Clay v Kurelic

Mark Gregory Clay brought an application for a review of the taxation of a bill of costs pursuant to O 66 r 55 of the Rules of the Supreme Court. The application was made by the plaintiff against Marie Kurelic, the second defendant, and concerned a taxation of costs carried out in respect of an appeal. The appeal was in turn a consequence of a proceeding brought by the plaintiff to contest the validity of a codicil to a Will executed by his uncle, Alfred Clay, who had died on 24 January 1995. The plaintiff sought to challenge the claim for privilege made by the second defendant over certain documents that the plaintiff sought to inspect. Privilege was claimed upon the basis that the documents were brought into existence for the sole purpose of litigation between the parties. The second defendant's solicitors had handed to the taxing officer a letter from counsel which contained a short sentence confirming the position as to time taken in argument before the Master. The plaintiff requested that he be permitted to inspect the letter. The taxing officer informed the plaintiff that the only content of relevance to the taxation and to which he had any regard was the sentence which alleged a hearing period before the Master of forty five minutes. The taxing officer returned the document to the second defendant's solicitors without providing it for inspection by the plaintiff. The plaintiff claimed that the taxing officer had no power to withhold the document and was required to provide the opportunity to the plaintiff to make submissions in response to the content of the document as were or might be relevant or appropriate. The plaintiff argued that the refusal to produce the document to the plaintiff and provide an opportunity to make submissions in response to its content involved an error in principle in that it was a denial of natural justice tainting the whole of the taxation. Justice must not only be done; it must manifestly be seen to be done. The court considered that the issue arose in the context of a procedure which allows for the production of vouchers, and it was for that limited purpose that a passage in the relevant document was provisionally relied upon. When the question of privilege was brought into issue by the plaintiff's call to inspect the entire document the document was withdrawn. An opportunity was then afforded to the plaintiff to respond to the issue of time to which the letter or proposed voucher was provisionally directed. When one had regard to the nature and quantum of the item in issue it was difficult to see in what way the plaintiff was prejudiced by the incident or denied an opportunity to address the issue. Accordingly, in the particular circumstances of the present case, the court was not persuaded that the rules of natural justice were infringed. It followed that the court was not satisfied that the taxing officer made an error in principle within the meaning of O 66 r 55(2). If the taxing officer had made an error in principle, a further question would then arise as to whether the plaintiff should be granted relief of the kind claimed, for the power to rectify the error was discretionary. In the circumstances, the court was not prepared to grant relief of the kind claimed. The court concluded that to grant relief of this kind would be futile. The application for a review was dismissed.