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Milnerton Riding Club N.O. v Milnerton Riding School (Pty) Ltd and Others (12847/2020; 11484/2022) [2022] ZAWCHC 238 (23 November 2022)

80 Reportability
Civil Procedure
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Brief Summary

Costs — Review of taxation — Costs incurred prior to legal representatives coming on record — Legal representatives entitled to costs only from date of formal record — Uniform Rule 48(5)(a) — Applicant sought review of taxed bill of costs, arguing that first and second respondents were unrepresented prior to their attorneys coming on record — Court found that costs for attendances before legal representation were not recoverable, thus setting aside specific items of the taxed bill while allowing costs incurred after representation was established.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings were a review of taxation brought in terms of Uniform Rule 48(5)(a). The applicant sought judicial interference with certain rulings made by the Taxing Master when taxing the bill of costs of the first and second respondents.


The parties were Milnerton Riding Club N.O. (applicant) against Milnerton Riding School (Pty) Ltd (first respondent), Michele Viljoen (second respondent), and The City of Cape Town (third respondent). The review was not opposed by any of the respondents.


The procedural history relevant to the review was that the taxed bill of costs flowed from two costs orders granted in earlier urgent proceedings: one by Allie J on 17 September 2020, and another by Dolamo J on 29 September 2020, the latter having struck the applicant’s urgent application from the roll for lack of urgency, leaving the merits undecided. After taxation, the Taxing Master provided a stated case under Uniform Rule 48(3).


The general subject matter was the recoverability, on a party-and-party scale, of attorney-related items in a bill of costs where the respondents’ attorneys allegedly performed work before they were formally on record, and where the underlying matter had been struck for lack of urgency.


A preliminary procedural feature was that both the review application and the Taxing Master’s stated case were filed out of time, and no condonation application was brought. Despite this, and in the interests of justice and fairness, the court proceeded to determine the matter on the merits.


2. Material Facts


It was common cause that the taxed bill of costs arose from two costs orders made in September 2020 in the urgent proceedings. It was also common cause that on 29 September 2020 the urgent application was struck from the roll for lack of urgency, and that the merits remained undecided.


The applicant’s central factual complaint concerned the period before 28 September 2020, when the first and second respondents’ attorneys (and counsel) formally came on record. The applicant contended that the first and second respondents nevertheless sought to recover legal costs for attendances and work dating back to 12 September 2020, during which period the respondents were allegedly unrepresented.


On the papers and record considered by the court, the following facts were treated as material. A notice to oppose dated 12 September 2020 was signed by the second respondent personally and was entered on record on behalf of the first and second respondents. During the period between 12 September 2020 and 28 September 2020, the opposition was, in formal terms, advanced in the second respondent’s name, including the filing of opposing affidavits.


At the same time, the taxed bill of costs reflected that the first and second respondents’ attorneys were involved in various steps after receipt of the urgent application on 12 September 2020, including perusal, consultations, arranging meetings with witnesses, preparation of a brief to counsel, and engagements with the applicant’s attorneys. The bill further reflected steps taken around the hearing on 17 September 2020 (when Allie J postponed the matter for settlement discussions) and subsequent preparatory work leading up to the formal placing of attorneys and counsel on record on 28 September 2020.


The court treated as decisive that, notwithstanding the “behind the scenes” activity reflected in the bill, the first and second respondents’ legal representatives were not formally on record until 28 September 2020, and therefore the recoverability of “legal costs” for earlier work fell to be assessed against that procedural fact.


3. Legal Issues


The central legal questions were directed at the correctness of the Taxing Master’s approach to the taxed bill and included whether, in taxing the bill, the Taxing Master ought to have allowed costs holistically (including work connected to the merits) or instead limited allowable costs to those connected to urgency, given that the matter had been struck for lack of urgency.


A further, and ultimately determinative, question was whether the first and second respondents’ attorneys were entitled to recover legal costs for work performed before they were formally on record, and whether the Taxing Master should have disallowed such items on taxation.


The dispute primarily concerned the application of legal principles to largely common-cause procedural facts, namely the date on which legal representatives were formally on record, and the implications of that for recoverable party-and-party costs on taxation. It also implicated the exercise of discretionary judgment by the Taxing Master, which the reviewing court assessed against standards of reasonableness and sound principle.


4. Court’s Reasoning


The court set out the nature of a review of taxation. It held that this form of review is not strictly a review in the narrow common-law sense; the reviewing court’s powers are wider than the traditional grounds of review. Nevertheless, the enquiry remains whether, in taxing a bill of costs, the Taxing Master exercised the discretion judicially, meaning that the Taxing Master must have acted reasonably, justly, and on sound principles, with due regard to all relevant circumstances.


Turning to the contested items, the court focused on the established rule that an unrepresented litigant is not entitled to legal costs. Where an unrepresented litigant seeks costs, those are confined to necessary out-of-pocket disbursements (such as travel costs), and do not extend to professional legal fees. The court further emphasised that attorneys and advocates who render services “behind the scenes” assume the risk that such costs may not be recoverable, and that to be entitled to legal costs, legal representatives must formally place themselves on record.


Applying these principles to the record before it, the court accepted the applicant’s contention that the first and second respondents were not legally represented on the record from 12 September 2020 to 28 September 2020. Although the bill of costs indicated that attorneys were actively involved in that period, and although they had received and engaged with the urgent application from 12 September 2020, the court regarded the decisive consideration to be that they were not formally recorded as representatives until 28 September 2020. On that footing, the court concluded that the first and second respondents were not entitled to recover legal costs for the pre-28 September period.


The court additionally considered the character of the bill itself, which was framed as a “memorandum of fees and disbursements due to attorneys … as between party and party”. In the court’s reasoning, this reinforced that recoverable items were those properly attributable to a party’s legal representatives in the litigation, in circumstances where the other side is entitled to know whom it is litigating against—particularly where a costs order may follow.


The court allowed the bill only to the extent that it related to the period after the first and second respondents’ legal representatives had placed themselves on record. It held that the first and second respondents were entitled to recover costs incurred for items falling within Items 53 to 66, which related to the period after they had come on record.


Finally, the court issued a caution of an ethical nature: legal practitioners are expected to know the rules governing recovery of costs and should not overreach in claiming items to which they are not entitled, noting that dishonesty in relation to attendances or entitlement could have misconduct implications. This caution was not framed as a dispositive finding but as an observation linked to the integrity of the costs recovery process.


5. Outcome and Relief


The review of taxation succeeded in part. The court ordered that the identified pre-appearance items were reviewed and set aside, while allowing the post-appearance items to remain.


The court made no order as to costs in the review proceedings.


Cases Cited


Protea Life Co Ltd v Mich Quenet Financial Brokers 2001 (2) SA 636 (O).


City of Cape Town v Arun Property Development (Pty) Ltd 2009 (5) SA 227 (C).


Trollip v Taxing Mistress, High Court 2018 (6) SA 292 (ECG).


Legislation Cited


No legislation was cited in the judgment.


Rules of Court Cited


Uniform Rules of Court, Rule 48(5)(a).


Uniform Rules of Court, Rule 48(3).


Held


The court held that legal practitioners are only entitled to recover party-and-party legal costs from the date on which they formally place themselves on record, and that costs claimed for legal work performed before that date are not recoverable as legal costs on a party-and-party bill.


On the facts, because the first and second respondents’ attorneys only formally came on record on 28 September 2020, the first and second respondents were not entitled to recover legal costs for the period from 12 September 2020 to 28 September 2020. Consequently, the Taxing Master’s allowance of such items fell to be interfered with on review.


The court accordingly set aside Items 1–52 and, insofar as additionally identified, Items 17, 18, 19, 20, 25, 26, 44, 47, 48, 49, 50 and 51 of the taxed bill of costs. The court allowed Items 53–66 to stand. No costs order was made in the review.


LEGAL PRINCIPLES


A review of taxation under the Uniform Rules is not confined to narrow common-law review grounds; however, the reviewing court assesses whether the Taxing Master exercised the discretion judicially, meaning reasonably, justly, and on sound principles, with due regard to the circumstances.


An unrepresented litigant is not entitled to recover legal costs (professional fees) on a party-and-party basis; at most, recoverable costs for such a litigant are limited to necessary disbursements.


Legal practitioners who perform work “behind the scenes” before formally appearing assume the risk that such work will not found a recoverable party-and-party claim. Entitlement to recover professional legal fees on a bill of costs depends on the legal representatives having formally placed themselves on record, ensuring procedural clarity as to representation for the opposing party and the court.

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[2022] ZAWCHC 238
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Milnerton Riding Club N.O. v Milnerton Riding School (Pty) Ltd and Others (12847/2020; 11484/2022) [2022] ZAWCHC 238 (23 November 2022)

FLYNOTES:
COSTS FROM WHEN FORMALLY ON RECORD
Costs
– Taxation – Review – Costs for work done prior
to coming on record – Only entitled to costs
from date when
representatives formally placed themselves on record –
Uniform Rule 48(5)(a).
(Western
Cape Division, Cape Town)
Before
the Honourable Ms Justice Mantame
[
REPORTABLE
]
Case
No: 12847/2020 &
11484/2022
In
the matter between:
MILNERTON
RIDING CLUB
N.O.

Applicant
vs
MILNERTON
RIDING SCHOOL (PTY) LTD

First Respondent
MICHELE
VILJOEN

Second Respondent
THE
CITY OF CAPE
TOWN

Third Respondent
JUDGMENT
DELIVERED: 23 NOVEMBER 2022
MANTAME
J
Introduction
[1]
The applicant brought this review of taxation in terms of Rule
48(5)(a) of the Uniform
Rules of Court dated 11 March 2022 consequent
to the rulings made by the Taxing Master after the first and second’s
respondent’s
bill of costs was taxed. There is no date for the
filing of the written submissions by the applicant as they do no bear
a court
stamp. There is only an allegation on the email dated 11
March 2022 from the applicant’s attorneys to the first and
second
respondents’ attorneys that same would be filed in court
on 14 March 2022.
[2]
The applicant seeks an order reviewing Items 1 – 52 and Items
17, 18, 19, 20,
25, 26, 44, 47, 48, 49, 50, 51, 56, 58, 63 & 66
of the taxed bill of costs. The Taxing Master duly supplied his
stated case
as required in terms of Uniform Rules of Court 48 (3)
dated 15 February 2022 and filed on 17 February 2022.
[3]
This review of taxation was not opposed by the respondents.
No
application for condonation
[4]
Both the applicants’ application for review of taxation and the
Taxing Master’s
stated case were filed out of time and none of
these parties have filed an application for condonation as their
papers were filed
out of stipulated time frames by the rules of
court. Nevertheless, upon considering the correspondence that was
exchanged between
the parties, it appears that the applicant was
aware that it was out of time in filing this review application and
requested the
attorneys of the first and the second respondent to
consent to the extension of time and which such request was declined
on the
basis that it was not the correct person/party to consent to
such request. Be that as it may, the applicant did not seek an
indulgence
to this court nor explain for the delay in filing this
application. On a cursory look on their correspondence, the applicant
put
blame squarely on the “unpredictably load-shedding”,
nothing more and nothing less.
[5]
In the interest of time, justice and fairness, despite the fact that
no indulgence
was requested for the applicant’s failure to file
these written submissions within 15 days after the Taxing Master’s

stated case, this Court will proceed to deal with the merits.
Issues
for determination
[6]
The issues for determination are whether the Taxing Master should
have considered
the costs holistically including the costs related to
the merits, more so that, the first and second respondents’
attorney
are not entitled to claim costs in circumstances where the
said attorneys were not on record on the concerning days; or whether

to only allow for items related to urgency, given the fact that the
application was struck from the roll for lack of urgency and
the
merits remained undecided.
Discussion
[7]
It is therefore common cause that the taxed bill of costs emanates
from two (2) cost
orders that were granted by Allie J on 17 September
2020 and Dolamo J on 29 September 2020 and the latter striking off
the applicants’
urgent application from the roll due to lack of
urgency.
[8]
A review of taxation, is therefore, not strictly a ‘review’
in the sense
of the court interfering only with the exercise of an
improper discretion; the powers of the court are wider than the known
and
recognized grounds to which a power of review is limited at
common law.
[1]
However, a
reviewing Court in this instance has to ascertain whether the Taxing
Master in his taxation of a bill of costs exercised
his discretion
judicially in the sense that he acted reasonably, justly and on the
basis of sound principles with due regard to
all the circumstances of
the case.
[2]
[9]
With regard to Items 1 – 52, the applicant objected on the
basis that the first
and second respondent attempted to recover costs
for attendances predating their having mandated a legal
representative to act.
The attorneys for the first and second
respondent formally, it was stated came on record only on 28
September 2020, and thus cannot
recover costs prior thereto and from
as early as 12 September 2020 as the first and second respondents
were unrepresented at the
time.
[10]
On considering the record, it is common cause that the notice to
oppose dated 12 September 2020
was signed by the second respondent
personally and was entered on record on behalf of first and second
respondent. Although the
first and second respondent attorneys did
not come on record on that day, on perusal of the bill of costs, it
appears that the
attorneys of the first and second respondents were
actively involved in the opposition of the matter subsequent thereto.
However,
in reality, what could be gathered from the record is that
the second respondent proceeded to file the opposing affidavits on
behalf
of the respondents in her name.
[11]
On further consideration of the taxed bill of costs, it is
pertinently clear that the attorneys
for the first and second
respondent received the applicant’s urgent application on 12
September 2020 based on their attendances
pursuant thereto. The
attorneys perused the urgent application, consulted with their client
and arranged appointments with further
witnesses on the day of
receipt of the application. The attorneys further drafted a brief to
Counsel on 16 September 2020. On 17
September 2020 the first and
second respondent’s attorneys liaised with the applicant’s
attorneys, requesting the matter
to stand down. Indeed, on 17
September 2020 Allie J postponed the matter for the parties to engage
in settlement negotiations.
It appears, the parties could not reach
settlement. On 23 September 2020 the respondent’s Counsel,
Advocate Potgieter prepared
opposing affidavits.
[12]
The first and second respondent’s attorneys proceeded to peruse
replying affidavit and
further drafted instructions to Counsel. It is
common cause that the first and second respondent’s attorneys
and Counsel
formally came on record on 28 September 2020.
[13]
It is a long standing rule that an unrepresented litigant is not
entitled to legal costs. If
at all it claims costs, such costs would
be confined and /or restricted to necessary costs or disbursements,
such as travelling
costs to court and so on. Legal costs are only
reserved for legal practitioners. Attorneys and advocates who elect
to render their
services behind the scenes run a risk of being unable
to recover their costs. For legal representatives to be entitled to
legal
costs it follows that they must formally put themselves on
record. I agree with the applicant’s sentiments that the first

and second respondents were not legally represented from 12 September
2020 up until 28 September 2020 and it then follows that
they are not
entitled to the legal costs as set out in paragraph [2] above, i.e.
Items 1 – 52 and Items 17, 18, 19, 20, 25,
26, 44, 47, 48, 49,
50 and 51 of the taxed bill of costs.
[14]
Be that as it may, it is my considered view that the first and second
respondents are entitled
to the costs incurred from Items 53 –
66 as they had put themselves on record during that period.
[15]
On closer scrutiny of the bill of costs whose items are sought to be
reviewed
inter alia
, is titled the “
Memorandum of
fees and disbursements due to: Attorneys for first and second
respondents’ as between party and party”.
If the
first and second respondents do acknowledge that the legal costs they
are entitled to are their party and party costs, it
then follows that
they are not at liberty to claim legal costs in circumstances where
they were not party to the proceedings. It
is my considered view that
the other party deserve to know the party it is litigating with, more
especially if the losing party
would be required to pay the costs of
the winning party.
[16]
Although the legal representatives are deemed to know the rules
related to the recovery of legal
costs from an ethical perspective,
at the same time, this Court cautions them not to over-stretch what
they are entitled to and
/or become over-expectant about what is due
to them. Otherwise, an attorney or advocate who is dishonest about
his or her attendances
and or entitlement would render himself guilty
of misconduct.
[17]
For the reason stated above, in part the review of taxation succeeds.
17.1  In the result,
it is therefore ordered that Items 1 – 52 and Items 17, 18, 19,
20, 25, 26, 44, 47, 48, 49, 50 and
51 of the taxed bill of costs are
reviewed and set aside.
17.2  Items 53-66
stand.
17.3  No order as to
costs.
MANTAME
J
WESTERN
CAPE HIGH COURT
Coram:

B P MANTAME, J
Judgment
by:

B P MANTAME, J
Date
(s) of Hearing:

23 November 2022
Judgment
Delivered on:
23 November 2022
[1]
Protea Life Co Ltd v Mich Quenet Financial Brokers 2001(2) SA 636
(O) at 642 C - D
[2]
City of Cape Town v Arun Property Development (Pty) Ltd 2009(5) SA
227 (C) at 232 F – G; Trollip v Taxing Mistress, High
Court
2018 (6) SA 292
(ECG) at 298 D - I

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