Adrian & Co. v. Kelly Date:, 2011 BCPC 127

Citation: Adrian & Co. v. Kelly Date: 20110510 2011 BCPC 0127 File No: 10-32641 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ADRIAN & CO. BARRISTERS & SOLICITORS CLAIMANT AND: JOHN WILLIAM SEYMOUR KELLY AND JANY MING-YU KELLY DEFENDANTS REASONS FOR JUDGMENT OF HER WORSHIP M. PRATCHETT Appearing on their own behalf: B. Adrian Appearing on their own behalf: John & Jany Kelly Place of Hearing: Vancouver , B.C.

Date of Hearing: April 6, 2011 Date of Judgment: May 10, 2011 [ 1 ] The Claimant brings this action for payment of legal fees and disbursements that the Claimant alleges is due and owing for work done for the Defendants. The Claimant alleges that he is entitled to be paid for work done based on time spent, up to a maximum amount. [ 2 ] The Claimant was retained by the Defendants to prepare a lease agreement for them in relation to a prospective lease of property owned by them. Defendants provided the Claimant with a brief outline of the salient terms of the lease. Claimant prepared a draft lease.

Before the lease could be finalized, the proposed tenancy collapsed and the premises were not leased. [ 3 ] Defendants allege that the terms of their retainer with the Claimant were that the legal fees for preparation of the lease, estimated at the time to be less than $5000.00, were to be borne by the prospective tenant. One of the listed terms of the lease that the Claimant was asked by the Defendants to draft confirmed that as between the Defendants and their prospective tenant, the tenant would pay the Defendant’s legal fees, up to the stated maximum.

When the tenancy arrangements did not proceed, the Defendants allege that they understood or assumed that the Claimant would not then bill them for the work done. The Defendants did not have a discussion with their intended tenant to arrange for payment of legal fees to be made. The Defendants testified that they had a discussion with the Claimant at the time that the lease transaction failed, to the effect that they intended that they would engage him on other matters in the

future, in effect, in their minds at least to make up for the fees lost on this transaction. No other opportunities for work for the Claimant have since arisen. [ 4 ] The Claimant did not have any written retainer with the Defendants. The Claimant waited some three years to render an account. His explanation for this inordinate length of time before billing was his own administrative shortcomings.

Furthermore, when doing the work for the Defendants, the Claimant did not record his time spent on this matter, had no records of time or disbursements and testified that, to explain or support the amount he now claims, he would have to recreate the time spent by reviewing his file, which apparently had not been done in preparation for trial. [ 5 ] The law is clear. The onus is always on a solicitor to prove his/her retainer. MacGill & Grant v. Chin Yow You (1914) 19 BCR 241 (CA) ; McGreevey v. Keeping [2002] BCJ 235 . Per Griffiths v.

Evans [1953] 2 All ER 1364 (CA) where there is a dispute as between a solicitor and his client as to the terms of a retainer, the word of the client is to be accepted or at least given more weight, unless there is some objective evidence to corroborate the word of the solicitor which supports the evidence of the solicitor. The retainer may be deducted from the conduct of the parties. ( Hawking & Hawkins v. Bartleet & Co [1996] BCJ no 784 ) [ 6 ] Dealing first with the evidence of the Defendants: In this case the evidence of the Defendants in relation to the terms of the retainer is at best unclear.

They advised the Claimant that the terms of the lease he was to draft were to include a provision that the tenant was to pay the legal fees for the transaction. They determined in advance from the Claimant what the maximum amount of those legal fees would be and passed that information to their tenant and obtained the tenant’s consent to that amount. They apparently never discussed with the tenant what would happen if the arrangement was not concluded. They considered that the Claimant would render his account to their tenant. At least in their minds, they were not to be responsible for legal fees.

Absent other evidence, this position might not seem objectively reasonable. [ 7 ] However it is troubling that the Claimant failed to render an account for three years. This failure to render a timely account is consistent with the Defendants’ evidence that they believed their arrangement with the Claimant was that no account would be rendered to them. Additionally, the Claimant knew, as he had drafted the lease, that as between the Claimant and their tenant, the tenant was to pay the legal fees.

When the transaction collapsed, one would assume that the Claimant would render his account immediately to enable the Defendants to quickly recover those fees from the tenant. How would the Claimant, acting reasonable, expect that the Client will be able to seek to recover for those fees from a prospective tenant when the account is not rendered for three years? The Court is entitled to assume by the passage of time that the Defendants have been prejudiced.

Had an account for legal services been rendered by the Claimant immediately following the collapse of the transaction, that conduct would have been evidence that corroborated the Claimant’s position in relation to the nature of the retainer. However the failure to render a timely account is some conduct consistent with the evidence of the Defendants and inconsistent with the evidence of the Claimant. [ 8 ] Furthermore and in any event, the Claimant kept no records of time spent by him on this transaction and was unable to support the amount claimed by him. Again this is anomalous.

On his version of the facts, the Claimant expected the account to be passed by the Defendants to their tenant for payment. On what basis would he expect the tenant to make payment if proper recording of time spent was not made. [ 9 ] In all of the circumstances, absent a written retainer, the Claimant bears the burden of proving the terms of the retainer agreement on objective evidence and then proving the amount claimed. The burden of proof on counsel is substantial. Absent a written retainer agreement or independent corroborating evidence, the evidence of the client must be preferred.

The Claimant has failed to meet the burden of proof on both counts. The Claimant has not established what the terms of his retainer by the Defendants was; the Claimant has not proven the amount claimed by him . [ 10 ] The Claim is dismissed with costs. _________________ M. Pratchett Adjudicator