Van Rooyen v Commercial Union Assurance Co of SA Ltd

• Jurisdiction: South Africa
• Citation: 1983 (2) SA 465 (O)

Van Rooyen v Commercial Union Assurance Co of SA Ltd
1983 (2) SA 465 (O)

1983 (2) SA p465

Citation	1983 (2) SA 465 (O)
Court	Orange Free State Provincial Division
Judge	MT Steyn J
Heard	December 23, 1982
Judgment	December 23, 1982

Flynote : Sleutelwoorde

Costs — Party and party costs — Claim for damages in terms of Act 56 of 1972 — Pre-litigation costs — Witness' statements, counsel's opinion on B the merits and attorney's opinion on quantum — When such may be allowed.

Headnote : Kopnota

Costs incurred before the issue of summons by an attorney's obtaining witness' statements relating to the "ephemeral element" of "MVA claims", ie the evidence of the occurrence itself, which has to be gathered during the brief period after C the event when it is still fresh enough to be reliable and therefore usable, will, in the great majority of cases where there is no prompt admission of liability by the insurer, be party and party costs clearly falling within the exception to the general rule expounded by INNES CJ in Brits and Others v Engelbrecht and Others 1907 TS 876 at 884 and within the class of costs reasonably incurred in relation to such claims and allowed on taxation as having been necessary and proper in terms of Rule 70 (3), which itself clearly permits D pre-litigation costs being included in party and party costs in proper cases.

While there are indications that provision is made in Item A(3) of the tariff for the taking of counsel's opinion on the prospects of success in contemplated litigation as between party and party, that tariff item must be read in conjunction with Rules 70 (3) and (5). Consequently, the tariff only provides for counsel's opinion in cases where it is necessary or proper to obtain such an opinion as an "ordinary incident" E of the litigation or where it is justified in extraordinary or exceptional cases. The general rule is that the need for such opinion is not an ordinary incident in litigation but in each case the facts should be examined to determine whether the attainment of justice requires that an exception be permitted or not.

Opinions as to quantum following an offer or tender of F settlement in damages cases must of necessity deal with imponderables to a markedly greater extent than opinions on the merits of the accident or other like cause of action. To that extent they deal with matters that are per se more difficult to decide upon than those of the more ascertainable questions of liability or guilt. As they are more often than not requested and given during the course of litigation there are as good or even better reasons for having them included as party and party G costs in appropriate cases than pre-litigation opinions on the merits. Again, the facts of the particular matter being considered will be decisive.

Case Information

Review of taxation under Rule of Court 48.

Judgment

M T Steyn J:

This is a review of taxation under Rule of Court H 48, brought by the applicant who was plaintiff in an action pursuant to the provisions of Act 56 of 1972 for damages in the sum of R16 240. From the Taxing Master's statement of case it appears that plaintiff was injured on 6 May 1977 at Harrismith when run down by the insured vehicle, that a combined summons was issued on 18 April, appearance to defend being entered on 29 April 1980, and that the matter was eventually settled on an apportionment basis prior to close of pleadings on

1983 (2) SA p466

M T Steyn J

26 February 1982 for an amount of R1 750 together with an offer by defendant to pay plaintiff's taxed party and party costs.

It further appears from counsel's opinion, to which reference will again be made later, that at the time of the accident A plaintiff was in the employ of Carnation Company, the owners of the insured vehicle, as a mechanic, that he was then busy on the company's premises standing at his workbench in the workshop with his back to the entrance thereof when he was run into from behind by a vehicle with defective brakes which was B being driven into the workshop by a co-employee for the purpose of having it attended to by plaintiff. The procedure then in force was that a defective vehicle would be parked outside the workshop, the driver thereof reporting the defect to another co-employee, an "Induna", who would then place a note indicating the defect on the windshield of the vehicle. C Thereafter it would be driven into the workshop by the designated employee as stated above.

Two attorneys acted for the plaintiff (hereinafter referred to as applicant), one at Bethlehem and one in Bloemfontein.

The items disallowed on taxation and now forming the subjectmatter of this review relate to the bills of costs of D both attorneys concerning consultations with client (the applicant), and taking his statements, counsel's opinion on the merits and the Bloemfontein attorney's opinion on quantum of damages. All were disallowed in toto as forming part of applicant's attorney and client charges.

Applicant's general and basic contentions, made orally by his Bloemfontein attorney, Mr Newdigate, in argument during the E hearing in chambers in amplification and by way of emphasis of his written contentions, were:

(a)

that although the amounts involved were small two very important principles relating to costs were involved, to wit:

(1)

the full indemnity for all costs reasonably incurred F by the party in whose favour an award of party and party costs has been made, and

(2)

the greater realism in the taxation of such costs which has of late become evident;

(b)

the tariff is a general one, applicable broadly to a wide G variety of matters, but always with reference to the nature and circumstances of each particular case, it being dangerous to apply the tariff to a difficult "MVA case" in the same manner as to a simple "debt case";

(c)

while rules of "taxation practice" are obviously valuable they must never fetter the discretion of the Taxing Master. H Thus the general rule relating to witness' statements taken before close of pleadings is not applicable without more to "MVA cases", no matter what the position may be regarding other matters such as simple "debt cases".

Developing these arguments, Mr Newdigate contended that the "necessary or proper costs" referred to in Rule 70 (3) were in essence those one would expect an experienced and honest practitioner to incur.

1983 (2) SA p467

M T Steyn J

Regarding the greater realism in taxation, he contended that there was, and in some pockets of legal thought still is, a dangerous tendency to rely on fictions such as the supposed lack of any necessity to take statements from witnesses prior to the pleading stage, such fiction presupposing some or other A psychic power enabling an attorney to know what his evidence was without having taken or obtained such statements, and the related fiction that a lay litigant knew the law and its practice as though he had an LLB degree and had practised the law for such length of time as to be able to decide matters for and by himself, particularly in "MVA cases", as to such questions as negligence and quantum of damages, especially B where apportionment enters the picture.

The Taxing Master chose to stand by his report, which is well-drawn and to the point.

Costs in a civil matter are in essence charges by or on behalf of those tasked with advancing or protecting the interests of C the party they have been briefed to represent or assist, for the services rendered in the execution of their mandate and are, therefore, basically also a reflection of the manner in which they handled the matter.

Taxation of such costs is a regulating procedure based upon notions of fairness and practicality and designed to effect a D just balance between the fruits of victory and the burden of defeat in the sphere of litigation expenses. The concept of such regulation emerged centuries ago, was already present in early Roman-Dutch practice and has been refined continually, from before the time of the Imperial "Vierschaar" to the present Uniform Rules of Court where it is now embodied in Rule E 70 (3). But fairness and practicality have throughout been the dominant themes - the aim being to fully indemnify the successful party for all costs reasonably incurred by him in the litigation, whether it be related to a claim or to a defence to a claim, and thereby excluding from the indemnification unreasonable and special fees and charges, F unusual expenses and all costs incurred or increased through overcaution, negligence or mistake. And "reasonable costs" have now been equated with such costs as are "necessary or proper for the attainment of justice or for defending the rights of any party".

We have derived the same notions of fairness and practicality from Anglo-Saxon jurisprudence and the results of this G felicitous blending were well-described by R P B DAVIS J in Barnett v Isemonger 1942 CPD 325 in the following passage at 327:

"The costs to be allowed need not be necessary - still less 'absolutely necessary': if they are, though not strictly speaking necessary, yet proper in the sense of being reasonably incurred, and not incurred or increased... 'through overcaution, negligence or mistake' or, in the words of MALINS H VC, are not 'luxuries', or are not, in the words of Gail, 'delicate, noodelose en voluntaire of vrywillige', then they should be allowed. I repeat that 'the true position is that the Taxing Master has still to steer his difficult course between the Scylla of liberality and the Charybdis of niggardliness '."

(My italics)

The reference to MALINS VC comes from Smith v Buller 19 Eq 473 at 475, decided in 1875, and that to Gail is from Andreas Gail's work De Keiserlijke Practijke ofte Observatien van de Keyserlyke Kamer; Ver-

1983 (2) SA p468

M T Steyn J

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