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[2012] ZAGPPHC 296
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van der Berg NO and Another v Dippenaar (596/06) [2012] ZAGPPHC 296 (19 November 2012)
REPORTABLE
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: 596/06
DATE:19/11/2012
In
the matter between:
JOHAN
PETRUS VAN DEN BERG NO
.....................................
First Plaintiff
A
D
W
….........................................................................................
Second
Plaintiff
and
DR
RL
DIPPENAAR
.....................................................................
Defendant
JUDGMENT
Tuchten
J:
1.
This is a review of a taxation conducted by the taxing master in
relation to a trial matter which was settled. The case concerned
the
damages suffered as a result of the allegedly negligent treatment of
the son (“LR”) of the second plaintiff and
a senior
member of the Pretoria bar. The relevance of this last fact will
emerge later.
2.
LR was born on 24 August 1988. Since birth, LR has suffered from
significant disabilities in the form of severe cerebral impairments,
probably resulting from brain damage sustained at birth. However up
to 1991, he suffered from no significant physical disabilities.
3.
In 1991, LR was treated by the defendant for a severe form of
allergic conjunctivitis, inter alia with eyedrops containing
steroids. He went blind in 1998.
4.
Action was instituted on behalf of LR in 2006 for damages allegedly
caused by the negligence of the defendant in diagnosing and
treating
LR. The claim raised issues of considerable complexity. I refer to
one example to demonstrate this complexity. It was
accepted that LR
had a pre-existing condition, congenital glaucoma. The issue raised
was whether LR would have gone blind in any
event, i.e given his
condition and assuming “proper” treatment, and if so, at
what age and whether he would have gone
blind to such a degree that
he could not distinguish between light and dark.
5.
Although the various experts agreed that LR had reached his
scholastic ceiling, there were differences in expert opinion on
whether he required remedial tuition, therapy and treatment and for
how long. This raised a further issue which was difficult of
determination, ie LR’s life ovpectancv This was relevant in
quantifying the award for such treatment because such treatment
and
the like would at most be required for his lifetime.
6.
The case was ultimately settled and on 7 February 2011, an order was
made by consent in this court in terms of which the defendant
paid
the plaintiffs certain sums of money (in addition to a sum which had
already been paid to the plaintiffs under rule 34A).
The order
recorded that the defendant asserted that the amounts were to be paid
without admission of liability on the part of the
defendant.
7.
In addition, the order provided for the defendant to pay the
plaintiffs their taxed or agreed party and party costs, including
the
reasonable fees of senior and junior counsel, the reasonable taxable
costs of obtaining all expert, medico-legal and actuarial
reports
from experts retained by the plaintiffs or jointly with the defendant
which had been furnished to the defendant, the reasonable
taxable
preparation and reservation fees of sixteen named experts and the
fees of the curator ad litem appointed to safeguard LR’s
interests.
8.
The plaintiffs’ attorneys proceeded to draw a bill of costs in
respect of quantum
1
as between party and party. The defendant’s attorneys did not
agree the bill and a contested taxation took place before the
taxing
master. Rule 70(1) provides that such a bill must, subject to one
exception, be drawn in accordance with the tariff appended
to rule
70. A difference in prince emerged at the taxation: the plaintiffs
relied on the exception I have mentioned; their bill
was drawn on the
basis that the matter was an extraordinary or exceptional case which,
they contended, justified the departure
by the taxing master from the
provisions of the tariff.
9.
Rule 70(5)(a) gives the taxing master a discretion in such matters:
The
taxing master shall be entitled, in his discretion, at any time to
depart from any of the provisions of this tariff in extraordinary
or
exceptional cases, where strict adherence to such provisions would be
inequitable.
10.
The defendant opposed the argument that the case was extraordinary or
exceptional. The taxing master agreed with the defendant
and
determined this issue in his favour. The practical effect of this
determination by the taxing master was that the attorneys’
hourly rate before the addition of VAT claimed by the plaintiffs (R1
065) was reduced to that provided for under the tariff (R852).
In
addition, the taxing master disallowed the number of hours
preparation for trial by the plaintiff’s attorneys claimed
by
the plaintiffs (38/4 hours) and allowed as between party and party
only 291/2 hours for that preparation.
11.
In the result, the taxing master taxed off an amount sufficient to
bring the bill within the provisions of tariff item E3(b)
under which
the fees for drawing the bill and attending taxation otherwise
allowable under tariff items E1 and E2 may, at the discretion
of the
taxing master be disallowed. But the taxing master decided not to
disallow these fees.
12.
Both sides were aggrieved by the taxing master’s rulings and,
under rule 48, requested him to file a stated case setting
out his
reasons for the rulings in question. The defendant’s notice was
dated 30 August 2011. The complaint was that the
fees for drawing the
bill and attending the taxation had not been disallowed.
13.The
plaintiffs responded in kind, in a notice was dated 5 September
2011.
As required under rule 48(1 )(c). the plaintiffs’ notice
contained the plaintiffs’ grounds of objection, which
were as
follows:
2
All
parties concerned with the matter agreed that the above matter was an
exceptional, extraordinary and complex matter and thus
falls within
the ambit of rule70(5);
The
quantification of the matter, the volume of documentation and the
issues in dispute were of such a nature that it required a
specifically expert [sic] in the field of medical negligence to
completely and properly grasp the complexity of the matter and
issues
in dispute in order to bring the matter to finality.
The
decision of the Taxing Master to reduce the Attorney’s
preparation for trial from 38 hrs 30 minutes to 29 hours 30 minutes
... in view of what has been stated ... supra.
1
The taxing master duly stated a case in relation to both complaints.
In regard to the defendant’s complaint that he ought
properly
to have disallowed the fees for drawing the bill and attending the
taxation, he said, in a stated case bearing the registrar’s
date stamp 24 February 2012, that his disallowances had essentially
embraced two categories: firstly, that items had constituted
attorney
and client costs and were thus not to be allowed in a bill as between
party and party; and, secondly, that disallowances
had followed the
taxing master’s conclusion that the matter did not qualify for
enhanced fees under rule 70(5). The taxing
master reasoned that the
bill had been “properly drafted”. I think what he meant
was that it did not contain fictitious
items, something that is not
in dispute, and had been drawn on the basis that rule 70(5) applied.
That being so, the taxing master
concluded, it would be an
inappropriate exercise of his discretion to disallow the fees in
question because the only way for the
taxing party to put their
contentions before the taxing master was to raise the items in the
bill pursuant to those contentions.
15.
In relation to the plaintiffs’ complaints, the taxing master
pointed out in his stated case dated 16 November 2011 that
the
parties had not been in agreement that rule 70(5) applied. This must
be so because the taxing master would not otherwise have
decided the
issue at all. He explained that he could not find that this case was
more complex than a complex third party claim
and that the resolution
of the complex issues was the province of the experts rather than
that of the attorneys.
16.
The taxing master went on to reason that the fact that the attorney
and client agreement between the father and the plaintiffs’
attorneys was that he would be charged on the same basis as any other
client showed that the attorneys could not have considered
the case
exceptional because if they had, they would have charged a higher
fee.
17.
The taxing master also explained that the tariff must be regarded as
sufficient and that the man in the street who wants his
case to be
heard in court should not lightly be further burdened by the thought
of the overwhelming cost he will most likely incur.
This is described
by the Constitutional Court as having a potentially chilling effect
on litigants seeking to assert their rights.
3
18.
In relation to the disallowance of a portion of the plaintiffs’
attorneys' preparation hours, the taxing master set out
the factors
that he took into account in such cases.
19.
Both sides responded as permitted by rule 48 and the matter came
before me in chambers on review. I found the case difficult
to grasp
from the papers with which I had been provided and called, under rule
48(6)(a)(iii) to hear the parties in chambers. The
day chosen by the
parties for the hearing was 14 November 2012. Both sides delivered
heads of argument and the plaintiffs’
representatives put
before me a consolidated bundle containing the most important
documents relevant to their submissions. In addition.
I was provided
with certain bundles prepared forthe trial which contained documents
which l was asked to read. I have read everything
put before me.
20.
The contention for the plaintiffs was that the determination of LR’s
pre-existing condition, fluid and complex as it indisputably
was,
made their task very difficult. This related substantially to the
question of causation and arose because the onus on a plaintiff
in a
medical negligence case requires him to establish amongst other
things, on a preponderance of probabilities, the difference
between
the pre- and post morbid conditions of the patient. The plaintiffs’
difficulty was in identifying LR’s pre-morbid
condition or, to
put it another way, whether the post-morbid condition which the
plaintiffs contended required future tuition,
therapy and treatment
arose from or was accelerated by the conduct of the defendant.
21.
To add to the plaintiffs’ attorneys’ burden, it was
submitted, the scope of such future treatment and the like was
very
extensive, involving speech therapy, occupational therapy, special
and adapted equipment, extra help, the services of an educational
psychologist, a urologist, an architect to design alterations to LR’s
dwelling, an ophthalmologist, a biokineticist and a
clinical
psychologist.
22.
And then there was the question of LR’s life expectancy. This
required the retention of an expert from abroad. There are
two
approaches to the determination of life expectancy: the clinical
approach and the statistical approach. It seems to me that
in most
applicable cases, where this is in dispute a prudent plaintiff’s
attorney would try to get evidence to advance his
client’s case
on both approaches. It was argued before me that the determination of
LR’s life expectancy was a complex
and nuanced question. I have
no doubt that it was. The problem was exacerbated by the fact that
the data bases from which the experts
worked were drawn from
populations in other countries, whose social conditions were and are
in relevant respects different from
those in South Africa.
23.
The defendant’s case is that complex as these questions
undoubtedly are, the work of the plaintiff’s attorneys was
relatively straightforward: they had a comprehensive body of relevant
materia! in the form of the complete history of LR’s
treatment
from birth onwards and an intelligent and accessible client in the
father (and no doubt the second plaintiff as well).
The case required
that material to be ordered and presented appropriately to the court.
In relation to the issue of life expectancy,
as the expert evidence
in that regard was to be that of two acknowledged experts in the
field, the burden of the plaintiffs’
attorneys required no
extraordinary or exceptional effort on their part.
24.
“Extraordinary”, according to the Shorter Oxford
Dictionary, carries the meaning of that which is out of the usual
course or order; special. “Exceptional” according to the
same authority is “unusual, out of the ordinary”.
These
words must of course be interpreted in their context, which is a
legislative scheme to provide for a remuneration to attorneys
which
is fair to both them, their clients and, where appropriate, their
clients’ opponents in litigation.
25.
In President of the Republic of South Africa and Others v Gauteng
Lions Rugby Union and Another
2002 2 SA 64
CC para 13, the
Constitutional Court referred with approval to a passage from the
judgment in Johannesburg Consolidated Investment
Co v Johannesburg
Town Council
1903 TS 111
, which for more than a century has been good
law in this Division:
4
It
is settled law that when a court reviews a taxation it is vested with
the power to exercise the wider degree of supervision identified
in
the time-honoured classification of Innes CJ in the JCI case. This
means ’... that the Court must be satisfied that the
Taxing
Master was clearly wrong before it will interfere with a ruling made
by him ... viz that the Court will not interfere with
a ruling made
by the Taxing Master in every case where its view of the matter in
dispute differs from that of the Taxing Master,
but only when it is
satisfied that the Taxing Master’s view of the matter differs
so materially from its own that it should
be held to vitiate his
ruling1.
26.
In Camps Bay Ratepayers and Residents Association and Another v
Harrison and Another (CCT 76/12)
[2012] ZACC 17
, the Constitutional
Court dealt with a complaint on a review of taxation that counsel’s
fees were excessive. In para 4, the
Constitutional Court said:
5
The
principles applying to a taxation of a bill of costs in this Court
were established in President of the Republic of South Africa
and
Others v Gauteng Lions Rugby Union and Another, and were restated in
slightly expanded form in Hennie de Beer Game Lodge CCv
Waterbok
Bosvetd Plaas CC and Another (Hennie de Beer). Their nub is that a
successful party gets costs as an indemnification for
its expense in
having been forced to litigate, and that a moderating balance must be
struck to afford the innocent party adequate
indemnification within
reasonable bounds. All circumstances must be taken into account, and
an overall balance struck. The Court
will not interfere with the
Taxing Master’s award simply because its views are different.
It will interfere only when the
Taxing Master's view is so materially
different as to vitiate the ruling.
27.
I must apply these principles to the present case. I think that the
argument before me on behalf of the plaintiffs places too
much
emphasis on the requirements in rule 70(5) that the discretion arises
in a case which is extraordinary or exceptional and
loses sight of
the
rider
that the discretion only arises in such cases where strict adherence
to the provisions of the tariff would be inequitable.
28.
I think that the jurisdictional prerequisites (“extraordinary
or exceptional”) to the exercise of the Rule 70(5)(a)
discretion refer in their setting to extraordinary or exceptional
demands on the practitioner whose work is said to justify a higher
fee as between party and party. The case undoubtedly involved many
very difficult questions but their resolution was predominantly
a
matter on which the plaintiffs’ experts were to testify and
plaintiffs’ team of senior and junior counsel were to
present
the evidence and argue. The task of the attorneys was, in conjunction
with counsel, to identify the evidence required to
best advance the
plaintiffs’ case, order that material, ensure that procedural
requirements were met and that the necessary
witnesses were at court
when their evidence was needed. The attorneys were entitled to ask
counsel to advise them on evidence.
29.
The taxing master concluded that the demands made upon the attorneys
in the present case were no different from those made in
comparable
third party cases. I think that the taxing master might more
appropriately have referred to comparable medical negligence
cases
but, in the broad sense, I cannot find that his conclusion is so
materially different from that to which I would have come
as to
vitiate his conclusion.
30.
I do not agree with the conclusion of the taxing master that the
nature of the attorney and client agreement between the plaintiffs’
attorneys and the father is in any way relevant to the enquiry. The
issue is whether objectively the case was extraordinary or
exceptional. Whether a plaintiff’s attorney thought, or says
that he thought, that a case is extraordinary or exceptional
can to
my mind not advance the enquiry in this regard. To turn the point on
its head, one can just imagine the inequities which
would arise if
the fact that a plaintiff’s attorney says that he thought the
matter was extraordinary or exceptional and
translated that alleged
thought into an extravagant fees agreement were to be held to justify
an increased fee as between party
and party.
31.
The plaintiffs’ attorneys were remunerated on taxation for all
the hours they spent otherwise than in preparing for trial
at the
rate provided for in the tariff. The taxing master did not think that
the allowance of an hourly fee in that regard and
on that basis gave
rise to an inequity and I do not think so either.
32.
I would add to the factors which ought to weigh against the
plaintiffs’ contention on the hourly rate this: there is no
suggestion that the plaintiffs’ attorneys did their work other
than in the comfort of their own chambers and at normal working
hours. Contrast this with the situation, for example, of a junior
counsel of my acquaintance who was required by the exigencies
of his
brief to take instructions in the open veld, late one freezing winter
night, from a large group of poor people who had been
evicted from
their rural highveld homes, with the only illumination provided by
some burning tyres.
33.
In regard to the preparation fee, it is clear that the taxing master
had proper regard to the principle that there must be some
objective
basis for assessing the losing party’s liability for the costs
of preparation of the winners attorney. Different
attorneys work at
different speeds and will consider some aspects of potential
preparation appropriate and others inappropriate.
But some objective
basis must be established for assessing a reasonable number of hours
for which to mulct the loser. There was
no attack during oral
argument on the rationality of the basis used by the taxing master.
The complaint was that a taxing master
ought to be very slow to
disallow preparation time proven, as was the case here, to have been
honestly employed for the purpose
contemplated by the tariff. I think
that this argument misses the point which is that a more objective
approach is required. The
taxing master disallowed 9 of the 381/2
hours claimed. Here again, I cannot find that the taxing master’s
assessment was
so different from my own as to justify interference.
34.
I turn to the review by the defendant of the taxing master’s
decision to allow a fee for drawing the bill and attending
taxation.
His reasons were that the bill was proper and that no attempt had
been made to claim for work which had not been done.
I find his
reasoning that the plaintiffs were entitled to draw a bill that gave
expression to their contentions as set out above
compelling. The
taxing master considered that in those circumstances the plaintiffs
should not be penalised. I agree.
35.
It therefore follows that both reviews must be dismissed and the all
the rulings of the taxing master must stand. Both parties
have been
successful in part. I accordingly make no order as to the costs of
the reviews.
NB
Tuchten
Judge
of the High Court
19
November 2012
1
In
earlier proceedings, the defendant had conceded the issue of
negligence (but not the issue of causation) and I assume that
a
separate bill had been drawn and disposed of in relation to the
proceedings up till then. Nothing however turns on this.
2
Paragraph
numbers omitted.
3
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 6 SA 232
CC para
4
Footnotes
omitted.
5
Footnotes
omitted.