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2024
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[2024] ZAECMKHC 105
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Grogan v Changing Tides (Pty) Ltd (1970/2023) [2024] ZAECMKHC 105 (25 September 2024)
FLYNOTES:
COSTS – Party and party –
Uniform Rule 67A –
Claim for damages of R2,022,663
arising out of fall at mall premises – Order for payment of
R915,125 – Value of
claim is substantial –
Architectural aspect takes claim out of ordinary and adds
complexity – Relief sought is
important to both plaintiff
and community accessing Boardwalk Mall – However, the matter
did not involve determination
of unusual or novel aspects of the
law or the interpretation of new legislation to warrant costs on
scale C – Costs
of counsel on High Court scale B awarded.
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case Number.:
1970/2023
In the matter between:
FELICITY
MARY
GROGAN
Plaintiff
and
CHANGING
TIDES (PTY) LTD
Defendant
JUDGMENT
Beshe
J
[1]
On the 7 August 2024 by
agreement between the parties, I issued an order paragraph 1 of
which
reads thus:
‘
1. The Defendant
shall make payment to Plaintiff in the sum of R915 125.00 (Nine
Hundred and Fifteen Thousand and One Hundred
and Twenty Five Rand),
in full and final settlement of all claims (past, present and future)
arising from the cause of action pleaded
by the Plaintiff (‘the
capital amount’).
Even
though the parties were in agreement that the defendant should pay
party and party costs of plaintiff’s action, they
could however
not agree on the scale of such costs, as to which of the recently
introduced rungs of scales A, B or C should apply.
Plaintiff contends
that the appropriate scale should be scale C, whilst the defendant
contends that the appropriate scale should
be scale B.
[2]
Following the introduction of
Rule 67A and the amendment to Rule 69 of the Uniform Rules
of this
court, a court is given a direction as to how to exercise its
discretion in awarding costs. The effect of these changes
to the
Rules is that a court must determine on what scale costs, in that
particular matter should be allowed, A, B or C. The changes
came into
effect on 12 April 2024. This applies to a party and party bill of
costs in the High Court.
[3]
In this matter I am required to
determine the scale on which the defendant should pay plaintiff’s
costs. As stated earlier, plaintiff contends that the defendant
should be ordered to pay her costs based on scale C, being the
highest scale of costs. Defendant on the other hand contends for
scale B.
[4]
Rule 67A provides that:
‘
(a) A cost order
shall indicate the scale in terms of Rule 69 under which costs have
been granted.
(b) In considering the
factors to award an appropriate scale of costs, the court may have
regard to:
(i) the complexity of the
matter; and
(ii) the value of the
claim or importance of the relief sought.’
[5]
Rule 69(7) provides that the
scale of fees contemplated by subrule (3) of Rule 67A shall
be:
Scale
A
Scale
B
Scale
C
R
375,00 per quarter of an hour or part thereof (maximum allowed)
R750,00
per quarter of an hour or part thereof (maximum allowed)
R 1
125,00 per quarter of an hour or part thereof (maximum allowed)
[6]
What culminated in the order I
issued on the 7 August 2024 is briefly stated, the following:
On 10 October 2022
plaintiff fell headlong down a flight of stairs while leaving the
Boardwalk Mall after shopping. As a result
of the fall, plaintiff
suffered the following injuries:
A comminuted
intra-articular fracture of the distal femur on the right leg
Multiple contusions to
the right leg; and she
Suffered post-traumatic
disorder.
[7]
Plaintiff initially instituted
an action for damages against the defendant and another,
claiming the
two defendants were liable for damages she suffered in the amount of
R2 022 663.00. It was after defendants’
plea that the
action was withdrawn against the erstwhile first defendant –
Emfuleni Resorts (Pty) Ltd. However, this necessitated
the amendment
of plaintiff’s particulars of claim so that they can apply to
the present defendant only.
[8]
In her particulars of claim
plaintiff alleged that she suffered damages as a result of
act and or
omissions on the part of the defendant in relation to the mall
premises. That defendant had a duty to take all necessary
steps to
ensure that walkways, passages and steps did not pose a danger to
anyone. Plaintiff proceeded to state (in her particulars
of claim)
how they failed to carry out this duty of care with particular
reference to how the design of the ramp, steps, colour
of tiles,
edging thereof etc. The defendant was referred to a comprehensive
report that was compiled by architect detailing the
defects referred
to hereinabove.
[9]
In its plea, defendant raised a
number of defences,
inter alia
that plaintiff’s fall was
due to her sole negligence, alternatively contributory negligence.
Also raised by the defendant
was a contractual defence, namely that
notices were displayed on notice boards to the effect that persons
entering the premises
in question did so at own risk and that
defendant’s liability was excluded. The so-called indemnity
clause. The allegations
made in the Architects’ report were
denied. So were the reports compiled by other experts regarding
plaintiff’s injuries
and their sequelae.
[10]
This was followed by a replication by the
plaintiff regarding defendant’s contractual defence in
particular.
[11]
In turn, the defendant filed a consequentially
amended plea challenging the legal points raised in plaintiff’s
replication. The matter was set down for trial on 13 May 2024.
On that date an order in the following terms was issued:
IT
IS ORDERED
(BY AGREEMENT)
THAT:
1.
The defendant’s liability be and is hereby separated from
the
quantification of the Plaintiff’s damages.
2.
The negligence of the Defendant contributed 75% towards the
loss
causing event and yet to be proven quantum of Plaintiff’s
damages.
3.
The Defendant shall pay the Plaintiff’s taxed or agreed
party
and party costs, such costs to include the qualifying expenses of the
expert Andrew Thompson of Thembela Architects and the
costs of
photographs up to 30
th
April 2024.
4.
The Determination of the applicable scale of costs together
with the
costs incurred after 30
th
April 2024 in terms of Rule 67A
read with Rule 69 of the Uniform Rules of Court be and hereby
reserved and postponed for argument
to be heard together with the
determination of the quantum of the Plaintiff’s claim on 5
th
August 2024.
[12]
It was submitted on behalf of the plaintiff that
the following factors call for a cost order on scale C:
The value of
the amount initially claimed or of the claim, a sum of R2 million,
interest thereon which will ramp the amount to
R2.5 million. It being
submitted that this is a large amount justifying costs on scale C. It
was submitted that the matter was
complex. The importance of the
relief to the plaintiff, the issue of the indemnification, the breach
of building regulations being
important to the general public in view
also of the fact that the incident took place in a busy shopping
mall, were also cited
as reasons that call for costs on scale C.
[13]
The submissions were countered by the defendant,
it being contended that the “complexity” of
the matter
was self-created. And further there is no justification for departing
from awarding costs on scale B. Furthermore, that
the absence of a
claim for loss of income entails that the computation of the damages
was not challenging because damages were
limited to the basic heads
of damages. Its was also submitted on behalf of the defendant that
the matter was not complex because
there were no co-defendants, and
therefore no questions of factual causation needed to be determined.
Further that the court should
not be swayed by the number of expert
witnesses identified by the plaintiff into concluding that the matter
is a complex one. The
defendant contended for the awarding of
plaintiff’s costs on scale B.
[14]
Both parties gave a helpful exposition of the
recently amended rule, Rule 67A read with Rule 69 and referred
the
court to decided cases, all of which have been taken into
consideration.
[15]
I do not understand that there is an issue as to
whether Rule 67A read with Rule 69 only applies after the
date on
which the rule became effective, namely 12 April 2024. In other
words, applies to work undertaken by counsel after the
12 April 2024.
In particular costs on a party and party scale. This position is also
confirmed in the matter of Mashavha v Enaex
Afrika (Pty) Ltd.
[1]
The rule therefore only operates prospectively.
[16]
Even though Rule 67A read with Rule 69 has
recently been introduced, already there seems to be a general
acceptance of what constitutes complexity in a matter warranting the
awarding of counsel’s party and party costs on scale
B or C.
For example, the following features may render a matter complex:
A matter that requires a
determination of an unusual or novel aspect of law.
A protracted trial
involving disputed technical expert evidence.
[17]
As for the value of the claim or the importance of
the relief sought, the value part is not difficult to
discern. As far
as the importance of the relief sought is concerned, this may be a
subjective matter pertaining to the applicant/plaintiff.
Invariably,
one will institute an action or launch an application because the
relief sought is important to them. Especially so
if such litigation
is instigated in the High Court. There are other aspects to look to
in order to determine the importance of
the matter. The relief sought
may not only be important to the claimant, but to the community at
large. The relief sought may be
of interest to the public. There can
be no doubt that shoppers or visitors accessing a mall, in particular
Boardwalk Mall, have
an interest or need to be assured that care will
be taken by management or owners of the mall that they will be safe
from harm/injury.
That the facilities at the mall do not pose a
danger to anyone. Further that in the event of being injured or
harmed, the mall
will not lightly escape liability. This by means of
raising a contractual defence to the effect that persons entering the
mall
concluded a tacit contract with the defendant that the latter
would not be liable should they suffer injury or damage while inside
the mall. In my view, this contributes to the relief being of
importance not only to the plaintiff but to the community at large.
The relief sought is also important from the point of view of that
the plaintiff’s claim also encompasses future medical
expenses
which form a great portion of the claim.
[18]
The value of plaintiff’s claim is
substantial. I have already alluded to the settlement amount being
R915 125.00 with interest. The claim having initially been for
R2 million. In the matter of
Bulbulia
Sulliman and Road Accident Fund
[2]
it was stated that the matter concerned was an ordinary everyday
matter for lawyers who deal with such cases. But is a significant
matter for the plaintiff. Further that the settlement in the amount
of R2.9 million large, but the case from lawyer’s perspective
is not out of the ordinary. It was accordingly held that in the
circumstances scale B was fair for the costs concerned. In the
instant case, I am of the view that the architectural aspect takes
the plaintiff’s claim out of the ordinary. The aspect
of the
architectural layout of the mall lands complexity to the claim.
[19]
The question is whether the matter was so complex,
and the relief sought so important and valuable to the
plaintiff that
it entitles the plaintiff to costs calculated on scale B or C. The
parties seem to be in agreement that scale A
is out of the question
in the circumstances. Plaintiff contends for costs on scale C and
defendant on the other hand contends for
scale B. See parties’
heads of argument and draft orders in this regard.
[20]
There is no doubt that the relief sought is
important to both the plaintiff and the community accessing
Boardwalk
Mall. The value of the claim is substantial. The relief sought was
complex for reasons stated earlier. I however do not
think that it
involved the determination of unusual or novel aspects of the law or
the interpretation of new legislation to warrant
costs on scale C.
[21]
Accordingly, the following order will issue:
The
defendant shall pay plaintiff’s agreed or taxed party and party
costs, which shall include costs of counsel on High Court
scale B in
terms of Rule 69 for:
20.1 The merits hearing
up to and including 30 April 2024.
20.2 The quantum hearing
up to and including 7 August 2024.
20.3 Any costs attendant
upon payment of the capacity amount and payment agreed or taxed party
and party costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Plaintiff
:
Adv: S H Cole SC
Instructed
by
:
WHEELDON RUSHMERE & COLE
MATTHEW
Fosi Chambers
119
High Street
MAKHANDA
Ref:
Mr Brody/Meghan/S25306
Tel.:
046 – 622 7005
For
the Defendant
:
Adv: T S Miller
Instructed
by
:
DICKS VAN DER MERWE ATTORNEYS
C/o
NETTELTONS ATTORNEYS
118A
High Street
MAKHANDA
Ref.:
Ms I Pienaar
Tel.:
046 – 622 7149
Date
Heard
: 7
August 2024
Date
Reserved
: 7
August 2024
Date
Delivered
: 25
September 2024
[1]
(2022/18404)
[2024] ZAGPJHC 38 (22 April 2024] at paragraph [12].
[2]
(2019/26898)
[2024] ZAGPJHC 506 (23 May 2024).