Summary of Judgment

1. Introduction

This was a professional-negligence damages action in which the plaintiff sought compensation from an attorney (and, after his death, his deceased estate) for having allowed her underlying personal-injury claim to prescribe. The proceedings ultimately concerned the consequences, in costs, of a late amendment that caused the matter to be postponed shortly before trial.

The parties were Neshanie Churran as plaintiff and Reka Devi Singh NO, in her capacity as the executrix of the deceased attorney’s estate, as defendant. The attorney originally sued had died before a scheduled trial date, after which the executrix was substituted as defendant.

The matter had a lengthy procedural history. Summons was issued in July 2008. The action was set down for trial on multiple occasions (2011, 2014, 2015, and again in September 2018), but repeatedly did not proceed, for reasons including insufficient allocated trial time, agreed removal from the roll, and the death of the defendant attorney.

By the time the court delivered judgment, the merits and quantum of the plaintiff’s claim had been settled on the basis that the defendant’s deceased estate would pay R1 million plus costs. The dispute placed before the court for decision was narrow: it concerned which party should bear specific reserved and wasted costs, primarily those arising from the adjournment of the trial on 3 September 2018, and certain associated costs items.

2. Material Facts

The court proceeded from the fact that the plaintiff’s case against the attorney was that she had instructed him to pursue a claim against a third party (the dog owner) arising from an incident initially pleaded as a dog bite, and that the attorney negligently allowed that claim to prescribe, causing her loss. The original pleaded damages were R1 033 368.

A significant feature of the litigation was the progressive expansion and reshaping of the plaintiff’s pleaded case. In December 2014 the plaintiff amended her particulars of claim to introduce additional heads of damages, including future medical expenses, the cost of an automatic motor vehicle, a domestic aide, and future loss of income, and increased the quantum to R5 958 124.

The material events leading to the costs dispute occurred in August and September 2018. The trial had been set down for 3 to 14 September 2018, with notice of set down having been served on 1 September 2017. On 15 August 2018, shortly before the trial, the plaintiff delivered a notice of intention to amend her particulars of claim in a manner that the court regarded as substantial. The proposed amendment replaced the earlier allegation of a dog bite with an allegation that two dogs chased and jumped on the plaintiff, causing her to fall and injure her hip and head. The amendment also introduced additional allegations of negligence against the attorney and asserted further medical sequelae (including the need for multiple hip replacements, specially made shoes, and additional medication), increasing the claim by more than R3 million.

Within the period allowed for objection, the defendant delivered a notice of objection on 28 August 2018. The objection was based on alleged prejudice arising from the lateness and breadth of the amendment, and it raised the contention that the amendment introduced a new cause of action that had prescribed, as well as new injuries and significantly increased quantum. On 29 August 2018, two clear court days before trial, the plaintiff launched a substantive application to amend.

On 3 September 2018, when the matter was called for trial, an order was made (described as being by agreement) adjourning the trial to 20 to 31 May 2019. The order recorded, among other things, that the defendant withdrew the objection to the amendment in light of the postponement agreement, and it directed the parties to file amended pleadings and related steps on specified dates. The order further provided that the wasted costs occasioned by the adjournment would be reserved for determination by the trial court.

After the plaintiff effected the amendments, the defendant amended her plea to contend that a new, prescribed cause of action had been introduced and that, in any event, the plaintiff would not have recovered the alleged damages from the dog owner. The plaintiff replicated.

The court accepted as an operative background fact, based on what it was told from the Bar, that the matter subsequently became settled when it emerged that the deceased estate was insolvent and that the limit of the attorney’s professional indemnity insurance was R1 million.

The key disputed factual contention relevant to costs was whether the adjournment on 3 September 2018 was attributable (in whole or part) to the defendant’s alleged lack of cooperation in pre-trial procedures, or whether it was attributable to the plaintiff’s late amendment. The court also treated as significant the plaintiff’s concession that absent the amendment, the trial would have proceeded.

3. Legal Issues

The central legal question was a costs allocation question: which party should bear the wasted and reserved costs arising from the adjournment of the trial on 3 September 2018, and which party should bear the costs of the amendment process (including the notice of amendment, the objection, and consequential pleading amendments).

This dispute was not one of substantive delict or professional-negligence liability (those issues having been compromised). Instead, it concerned the application of costs principles to the procedural facts, and the exercise of a judicial discretion/value judgment as to fairness in allocating responsibility for costs occasioned by the plaintiff’s late procedural step.

A further, subsidiary issue concerned the appropriate form of a costs order in relation to expert witness expenses, specifically whether the court should attempt to specify detailed witness-related costs, or limit itself to identifying categories (notably, qualifying fees) and leave the remainder for taxation.

4. Court’s Reasoning

The court approached the matter on the basis that the action had settled, and that the only remaining substantial question was how to dispose of reserved and wasted costs arising from the September 2018 postponement and related procedural steps. It recorded that there was no dispute that the plaintiff was entitled to the general costs of the action, including costs consequent upon employing two counsel; the dispute lay in carving out exceptions to that general position for costs caused by the plaintiff’s late amendment and the resultant postponement.

In evaluating the cause of the postponement, the court considered the chronology and the practical effect of the plaintiff’s litigation choices. The notice of intention to amend was delivered roughly two and a half weeks before trial, the objection was delivered within the time contemplated by the notice, and the substantive application to amend was delivered only two clear court days before trial. The court treated the magnitude of the proposed changes as significant, including the alteration of the pleaded mechanism of injury (from dog bite to being chased and falling), the expansion of alleged injuries and future treatment needs, the addition of grounds of negligence, and a quantum increase exceeding R3 million.

The plaintiff’s argument sought to attribute the postponement, at least partly, to the defendant’s alleged lack of cooperation in pre-trial procedures. However, the court regarded the plaintiff’s concession as important: if there had been no application to amend, the trial would have proceeded. The court also noted that on 3 September 2018 the defendant withdrew her objection to the amendment on condition that the matter be adjourned to allow time to consider her position and to effect consequential amendments to the plea. The court treated this as consistent with the notion that the amendment itself was the operative cause of the adjournment.

The court rejected the characterisation of the defendant’s objection as frivolous. It reasoned that, regardless of the ultimate merits of the defendant’s consequential pleading amendments (including the prescription-related contentions), the defendant was entitled to time to consider and respond to such substantial changes. The court further reasoned that even if the defendant had not objected within the ten-day period allowed, and the plaintiff had simply effected the amendments, the defendant would likely have succeeded in an application for an adjournment at the plaintiff’s expense, precisely because the changes were significant and late and would reasonably necessitate reassessment and further preparation.

On that basis, the court concluded that the real reason for the adjournment on 3 September 2018 was the plaintiff’s amendment application, and that fairness required that the plaintiff bear the costs occasioned by that adjournment, as well as the costs occasioned by the amendment process itself. Because the opposed hearing in May 2019 concerned only the costs dispute (the merits having long since settled), the court also allocated the costs of that opposed hearing against the plaintiff.

On the form and content of the costs order relating to witnesses, the court declined to make highly granular orders resembling extracts from bills of costs. It regarded those matters as appropriately dealt with by the taxing master, subject to review if necessary. The court confined itself to ordering the inclusion of qualifying fees of specified expert witnesses in the relevant costs orders, rather than attempting to determine or list all recoverable witness-related charges.

5. Outcome and Relief

The court granted judgment for the plaintiff in the agreed amount of R1 million.

In relation to costs, the court made a split costs order. The plaintiff was ordered to pay (i) the costs occasioned by the plaintiff’s amendment of her particulars of claim pursuant to the notice dated 15 August 2018, including the objection thereto and the consequential amendments to the defendant’s plea; (ii) the costs occasioned by the adjournment of the trial on 3 September 2018, including the qualifying fees of Dr Fraser, Rene Stewart, and Sonia Hill; and (iii) the costs of the opposed hearing on 20 May 2019.

Save for those specified exceptions, the defendant was ordered to pay the costs of the action (including costs previously reserved), including costs consequent upon the employment of two counsel. The court further ordered that those costs include the qualifying fees of specified experts, namely CB Wright, Thilor Naidoo, Ureka Sinanin, Prof Schlebusch, Dr RN Gongal, Gerard Jacobson, Jackpersad and Partners, Pradeep Bahadur, Kavisha Naidoo, and Nirvenie Elder.

The court indicated that more detailed disputes about witness-related and similar costs were matters for determination on taxation rather than by detailed judicial enumeration in the costs order.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the postponement of the trial on 3 September 2018 was attributable in substance to the plaintiff’s late and substantial amendment of her particulars of claim, and that the defendant’s objection and need for time to consider consequential pleading steps were not frivolous. As a result, the plaintiff was held responsible for the wasted costs of the adjournment and for the costs associated with the amendment process, as well as the costs of the later opposed costs hearing. Subject to these exceptions, the defendant remained liable for the general costs of the action as part of the settlement-related disposition, including the costs of two counsel and specified expert qualifying fees.

LEGAL PRINCIPLES

Costs are determined by applying principles of fairness and responsibility for procedural steps that occasion unnecessary or wasted litigation expense, particularly where a party’s late amendment materially changes the case close to trial and necessitates an adjournment to avoid prejudice.

Where an amendment is substantial in timing and content, an opposing party’s objection and request for an opportunity to consider its implications and to deliver consequential pleading amendments may be treated as reasonable, with the costs consequences flowing from the party who introduced the late procedural change.

Courts may refrain from making costs orders that descend into the detail of bill items (such as extensive witness-expense specification), leaving granular quantification and allowability to the taxing master, while nonetheless identifying categories such as qualifying fees that are to be included in the recoverable costs.