Belentino v Mahommed & Anor. (Personal Injury Case 914 of 2016) [2019] MWHC 55 (23 April 2019)

~ :::r:z a "' .f ,...� ,.,.. ... ..... ..,, .. ..t.'IW'� '\ rHGt-·• f:(tURt < '1 IBKA: .. l.l 1 . J 1 I ,¥d i! 1/l,t.1. :Jr.. U,:. • t . . . . . , , REPUBLIC OF MALA WI IN THE HJGH COURT OF MALA WI PRJNCIPAL REGISTRY PERSONAL INJURY CASE NO. 914 OF 2016 BETWEEN RUTH BELENTINO .................. ............ ................... ............ ................... ..... CLAIMANT AND HAN IF MAHOMMED ....... ................ ............... ................... ........... ............ JSt DEFENDANT GENERAL ALUANCE INSURANCE COMPANY LlMITED .......... 211ct DEFENDANT .................. Coram: WYSON CHAMDIMBA NKHATA (AR) Mwabungulu- of Counsel for the Claimant Mataka-of Counsel for the Defendant Chitsulo- Court Clerk and Official Jnterpreter JNTRODUCTION ORDER ON ASSESSMENT OF COSTS On the 14:h of October 2016, the claimant suffered injury upon being hit by a motor vehicle that was being driven by the l51 defendant as he tried to reverse by the l 51 defendant was insured by the 211d defendant. into Churchill Road. The vehicle On the 30th of November 2016, that was being driven the claimant through a writ of summons sued the defendants claiming damages loss of amenities of life, d isfiguremcnt, loss of earning capacity and costs of this action. 2019, judgment on for pain and suffering, On the 17th of January liability was entered in favour of the claimant following the parties' agreement. The matter was referred for assessment of damages and the claimant was awarded KS,504,0 00.00 for the injuries she suffered. - ,.. ;·*™ m>' . ™ · - Subsequently, the matter came before this court for assessment of costs. This is the court's order on assessment costs. The receiving party filed their Bill of Costs in which they are claiming K l8,217,614.00. On the other hand, the party filed their points of dispute vvherein they counter-propose K 1,220,000.00 as costs for this action. This court has been appointed to tax the costs and arrive at a reasonable amount to cover the claimant on the costs reasonably incurred in pmsecuting this matter. TIIE LAW Basically, the principle upon which costs should be taxed is that the successful party should be allowed costs reasonably incurred or defending the action. The taxing master must hold a balance: On one hand, the success who has been awarded the costs so that he is made whole by being in prosecuting ful litigant, able to recover costs necessarily incurred and on another the unsuccessful party so that he does not pay an excessive amount of money. Order 31(5)(3) of the Courts (High Court) (Civil Procedure) Rules 2017 provides that in awarding costs the Court shall also have regard among others things the amount or value of any money or property involved; the importance of the matter to al I the parties; the particular complexity of the matter or the difficulty or novelty of the questions raised: the skill, effort, specialized knowledge and responsibility involved and the time spent on the case. Order 31(4)(1) provides that where the Coun is to assess the amount of costs, whether by summary or detailed assessment, those costs shall be assessed on the standard basis or the indemnity basis, but the Court will not in either case allow costs which have been unreasonably incurred or are unreasonable in a mount. Order 31 ( 4)(2) provides that where the amount of costs is to be assessed on the standard basis, the Court shall (a) only allow costs which are proportionate to the matters in issue and (b) resolve any doubt which it may have as to whether costs were reaso11,1bly incurred or reasonable in amount in and proportionate f::nour of the paying pa1iy. HOURLY RATE The receiving party seeks K40,000.00 as the hourly rate. They indicate that the matter was handled by Counsel of 15 years standing at the bar. Counsel for the defendants however submitted that this matter was commenced in 2016 before the Legal Practitioners Hourly Expense Rate for Purposes ofTaxing Pa1iy c111cl Pc1rty Costs of2018 came into force. It \\'as his submission further that the same became effective on the pt of fanuary 2019. It is their contention that the hourly rate of K40,000.00 should only be used for ta;,.;ing work done after the l51 of January 2019. Counsel called upon the cou11 to its discretion exercise as was the case before the pt of January 2019. Counsel representing the receiving party does not dispute that the said Rules are effective from the Js1 of January 2019. It was his submission however that before these Rules came into force the court could use its discretion. He further submits that there was guidance from resolutions by Malawi Law Society whereby Counsel of more than 10 years standing at the bar was entitled to K30,000.00 hourly rate. He was also quick to point out that the same was not binding to the court but was a reflection of the economic realities. He then called upon the court to consider that the date of 151 of January 2019 is not a magical elate rendering a sudden change of the economic realities at the inception ofthe new Rules. I-laving heard the pa11ies on the issue of the hourly rate, I noticed that the pa11ies agree that this court ought not to rely on the Legal Practitioners Hourly Expense Rate for Purposes of Taxing Party and Party Costs ol'2018 this matter having been commenced in the year 2016. The court is invited to exercise its discretion in determining what could be a reasonable hourly rate in the circumstances of this case. The receiving party motivates the court to still have recourse to the resolutions by the Malawi Law Society on Hourly Rates considering its reflection on the economic realities then and even now. I hold the view that there is merit in this contention. albeit The resolutions not being binding to this court still bore an unprecedented significance in providing a guide to the court on economic realities considering the empirical that research went into the promulgation of the same. I still feel obliged to use them to that extent. The case herein does not involve complex ancl novel issues. For lawyers of reasonably comparable skills, experience and reputation rendering a similar service as in the case herein, I will allow the K25,000.00 per hour. CONSIDERATION OF THE ITEMS OF THE BILL PART A: PREPARATION 2(A) THE CLIENT The receiving party is proposing 5 hours for holding several conferences with the client and one hour for settlement discussions wilh the defendant. The paying party is of the view that the time spent on the two items is solicitor own client charge and is not allowable. The receiving party c1rgues that Counsel spent time with the client and the court could have recourse visited to the time sheet which shows that Counsel the locus in quo, conducted pre-trial meetings, meetings pre-assessment as well as meeting the client on reception of case to commerce the matter. I take note that there is a time sheet validating the occurrence the claimed meetings. I agree with the receiving party that the same are recoverable as the client expended a11d ought to recover . The issue between the parties of the time ought to have been the reasonability pu1·ported to have been taken. I shall allow a total of 4 hours for the two items. 2(8) DOCUMENTS PERUSED The receiving party is claiming 30 minutes each for perusing a Medical Report and a Police Report. The p,1ying party is of the view that Counsel of 15 years standing at the bar would take 15 minutes each for these documents. I shall allow 30 minutes each as claimed by the paying party. I believe that at this stage it is not a matter of just reading through the document. Counsel had to read with care to establish if the said documents disclose a cause of action worth pursuing. The 6 minutes for the letter dated I oth May 2017 is not disputed and I see no reason to disturb the same. Essentially, the total for this part 1.1 hours is allowed. 2(C) COURT DOCUMENTS PERUSED On this part, the paying party is of the view that the notices of mediation of and certificate of failure mediation should not form part of the court proceedings. They contend that each party had paid the Mediator for his fees. The receiving party however is of the view that there is no rule which says one such costs. czinnot recover He argues that the claimant expended time and ought to claim for the same. I take note that there are several other items to do with mediation whereby the paying party advances the same argument. Unfortunately, the court has not been furnished with a basis for not allowing to the items do with mediation. Under the Rules of the Supreme Court, taxation of costs incurred in the process of mediation was allowed. Order 62/A2/21 (;-;) RSC provides for taxation of costs for work done in connection with negotiations with a view to settlement. Under the CPR 2017, the same has not been c;-;plicitly disallowed. I agree with the recei\ing party that money was expended on this regard where the still p,1rties sought means to settle the matter. I think it is only proper that she recovers. I allow the 15 minutes czich for the 2 notices of mediation. On the other hand, the p::iying party challenges the inclusion of some books for their relevance and failure h, the receiving party to indicate the relevant parts read. They further challenge the number of cases read. !"hey argue that Counsel of 15 years standing all the listed at the bar had no business reading In my cases. opinion, without necessarily encouraging to conduct a sloppy approach of matters on the part of counsel, I believe for Counsel of 15 years standing at the bar with all the experience in similar matters, it was unnecessary industry on his part to have read such a plethora of cases. this being a personal injury matter. r Clearly, there was a deviation from the principle of reasonableness. l am inclined to trim down the authorities to 20 and allow an average of I hr each. I sum up this part as follows: ' DOCUMENT Defence Defendants' bundle 011 assessment of 1 damages Defendants' list of documents TIME ALLOWED 30 mins I hr 15mins , Notice of change of legal practitioner J 5 mins 2 Notices of mediation -- -· Certi fie ate of foi lure or mediation from 7 -49 Authorities ' l .. _ TOTAL 30 mins 15 rnins 20 hours 22 hrs 45 mins 2(d) DOCUMENTS PREPARED The parties did not agree on the time allocated for some of the documents prepared. It was contended by the paying party that most of the documents claimed to have been prepared were templates. The proposals hy the parties and the court's findings were as follows: DOCUMENT RECEIVING PARTY PAYING PARTY TIME ALLOWED BY Writ of summons 4 hrs I hr 2hrs THE COURT :ind statement of claim PlaintilTs 3.5hrs - I hr of issues -..tatement l setter elated y11 December 2016 0.1 hrs 0.1 hrs 0. I hrs 1·rorn the claimant i I to the first l defendant I Letter dated I December 2016 from the claimant 0.1 hrs 0.1 hrs 0 .1 hrs to the first I defendant !Summons directions for 0.5 hrs o.,25 hrs 0.25 hrs Order for 0.5 hrs 0.25 hrs 0.25 hrs ! directions I - ------------ list or Claimcrnt"s I hr - - - -- --- -- ---1 - --- documents witness [ Claimant"s i statement for trial I l (Ruth Belentino) Clairnant"s witness 2 hrs 2 hrs - --- - - ---+ - -- - - - - - - - --j 0.5 hrs 0.5 hrs l hr 2 hrs I hr 2 hrs :-;tatcrnenl for or I c1ssessrnent (Ruth damages I nelentino) s Claimant" I 1 skclcto11 i 1\rguments for trial I Claimant"s I I sk;2eleton j ,\rguments for ;1sscssment or 8hrs 2 hrs 4 hrs 8 hrs 2 hrs 4 hrs •---- - -- . damages ' notices or ol' JSSCSSlllC11t - ---1 - - -- - - - -- -- - - -+- - - - - -- -- - --+- - - -- l .5 hrs 0.5 hrs -- -- I hr - ----j damages ----- - --- - - --+ - - - - - - --------t-- --- -,-- -,---- - -- - -+- -- --=- -=---:- -- - ----1 or I hr Claimant's list 0.5 hrs 0.5 hrs , ,wthorit ics- , assessment ---------+-------- ---t-- --�-=-=--:-- ----j-----::--;--- -------i , Claimant's trial 4 hrs 0.25 hrs 2 hrs 1 bundle -- - - - ---- -- - -�-- - - - - - - - -- -L-- - ----- - - -----'- - - -- -- - - - - � -- ,-1 Claimant's ___ of pleadings bundl, I- T Claimant· s I nssessment I --- '.'Jot ice of hearing 1- l- bundle 4 hrs I 0.1 hrs 3.5 hrs 0.0 I hrs ---- 0.5 hrs 0.1 hrs L TOTAL 1 hr I + 0.25 hrs 23 hrs I ! 2 hrs I The receiving 3. COURT ATTENDANCIES party is claiming 11.5 hours from various travels purported to have been made. The paying p,1rty has no issue with the item on attending court twice for assessment of damages. However, they are 01· the view that the claim on attending court on the hearing of the matter ought not to be taxed. It is contended that there was no trial in this matter as the issue of liability was settled by consent. Counsel representing the receiving party counter-argues that even though there was no trial, the parties travelled to court and the parties entered into a consent agreement in court. I take note that the consent order also prnves the same. Clearly. there is no merit in the paying party's contention on this regard. The court allows the l hour claimed. The paying party also has issues with inclusion of mediation on the bill. This has already been dealt with elsewhere in this ruling. I shall allow the 1 hour claimed. I 1n,lily, the paying party argues that the rest of the claimed attendances were messcngerial as they were b\ and large concerned with filing of documents. The receiving party argues that there is no law which s:1ys Counsel should not file documents. Much as this is true, in my opinion, it is not correct for Counsel to undertake rnessengerial tasks so as to attract the lawyer's hourly rate. I believe this is not in tandem 1, ith the principle ofreasonably incurred costs. I shall allovv 0.25 hrs for each attendance to do with filing ,)!.docurncnts. The total under this item is 8 hrs 25 minutes. AND -L GENF,RAL CARE CONDUCT f he receiving party proposes 60% of Part 2 ,rnd 3 as General Care and Conduct. They argue that the case 1, as ve1·: irnponnnt to the client and as a matter of principle it is necessary that the claimant should receive appropriate compensation for the loss suffered. It is further averred that Counsel worked hard and displayed rernnrkable skill in presenting the facts and the law. However, the paying party is of the view that the same is not part of the proceedings hence not taxable. The receiving party challenges the Clrntention in that order 31 rule 5(3)(d) and (e) provides that the Court shall have regard to the particular crnnplexity of the matter or the difficulty or novelty of the questions raised and the skill, effort, specialized k1,owJedge and responsibility involved. It was his view that this provision essentially provides for Care and Conduct as it actually spells out what it entails. Counsel fu11her called upon the court to consider the case of Kavwcn.ic v Chi lam be 1996 MLR I l J which states that for an 01-c!inary case Care and Conduct should be between 50% and 60%. He therefore 55%. proposes On this !"egarcl, I wish to agree with Cou11scl representing the rece1vlllg p;,11·ty 111 that the new Rules c;pec i l"ica I ly prcvide for Care and Conduct albeit not having been stated verbat i 111. General care and crn1cluct covers the imponderables for which no direct time can be substantiated. It is a percentage mark­ u1� of the costs allowed depending on the difficulty, responsibility and importance of the case to the client. I believe this is what order 31 rule 5(3)(cl) and (e) covers. I shall allow inclusion of Care and Conduct in I his bill. ! lowever, the matter herein is a pe:·sonal injury matter and did not involve complex matter, I believe 50�11 Ceneral Care and Conduct is rec1sonablc. 5. INSTRUCTION FEES The receiving party is claiming K3,000,000.00 on the instruction fees. The paying party is of the vievv that the same is outrageous and that nojustil1cation has been given for this fee. They are of the view that the same should not be paid. The receiving party contends that there is_ji)stification for as it is provided U!1dcr ordn 31 rnle I 0. lie argues that what \\as removed is the brief fees. I ;1111 afraid l was not able to find merit in the contention by the paying party. Order 31 rule JO reads that ;1 kgal practitioner or his law firm shall be entitled to an instruction fee and not a brief fee where he or his l1r1n have had instructions to act for a pa11y 1·ro111 the commencement ofa proceeding to trial. The least l h;1d expected was th,1t the paying party would demonstrate that the lavvyer representing party the receiving did not have instructions to act for the claimant from the commencement of a proceeding In any to trial. case, the record indicates that Counsel had instructions from the commencement and the matter went thi-ough assessment of damages proceedings vvhich l believe is trial on its own. l would only agree with the paying party that the instruction fees in the circumstances of this case is on the higher side. I shall ;1 ! !ow I< 1.000.000.00. 6. TRA \'ELLING AND W Al TING The receiving party is cli11111ing l hour for travelling and waiting at the Court on the hearing of the matter c111d 2 hou,·s for travelling twice to and waiti11g at the court on assessment of damages. The paying party hmvever they have issues with the claim 011 travelling to and waiting at the ADR offices for mediation. ;\s earlier observed. the paying party argues against any payment to do mediation which the court has al,·eady dealt with. l will allow the 1.5 hours under this item. The ite111s fro111 iv to xiv deal with filing of c1,xu111ents. As earlier pointed 111uch out under attendances as there is no law prohibiting Counsel from fili;1g documents. The idea defies the reasonableness ol' costs. l rc-ilcrate that Counsel should not deliberately engage in nw'.;sengerial task with an ain\ of attracting the lawyer's hourly rate. l will allow 15 mins for each. 7. DISBURSEMENTS The receiving party lists the following items as disbursements: Stationery & Travel expenses K 150,000,00 Court fees K46,000.00 �lccliation Ices K 15.000.00 I) 1, otocopy in g KI 0,000 00 Tntal K22 I . OOO. OO The paying party do not have issues with the filing fees and the a111ount expended on photocopy. However, Lhcy arc ol.the opinion that the amount proposed on stationer y and travelling expenses is exaggerated and they propose 1(50,000.00. They further pro,,osc that mediation fees be ta:--.:ed of as it is not part of the l,1\ation pruceeclings. I "ish to agree with the paying party that the amount on stationery and travelling c\penscs is a bit on the high side. I shall allow K75,000.00. However, the court allows the K 15,000.00 !icing mediation fees for reasons already somewhere in this ruling. I am of the view that this is money that ",1s expended for work clone in connection ,, ith negotiations vvith a view to settlement and there is no law "Ii ich says it ought not t<, be recovered. The allowed f'or the part is K 146.000.00. 8, TAXATION 1·he rccei, ing party proposes 20 hours for 1xeparation of the bill of taxation. The paying party is of the view that photocop) ing is not a job for a leg:il practitioner and not billable at a legal practitioner's rate. I s;sentially . il'counscl h,1d expended so 111uch ti111e then it was unnecessary industry on his part. They arc 11' 'he vie\\ that 2 hrs is reasonable. On this item. I shall allow 6 hours having seen the bundle on taxation. 011 the issue or attcmling taxation proceeding�. the receiving party proposes 3 homs and the paying party is of the view that the actual time taken should be used by the court. The record indicates that the hearing rn1 taxatio11 took 50 minutes. I also add one h()ur for the travelling to the High Court which is not disputed. 1·1ic rccci, i11g party is also granted 60% Crnc and Conduct for the Taxation proceedings. The total for 1h,s part is 1<313,600.00. SUMMARY I thercl'orc tax the bill as follows: i PART I AMOUNT r l'rcparillory I l)ocu111e11ts perused Work r· Perused Prepared Documents 1-C:ourt r- -· I l)ocuments L i Court ;\ ttendance f !Total Part A :C1eneral Care and Conduct (Part A) 1---- �-- Court Attendances I Instruction fees I Taxation - -- I I 16.5 % Surtax j Acid disbursements r· -TOTAL I I< I 00,000.00 - 1<27,500.00 1<568, 750.00 1<575,000.00 ·- 1,206,250.00 K 1,477,500.00 !(738,750.00 ---- --- !(206,250.00 Kl ,000,000.00 K3 l 3,600.00 -· K3,736, 100.00 1<6 l 6,456.50 K 146,000.00 K4,498,556.50 The costs are taxed at K4,498,556.50.