Cambridge Plan AG v Cambridge Diet (Pty) Ltd and Others

• Judge: Swart J
• Judgment Date: 20 June 1989
• Citation: 1990 (2) SA 574 (T)
• Hearing Date: 20 June 1989
• Court: Transvaal Provincial Division

Swart J:

The applicant launched an application against respondents in H what was admittedly a complicated trade mark matter.

The applicant was successful and the respondents were ordered jointly and severally to pay the costs of the application, including the costs consequent upon the employment of two counsel, on the scale applicable between an attorney and his own client.

The taxation of the consequent bill of costs has given rise to this I review. The bill of costs, as drawn, indicated fees amounting to R85 598,70 and disbursements amounting to R42 626,29, in respect of which amounts of respectively R12 795,10 and R17 048,96 were allowed on taxation.

The provisions of Rule 48 of the Uniform Rules of Court, pursuant to which review of the aforesaid taxation had been demanded, read as J follows:

Swart J

A '(1) Any party dissatisfied with the ruling of the Taxing Master as to any item or part of an item which was objected to or disallowed mero motu by the Taxing Master, may within 15 days after the allocatur require the Taxing Master to state a case for the decision of a Judge, which case shall set out each item or part of an item together with the grounds of objection advanced at the taxation and shall embodying any finding of fact by the Taxing Master: Provided that, save with the consent of the Taxing Master, no case shall be stated where the amount, B or the total of the amounts, which the Taxing Master has disallowed or allowed, as the case may be, and which the party dissatisfied seeks to have allowed or disallowed respectively, is less than R50.

(2) The Taxing Master shall supply a copy of the case to each of the parties, who may within 10 days after receipt thereof submit contentions in writing thereon, including grounds of objection not advanced at the C taxation, in respect of an item or part of an item which was objected to before the Taxing Master or disallowed mero motu by the Taxing Master. Thereafter the Taxing Master shall frame his report and shall supply a copy thereof to each of the parties, who may within 10 days after receipt thereof submit contentions in writing thereon to the Taxing Master, who shall forthwith lay the case together with the contentions D of the parties thereon, his report and any contentions thereon before a Judge, who may then decide the matter upon the case and contentions so submitted, together with any further information which he may require from the Taxing Master, or may decide it after hearing, if he deems fit, the parties or their advocates or attorneys in his Chambers, or he may refer the case for decision to the Court. Any further information to be E supplied by the Taxing Master to the Judge shall be supplied by him to the parties who may within 15 days after the receipt thereof submit contentions in writing thereon to the Taxing Master, who shall forthwith lay such further information together with any contentions of the parties thereon before the Judge.

(3) The Judge or Court so deciding may make such order as to the costs of the case as he or it may deem fit, including an order that the F unsuccessful party shall pay to the opposing party a sum fixed by the Judge or Court as and for costs.'

As will subsequently appear, the Taxing Master was faced by conflicting claims based not only on divergent views of fact, but also of principle. The Taxing Master has not only reached certain conclusions, but has stated comprehensive reasons for such conclusions. G Before considering whether I should interfere with any such conclusions, it is as well to obtain some clarity of the functions and duties of the Taxing Master in taxing the relevant bill and of this Court in being asked to rule upon the decisions of the Taxing Master.

H As to the former, see Jacobs and Ehlers Law of Attorneys' Costs and Taxation Thereof (1979) at 232:

'"The taxing officer has a discretion in allowing, disallowing or reducing the various items of a bill of costs, but it is a discretion which must be judicially exercised by him, ie it must be exercised reasonably and justly on sound principles and with due regard to all the circumstances of the case." (Per Searle JP in South African Railways v I Mills 1924 CPD 110 at 116, cited with approval in Cash Wholesalers Ltd v Natal Pharmaceutical Society and the Taxing Master 1937 NPD 418 at 421.)

Whilst the Taxing Master, in the exercise of his discretion and in order to give effect to Rule 70(3), should strive to give the successful party a full indemnity in respect of costs reasonably incurred, it is J equally important that in exercising his

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A discretion he should ensure that unsuccessful litigants are not oppressed by having to pay an excessive amount of costs. The Taxing Master should not sanction excessive caution.

Upon an analysis of Rule 70(3) (which replaces the First Schedule to Union Rule 24 published in Government Notice 2835 of 12 December 1952) it is clear that a discretion is given to the Taxing Master to award B such costs "as appear to him to have been necessary and proper" and that the discretion also applies to the limitations contained in the proviso, to the effect that no costs shall be awarded "which appear to the Taxing Master to have been incurred or increased through over-caution, etc".'

As to the latter, see Ocean Commodities Inc and Others v Standard Bank of SA Ltd and Others1984 (3) SA 15 (A) at 17I - 18G:

C 'The question as to when the Court will interfere with rulings made by the Taxing Master in the exercise of the discretion he enjoys when taxing bills of costs was dealt with by this Court in the case of Legal and General Assurance Society Ltd v Lieberum NO and Another1968 (1) SA 473 (A). In that case Potgieter JA, delivering the judgment of the Court, stated (at 478G) that

"the review referred to in Appellate Division Rule 9(1) confers upon D this Court the wider exercise of supervision envisaged by Innes CJ in his decision (ie Johannesburg Consolidated Investment Co v Johannesburg Town Council 1903 TS 111). The Court, therefore, has the power to correct the Taxing Master's ruling not only on the grounds stated in Shidiack's case (ie Shidiack v Union Government (Minister of the Interior)1912 AD 642) but also when it is clearly satisfied that he was wrong. Of course, the Court will interfere on this ground only E when it is in the same or in a better position than the Taxing Master to determine the point in issue."

In the course of his judgment Potgieter JA referred, with apparent approval, to decisions in which it was said that the Court would be entitled to interfere with a ruling by a Taxing Master only if it were F satisfied that the Taxing Master was "clearly wrong" (see Century Trading Co (Pty) Ltd v The Taxing Master and Another1958 (1) SA 78 (W) at 84E; Adamant Laboratories (Pty) Ltd v General Electric Co1964 (3) SA 363 (T) at 366F - G), and it would therefore seem doubtful whether the learned Judge intended to lay down a test different from the one mentioned in the earlier cases. (See also the remarks of Botha J in Noel Lancaster Sands (Pty) Ltd v Theron and Others1975 (2) SA 280 (T) at 282H - 283C.) In Scott and Another v Poupard and Another1972 (1) SA 686 (A) G this Court (per Jansen JA), applying the test laid down in the above-quoted passage in the Legal and General Assurance Society case, set aside a ruling by the Taxing Master on the ground that he had "clearly erred" in his assessment of inter alia the complexity of the appeal in issue in that case. This case indicates, I think, that the Court was of the view that the test as formulated by Potgieter JA in the Legal and General Assurance Society case supra and the statement that H the Court will interfere with a ruling of a Taxing Master only if it is satisfied that he was clearly wrong, are merely two ways of saying the same thing. I think, with respect, that it is better to state the test to be that the Court must be satisfied that the Taxing Master was clearly wrong before it will interfere with a ruling made by him, since it indicates somewhat more clearly than does the formulation of the test by Potgieter JA what the test actually involves, viz that the Court will I 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 ruling.'

Other grounds for interference have been stated, for instance failure to exercise the discretion judicially, failure by the Taxing Master to bring his mind to bear upon the question, acting on a wrong principle J and giving a

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A ruling which no reasonable man would have given. See Jacobs and Ehlers Law of Attorneys' Costs and Taxation Thereof at 232 - 4. The latter grounds are, in my opinion, grounds for review such as are set out in Shidiack v Union Government (supra). It is also to be noted that in the Legal and General Assurance Society matter, insofar as it was quoted with approval in the Ocean Commodities Inc matters supra, the Appellate B Division has accepted a distinction between what could be termed 'usual grounds for review' and cases where the Taxing Master was 'clearly wrong'. The other grounds of review would consequently have been relevant if a party had sought to obtain a review of the Taxing Master's decisions pursuant to Rule 53. In this matter all the above-mentioned C grounds for review will be kept in mind.

In order to discern the battle lines, reference to the various documents before me becomes necessary.

In its request for the Taxing Master to state a case, applicant noted the undermentioned items and matters:

'1.

The failure of the Taxing Master to exercise a proper D discretion, alternatively to apply her mind properly, or at...