Bauleni & 2 Others v Kureshi & General Alliance Insurance Limited (Personal Injury Cause 601 of 2020) [2022] MWHC 225 (11 May 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO, 601 OF 2020 BETWEEN: TOBIUS JOHN BAULENL,......cccsesereeereresterrerenrentererenes senerecseeveee D>) CLAIMANT BEN BAULENL.....-cseeseeee onan eee ean eeeneeeaen ees eG ne En AGRA BADR E EH AEE REELED ES 2NP CLAIMANT BILLY LIGOMEKA......ccccccceneeeeeee cree ereen nee n nena n eget eee eee 38D CLAIMANT -AND- EUNICE KURESHI...cccccccecscecsceet sea seneeseres seen ene nen ea nen een een c as eane anaes 1S? DEFENDANT GENERAL ALLIANCE INSURANCE LIMITED......:00+eseneees Coram E. Chapita-Banda, Assistant Registar Mr Mwantisi, Counsel for the claimant Mr Chipeta, Counsel for the Defendants Ms Chida, Court Clerk ORDER ON ASSESSMENT OF COSTS tessssrseese se 20D DEFENDANT The claimants successfully sued the defendants and were awarded damages amounting to K6,303,000.00. The suit arose out of a road traffic accident involving motor vehicle registration number MH9631, VW Golf Saloon that was driven by the 1% defendant. The 2"! defendant was sued as the insurer of the motor vehicle at the time of the accident. Liability of the defendants was settled at mediation stage. Besides damages, the claimants were awarded costs of the action and the parties appeared before me on 12'" January 2022 for hearing of the assessment of the costs. In course of the assessment, the defendant raised two issues. The first issue was whether instruction fees are payable or not. The second issue raised was whether the 24 defendant should pay the costs or not having already paid damages up to the limit in the insurance policy. This is the court’s ruling on these two issues and an order on assessment of the costs. Instruction fees The defendant’s view is that instruction fees are not payable. Order 31 rule 10 (1) states: “4 legal practitioner or his law firm shall be entitled to an instruction fee and not a brief fee where he or his firm have had instructions to act for a party from the commencement of a proceeding to trial.” in the present matter, the legal practitioner had instructions to act for the claimant and they have acted, as the record shows, from the commencement of the matter. It is my view that instruction fees are payable. In his submissions, counsel for the claimant referred to Ampex Limited V Mota Engil Limited, Commercial Case No. 178 of 2013 (unreported) in which it was stated that the value of the subject matter and generally the nature of the matter should be considered when determining the amount of instruction fees to award. A personal injury matter is not a complicated case and rarely raises complex issues for determination. The sum of K1,000,000 is therefore reasonable as instruction fees. With this sorted and pursuant to the assessment hearing in court, costs awarded to the claimant are summarized as follows: TTEM | BILL ITEMS AND TIME ALLOWED TOTAL TIME | AMOUNT NO. ALLOWED BY COURT I. PREPARATORY WORK A. The Client i. Holding several conferences with the clients (3 hrs); il. Settlement discussions with the Defendants (0.25 hr); B. Documents Perused 1. Police Report (0.25 hr); 2. Medical Reports (0.25 hr); 3, Quotations (0.5 hr) . 4, Bullen & Leake (2 hrs) 6.25 hrs K250,000.00 2. Court Documents Perused (10 hrs) 10 hrs K400,000.00 3, Documents Prepared (10 hrs) 10 hrs K400,000.00 4 Court Attendances (5 hrs) 5 hrs K200,000.00 5, General Care and Conduct 625,000.00 50% of MK1,250,000.00 6. Travelling and Waiting 3 brs K120,000.00 7. Instruction Fee K1,000,000.00 8. Disbursements 212,000.00 9 TAXATION a. Preparing Party and Party Bill of Costs and photocopying (5 hrs); b. Filing Notice of Appointment for Assessment of costs (0.5hr) c. Attending taxation proceedings. {1 hr); 6.5 hrs 260,000.00 d. Care and Conduct at 50% K 130,000.00 e. Traveling to High Court for Taxation Proceedings and waiting (1 hr) f. Attending Taxation Proceedings (1 hr) 2 hrs K 80,060.00 10 SUB TOTAL (Less Disbursement) | Add 16.5% Government Surtax Add back Disbursements TOTAL MK3,465,000.00 MK554,400.00 MK212,000.00 MkK4,231,400.06 The claimant is awarded the sum of K4,231,400.00 as costs of the action. Who pays the costs Inow move to the last issue regarding whether the 2™4 defendant must pay the costs or not. I find it imperative at this point to reproduce court order dated 2" July 2021. The order states: (_. the defendants should pay the claimants damages for personal injuries to be assessed by the Registrar if not agreed The 2" defendant’s liability in damages to third parties be limited to the policy of insurance with its insured That the defendants should pay the Claimants party and party costs to be assessed’ (emphasis mine). It is worth noting that although this order was issued by the Registrar, it was made pursuant to an Order that the Judge made by hand on 17" June 2021. Surprisingly, this handwritten order is worded differently to the order that the assistant registrar issued which the claimant’s legal practitioner drafted. The issue before me, determining whether the 2"4 defendant should pay the costs having exhausted their policy limit is asking me to clarify or interpret the Judge’s order which I must and do decline for lack of jurisdiction. It is only the Judge who made ihe order who can do so and any willing party can move the court. DATED [ff E. CHAPITA-BANDA