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[2010] ZAFSHC 24
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Abacornie v Road Accident Fund (2826/2007) [2010] ZAFSHC 24 (25 February 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. :
2826/2007
In
the case between:-
GERT
JACOBUS ABACORNIE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
_______________________________________________________
JUDGMENT
BY:
JORDAAN, J
_______________________________________________________
HEARD
ON:
12
FEBRUARY 2010
_______________________________________________________
DELIVERED
ON:
25
FEBRUARY 2010
______________________________________________________
APPLICATION FOR
REVIEW OF TAXATION BROUGHT IN TERMS OF RULE 48 OF THE UNIFORM RULES
OF COURT
[1]
The
applicant was the plaintiff in a claim for compensation for damages
allegedly sustained in a motor vehicle accident. The trial
was
enrolled for hearing on the 3
rd
,
4
th
and 6
th
of February 2009. The trial was incidentally heard by me and
proceeded on the 3
rd
and 4
th
of Februarie after which it was postponed to the 6
th
for continuance. The matter was however settled on the 5
th
of February with the result that only an order in terms of a
settlement was sought on the 6
th
.
Counsel for applicant (plaintiff) with leave of the court returned
to his place of residence in Cape Town and did not attend
the
granting of the order by consent on the 6
th
of February.
[2] For the sake of
convenience I will refer to the applicant as plaintiff and the
respondent as defendant.
[3] The
plaintiff being the successful party submitted a bill of costs for
taxation, which was duly held and taxed by the local
taxing master.
The taxing master disallowed various items in the bill of costs.
This review is aimed at setting aside such disallowance
in regard to
some of those items.
[4] The
taxing master submitted a stated case in terms of the aforesaid rule
and both parties filed submissions in response thereto.
In terms of
rule 48(6) I invited the parties’ attorneys to address me in
chambers which was duly done on the 12
th
of February this year.
[5] The
approach to be followed in matters of this kind as been repeatedly
stated in various decisions. That approach is summarised
in the
decision in
CITY
OF CAPE TOWN v ARUN PROPERTY DEVELOPMENT (PTY) LTD AND ANOTHER
2009 (5) SA 227
(CPD) at page 232, paragraph [17] as follows:
“
[17] The
taxing master has discretion to allow, reduce or reject items in a
bill of costs. She must exercise this discretion judicially
in the
sense that she must act reasonably, justly and on the basis of sound
principles with due regard to all the circumstances
of the case.
Where the discretion is not so exercised, her decision will be
subject to review. In addition, even where she has
exercised her
discretion properly, a court on review will be entitled to interfere
where her decision is based on a misinterpretation
of the law or on a
misconception as to the facts and circumstances, or as to the
practice of the court.”
[6]
I
interpose to mention that I find the last sentence of the aforesaid
portion of the judgment difficult to understand. If the taxing
master’s decision is based on a misinterpretation of the law or
a misconception as to the facts and circumstances or misconception
as
to the practice of the court, to my mind it cannot be said that the
discretion was exercised properly on the basis of sound
principles.
That does not however affect the matter.
[7] In view of the vast
number of items objected to which forms the subject of this review, I
do not intent to deal with the items
in numerical order but rather to
first deal with those items that, according to my view, requires some
comment. I proceed to deal
with the various items.
[8] Items
41, 67, 79, 172, 247 and 518: These items all related to the writing
out of a cheque to pay the various creditors. They
were all
disallowed by the taxing master on the basis that no provision is
made for such an item in the tariffs. During argument,
the
representatives of the parties were however,
ad
idem
that such an item might be covered by paragraph B3, which provides
for the writing of letters etc. The tariffs however allow a
fee per
page consisting of 250 words. All of the aforesaid items were
preceded by an item providing for a letter to the said creditor
accompanying the cheque. The parties were also in agreement that the
covering letter could by no means consist of 250 words being
a formal
letter accompanying the cheque and also in agreement that the writing
out of a cheque as such does not amount to nearly
a full page. In
view of rule 70(9) read with note 1 to the tariffs under heading B
“drafting and drawing”, the drafting
of the preceding
item namely the accompanying letter taken together with the writing
out of a cheque will not amount to more than
1 page and, since the
preceding items pertaining to the letters were allowed in full,
sufficient provision has been made for the
attorneys fees by allowing
the preceding items to each of the aforesaid items and the taxing
master was therefore in effect not
to be faulted for disallowing the
aforesaid items.
[9]
Items
61, 63 and 64: Item 61 related to a telefax to Dr Cilliers for the
completion of the MMF1 form and the fee for that was allowed
by the
taxing master. Items 63 and 64 related to telephonic calls to the
said medical practitioner to obtain the said completed
form.
Plaintiff’s representative was constrained to concede that, in
allowing item 61, sufficient provision has been made
for fees for
plaintiff’s attorney in trying to obtain the said form, that
items 63 and 64 did not really take the matter
any further and can be
regarded as attorney and client costs with the result that the taxing
master cannot really be faulted in
exercising his discretion in
disallowing those items.
[10] Items
194 and 196: These items both related to the attorney’s efforts
in obtaining an MMF1 form from Dr Loubser and were
both disallowed by
the taxing master. On behalf of the defendant it was conceded that
it would be reasonable to at least allow
one of the items in an
effort to obtain the said statutory medical form and that, in
disallowing both items, the taxing master
did not exercise his
discretion properly. It was therefore conceded that item 196 should
have been allowed.
[11] Items
352, 495, 499 and 533; these items all pertained to a fee charged by
plaintiff’s attorney for the time spent and
the expenses
relating to his attendance at the advocate’s chambers in Cape
Town for consultations for which he had to travel
from his offices in
Bellville on each occasion. The representatives of both parties were
ad
idem
that travelling time and expenses are as a rule not allowed in this
division, traditionally mainly because all the local attorneys
are
located within a short distance of court and the advocate’s
chambers. Defendant’s representative however correctly
conceded that such a blank and rigid rule of practice in effect
limits and indeed ousts the taxing master’s discretion as
envisaged in item A11of the tariffs. It is evidently wrong for the
taxing master to adopt a rigid approach and, without taking
into
account the circumstances of each case, refuse such an item as a
matter of principle. He must decide whether it was reasonable
for
the plaintiff to use an attorney based in Bellville or not. If it
was not unreasonable, he should have considered whether
it is fair
and reasonable to allow for the time and expense occasioned by
travelling to the advocate. The parties were in agreement
that, if
such an item should be allowed, the tariff for travelling expenses
amount to R2,50 per kilometer and the distance travelled,
being 50km
return trip, should amount to an expense of R125 per trip. They were
also in agreement that the then applicable tariff
for time spend
amounted to R125,00 per quarter of an hour and that travelling time
usually is allowed at a half of the aforesaid
tariff. In view of the
aforesaid it would have been reasonable to allow a total of one hour
at a fee of R250,00 per consultation
for the time spent on each
occasion a necessary consultation with the advocate was attended.
[12] Items
366, 368:
Both items consisted of telefaxes to the South African Police
Services to obtain the inquest report which were disallowed by the
taxing master as being follow-up on previous requests in this regard
and being attorney and client items. Plaintiff’s
representative
had to concede that the plaintiff is not entitled to
all follow-up telefaxes or telephone calls and that, since items 362
and 363
in this regard were allowed, it cannot be said that the
taxing master exercised his discretion improperly in disallowing the
follow-up
items. I agree.
[13]
Items 369, 370 and 375: These items related to correspondence in
regard to payment of accounts between the plaintiff’s
correspondent attorneys and plaintiff’s representative
correctly conceded that it constitutes attorney and client costs and
were correctly disallowed.
[14] Items
525 and 526: Item 525 related to a telephonic conversation with the
local correspondants of plaintiff by the Cape Town
attorney to
discuss a tender made on behalf of the defendant. On behalf of the
plaintiff it was correctly conceded that such a
discussion was not
strictly speaking necessary since the instructing attorney in Cape
Town did not need to discuss the tender with
the local attorneys and
the item was therefore correctly disallowed.
[15] Item 526 related to
a telephonic conversation with the advocate by plaintiff’s
attorney to discuss the same tender.
The taxing master disallowed
this item on the basis that it was not necessary to discuss the
tender with the advocate. On behalf
of the defendant it was
correctly conceded that the advocate forms part of the plaintiff’s
legal team, he prepares for trial
and is in the best position to
advise the plaintiff and the plaintiff’s attorney on the
reasonableness or not of tender proposals.
It was conceded that the
last mentioned item should have been allowed and I agree with that.
[16] Items
592 and 593: It was correctly conceded by the representative for
plaintiff that, in view of the fact that item 591 has
been allowed,
these items consisted of follow-ups and were not strictly speaking
necessary. These items were clearly attorney
and client costs and
correctly disallowed by the taxing master.
[17] Items
594, 595, 596, 597 and 598: These items relate to correspondence
between the plaintiff’s Cape Town attorney with
the local
correspondent in regard to the local attorneys account. It was
correctly conceded on behalf of the plaintiff that these
items relate
to attorney and client costs and were correctly disallowed by the
taxing master.
[18] Item
599: Both parties agreed that the taxing master is correct in holding
that accounts are only perused at half of the normal
tariff.
However, the taxing master disallowed the whole item instead of
disallowing half of the fee which should have been done.
[19] Items
619 and 620: These items mainly refer to expenses in the form of
advocate’s fees. Plaintiff made use of the services
of senior
counsel who charged a fee R1 800,00 per hour and R18 000,00 per day.
Counsel’s tax invoice contains particulars
of everything done
on each occasion and the time spents on each occasion. It is only
necessary to deal with those items which
the taxing master either
disallowed or only allowed part of the fees charged by counsel.
Those items relate to the following:
13
March 2008: This item relates to counsel’s advise on evidence
for which he charged three hours in the total amount of R5
400,00.
The taxing master regarded the time spent as too long and only
allowed half an hour. Defendant’s representative
was bound to
concede that the three hours charged by counsel were not
unreasonable. The taxing master obviously did not have due
regard to
the complexity of the matter where various experts of different
specialities were involved as witnesses and where problems
were
experienced in obtaining evidence regarding the plaintiff’s
income in the informal business sphere. The drafting of
an advise on
evidence is not a formality but indeed a most important and
complicated task. A properly drafted advice on evidence
paves the
way for an orderly and considered approach to litigation. I am
convinced that to allow three hours would not have been
unreasonable
and to only allow half an hour is indicative of the fact that the
taxing master did not have due regard to the aforesaid
factors.
19
March 2008: The advocate charged a fee for four and a half hours for
consultation with plaintiff and his wife in the presence
of the
attorney. Two and a half hours has been taxed off by the taxing
master on the basis that most of the aspects covered on
that occasion
were already part of the advice on evidence on the 13
th
of March. It does appear from counsel’s tax invoice that at
least a large part of the said consultation consisted of the
discussion of available evidence, the obtaining of evidence and other
practical aspects that traditionally have to be done by the
attorney.
I am not convinced that the taxing master has exercised his
discretion improperly in this regard.
20
January 2009: On the said date counsel had a consultation with the
attorney where various aspects pertaining to the preparation
for
trial have been discussed. Counsel marked a fee for three hours
which was disallowed by the taxing master in
toto
on the basis that it amounts to attorney an client costs.
Defendant’s representative conceded that it would have been
reasonable
to involve counsel in preparation and that, since two
hours consultation in this regard have been allowed for the attorney,
the
same should have been allowed for counsel. I agree with that and
am of the view that the taxing master did not exercise his discretion
properly in this regard and that he should have allowed at least the
same time for this consultation as has been allowed for the
attorney.
27
January 2009: Counsel charged a fee for four hours for discussions
with the attorney relating to practical arrangements for attending
the trial as well as the preparatory work relating to the trial as
such. The total amount has been disallowed by the taxing master
on a
basis that it consisted of attorney and client costs. I am of the
view that the taxing master was correct in not allowing
this item as
a separate item but am of the view that the said item, in as much as
it consisted of preparatory work in connection
with the trial, should
have been taken into account when assessing the reasonableness of
counsel’s fee for the first day
of the trial. That will be
dealt with later.
28
January 2009: Here, counsel charged a fee for three hours for
discussing a tender with the attorney and evaluating the tender.
Defendant’s representative pointed out that this item relates
to item 526 where it was already conceded that it was reasonable
to
involve counsel. She however pointed out that, by that stage, both
the attorney and counsel should have had clarity as to what
a
reasonable amount in regard to plaintiff’s damages should be
and that therefore, only one hour should have been allowed.
I agree
and am of the opinion that it would have been reasonable to allow one
hour in this regard. The taxing master’s
view that settlement
offers should not be discussed with counsel is clearly not in line
with reality. In practice the advocate
prepares on the issue of
quantum of damages and he is the person who has to convince the court
and address the court as far as
the quantum of damages is concerned.
The taxing master should have had due regard to the practical
necessity to involve counsel
in those discussions and should have
allowed at least one hour.
29
January 2009: Counsel charged six hours for consultation with the
attorney and at least two expert witnesses. The taxing master
disallowed two and a half hours, being of the view that the
consultation was too long with “the one expert consulted”.
I already pointed out that the consultation involved both the
neurosurgeon as well as the occupational therapist. It does however
appear that the major part of the consultation consisted of
preparatory work, which can be regarded as preparation for trial.
In
view of that, I cannot find that the taxing master has exercised his
discretion improperly by disallowing part of the fees on
that basis.
The amount of time disallowed, being preparatory work, should however
have been taken into account when deciding on
the first day fee that
should have been allowed to counsel which I will deal with later on.
30
January 2009: Counsel charged two hours for what in essence amounted
to preparatory discussions with the attorney for purposes
of trial.
This again has been correctly disallowed by the taxing master on a
separate basis as charged but should have been taken
into account
when assessing the appropriate first day fee that should have been
allowed for counsel. I deal with that later on.
1
February 2009: Counsel charged three hours in total for what again
appears to be purely preparatory work for purposes of trial.
I am of
the view that the taxing master correctly disallowed these items on
the basis that it should not have been allowed as
a separate item but
again should have been taken into account when assessing the proper
first day fee.
2
February 2009: Counsel charged a day fee of R18 000,00 for the day.
It was disallowed in
toto
by the taxing master. The day consisted of flying from Cape Town to
Bloemfontein, arranging accommodation and other preparatory
work in
regard to the trial. It however included the attendance of a rule 37
conference where both counsel attended as well as
a further
consultation with plaintiff and his wife. The representative of the
defendant correctly conceded that at least two hours
should have been
allowed for the attendance of the rule 37 conference and the
consultations with plaintiff and his whiff. I agree
that the taxing
master erred in disallowing the total amount and should have at least
allowed two hours for the aforesaid. The
rest consisted of
preparation and as mentioned time spent travelling and making
arrangements for accommodation which is clearly
attorney and client
costs. At least part of the day was taken up in further
preparation, which the taxing master should have
taken into account
in assessing the appropriate first day fee with which I will deal
later on.
5
February 2009; The trial was set down and continued on the third and
fourth of February and would have continued again on the 6
th
of February with the 5
th
not being a date on which the trial would have continued. Counsel
marked a fee for three hours for discussions regarding a further
tender made by defendant which discussions were held with the
plaintiff’s attorney. The representative of the defendant
conceded that it was reasonable to discuss the further tender and
settlement proposals with counsel but argued that a large part
of
this item was in essense a preparation for the continuance of the
trial the next day. She suggested that, at most, one hour
should
have been allowed. I agree that the taxing master should at least
have allowed one hour in this regard.
6
February 2009: Plaintiff’s counsel charged a day fee of R18
000,00 for the last day of the trial. On behalf of the plaintiff,
it
was correctly conceded that, in this division, counsel is not allowed
a fee on a party and party basis for trial days reserved
but not
used, the only exception being a fee for the first day. Since the
matter was settled the previous day and counsel for
plaintiff did not
attend court for purposes of obtaining an order of court in
accordance with the settlement, the taxing master
correctly
disallowed this item.
THE BALANCE OF THE
ADVOCATE’S FEES
[
20] Certain
of the items relating to the advocate’s fees have been dealt
with above. It is however necessary to deal with
the remainder. In
this regard it should be noted that counsel marked his daily fees at
a flat rate of R18 000,00 per day and did
not mark an escalated first
day fee so as to allow for time spent in preparation. The advocate’s
consultation with the attorney
on the 27
th
January 2009 (four hours) was disallowed in total. In essence, this
consultation consisted of preparatory discussions relating
to
strategy at the trial. The same applies to the consultation with the
attorney on the 30
th
January 2009 (two hours) that was disallowed. On the first of
February 2009 the advocate spent approximately three hours in total
in preparation for trial which were disallowed by the taxing master
on the basis that it is included in the first day fee. The
same
applies to the remainder of time spent on the 2
nd
February 2009 (I have already found that two hours should have been
allowed for the rule 37 conference and consultation with the
plaintiff). The balance of time was partly spent in preparation and
partly making practical arrangements in regard to accommodation,
copying of documents and travelling to Bloemfontein. According to
the advocate’s invoice the part that reasonably can be
considered as preparatory work for purposes of trial appears to be in
the vicinity of two hours. The total time spent by counsel
in
preparation therefore approximately amounts to eleven hours. In
effect, the taxing master did not allow any amount for preparation
because he, on the one hand held that preparation should be included
in the first day fee but, on the other hand, only allowed
the flat
rate (also called refresher fee) as a first day fee. That was
clearly a misdirection by the taxing master. He should
have allowed
a higher first day fee to provide for a reasonable remuneration for
preparation, taking into account the complexity
of the case, the
volume of the matter and the level of counsel’s fees. The case
was rather complex and voluminous, taking
into account the various
expert witnesses involved. The traditional (outdated?) approach to
allow one and a half times the refresher
fee as a first day fee does
not appear to be sufficient and fair compensation in the present
circumstances and I would suggest
that a substantially higher amount
might be called for. That is however something to be left to the
discretion of the taxing master.
To allow only R18 000,00 for the
first day was clearly a misdirection by the taxing master. He should
have allowed a higher first
day fee, taking into account the
aforesaid.
[21] Item
358: This item relates to a consultation by the attorney held with
counsel and involving the plaintiff and plaintiff’s
brother.
This consultation was held on the 2
nd
April 2008 and the taxing master only allowed half an hour for the
attorney whereas counsel’s fees of one hour has been allowed.
Since the attorney is not only entitled but most probably obliged to
attend the whole consultation with counsel, the taxing master
was
clearly incorrect in disallowing part of his fees. If an hour was
allowed for counsel then the same should have been allowed
for the
attorney.
[22] The remainder of the
items objected to and which has not been dealt with by me thus far
consist of the following items:
Item
3, 10, 11, 12, 42, 69, 71, 72, 98, 99, 114, 115, 117, 127, 163, 213,
214, 215, 216, 219, 220, 221, 222, 223, 224, 225, 340,
376, 406, 407,
496 and 534. I do not regard it necessary to deal with each of these
items separately. Having regard to the taxing
master’s stated
case as well as the representations made on behalf of the parties, I
do not find any convincing reason to
hold that the taxing master has
not exercised his discretion properly in disallowing these items.
The review regarding these items
cannot succeed.
[23] In
view of the aforesaid the review succeeds in part but is also partly
unsuccessful. In view thereof I do not intend making
any order as to
costs and each party should bear its own costs relating to the review
proceedings.
[24] In
the result the following orders are made:
1. The review succeeds in
part.
2. The
allocator of the taxing master is set aside.
3. The matter is remitted
to the taxing master to re-assess the account in accordance with this
judgment.
___
____________
A
.
F. JORDAAN, J
On behalf of the
applicant: Adv. H. M. Raubenheimer SC
Instructed by:
Symington & De
Kok
BLOEMFONTEIN
On behalf of the
respondent: Adv. C. Snyman
Instructed by:
Honey Inc
BLOEMFONTEIN
/EM