About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2010
>>
[2010] ZAECPEHC 16
|
|
De Villiers v De Villiers (CA 116/2009) [2010] ZAECPEHC 16 (5 May 2010)
FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, GRAHAMSTOWN JUDGMENT
ECJ:
PARTIES
:
DEAN DE VILLIERS
AND
EDNA
PAULINE DE VILLIERS
Registrar:
CA
116/2009
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, GRAHAMSTOWN
DATE
HEARD:
08/03/10
DATE
DELIVERED:
05/05/10
JUDGE(S):
JONES
J, CHETTY J, SANGONI J
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s):
ADV:
E A S Ford SC
for
the Respondent(s):
ADV:
D De La Harpe
Instructing
attorneys:
for
the Appellant
(s):
NETTELTONS
ATTORNEYS
for
the Respondent(s)
:
DOLD
& STONE ATTORNEYS
CASE
INFORMATION -
Nature
of proceedings
:
CROSS-APPEAL - COSTS
Not
reportable
THE HIGH COURT OF SOUTH AFRICA
In the Eastern Cape High Court
Grahamstown
In the matter between CA 116/2009
D
EAN
DE VILLIERS Appellant on Appeal
Respondent
in the Cross Appeal
Defendant
a
quo
and
EDNA PAULINE DE
VILLIERS Respondent on Appeal)
Appellant in the Cross
Appeal
Plaintiff
a
quo
Summary:
Costs
– taxation – review of taxation – whether the
taxation of fees in a bill by a second set of attorneys had
improperly been disallowed – whether counsel fees had been
improperly reduced – whether certain expert fees and charges
had been properly or improperly disallowed.
Coram: Jones, Chetty and Sangoni JJ
JUDGMENT
JONES J:
[1] The parties were formerly
husband and wife. They were divorced in the proceedings giving rise
to this appeal. The defendant-husband
was ordered to pay the
plaintiff-wife’s taxed party and party costs of the
proceedings. In due course the plaintiff had her
bills of costs
taxed.
[2] Taxation of the bills took, I
believe, some three days. The plaintiff-wife was dissatisfied with
the result. She objected to
the taxing master’s rulings on a
considerable number of the items in the bills and called for a review
of the taxation thereof
in terms of rule 48.
[3] The taxing master stated her case
for review in terms of rule 48(3). The review came before Greenland
AJ. He dealt with a considerable
number of disputed items in a full
judgment. The parties have accepted his decision on many of them. But
they both remain dissatisfied
in respect of certain confined issues.
They have appealed and cross-appealed. The defendant is the appellant
in the appeal, which
is opposed. The plaintiff’s cross-appeal
is also opposed. Both the appeal and the cross-appeal are now before
us. For convenience
I shall continue to refer to the parties as the
plaintiff and the defendant.
[4] The defendant’s appeal
(which is first in chronological order) is in respect of two
instances in which Greenland AJ overruled
a decision by the
taxing-master in his favour. The first instance related to a
reduction of certain fees charged by counsel, and
the second was in
respect of the fees and charges of an expert witness Nobre which had
been significantly reduced by the taxing
master. The plaintiff’s
cross-appeal is mainly directed against Greenland AJ’s refusal
to upset the taxing master’s
decision to disallow items in a
bill of costs by a second set of attorneys employed by her (the East
London attorneys) because
they were an unnecessary or unreasonable
duplication of fees already allowed in the bill presented by the
attorneys of record.
Secondly, she argues on appeal that Greenland AJ
had no discretion to review, or grounds for the review of, the
decision to reduce
certain fees in respect of consultations with the
clinical psychologist Meyer.
[5] What began as a hard fought
taxation in respect of many items in the bill has come down to
disputes on three confined points
– the fees of a second set of
attorneys, certain aspects of counsel’s fees, and certain
aspects in respect of the fees
and charges of two expert witnesses.
Before dealing with these points specifically, I would refer
generally to the approach of
the courts in hearing reviews or appeals
against a taxing master’s rulings on taxation. Kroon J summed
up the proper approach
in
Schoeman
v
Schoeman
1990 (2) SA 37
(E) 43 I-44 B:
For the sake of
completeness I should mention that although the present proceedings
are termed a review they are in fact a 'revision'
of the Taxing
Master's decision and the Court's power to interfere is not limited
to that applicable to the ordinary type of review
stricto
sensu
which concerns the interference by the Court with improper exercise
of a discretion. Thus the Court has the power to interfere
not only
where the taxing official has improperly exercised the discretion
entrusted to him by, eg, disregarding factors which
ought properly to
have been taken into consideration or considering matters which it
was improper to take into account or giving
a grossly unreasonable
ruling or where he failed to apply his mind to the matter or where he
acted on a wrong principle, but also
where the Court is of the view
that the taxing official has been clearly wrong in regard to some
matter, even one involving degree.
The Court will, however, not
lightly interfere with the decision of the taxing official. The
matter must go further than mere disagreement
therewith and the Court
must be distinctly of the opinion that the decision is wrong before
interference therewith will be warranted.
See Cilliers Law of Costs
2
nd
ed at 226 - 8 and the cases there cited.
Before Greenland AJ was entitled to
depart from the taxing master’s decisions in this case he must
have been satisfied either
that she did not exercise her discretion
properly, or that she was clearly wrong on the facts. And before we
can depart from Greenland
AJ’s decision to uphold or set aside
her decision, we are confined by the ordinary constraints of a Court
of Appeal: we,
too, must be satisfied that his conclusion was wrong,
and this, in turn, involves an examination of the propriety of the
taxing
master’s exercise of her discretion or a determination
of whether or not she was shown to have been clearly wrong.
The costs of two sets of attorneys
[6] The plaintiff and the defendant
were both domiciled and resident at Gonubie, which is within the area
of jurisdiction of the
East London Circuit Local Division. The
plaintiff could have issued summons out of that Court. Instead, she
sued in the Eastern
Cape Division which has its seat in neighbouring
Grahamstown and which has concurrent jurisdiction. She employed East
London attorneys
to whom she gave direct instructions, and they
instructed a firm of attorneys to act as attorneys of record in
Grahamstown. In
due course she submitted two bills of costs, one from
the attorneys of record and one from the East London attorneys. The
taxing
master disallowed a large number of items in the East London
attorneys’ bill as being unnecessary duplication of work. At
issue is whether the plaintiff is entitled to have those items
re-instated.
[7] The starting point here is uniform
rule 70(8) which provides that ‘where, in the opinion of the
Taxing Master, more than
one attorney has necessarily been engaged in
the performance of any of the services covered by the tariff, each
such attorney shall
be entitled to be remunerated on the basis set
out in the tariff for the work necessarily done by him’.
Schoeman
’s
case
supra
,
Zeelie
v
General Accident Insurance
Co Ltd
1993 (2) SA 776
(E)
778A, 779B-780C (Full Bench) and
Stuart-Lamb
v
Stuart-Lamb
1997 (3) SA 140
(E) lay
down that in such a case the rule gives the taxing master a
discretion which he or she must exercise properly in the light
of the
facts and circumstances of the case, regard being had to the
fundamental rule that costs orders must be fair to both sides.
There
are no hard and fast rules, and none should be laid down. The cases
referred to not only set out the principles; they are
also good
examples of how the taxing master’s discretion should be
exercised.
[8] In the stated case the taxing
master explains in her own words the principles upon which she
operated. She said that
‘although there is
nothing wrong with having two sets of attorneys, however where the
litigant chooses to instruct two firms
of attorneys where services of
only one is necessary, then only one fee will be allowed; and
‘unnecessary correspondence
between local attorney and attorney
of record is not recoverable’; and ‘where costs have been
incurred improperly or
without any reasonable cause, viz unnecessary
duplication of costs,’ they will not be allowed. The objection
by Mr
De la Harpe
in argument before us on behalf of the plaintiff was that the taxing
master paid mere lip service to her statement of principle.
He argued
that, in effect, she did not apply her mind individually to the need
for both attorneys each to do an item of work, but
instead applied a
blanket ruling that in all cases where two fees were charged for the
same item of work, there was unnecessary
duplication. In short, he
complained that she regarded any duplication as unnecessary. This may
perhaps be a valid complaint if
on the facts she followed a principle
blindly without applying her mind properly to each disputed item on
its merits. But those
are not the facts. There is no proper basis for
a concrete finding on the facts that she did not indeed apply her
mind to each
item in the bill; in other words that she did not give
her considered attention to each item before she ruled on whether it
should
be allowed or whether it should be taxed off as unnecessary.
Greenland AJ was not satisfied that, on any given item raised before
him in the review, she was shown to have been clearly wrong in the
manner in which she applied rule 70(8) to the taxation. Neither
am I.
Counsels’ fees
[9] Two points arise. First, Greenland
AJ’s order allows junior counsel’s fees in an amount
which is more than one half
of the senior’s fees. This was not
part of the taxing master’s ruling and it is in conflict with
the provisions of
rule 69(2) which reads
Where fees in respect of
more than one advocate are allowed in a party and party bill of
costs, the fees to be permitted in respect
of any additional advocate
shall not exceed one half of those allowed in respect of the first
advocate.
It is common cause that the order by
Greenland AJ in this regard is clearly wrong. It must be corrected on
appeal.
[10] The second point is not common
cause. It relates to the method of fixing the quantum of senior
counsel’s fees. In broad
terms, the principle is that the
amount of senior counsel’s fees is a matter for the taxing
officer’s discretion, and
that she must apply her mind to the
matter in a proper judicial manner. One of the considerations which
might guide her is the
tariff of recommended fees laid down by the
Bar Council. The exercise of a proper discretion means that she
should not follow those
recommendations slavishly; nor should she
depart from them for arbitrary reasons. The tariff is a tool to be
referred to and used
as a guide if she considers that it is
appropriate to do so. Greenland AJ came to the conclusion that in
this case she had no good
reason to disregard the guidelines of the
tariff, that her reduction of counsels’ fees was not reasonable
but arbitrary,
and that it should be set aside on review. My opinion,
however, is that there are insufficient grounds to justify Greenland
AJ’s
interference with the exercise of her discretion. By
reason of the volume of bills which she taxes in this Division, she
is in
a good position to judge the reasonableness of fees charged in
relation to counsel’s standing, the complexity of the matter,
and the amount of time necessary to do the work. The fees she allowed
for this work in these circumstances in fact fell within
the
parameters of the tariff. She allowed more than the recommended
minimum and less than the recommended maximum. But she considered
that a proper fee in this case was less than the fee charged by
counsel. This was, on the face of it, not an arbitrary exercise
of
her discretion, and I do not believe that she was shown to be clearly
wrong. In my view, Greeenland AJ was wrong in his conclusion
that he
should re-instate the fees charged by counsel in the bill. Mr De La
Harpe took us through a number of individual items
in the bill which
reflect the fees charged by the plaintiff’s counsel. That
exercise does not persuade me that the taxing
master was clearly
wrong in any respect. The plaintiff’s appeal on this ground
must be dismissed.
The charges of expert witnesses
[11] The taxing master found, in
favour of the defendant, that disbursements made to the expert
witness Nobre (a psychologist) should
be reduced because the witness
was an intern and hence not qualified as a psychologist when the
charges were made. Greenland AJ
reversed this finding. The defendant
appeals against that reversal. The taxing master also found, again in
favour of the defendant,
that no proper basis had been laid for the
full amount of certain fees charged by another expert witness Meyer
(also a psychologist).
Greenland AJ refused to interfere with the
taxing master’s decision to tax off some of these fees. The
plaintiff appeals
against that decision.
[12] In my opinion Mr
Ford
’s
argument in support of the taxing master’s ruling in each case
must prevail. It is the same argument, based on the
decision of
Taylor
v
Mackay Bros and McMahon
Ltd
1947 (4) SA 423
(N)
426. That case holds that the court reviewing the taxation of a bill
of costs is confined to the facts which were before the
taxing master
at the time of taxation, and that new matter must be disregarded.
This is not a case where the judge on review obtained
further
information from the taxing master in terms of rule 48(6)(a)(ii) and
48(6)(b). The argument by Mr
Ford
is that Greenland AJ’s decision to reverse the taxing master’s
decision in respect of the Nobre item was based on subsequently
obtained information placed before him that the witness was in fact
not an intern and was in fact duly qualified. This information
was
not before the taxing master at the time of taxation. The judgment
was hence grounded on new facts to which Greenland AJ should
not have
had regard. In my opinion Mr
Ford
’s
argument is sound on the law and on the facts. A proper reading of
the papers, and in particular the taxing master’s
stated case,
makes this clear.
[13] The same conclusion is to be
reached in the case of the fees charged by Meyer. In this instance Mr
Ford
argued that Greenland AJ correctly held that he could not have regard
to information in support of allowing the charges in question
because
that information was not before the taxing master when she made her
decision. Once again, this argument is supported by
the facts. The
taxing master’s decision on both issues must therefore stand.
Conclusions
[14] The result is that the
defendant’s appeal against Greenland AJ’s decision in
respect of counsels’ fees must
succeed, and so must the
defendant’s appeal against Greenland AJ’s decision to
allow the fees of the witness Ms Nobre
in the increased amount. The
plaintiff’s appeal, which is against Greenland AJ’s
decision relating to the costs of
two sets of attorneys and the
consultation fees of Mr Meyer, is dismissed. The defendant is
substantially successful in the appeal
and cross-appeal. He is
entitled to an order for the costs of the appeal and cross-appeal in
his favour.
[15] There will be the following order
1.1 The appeal is allowed with costs
1.2 The order on review (an order that
the result of the review is as set out and tabulated in the judgment)
is altered, where necessary,
to reflect
1 that the taxing master’s
decisions in respect of the amount of the fees charged by senior
counsel are re-instated;
2 that junior counsel’s
entitlement is to half of the senior counsel’s fee;
3. that the taxing master’s
decision in respect of the fees of the witness Nobre (item 1050) is
re-instated.
2 The cross-appeal is dismissed with
costs.
RJW JONES
Judge of the High Court
2 April 2010
CHETTY J I agree
D CHETTTY
Judge of the High Court
SANGONI J I agree
T. SANGONI
Judge of the High Court