflict added substantially to the burdens of the solicitors. [108] Ultimately, the fees billed for the appeal in this matter were $35,000. I find this sum to be fair, reasonable and justified in all the circumstances of this case. 3. Disbursements [109] Ms. Brown challenged a number of the disbursements. For certain disbursements it was Ms. Brown's position that they would not have had to have been incurred if the June 1994 trial had gone ahead. But the fact of the matter is that the first trial did not proceed because there was no judge to hear it. The additional disbursements, such as updated medical and other reports that were incurred in preparation for the eventual trial held in March and June 1995, are reasonable in amount and I find them to have been reasonably incurred. [110] Similarly, I find the expense related to the videotaped deposition of the Ontario witness, who came out for the June 1994 trial, to be a reasonable disbursement. It was right and proper that this witness be deposed so as to spare the expense of having him come out again for trial. [111] I deal with other objections as follows: (a) Medical Disbursements [112] These total about $12,500, made up of about $10,750 in fees paid to medical experts and the rest for clinical records. Ms. Brown objects to these on the basis that no medical treatment was given by these experts, and that no more than one report should have been required. [113] Medical treatment was not the function of these experts, at least in their role as experts. I am satisfied that the reports obtained were reasonably necessary. (b) Rehabilitation Consultant - Cost of Future Care [114] This is objected to because the opinions of the consultant were "outrageous" and the costs excessive, being in the same range as those charged by the orthopaedic surgeon. [115] I note, however, that although some recommendations were rejected, the trial judge used this evidence, in part, to found an assessment of the costs of future care at $56,500, prior to the liability apportionment. The charges seem to be in the typical range for these types of reports. (c) Accident Scene Photos and Diagram [116] This disbursement totals $681. Ms. Brown says that she was quoted "about $250" for this expense. The expense for the actual initial work is $300, the rest of the cost being due to colour reprints, etc. I find that the base cost reasonably accords with the quote given, and that the overall cost is reasonable. (d) Taxis [117] Ms. Brown took great umbrage at two charges totalling $18 for taking Black Top taxis to the courthouse, given that it was a Black Top taxi that struck Ms. Brown's vehicle in the accident that gave rise to the litigation. [118] Although the selection of Black Top taxis on those two occasions was certainly most unfortunate, I am sure that they were used due to lack of thought rather than as deliberately insensitive acts. In any event, I find the charges reasonable in the circumstances and they are allowed. (e) Other Disbursements [119] Photocopying charges totalled $3,214 for the trial and $854 for the appeal. For the trial alone, computer legal research amounted to $469, faxes totalled $565 and courier charges totalled $419. [120] As contentious a case as this turned out to be, I am of the view that these charges are excessive. [121] In addition to the foregoing disbursements, the solicitors charged a "file preparation" fee on various occasions. These fees total $175 for the trial and $145 for the appeal. Mr. Orchard said that this fee (typically $25) is charged for the opening of a file or sub-file, or for file storage. He said that 21 files or sub-files were opened in this matter. [122] I consider this to be an item of pure overhead. Unless there is a specific agreement from the client to pay these charges they are not properly billed. As there was no such agreement in this case, these charges are disallowed. [123] I conclude that overall disbursements should be reduced by $1,400, inclusive of taxes, to reflect the disallowance of the file preparation fees and the excessive element of the charges for photocopying, faxes, couriers and computer legal research. This reduction will be set off against costs awarded in favour of the solicitors. [124] All other disbursements are allowed. E. Conclusion [125] I find the contingency fee agreement in this matter to be both fair and reasonable. The agreement is therefore confirmed. [126] From my review of the account rendered pursuant to the contingency fee agreement, I conclude that the fees are reasonable and I allow them in full. [127] From my review of the account rendered for the services relating to the appeal, I conclude that the fees are reasonable and I allow them in full. [128] I disallow disbursements in the total amount of $1,400, inclusive of taxes, for the two accounts in question. This sum is to be set off against costs owing to the solicitors. [129] The solicitors are entitled to their costs of this proceeding. "District Registrar M. Blok"