“Somewhere, somehow, someone’s going to pay.” (Commando)
“History is written by the victors.” – (Winston Churchill)
 In my view, the motions judge erred in principle in several respects. He looked at the case from the perspective of the lawyers rather than the client. He failed to take into consideration evidence rebutting the presumption that the client accepted the account as proper and reasonable. And, he relied on a speculative theory that lawyers would not undertake this kind of work if they knew their accounts might be assessed when new management came in.
 In my view, the starting point was not the perspective of the lawyers. Section 11 of the Solicitors Act attempts to strike a balance between a solicitor’s legitimate interest in finality and the client’s interest in access to an independent process for review of accounts for legal services. However, the starting point ought to be the perspective of the client.
 The application judge’s error in taking a law firm focused approach led him to conclude that the manner in which the accounts were approved did not constitute special circumstances. By taking this approach, he failed to consider the evidence showing that the appellant was not well served by those within the company tasked with making the decisions about the conduct of the litigation, including payment of the accounts.
 Furthermore, the reasons of Morawetz J. disclose troubling conduct and motives of Mr. Conn and Mr. Moore. Mr. Conn and Mr. Moore were members of the special committee that was supposed to be overseeing the litigation and Mr. Conn approved the lawyers’ accounts for payment. Morawetz J. found that many of the witnesses on both sides of litigation were not credible in important respects. But, he made a finding against Mr. Conn that raises the spectre that he may not have been acting in the best interests of the corporation. Morawetz J. was troubled that the issue of the propriety of the Challenge share transaction was raised for the first time three years after the fact, when the result could be that Mr. Conn and the other directors would be ousted from the company.
 In my view, these findings, coupled with the apparent failure of the special committee to fulfill its function in supervising the litigation in a transparent way, go a long way towards establishing special circumstances. Those facts tend to rebut the presumption that the appellant accepted the accounts as proper and reasonable. It cannot be forgotten that it was the appellant, a public company, that was paying the bills, not the directors.
 There are other factors that, in my view, point towards this being a case of special circumstances. I would summarize them as follows:
· The Lenczners written retainer referred only to action brought by Challenge, not to any of the other litigation;· The written retainer is signed by Mr. Conn on behalf of the appellant, there is no written retainer on behalf of the five directors;· There was no written retainer with Voorheis;· The appellant had total revenue of $2.8 million in 2008, recorded expenses of over $5 million, yet spent almost $840,000 on litigation during that period;
· The relatively short time that elapsed before the application was brought.
 Taking into consideration all of these factors, the appellant made out a case of special circumstances with respect to the accounts from Lenczners and Voorheis.
 I take a different view of the application to assess McCarthys’ accounts. The appellant has pointed to no circumstances that would rebut the presumption of propriety and reasonableness arising from the payment of the accounts. The findings by Morawetz J. and the lack of transparency within the special committee do not affect the accounts rendered by McCarthys in its role as corporate counsel and de facto secretary to the Board. The appellant adduced no evidence to show that the amounts billed were excessive. The appellant paid McCarthys’ last account, without complaint, after the change in management. The suggestion that there may have been some duplication of work with the litigation counsel is not supported by anything in the record. While McCarthys too did not produce its retainer until after the application was launched, Mr. Fuda was part of the process retaining McCarthys.
 … it is important to underline that the presumption that the appellant must rebut is that when it paid the accounts, that is presumed to reflect its acceptance of the reasonableness of those accounts. It is the appellant’s acceptance at the time of payment that matters. There is no doubt that, at that time, the appellant considered it in its best interest to resist the attempted at takeover by the Fuda group by vigorously defending the litigation brought by that group and by commencing the proceeding before Morawetz J. The Conn directors, including Mr. Conn, shared the same interest. I do not think anything said by Morawetz J. can be taken to suggest that Mr. Conn and Mr. Moore may not have had the company’s best interest in mind when the accounts were approved. They shared that interest.