1964-HKRS28-8-31_Part01 — Page 41

Enforce- ment of

agreements

contendous

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(6) shall be deemed to exclude any claim by the solicitor in

respect of the business to which it relates other than-

() a claim for the agreed costs; or

(ii) a claim for such costs as are expressly excepted therefrom.

(2) A provision in any such agreement that the solicitor shall not be liable for negligence, or that he shall be relieved from any respon- afbility to which he would otherwise be subject as a solicitor, shall he void,

60. (1) No action shall be brought upon any such agreement as is referred to in section 59, but the court may, on the application of in respect of any person who is a party to, or the representative of a party to, the agreement, or who is, or who is alleged to be, liable to pay, or who is or claims to be entitled to be paid, the costs duc or alleged to be due in respect of the business to which the agreement relates, enforce or set aside the agreement and determine every question as to the validity or effect thereof.

business.

5 & 6 Eliz. 2. c. 27, s. 61.

(2) On any such application the court-

(a) if it is of opinion that the agreement is in all respects fair and

reasonable, may enforce it:

(b) if it is of opinion that the agreement is in any respect unfair or unreasonable, may declare it void and may order it to be given up to be cancelled and may order the costs covered thereby to be taxed as if the agreement had never been made; (c) in any case, may make such order as to the costs of the

application as it may think fit.

(3) If the business covered by any such agreement is business done, or to be done, in any action, the amount payable under the agreement shall not be received by the solicitor until the agreement has been examined and allowed by a taxing officer of the court, and, if the taxing officer is of opinion that the agreement is unfair or unreasonable, he may require the opinion of the court to be taken thereon and the court may reduce the amount payable thereunder, or order the agreement to be cancelled and the costs covered thereby to be taxed as if the agreement had never been made.

(4) When the amount agreed for under any such agreement has been paid by or on behalf of the client or by any person entitled so to do, the person making the payment may at any time within twelve months after payment apply to the court and the court, if it appears to it that the special circumstances of the case require the agreement to be reopened, may, on such terms as may be just, reopen the agreement

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and may order the costs covered thereby to be taxed and the whole or any part of the amount received by the solicitor to be repaid by bim.

(5) Where any such agreement is made by the client as the guardian or committee of, or as a trustee under a deed or will for, any person whose property will be chargeable with the whole or any part of the amount payable under the agreement, the agreement shall. before payment, be laid before the taxing officer of the court, and that officer shall examine the agreement and may disallow any part thereof, or may require the opinion of the court to be taken thereon. (6) Any such client as is mentioned in subsection (5), who pays the whole or any part of the amount payable under the agreement without the agreement having been allowed by the taxing officer or by the court, shall be liable at any time to account to the person whose property is charged with the whole or any part of the amount so paid for the sum so charged, and the solicitor who accepts the payment may be ordered by the court to refund the amount received by him.

61. (1) If, after some business has been done under an agreement Death. made in pursuance of the provisions of section 58 but before the solici- incapability,

or change of tor has wholly performed it, the solicitor dies or becomes incapable of solicitor, etc. acting, any party to, or the representative of any party to, the agreement 5 & 6 Elk 2, may apply to the court and the court shall have the same jurisdiction *. 27, s. 62. as to enforcing the agreement so far as it has been performed, or setting it aside, as it would have had if the solicitor had not died or become incapable of acting:

Provided that the court may, notwithstanding that it is of opinion that the agreement is in all respects fair and reasonable, order the amount due in respect of the business done thereunder to be ascertained by taxation, and in that case-

(a) the taxing officer, in ascertaining that amount, shall have re- gard so far as may be to the terms of the agreement; and

(b) payment of the amount found by him to be dus may be enforced in the same manner as if the agreement had been completely performed.

(2) The provisions of subsection (1) shall apply in the event of the client changing his solicitor (as, notwithstanding the agreement, he shall be entitled to do) before the conclusion of the business to which the agreement relates in the same manner as they apply when the solicitor dies or is incapacitated, with this modification, that if an order is made for the taxation of the amount due to the solicitor in respect of the business done under the agreement the court shall direct the taxing officer to bave regard to the circumstances under which the change of solicitor has taken place, and the taxing officer, unless he is