律师费: 300K付后, 如何退款? [2024] MLJU 1502

1. 在2022年，两名原告因涉嫌刑事失信罪在法庭被提控。于是，他们聘请了被告(律师事务所)为他们辩护。被告的律师团队出庭为原告争取保释，并最终成功。被告开了一张收费通知单给原告，数额是RM318,000.00，其中RM300,000.00令吉是律师费，18,000.00令吉是6%的服务税。原告同意了这个收费。
2. 后来，原告解除聘任被告。原告的新律师写信给被告事务所的合伙人，要求退还RM318,000.00。被告拒绝了退款，并解释了他们的收费。因此，原告针对这张收费通知单提起了诉讼。
3. 法律规定，在律师向客户发送账单后，客户有6个月时间提出异议并申请审核，否则律师楼的账单就会被视为最终数额，不可被挑战。在本案中，原告没有在6个月内提出审核账单的申请。法律允许，在符合指定条件下，原告可以在超过6个月但在一年内申请。
4. 其一的条件就是，原告必须通知被告，说原告打算审核被告的账单。但是，原告并没有通知被告，而只是通知被告的合伙人。法庭指出，指定的通知必须是给予被告而已，而不是任何人。
5. 原告声称，他们从未委任被告，支付的RM318,000.00则是委任被告未来服务的押金。此外，他们还指控被告收取的律师费过高并涉嫌欺诈。然而，法庭认为，双方确实有一份书面协议，明确规定了被告为原告处理两起刑事案件的律师费，而且原告在没有提出异议的情况下支付了RM318,000.00，这说明双方之间有协议存在。
6. 法庭强调了法庭必须尊重双方在协议中的明确意图。法庭批评了原告对显而易见的事实的否认，认为这是没有实际争议的表现。最终，法庭认定，协议的内容和条款都很清楚，原告的签字和付款行为表明他们同意被告的收费。
7. 因此，法庭驳回了原告的诉讼申请，并判决原告支付3,000.00令吉的费用。

*有清楚的书面协议和付款记录就意味着双方同意协议的条款。如果接受了服务却不想付钱，不仅不道德，还可能面临法律责任。

Brief Facts

1. In 2022, the Plaintiffs were both charged in the Shah Alam Session’s Court in 2 criminal cases for Criminal Breach of Trust each and respectively. They engaged the Defendant’s firm to represent the Plaintiffs. The Defendant assembled a team of lawyers who attended the Shah Alam Session’s Court for the Plaintiffs in respect of the offences faced by them, including successfully obtaining bail for them.
2. The Defendant issued their Note of Charges to the Plaintiffs for the sum of RM318,000.00 being a legal fee of RM300,000.00 together with 6% Service Tax of RM 18,000.00 in respect of their services as lawyers for the Plaintiffs in respect of the 2 serious criminal cases. The said Note of Charges was agreed by the Plaintiffs.
3. The Plaintiffs then discharged the Defendant. The Plaintiffs sought, inter alia, a refund of RM318,000.00 from the Defendant via a letter from their solicitors. The Defendant responded to the letter from the Plaintiffs’ solicitors denying the allegations made by the Plaintiffs with an explanation.
4. The Plaintiffs filed an application by way of Originating Summons (OS) under various provisions of the Legal Profession Act 1976 (LPA) and the Rules of Court 2012 (ROC) for inter alia, taxation of the Defendant’s Note of Charges dated 30.8.2022.

Whether the taxation was done within the prescribed time

5. The Plaintiffs are seeking an extension of time to tax the Defendant’s Note of Charges. According to the LPA, a bill must be delivered to the chargeable person before proceedings for recovery can begin. The Plaintiff must challenge the bill within 6 months to obtain a taxation order; otherwise, the bill becomes absolute. In this case, the Plaintiff did not seek taxation within the 6-month period, so the bill is considered absolute.
6. In Tetuan Azim Tunku Farik & Wong v. Tetuan Ong Partnership [2021] 6 MLRA 569, the Court of Appeal ruled that the limitation period for challenging a bill of costs starts from the delivery of the bill by the advocate to the chargeable party, not from when it is received by the party liable to pay.
7. Three conditions are stipulated in Section 128 of the LPA to tax a bill outside the six-month limitation period:

(i)        Notice to the advocate;

(ii)       Special circumstances proved to the satisfaction of the court; and

(iii)      The order for taxation must be made within one year of the delivery of the bill of costs.

8. In the case of Lim Goay Hooi v. Tetuan Choy & Associates; Lim Ho Peng (Proposed Intervener) [2021] MLRHU 2166, the High Court held that: “The court in such circumstances have no powers to extend time or grant leave to such person for an order to tax his bill of costs in view of s 128(2) of the LPA. The issue of special circumstances under s 128(1) does not even arise to be considered where the maximum period of one year have lapsed to bring an application for an order to tax the solicitors’ bill of costs. In such circumstances the proposed intervener’s right to challenge the tax invoices have been extinguished by effluxion of time.”
9. I have perused the cause papers and I find that no notice has been issued to the Defendant as envisaged by Section 128(1) of the LPA regarding the Plaintiffs’ intention to tax the said Note of Charges.
10. This is because the Plaintiffs only issued letters of demand to the Defendant firm’s partner in his personal capacity to him to refund the sum of RM318,000.00 to the Plaintiffs. Thus, the Plaintiffs have never issued any notice to the Defendant on their intention to tax the said Note of Charges in contravention of Section 128(1) of the LPA.
11. The Court emphasised the necessity of giving notice to the plaintiff to challenge bills of costs. Since there was no prior notice from them to dispute the said Note of Charges, it is this Court’s view that only when this condition has been met that the Court is to consider whether there are any special circumstances to challenge the said Note of Charges. Therefore, as this condition is not met, this Court need not consider whether there are any special circumstances alleged by the Plaintiff in his Affidavit.

Whether there was an agreement entered between the Plaintiffs and the Defendant in relation to the services rendered by the Defendant to the Plaintiffs

12. According to the Plaintiffs, they have never entered into any agreement with the Defendant for the legal fee and the sum of RM318,000.00 paid by the Plaintiffs was merely a deposit for the Defendant’s service in the future.
13. The Plaintiffs complained that the Defendant’s legal fee was excessive and exorbitant and there was fraud in the issuance of the Note of Charges to the Plaintiffs.
14. However, the Court finds that there exists an agreement in writing between the parties for the legal fee of the Defendant and payment thereof for the Defendant’s conduct of the 2 criminal prosecutions of the Plaintiffs before the Shah Alam Session’s Court.
15. Section 114(3) of the LPA reads as follows: –

“114. Advocate and solicitor may make agreement for remuneration from client

(2)

The agreement shall be in writing and signed by the person bound by it or as his agent on his behalf.”

16. Section 116 of the LPA reads as follows: –

“116. Advocate and solicitor may enter agreement for costing contentious business.

Subject to any written law, an advocate or solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of his costs in respect of contentious business done or to be done by such and advocate and solicitor, either by gross sum, or otherwise, and either at the same rate or at a greater or lesser rate than the rate at which he would otherwise be entitled to be remunerated.

• Every such agreement shall be signed by the client and shall be subject to this Part.”

17. Section 117(3) of the LPA reads as follow: –

“117. Costs recoverable from client by other person not attested.

(2)

Subject to this Part, the costs of an advocate and solicitor in any case where there is any agreement as is referred to in section 116, shall not be subject to taxation, nor to Section 124.”

18. The Court finds that the said Note of Charges was duly acknowledged and signed by the Plaintiffs and constituted the Agreement between the parties and the Plaintiffs immediately transferred the sum of RM318,000.00 to the Defendant without any objection as documented by the Agreement. It is the duty of this Court to give effect to the bargain between the parties and the intention of the parties as reflected in the Agreement.
19. In Mohd Zukri Che Wil v. Tetuan Ranizan Abdullah & Associates [2021], the Court emphasised that courts must uphold the clear and unambiguous intentions of the parties as expressed in their agreement. The Court criticised “denials of plain and what truly are non-controversial facts…ought to be deprecated…” as they indicate a lack of genuine dispute.
20. The Court finds that the Agreement is clear and precise as to its contents and terms, and the Agreement certainly is buttressed by the Plaintiffs making payment thereof forthwith.
21. Therefore, the Court viewed that the acknowledgment and signing by the Plaintiffs as documented in the said Note of Charges evinces the Agreement by the Plaintiffs towards an agreement by the Plaintiffs of the appointment and legal fee of the Defendant.
22. This Court finds that the Plaintiff’s assertion that the sum of RM318,000.00 paid was merely a deposit for the Defendant’s service in the future is untenable and devoid of merit. The said Note of Charges categorically states that it is for the initial professional fee for acting in the prosecution against the Plaintiffs before the Shah Alam Session’s Court.
23. The Plaintiffs’ allegations that the Defendant’s legal fee was excessive and exorbitant are just a mere and bare allegation unsupported by any evidence to that effect. This Court is of the view that payment of the Defendant’s costs by the Plaintiffs is a clear admission of the Agreement. The complaint of the Plaintiffs is thus an afterthought.
24. The Court dismissed the Plaintiffs’ OS with a cost of RM3,000.00 subject to the allocator fee.

Source: [2024] MLJU 1502. High Court Kuala Lumpur. Ahmad Kamal MD Shahid J.

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