Collen v Tiry (1409/2008) [2010] ZAECPEHC 81 (23 November 2010)

78 Reportability

Civil Procedure

Brief Summary

Civil Procedure — Withdrawal of action — Plaintiff sought leave to withdraw main action for defamation against Defendant, citing inability to prove publication of defamatory notice — Defendant did not oppose withdrawal but sought costs — Court held that each party should bear its own costs due to Plaintiff's justified withdrawal in light of difficulties in proving publication.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings comprised two interlocutory applications arising from an action for damages based on alleged defamation. The first was an application by the defendant (Howard Collen), as applicant, to compel the plaintiff (Moosa Tiry), as respondent, to deliver a reply to a request for further particulars for trial, with consequential relief foreshadowed if the reply were not delivered. The second was a counter-application by the plaintiff seeking leave to withdraw the main action, with a costs order in his favour only if the defendant opposed the withdrawal.

The main action had been instituted by summons in July 2008. Pleadings closed, discovery followed, and a Rule 37 pre-trial conference minute was signed in August 2010. Shortly before the trial date, the defendant delivered a request for further particulars under Rule 21, and when no reply was furnished within the period contemplated by that rule, the defendant launched the application to compel. The plaintiff then brought the counter-application to withdraw the action.

When both applications were argued together, the defendant abandoned the application to compel and did not oppose the plaintiff’s withdrawal. The court was therefore required to determine the appropriate costs orders in relation to (a) the abandoned application to compel, (b) the application to withdraw, and (c) the main action.

The dispute’s general subject matter was a defamation claim allegedly arising from the publication of a notice of sale in execution relating to the plaintiff’s immovable property, purportedly published in a local newspaper pursuant to a judgment which the defendant contended did not exist.

2. Material Facts

The plaintiff issued summons on 9 July 2008 claiming R400 000 in damages for humiliation, injury to dignity, and defamation. The claim was premised on an alleged publication of a notice of sale in execution of the plaintiff’s immovable property in a local newspaper.

The defendant delivered a plea in which he denied publication of the notice as alleged and denied defaming the plaintiff.

After discovery, the parties held a Rule 37 conference and signed a minute on 2 August 2010. In that minute, under preparation for trial, it was recorded that the defendant denied that there was a notice of sale in the newspaper, and that the plaintiff’s counsel queried what the position would be if there were such a notice, to which the defendant’s attorney responded that then “the situation changes”.

The defendant served and filed a request for further particulars for trial on 11 August 2010, with the trial set down for 10 September 2010. The plaintiff did not provide the requested particulars within the time period contemplated by Rule 21.

Correspondence between the parties’ attorneys reflected the plaintiff’s difficulty in establishing the publication date and locating the relevant notice. The plaintiff’s attorneys stated that the plaintiff did not have a copy of the advertisement because documentation had been destroyed in a fire, and that they had advised the plaintiff to withdraw the proceedings on the basis that he would have difficulty proving publication if the defendant persisted in a denial.

Notwithstanding the plaintiff’s expressed intention to withdraw, the defendant delivered and filed an application to compel on 2 September 2010. The plaintiff then delivered a counter-application on 3 September 2010 seeking leave to withdraw the main action.

The plaintiff’s explanation for having instituted the action was that he had relied on what he described as an admission by the defendant in an affidavit in another matter to the effect that the notice had been published. The plaintiff asserted that if the defendant had not changed stance, he would have persisted with the defamation action.

3. Legal Issues

The central questions before the court concerned costs, arising from procedural developments that rendered the substantive interlocutory relief moot. The court was required to determine, first, what costs order should follow in respect of the application to compel, given that the defendant abandoned it and the plaintiff had indicated an intention to withdraw the main action before it was launched. Second, the court had to determine what costs order should be made in respect of the counter-application to withdraw and the main action itself, in light of the general approach to costs when a litigant withdraws proceedings.

These questions primarily involved the application of established legal principles to the factual sequence (including correspondence and steps taken close to trial), together with a discretionary assessment typical of costs decisions. They did not require adjudication of the merits of the alleged defamation claim.

4. Court’s Reasoning

In addressing the application to compel, the court noted the framework of Rule 21, which permits a request for further particulars for trial after close of pleadings and requires a reply within a specified period. The court accepted that the defendant’s request was delivered within the period contemplated by the rule and that the plaintiff did not comply within the prescribed time.

However, the court focused on the practical and procedural context as reflected in the correspondence. It considered it material that the plaintiff’s attorneys had communicated that they had advised their client to withdraw the action, and that this position had been made clear before the defendant launched the application to compel. On this basis, the court regarded the launching of the application to compel despite the plaintiff’s stated intention to withdraw as unjustified. The court concluded that, in those circumstances, it would not be fair to saddle the plaintiff with the defendant’s costs of that application. The appropriate order, in the court’s assessment, was that each party should bear its own costs in respect of the application to compel.

Turning to the counter-application to withdraw and the main action, the court dealt with the plaintiff’s contention that he had been justified in bringing the defamation claim because he relied on an alleged admission by the defendant in another affidavit regarding publication. The court emphasised that, as a matter of settled law, publication is an essential element that a plaintiff must allege and prove in every defamation action. The court referred to authority affirming that principle and treated it as trite.

On the court’s assessment, a litigant intending to institute a defamation action should secure evidence of publication at an early stage. The court was not persuaded by the plaintiff’s explanation that he had progressed with the action without securing proof of publication. The court also considered that relying on an admission said to have been made in another matter involved substantial forensic risk, especially given the prospect that the defendant might persist in a denial at trial and attempt to explain the earlier statement. While the court regarded the advice to withdraw (once the difficulties of proof were appreciated) as prudent, it considered that such appreciation should have occurred earlier.

The court then applied the general approach to costs upon withdrawal. It endorsed the principle that where a litigant withdraws an action, sound reasons must exist to deprive the opposing party of costs, because the withdrawing party is treated similarly to an unsuccessful litigant, and the defendant is ordinarily entitled to the costs associated with the withdrawn proceedings. Given its view that the plaintiff had pursued the action without securing proof of an essential element, the court held that the defendant was entitled to costs in respect of both the withdrawal application and the main action.

5. Outcome and Relief

The court made an order granting costs relief in three parts. In respect of the application to compel delivery of a reply to the request for further particulars for trial, each party was ordered to pay its own costs. In respect of the application for leave to withdraw the main action, the plaintiff was ordered to pay the costs occasioned thereby. The plaintiff was also ordered to pay the costs of the main action.

Cases Cited

SA Associated Newspapers and Another v Estate Pelser 1975 (4) SA 797 (A)

Gemishius v Douglas Besproeiingsraad 1 1973 (3) SA 299 (NC)

Kooperatief Bpk v Mphaka 1981 (2) SA 814 (O)

Waste Products Utilization v Wilkes (Biccari Interested Party) 2003 (2) SA 590 (WLD)

Hallington v Hawthorn & Co Ltd (citation not provided in the judgment)

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Rule 21 of the Uniform Rules of Court

Rule 37 of the Uniform Rules of Court

Held

The court held that, although the plaintiff did not comply timeously with a Rule 21 request for further particulars, the defendant’s decision to launch an application to compel after the plaintiff had indicated an intention to withdraw the action was not justified on the court’s evaluation of the circumstances. As a result, neither party was awarded costs in relation to the application to compel, and each was left to bear its own costs for that interlocutory step.

The court further held that the plaintiff’s withdrawal of the defamation action placed him in a position analogous to an unsuccessful litigant, and that he had not advanced sufficiently sound reasons to deprive the defendant of costs. The defendant was accordingly awarded costs in respect of both the application to withdraw and the main action.

LEGAL PRINCIPLES

A plaintiff in a defamation action must allege and prove publication of the defamatory matter concerning the plaintiff; publication is an essential element of the cause of action.

A party who withdraws an action is generally treated, for costs purposes, as an unsuccessful litigant, and a defendant is ordinarily entitled to costs unless very sound reasons justify a different order.

Costs orders in interlocutory matters, including where relief becomes moot due to abandonment or withdrawal, are determined with reference to the procedural context and fairness, including whether a step (such as an application to compel) was justified in the circumstances.

Rule 21 permits a request for further particulars for trial after pleadings have closed and contemplates compliance within a prescribed period; failure to comply may found an application to compel, but the costs consequences remain subject to the court’s discretion in light of the surrounding circumstances.