Banda v Satemwa Tea Estate Limited (Personal Injury Case 219 of 2019) [2019] MWSC 4 (23 April 2019)

RCPUBLIC OF MALA WI IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY CASL J'-. JO. 2 19 OF 20 16 BETWEEN CH IKONDI 8 1'\ N DA . ...... . ......... .. .. . ... ................ ..... . .... . . .. ..... ............ .. . ... .... ... CLAIMANT \ AND SATEMWA TEA ESTATE LIMITED . . .. .. . .. . . .. .. .... .. . ... . .................. . . .. ................. DEFENDANT Coram: WYSO N CHAMDIMBA NKH ATA (AR) Kusiwc1 - of Counsel fo r th e Cla imant Kai and a- of Counsel for the Claimant i\foclo! o -of Counsel for th e Defendant Chitsu lo- Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF COSTS INTRODUCTION The c laimant was inj mecl while in the e mp loymen t with th e d efendant when he was m o ppin g a garage . O n the 24th of M ay 20 16, the court entered a default j ud g m ent w ith costs to th e claim a nt fo r fa ilure by the clcfcndrn1t to file a d efe nce. The defendan t then filed an a pplication to set as ide th e de fault j udgment and the application \vas denied by the court o rders elated 31 st January 2018 and 13th June 2018. The matter procecclecl to assessm e nt of damages and o n 16th January 2019, the court awarded the c la imant the sum of K3 ,579,200.00. T hi s court was then appo inted to a ssess costs. This is th e cou1i 's order o n assessment costs . The receiving party filed their Bill of Costs in which they are claiming K6 ,3 72,500.00. The paying pa1iy opposes the bill. Counsel representing th e paying party stated that there were duplications and inclusion or· items not supposed to form part of the proceedings in the bill. She took the court through the bill item by item highligh ti ng the parts they were challenging. I shall go through same la ter i11 this ruling. Suffice to say for now, that this court has been appointed to ta:x the costs and arrive at a reaso nable amount to cove r the claimant on the costs reasonab ly incurred in prosec uting this 111 .1ttcr. THE LAW Basically, the princip le upon which costs should be taxed is that the successful party should be allowed costs reasonably incurred in prosecuting or defending the action. The ta:x in g master must hold a balance: O n one ha nd, the success ful litigant, who has bee n awarded the costs so that he is made who le by be in g ab le to recover costs necessarily incurred and on an oth er the unsuccessh.il party so that he does not pay an e:xcess ive am ount of" moncy. Order 31 (5)(3) of the Courts (High Court ) (Civil Procedure) Rules 201 7 provides that in award ing costs the Court shall also have regard among others things the amo unt or va lue of any money or property involved; the importa nce o f the matter to all the parties : the particular comple;-; ity of the matter or the d ifli culty or novelty o f the qu estions ra ised; the sk ill. effort, spec iali zed know ledge and respons ibil ity involved and the ti me spent on the case. Order 3 1 (4)( I) states that where the Court is to assess the amount of costs, whethe r by summary or detailed assess ment, th ose costs sha ll be assessed 0 11 the standard basis or the indemnity basis, but the Cou rt w il l not in ei th er case allow costs vvhich have been unre,1sonably incurred or are unreasonable in amount. Order 3 1 (4)(2) states that where the amou nt of costs is to be assessed on the sta ndard basis, the Court shall (a) onl y allow costs which are proportionate to the matters in issue and (b) reso lve any doubt which it may have as to whethe r costs were reasonably incurred 01· reasu11able and proportionate in amount in favo ur of the payi11g party. HOURLY RATE The rece iving p<1i-ty seeks K25,000.00 as the hourl y rate. They indicate that the matter was hand led by C harl es Kusiwa and Patrick Kalanda of 6 and 16 years respectively standing at the bar. There was no contention on thi s part. The court adopts th e K25,000.00 proposed by the receiving party. CONSIDERATION OF THE ITEMS OF THE BILL INTERLOCUTORY ATTENDANCES The receiving pa rty proposes I hour for attending hearing ol"the application to set aside default judgment on the 20th of' June 2017. Counsel represc11 ting the paying part:,.; argues that the hear ing took 40 mi nutes. I c hecked the record. Unfortunately, the reco rd only indica tes th<1t the nrntter started at 9:50am but there is no ind ication ol'thc linishing time. I shall exercise doubt in fovour ofthc payin g party by all0vv ing the 40 minutes which has been counter-proposed. The rece iving party also clai111s one hour each for travell ing a nd w::iiting at court on the 20111 of .lune 2017, 20111 of November 2018, 18111 . June 20 I 8 a nd 16111 oi'.lanuary 2019. However, the pay ing party is of the view that 30 minutes is more reasonab le. For the 18111 of June 2019, the paying party argues that the Registrar was not available and they only got the order from the clerl<. One thing that was not mentioned is that the parties still travelled to court to collect the sa id order. All the same, mindful that the parties sometimes have to contend w ith tra ffic jams along the way to and fro111 the court, I will allow 45 minutes each. PREPARATION The receiv ing party is claiming a total 01· 8 hours for taking instructions from the client to sue, to attend hearing on application to se t aside defau lt j udgment, to attend asscss111ent of damages, attending upon and co rresponding with the clie nt and taking :111d 1xcpari ng proofs of evidence. It is co ntended for the paying party that there are du plications and that 1!1is was a stra ight l0 1ward case which did not need so much time. The receiving party argues that time tak en also depend s on the caliber of the client. They submit that in th is case their c I icnt "as a typical vi I !ager who was working as a laborer for the de Fendant and it was not simple to exp lai n some legal processes and legal jargon. In Ill) op ini on, that notwithstanding. 8 hours is an exaggeration. I sh,111 allow 4 hours fo r th is part NEGOTIATIONS The receiving prn"ty is cla iming 2 hours !cir holding out or co urt negot iations with the defendant. It is conte nded for the paying party that there is no order 011 costs regarding negotiations as such the same ought to be disrega rd ed. The receiving party argues that under the new Rules there is no prescribed form • . - .www *' #&¥ .. $( for assessment ol·p~ll'ty and party costs. I le therc!orc invites the court to have recourse to order 62 of the RSC under appendix :?.9 which indicates that negotiations arc taxable. fndced. order 62/A2/2 I (x) ot· the RSC prov ides for taxati on of costs for work clone in connection with negot iations with a view to settlement. In this case, the re is evidence that Counsel Kalancla traveled to Satem\\•a to meet Mr. Mandala on the I -1 of September 20 I 6 w ith a view or arriving at an out of court sett lement. Clearly, time and other resou rces were ex pe nded in the condu ct or th is matter pursuant to the public po licy that it is idea l that matters ;i re sett led out of'C()mt. I believe it is only proper that the 2 hours c laimed is allowed. DISCOVERY On this part, it is c1rgued for the paying party that the clocume11ts herein c1re a duplication of documents I istecl lll1der documents prepared. The rece iv in g party ca I Is upon the court to cons icier o rder 62/ A2/2 I (viii) or the f{ u Jes or the Supre me Court which prov id es for taxat ion o f costs for work clone during discovery. What is lacking here is the justification fc., r the duplication of the documents. l went through the list and it is evident that the documents listed arc the same with documents listed under documents prepared. I take note that it \\'35 submitted that Counse l needs to go through the Police Report and the Medical Report in order to establish ii' they disclose a re;1~011ablc c1use ()fact ion. Howe\'er. the two documents have not been incl uded 011 the list ror discovery. I agree with counsel lex the paying pa rty the documents listed under discovery must be disregarded for d up licity. DOCUMENTS PREPARED The parties did ll()l agree on the time all l'catecl for some o l't he documents prepared. ft was contended by the paying party that the witness statem rn t on assessmen t or damages ought not to have taken an hou r for Counse l albeit its importance. Further, it was observed that the skeleton arguments on quantum is a one paged document where two cases were cited and v. ould not have taken 2 hours. ft is therefore suggested that each be taxed at ] 0 minutes mindfu l that Cou nsel representing the receiving party has clone so many personal injury cases mid had previous!:, prepared many si111 il,ir documents. The receiving party insists tlrnt the same :ire rcasrnrnble in that it is 1Hlt the length ol' th e doeurnent but its importance to the matter. Much as f ag1·ee that the i111portance of the document pla ys a great role, it still begs the questi o n whether counsel of I 6 years standi ng at the bar co ul d take 2 hours preparing a one paged document being skeleton argu111e11ts 011 quantum bearin g five ob, ious statements. Observa bly, the witness statement reiterates issues 1·aised on the Med ica l Report. f exercise my doubt in favour ol' the paying party and al low 30 minutes each of these two documents brin g a total of7 hours 45 minutes. DOCUMENTS PERUSED AND COJ\' '."i IDERED The main contention under this part was th e time c1lloca 1:cd to some of the documents. The paying party suggests there ha ve been exaggerations\\ hil e the receiving pa rty is of the view that the time is reasonable 'considering that some of the documents need to be read with care for one to properly understand the issues. Having seen the documents in qu estion and having co nsidered their complexity and importance to the matter. this Cllurt summed up the con tentions and its findings as follow s: RECEIVI NG PAYING PARTY 'S I COURT'S FIND ING PARTY'S PROPOSAL PROPOSAi~ Order staying assessme nt 15 mins - I I I I i ! I i 5 rnins 45 mins 45 rnins 30 mins I hr 30 mins - I I I I I hr I hr I 4 5 mins 45 mins - - - - -- ,~i - - - - - - - - - --------· - - - ---·- -·· - -- 311 111 i11s 15 rnins 30 111ins I hr TOTAL I 30 rnins 30 mins I I 5 hrs 45 mins I I I ! I I i I I I I I ! I I I I I I proceedings Defendants· SllllllllO ll S and affidavit to set as ide de fa u ! t judgment Skeleton arguments I I I I I 111 I I support of the application to set c1side defau lt judgm ent Defendant's supp lementary affidavit I Defendant's supplementary a rgu men ts to set ske leto n I aside I hr 1 hr I hr I hr judgment f - Order sustaining ~ -- - - the I hr dcfoult _judgrnent Ordc~ ··d,smiss ing. appe~iT I against the susla1n lllg ot the default judgmen t and vacating stay order Order on assessment I - w • . WWWEJW 0 CASES Counsel representing the paying party h<HI issues with the cases listed by the receiving party in their bill. She observed that there arc 6 cases that were attached to the assessment bundle. She is of the view that since the rest not attached there is no proof that they were read. It was her submission further that they had observed th,1t some of the cases had bee n cited in other cases and since the copies had not been made available they took it that they had not been read. She listed the cases that had been made available as follows: • Malikebu v Pcmba .. . I ack Magweclc v Prime I nsurancc Corn pqany Li rn itecl • World Vision lnternational v HL Ph iri t/a Construction Services • Mwavi Coal l,td v Press Cane Li 111 itecl • Trastel Supplies Ltd v Mwak:alin ga She funher sub111itted that the Jack Mag" ecle case related to assessment of damages and not setting aside the Default Jud gmen t. For these cases. they submit th at they do not have issues with the 30 minutes proposed by th e receiv ing party. However·, they suggest 15 minutes each of following cases: • • Praise Chitclc v Prime Insurance Co mpany Limited E111111anucl D:s Lo n v Prime lnsura 11cc Company Li111i Lcd It is her contention th at cases fro m the case ofMuham111,1d Mpulula going clown in the assessment bundle were never cited. She avers that the same relate to assessment of damages and yet the claimant only relied on two cases which are Praise Ch itetc case and the [111111a11uel Byton case. She contends that after assess111cn t of cl,1111ages. the c l<1i111a nt st<1tecl that they woulcl not file written submissions but would rely on skeleton arguments where they had used only two cases. She moves the court to disregard the rest of the cases from Muhammad Mpulula goi ng clown. In their response. th e rccc1v111g party st:1tes that the cases !'i·om Singh v Sta111brook up to the cnsc of' [ mm :rnucl f3yton v Pri me Insurance C'(• mpany Limited wc1-c cited in the ske leton argum ents. They chal lenged the C()Uf"! tl> check and veri f':. I hey further argue that the issue is not about relevance but that it was reasonable or necessa ry that the u 1scs be read . It is their opinion that the mere fact that these were the on ly cases cited does not 111 ean that th ey were the only cases read but rather that out of a litan y of cases the injuries sust~1inecl by the claimant \\ ere comparable with those cases. They neverth eless concede havino om ittccl to att:1ch so me of the cases. It is their contention that the omitted cases are only a few. c Having c hecked the two sets of skeleton argumen ts that were used in this matter, I was ab le to confirm what Cou nse l rep resenti ng the paying pnrty was arguing in that only a few cnses we re c ited against the 44 cases that were listed in th e assessment bu ndle. However, it is true that some cases ma y have been read but not cited as ~irgucd by counsel represe nting the rece iving pa rty. The doubt thereof must however be exerc ised in favour o!'the pa y ing party by trimmin g down the u 1ses. Furth er to that, without unnecessarily encour:1ging a s fnppy approac h to cond uct of 111at1ers on the part 1..)fcou nsel, I be lieve for Counsel of 16 years standi ng al the bar wi th all the experience in simil ar m:1ttcrs, it was un11ccess:1 ry industry on the part of Counse l to hm·e read suc h a plethora o f' cases. thi s being <1 simply personal injury matter irrespective of the interlocutory proceed in gs that came in. I shall allow 20 cases with an ave rage of30 minutes each. INSTRUCTIONS FEES T he receiving pc1i"ly prnposcs K2,000,000.00 as instruction fees. However, the paying party argues that ord er 3 l o l-the CPR 20 17 provides that a legal firm shal l be entitled to instruction fees where a pa rty has been instructed to act fo r a party from th e co mm e ncement of proceedings to tria l. It is contended th at th e j udgrnent on Ii a hi I ity i 11 this matter was by defou It as such the instruction fees is not a I lowable. The rece i\·ing party opposes the contention i11 that thi s ma tter in lact went through trial. It is argued that assessment o f'd,1:nagcs is also trial on its l ) \\ ' ll a nd il'thc issue ol' liability had not been settled by a default judgn1 cnt, thi s matter could have und ergP11c two sets of trial. Th is co urt was cal led upon lo have recourse to the case ofChirambo v Stagecoach J\Ja lawi Ltd ( 19CJ2) 15 MLR 102 in wh ich Justice Mwaungulu as he was then states thc1t a lthough only da mages had to be assessed, there was a hearing. He furthe r points out tha t in some cases assessme nt o f da111:1ges moy be more rigorous than an actua l trial. I agree with th e rccci\ing party that in struction fees are p,1_vab lc in this matte r considerin g that it went through assessment proceedings or\\ hich there is abundant au thority in fact indicating that assessment proceed ings are a trial. I will however allow K 1,500,000.00 for instruction fees. GENERAL CARE AND CONDUCT The rece iving party proposes 65% of P:1rt A as General Care and Cond uct. They argue that this was a personal injuries mat te r which did not ill\ o lvc any novel is~ucs ancl ordi narily it was supposed to attract a 55% Ge neral C1re and Conduct. It is th eir opin ion, that owing to the defendant's insistence on defending the matter. the c laimant was compelled to do so me additi ona l research on the appl icable law lo sustain the defaul t judgm ent obt,1 ined. They contend that this ultimately increased the amount or· work clone by Cou nsel s ince CPunscl \\tlS compelled to thoro ugh ly prepare lo r the hearing. The p,1ying party contends that the matter was 1wt complicated. It \\'as subm itted that the defe ndant was s imply asking court to set as ide de fault judgment on grou nd s that th e matter vvas statute barred. The payi ng party therefore proposes 45% as Genera l care and Co ndu ct. On this regard. I believe this 111atter was a straight forwsrd matter even in the light of other interlocutory app lications that were 111ade. l a111 of the vie,v that 45% suggested by th e paying party is below what has been upheld in so me judicial pronounce ments by the High Court. I have in 111ind the case ofKavwenje v Chilambc 1996 MLR 113 in which it \\ 8S stated that fo r ordinary cases Care and Conduct shou ld be between 50<% ancl 60% . In thi s case, I a111 n fthc opinion that 50% General Care and Conduct is reasonable. DISBURSEMENTS The receiving party li sts disburse111ents as follows: Fil ing fees Stationery Te lcphonclc111,1 i Is Messengerial services Tra nsport 111oney Fuel Wear and tear Total K26,000.00 KI 0.000.00 KS.000.00 KI 0,000.00 1<50,000.00 1<20,000.00 KI 0.000.00 K 131,000.00 Counsel representi ng the paying party is c ha llenging the filing fees. She observes that the receiving pa11y did not file a list of th e documents filed and that going through her record the documents could not amount to 1<26,000.00. L'pon go ing through the fil ing fees for the docu ments in court, it was c lear that the filing fees w,1s way beyond K26.000.00. Probah ly. it cou ld ha ve served the court a great deal of'purpose if the documents had been listed with an indiec1ti on of the filing lee for each. I shall allow the 1<26,000.00 as ind icated in the bill. Coun sel representing the paying party al s() questioned the inclu sion of transport 111oney alongside a clai111 of fuel. In their response, the receivi ng p,lrty stated that the fuel was for the Lawyers as they trave lled in conduct of thi s matter. It was stated that at some point Cuunsel travelled to Satcmwa for negotiations in a bid to have the matte r settled out of cou rt . They rurther submitted that the transport money was ror the claimant as he travell ed to court. Howe\ e1·. the figure gi ven is me re ly speculative. There were no tickets produced or at least a breakdown on how they arrived at KS0.000.00. I shall all ow K 15,000.00. I di sregard the wear and tear as I see no basis how the receiving party arrived at the claimed figure Essentially, this court allows 1<86.000.00 for disburseme nts. - TAXATION The rece iving pai-ty proposes 3 hours fo r prcp,l!"ation of the bil l o l·costs. The pay in g party is o f the view that if the recei vi ng pa rty h;:id concentra ted on the cc1scs relevant to thi s 111atter, time spent wou ld have bee n much lower. They arc of the view that 2 hrs is reascinable . On this item. I sha ll ,ii I ow 2 hours havin g seen the bundle on ta :--;ation. On the issue of attend ing ta:--;ation proceed ings, the recei vin g p,1i-ty proposes 2 ho urs and the paying party is of'thc view tlrnt the actua l time taken sho uld be used by the court. The reco rd indicates that the hear in g sta rted at 9:4 1 a111 and e nded at I I :37a111. I find that th e 2 homs elai111ccl is ju sti liable . The receiving party further c laims 4 hours fo r tra,ellin g to Satc1mva to attend out of court negotiations and \\'a iting. As ea rlie r observed, the pa) ing party 111ovcs the court to di sregard the same in that they do not form part of' the proceedi ngs. Th is co urt ho leis the view that the same sho u Id be inclu ded. However, I a m of' the view that 2 hours is reasonable. T he rece ivin g party is also gra nted 60% Care a nd Cond uct for Taxation. In total. th e cou rt allows K 120.000.00 for taxat ion o r costs. SUMMARY I therefore tax the bill as fo llows : C PART _ 1 1 nterlocutory attend,111ces Prepa rations ~ - Negotiat ions Discove ry Documents prepared Docu111ents pe rused · - Authorities perused 1 - - In stru ction rec Gencrnl Care and Conduct (Part /\ ) - - - - - Tzi:--;,1t i,m - 16.5 ~'<, Surta:\ ~ - Add disb urse men ts TOTA !. I I AMOUNT KI 00.000.00 KI 00,000.00 1<50.000.00 - KI 93. 750.00 K I 43,750.00 - - - -- - -~~ - K250,000.00 KI .500,000.00 I<.2.337,502.00 Kl , 168,751.00 -- - --- - -·- - - - - K I 20.000.00 10 .506.253.00 1<3.626.2 53 .00 ](598,33 1.75 K86,000.00 K4,3I0,584 .75 w - The costs are taxed at K4,310,584. 75. HATA