Mwenebungu v Malawi Railways Limited (Civil Cause 268 of 1991) [1992] MWHC 10 (30 June 1992)

IN 'l'l!E HIGII COURT OF M/\LAWI PRINCIPAL REGISTRY CIVIIJ C/\USE NO!~/' 268 OF 1991 :~,; J11,,I . ~,~, ·~., .~ BETWEEN: +!1~ ),,. BLI\CK. SON MWENEBUNGU ••.•••••.•• /: .••••••••• , •••••••• PLAINTIFF, :1~ ~ ~ ;I MA LAW I RAILWAYS LI MI'l'ED . •..•.• i:.- .................. DEFENDAN'Jt - and~ - .. ,.. ~:l_ ,,, .. '. -1..itiat, · ·· "·•~I . . COR/\M: MWAUNGULU, REGISTRAR '.•..,J. ~ .,!I.,. rr ")" For the Plaintiff, Kasimbala For the Defendant, Mbendera 0 R D E R ; ff" ~ rr. " ;J( ~ \ I In in to this manner. the main action, the plaintiff for loss of dependency. the turning point of this decision. This application, which relates to costs only, comes awarded to me Kl,2OO. O The action did not proceed to triaV. The defendant consented to judgment being entered as to liability and agreed to damages being assessed by this Court. ·1' This aspect is important," because it makes The agr~ement, made in my presence, made no order for costs .' The plaintiff applied to this Court to have the costs for~ lega ~ part of practitioner for the defendant, ~ had no objection to such ari· order being made. He only wanied to submit on the question whether the plaintiff should h_ave High Court costs, since the plaintiff : recovered an amo0nt below the mark where thi I heanl case would have been commenced 1'i' in the High Court. lega l'_ arguments thii practitioner for the plaintiff. "' ) action be given High Court costs. from both Mr Mbendera and Mr Kasambala, the order of assessment. The plaintiff Mr Mbendera, in . Whether a plaintiff should be awarded High Court or Subordinate Court costs, depends on section 31 of the Court& \~ ·i Ac t. .. ~. /~, ~, ~ the High Court " ( l) Where an action is },. commenced in which cou id have been J commenced a Subordinate· in the plaintiff: Court then, subject to sub-section ( 2), shall not be entitled t~~ any more costs of the action than those to which he / would have been enti t led if the action had been brought the appropriate Subordinate Court. in . i ~T ,S • q ' · ,, ~f 'f.'.i. ,. 'f:i:• "') 1.k ►'· '.; iti . ;_,t_ .. f i' ill ., , ;}ST' c :ti· .,, 'I'- ... · ' '.· ,'1' 't.£rot! '(' ··- >:.::t~ .. . ~I '. hj,,11 , . : ;f;~-.t:t: :;~N·~ ~ . '· . • ~ < Atf ~ • ' 1 i '•t•1" iJJ r ti-,, , 1 . ·1 \ . / \~i -.ef-1:r,f. ri .· > II. , ,1 . :~ .. ~ntRin- ... r_· · ·: , . ~/~>1r{ ,1 · .• ··'•Ii· (2) If ~in any such acti ij~ as afores~fd the High Co is sat~:sfied that 'tt~\~ .r.;,~t was su .0 1 oient reason bringipg the action .i_n \tpe High cq~t t, it may al' the co~il s · or any part i ~!i ~! :,eof ,on , th,.,~ :t;High Court sc , o~ direct ~f atf.e Court : ~s;;~le an~\.f such Subord ~ as . it • • · · ',/' .' " • · '· ~ 1 ' ~!\ . . · . ·ri · ,; !f"i~J; , · hi~ This section was consJ.dered bytr the Suprem~ Court of Appea . in the 'l'rustee·s of Dedza DioceS1e v. Rocha : ~.f" MSCA Civil Caus~· No. 3 of 1984 .f That decision, ::;{ollowed b'{'~tl1e Supreme Cour ,t_i_ in Attorney General v. Magombo~ MSCA Civil Cause No. 9 of · 1985, seems t~ have been infl~enced in so~e respect by th~ : particular i1;terpretation by '~ English Cpurts of English_! Legislation. ~rn.terpret~tion of:_,' a statutor~~ provisi_on by t~~ Supreme Court 1 binds this Court. this in some respect~, jbetrays o:1 91 1_own Legislation. case which, Mr Mbendera contended that sine~ the plaintiff has recovered less to;. Subordinate Court costs. Sec~lon 31 was rci ted in aid. Th'~t case of the 'l'iustees of Dedza Diocese v. R6cha, in so far a~ - i t interprets l the section, was \: referred t6~! ~1 1 j :'.~ Both Counsel c1 ted ;plaintiff t"':ls K'2,500.00, entitled than the ~!\~-4 . •--~ 1!:1 " i.d iecided tha't;_;-f the words The su;i- eme Court of Ap;kJ a1 in the ~!Trustees of Dedz Diocese v. Rocha applied the decision of the Court of Appea in the United::'.i'I<ingdom in Solome>.n v. Mulli~¢r (1901) 1 KB.76~ The Court of :A,ppeal in the U,I< 11 coul.~;_ have been commenced in a Count ,, court'', also used in sectio : 31 of our CoUJ;_,ts Act, refer to ,.an action irt · which the Count}\ •·. , yi1 Court has juri.'s. diction without ~'·.·. egarding f.·h·"e· amount claimed,~! ri, 'I . ~• A L Sm i th , M • 13: · S a i tJ" f ·, "~I ~• . · ,j~ · · 1 ·1f . • ~. t ·-l 11 r reaq them as meaninr; which cot!-1 ld proper~y hav 1 , been c~!11menced in the S.?:1nty_ Cour~·; , both as regar~~'.' really1t the character of ,r- involved. II anc;:1: amount :tr 'f:;'."'l.· '!ii' jurisdict) '. on of Subordir1a't'e Courts fi the '4) action t.ti,,~-.i). .:: ·•t• ,~ ,. !! . ' · -~ ,:.,.•.' :~"'l: 1 ,1, · • tr, •:! The -·~ -;~i · d · , : section 39 oflithe Courts Act} ', t•i ' provided F /~ exercise of ( ~1i~ ir civil ·'i jurisdiction, (1) court df magistrates shill have ju ~ isdiction to dea rl · with, try and determine :4 (any civil matter whereof the amount 1n dispute or th ~ value of f he subject matte ~ does not excee0 a a firs £·' resident magistrate and ~(· the magisfrate of grade, ;1<2, 500. 00. in ; the case of a court of th e' ·i~ ·f ·: ' ! • f·"' that this provision is palpably apparent It the from jurisdiction of a Subordinate ,Court does ;tnot depend on the t,!_1~ tribuna1;lt The amount i ~'. amount actual'ly awarded by dispute cannot actually ref er1-':l,1.to the act;tial award of the' Court. If Parliament had the actual• . ·~ ... . ·r ,, award made by 0 the Court, more ~precise word~ would have beeri5 there ~ used. On c ould be a ba ~ is for thinking :4that the jll~ i.sdiction of t~~i Court is based on what the Couft has award~.d at the trial. lj ·~t: • .r· ,· ·11~ · •1 F-~. ,,J: the case ·; o :e f I Solomon J:~) Mulliner, intended it to ~t mean .: ~ ~l.. r: i 1 ~1 t111 : · · reaa'ing 't' fl ~ .,_. I ~: _'_111__ - - , •11 . ~ 3 ·,: ~ ! - I 1h ,,: ff: ,;ti! f~} · };. Th e M as t er of Ro 11 s seems to '. h i"v e that a seer tai ned after Court. Said he, at page 83: ; jurisdiction of the ;-*'. -·~#' though t 2,~9 , for h e d id lhe •,C ounly Cou!;;t could only the award had been adjudicated by !~. at the is, as the County Court? time is it to be ascertained whether regards , amount, proper within toe · "At what the action in mi jurisdiction of is! opinion., cons ider0 ing what amount he should ,have to claim on the writ or statement of claim, but at the time when' the the amount the proper the amount which the result. plaintiff choose to claim. It is the amount whih is recovered that is material." recoverable · is adjudi~ated on tribunal or otherwise ascertained It can not depend on the plaintiff time when by by Not I have extreme difficulty I must say the jurisdiction of a County Court has to be left till the Court dicides on the award. Jurisdiction has to be considered at The jurisdiction of the Court would remain the inception. uncertain until the actual award. /\part from this, even if the Master of Rolls is correct, according the r easoning by is to section 39 of determined by the amount in dispute, not necessarily what is actually awarded by the Court. jurisdiction the Courts think that /\ct, the to Lord Justice Collins, who came to the same result as the Master of Rolls, proceeded on the interpretation of the twp particular conflicting decisions: f that -~ there were statute. n_oted He · ; ... , the :the fact that amount · claimed I cannot reconcile the "Having considered the cases, decision in Goldhill v. Clarke with that in Lovejoy The former decision seems clearly to have v. Cole. been the endorsement on the writ , was to be looked at in order to see whether the action was within the jurisdiction of in • the latter case 1 although the minds of the Judges do not seem to have the been very specifically addressed ;to the resul·l decision appears necessarily to involve the that the decision is not in writ, but the action. W.e have to choose between those decisions." the County Court, whereas the amount recovered the amotlht claimed the point, by •j in ~e ._, the UK The conflict was particular provision to Parliament. Said he: to be resolved by 1 interpreting ascertain the intention of the to make out which cons true t ion of "In order the section is correct, it is neccesary, as My Lord has pointed the Legislature as expressed in the previous Legislation on the subject. If we find that, previously to 1988, there was a well-ascertained policy of the the i policy consider out, of to · ·, Legislature wi t:h manifestly afford much assistance meaning of the section. 11., regard the to He went on to demonstrate what was in the UK in 1888, 1959 and 1984. in a plaintiff had the provision of the policy of Parliamen.t :• , •·'/ t ,: Said he: :l:f,t "Now we find that, prior to 1888 the object of the Legislature, as expressed the Judicature Act which incorporates various sections of to have been the County Court Act, 186 7, appears (emphasis that, where a County supplied) Court would entertain no more a certain sum which, if it had been claimed in the writ, would have brought the County Court, he should not recover any costs in the High Court, because he had chosen that Court instead of the County Court, unless the Judge certified for, or the Court or a Judge allowed costs. that the intention of Such was time as authoritatively declared by the Court of Appeal in Chatfield v. Sedgewick." in an action of a class which the Legislature at the case within jurisdiction of recovered to sue than the in The equivalent of our section 31(1) and (2) is section 19(1) and (2) of the County Court Act (1959), which reads: "Subject to sub-sections 2 to 4 of section 2 9, where an action founded on contract or tort is commenced in in the High Court, which could have been commenced the County Court, the proceedings in the High Court to which the plaintiff is entitled, shal 1 be determined in accordance with section 20. costs any) the ( if of (2) Neither this section nor section 20 affects any question as to costs if it appears to the High Court that there was reasonable ground for supposing the amount recovered in respect of the plaintiff's cla1m to be in excess of the amount recovered in an action commenced in the County Court." · r ~1 -for it . j S Section 20, which convenience, pertinent - provides: is referred I will extract sub-section in sub-section (1) ( 2), because (emphasis provided) "If the plaintiff in an action to which this section the recovery of goods, applies, other than one for the recovers higher limit, he shall not be entitled to recover any more costs of the action than those to which he would have been entitled if the action had been brought in the County Court." less than sum a This sub - section clearly aligns costs on scale to the amount actually recovered or awarded by the - a county court l ,. th~i;i ''· ' j • ,~ ·,!.,·. • • .f-14:-- -,~~,~,: ,..f:i~- }~('f - "J.! 1.(,._ ~t~ ;;i: ;~ I ·"'I,';• ( '?1~ !f'.\t, ;-:_·~''i '] ' .·:; ... - i~·: ti,'. ¼ ··1- 1_1 l- -~~ ' , H, ~ I.bf r.tr:~J -~t'~:·· " 1; S.•,• the 11;~t ter, ' • , ]'.• ' Leg is 1 ature with reg a manifestly afford much ~ssistance l~ detetmining mean i n g of th e sec t i on . '; ,, ' -~+: ·.;;f, ~ went on to t(demons tr ate wha t,,t was the policy of Par 1 i am the UK in ;l888, 1959 and 19·(3~. Said he'./ ·. ·., •(. ; ,. . & i \ 1".;/j} ,.,., ~ : ;-,1t. ~ . ~ o }· ' . He in that woultl·f ' l in a plain tiff had in an actiori"' / of a class which ~ "Now we find that, prior to 1888 :!Jhe object of Legislature, as expressed the '· 'provision of Judicature Act which in~6rporates ~arious sections o t to have bee~l the County Court Act . ~iq l867, appe_?rs ( emphasis! that, ,, where a County~ suppli~d) Court ,. would entertain i;. po more a certain su~. which, ~ if it had been claimed in th~writ, would ha1d brought: the. County ~}court, he should,,~}not recove"r:( any costs in th~ High Court, because he •J had chosen( to sue tha;tl Court instead of the County Cour t f., ~~ unless the Judg ·i cer tif,£ed for, or the Cobrt or a Judge allowed costs,'.~ tha't, the intentiont~ of Such w'as the Court of ' time a ·s authoritatively declared '; by the Legislature at the case within juri'sdiction of recovered th~.n the in Appea~l in Chatfield ~.- iS.~dgewick. "t.:: ~. 'd '"' t,. ,i The equivalent of our sectiOn \ 31(1) and (2t is section 19(l}t ~ and (2) of th .• e· County Court J Ai~ (1959), ~h~ch reads: t '' >, q· •:l;_i 'f 1 ! . $ -~}i. ":i,'.1;,f . ,,.,; f'.\i ·~ ;; f i ~t ,.. I;."~ of L< tf any) ,1 t_he costs "Subject to sub-sec tioris 2 to 4 o:f: ,fo ection 2 9, whete an action founded on ;contract or tor:t is commenced in in. the High Court, which t could have e;• been commenced tl;le the County Court, procee~ings in the Hig~ l court to k~ich the plaintif# is e_nti tled, shall ~e i,,i~eterrnined {P-,P accordance wi:tq · ~: L section 20. fi :'I: P& , i' , · . 11,· (2) Neither this s~~ti?n nor sec~i6n 20 affects ahy ques ti.on as to costs '. ifi it appears f[to the High Court that 1ihere was reasonable ground/{for supposing tl)e amoun ~ recovered in respect of the4 plaintiff's clai~ to be :in e~cess of the.;\arnount rec;o~,ered in an acti~p comrne11ced 1.n the County .i court." -~~! -~., wi Section 20, t which for convenience, f I wi 11 ex tract s,ub-sec tion {f. ( 2) , because it ,{s t . I\. per inen ,r.i:, r .:..-ff. i;, sub..,-'section is referred - prov1 es: 1. kt · :t ,, !tt i' ~=k-... h'.,,i;! "'·11 ~r ( l) { in . d ~ ;;i , ... t t; 11, "· ·, . ~ • ,;~; ••;• .... · (emphasis prO~ided) "If th,e plaintiff in an action toJ ~hich this sectioh the j{r._ecovery of goods, applies, other than : one for tbe recovers highe,r, limit, he sha11 ::1not be entit;ied to recover ahv more 'c 'osts of the acti~p than those .'. to which he wm.h'ct have 'been entitled if · the action h1ad been brought ,;i'n the CQ. Unty Court." a 1sum less than This sub-sec,tion clearly aligns costs 1 scale to the0 amount actually ' tecovered oi awarded by the a County Court .. v • .n ~, ·11 " ~ {,J..f {' Clii _(_. .,,;· _!:,L _ _ ______ ;_......._ __ ~ t - I ri~lc .. fzri y.1-{~ ,t,1.! il . J \ -~ J11~.·· ·. i · '?/~ l i-ri- , • ~; l, . ;, -:- _v5·,.-;l..£i,·-.' I · ·:I (.f·· ·,· •· .,:· \,:,-~ ' • 1} ,i ,· ~ i : I ' " '. ',. ·i In •in the UK. f ourt Act the County the '~\ policy of the High}fi]~ Court awards f less T ti ; qs ,~'i1' the ~k Legislature .1, in like it i,., · 'l't~~teees of n~a t>J Skinner; ;· c ... '.. f~: Jn , the Court at the ~•~d of the triai:t f our pointed out Dioc~se v. Ro ~ pa, does not h,; v,!3 . an equi val en t prov is ion section 20(2) r·J' of reasoning of f:t. L Smi lh, M. R . . can only be ~,understood in light of the UK man if es ted byt the 198 4 and preceding Acts of Parliament '! There, clearly1~ where the amount', 'actually a\v0;rded by the Hig!J '\ ~ ~ourt ~s in t .'.}; purview of t;he~ f ounty Calif ~ , th~ plainti~~ : 1., !, 1 is entitled to;~ no more costs :tt1an h_e would b ,e entitled to 1. the abse/rice of an _ equivalent clea.i; f the County C6t.lrt. provision in o._ .. ~ r statutes, · i ~" fapnot be ta.k,e,n in Malawi tha '~.~- if jurisdiction .8): the Subordinat'e ':courts, the ~· costs would, a~q,·:{ of necessity , }:be Subordinate ! court costs. }i Yet this was said = to be the case~ in the ·rrustees l of Dedza Di'oc.ese v. Rocha: 'I 'lJ\ i~~; tant case wa # r;p action J~~ tort and . "The could in\i,.1 the Subordinate .; Court and if the respo1ndeht recovered' ( emphasis mine ),,1 less than K2, 500. 00, he 1 could not be. entitled to any ·x·~~~ more c?sts than he wou1:_~ be entitl/ p. if the actio 9~ j; l had be~ brought in t ha b 11. Cou rt. II ~. "111 .f"i:-~ m sect ion 20 ( 2 ~ f (U~)tl It does t ~ ot ~xi~t in ou , t· the'.~ plaintiff would f· , . the Subordina ;t~ Court if he corri,menmces an !~_ction in the Higijl I i The concept o;i of the Count~-l courts /\ct statu t es. Sec.fh on 31 ( l) proviqes not be enti tl'ed to more costs i't than he woutd be entitled i recovery is ~x ~~ a pol a ted ,have properly t cqtnmenced than what -i. i - - - - - - - '·,·~1 j,~ ,g that '.i · · is in ~r11 . ·;;. . · th c!-~ ..... ' \ in law, intended By using a~ardingO. the ;'t amoun t J buld be commenced th-is would not , be · Cour·t which the S\lbordinate Court ':H When could an <l~ction be commenced in the Silbordinate Courti . recovered ·t does not ·. exceed K2, 500. 00 :- r. Not when Accord in? to section 39, when ':~ the amounr~i}i in dispute, ~o ~ f necessarily recovered, does nob~ exceed K2 1 500. 00. the words "in! dispute" Parliament must na've that ~ the award of }costs on a Subordinate Cour B scale must no -e'. · turn out on ~v e amount actu1llY,• award~d. ,¼::;rhe amount cou11 , be disputed. ii The defendant , could be asking for less. claim c than K,2, 500. 00. The '. Tt\e award could b ¥_i.' less because <;/ a set-off or '. a :ii--:'t ounter-cl'!3-i,m. According to.·:, awarding\ our rd' i's ,: significant: that the County · Subordinate Court costs. Court /\ct in ffuK specifical~'.y} provi.des f~_( .' this in secti~Ji.t', 15(3). The County Court Act ~ in _, UK is very - elaborate and one ~ th,p)r would have tl)ought that if ther'e was cha?g~ of policy, County Court .4Act is more pre~i~ e. However,1:·precise, howevet~k it is not ouri.fJlaw. Our Legislation, partf~ularly the Court.s :: Act, is greatly< influenced by\: the English sta.tutes. Both f °in the Courts Act;; the\ of 1959 and t;!~its predecessor lf:in wording is "amount in dispute 11 It is significant that th ~ County Court ~ct of the UK and t ~ur Courts ; A~t were passed iA~ the same yea~ ~ the latter speaks of the Jtnount claimed. Our· Parliament co~ld have adopted these words [~ it opted for th ~ "amount in dispute". The juri~diction of iSubordinate Courts does not depE: u d on the amount , ;~tu_a_~ly re ~~~ ~ered; it depend r :l to Subordinate Cou~rts, the Nya 9 aland rel'ation rea'sop laws, . the for_ Th_e in .. ·.~ ~ :t - G ,- .,f ~ '!,ff}', a t the thc1t;1 than less u the amount: • in _dispute. . The,r ,efore, whq.t_. er costs should to our and ·1 an jurisdiction of least: · anticipated In my opinion, according on ,,· be on the. ,;., the Subordinate Cot1rt scale does not depend on amount actually recovered. Yet! all the ca~:~ s that have gonei~~ .·· to the Supreme Court have been cases wher~ •~ore was claimed1 1, amoun J less th~, ! or ,1~'' t jurisdiction of a magistrate's . court was a~i~rded. \ ~}' ~- the fact? the_1, Court has been"t that th ~J. awarded by the High Co u r t does 110 t n e c es s a rt:i l y mean th a t costs should be on a Subordinate Court scare. It is the case ,. In Malawi that less has ' ·b.een awarded is ~J in UK statutes. the ;~:;[eXerci se sft.f the discretio ~lf: circumstance Jha t under section · 31 ( 2). if ~ the Court award:9!1 pretty 1 ess than the minimum se_t out for SUbordi na te Courts '~_! it could be presumed that the case could hive been commence~ ; ~ A This fact, however, may not be;' in the Subordinate Court. cone l us i ve; in cert a in cases i t may n~ft be known wha t'. amount is recoverable. Take, for example, ✓ where damages ara to be assessed. ( 1950) 2 All E. R.352, less was actually recovered . ~ Glyn Jones, J. i~ f.• awa!ding High Court costs said: In llopkins v. Rees and Kirby Ltd. s _tatute, indeed, raises *' For, ,'(,· ' •, 1! ~ j -~ 't'' ;).i\, (/ .. , a " •1~· in injury report on the medical tha.t his ankle has "I find the plaintiff t submitted to his solici tors ---for th ',;,. purpose of thi$: action, : a statement tendenc1/,} ~ still \:o go over, that , ; it is now~~~·a chronic spraiij!, which will cause some permanent di'sabili ty and tha ~i if this ankle continues -' to be liabfe to go over, h•e~ might be a danger to his workmates :~and run the risk of , heights; as a steel erector. L<;>oki ;pg at . that, and n.~! that it WJ\ i:i quite clear, ~r~i more, should ; have been quite clear, to the plaintiff, as \· . ~- t reasonable man, that no 1 • judge would .. award more than_ th i n k: , in ju r Y. . For £ 4 0 0 . 0 0 that High Court costs iare recover;able a n d to have his costs taxed ;, on the High·;court scale." in this ca$~,t the p 1 a~~ t i ff is en ti t l Jo · to himself ~.if he continued working I make th e order th a t I am unable to sa 0 th a t ,~; reason , th a t for a I . . :; ~ the discretion against the Court would exercis.e the other hand, it is very clear the·( circumstances ih On the which if in the orig ina t~ng process ;~-the amount cl aim~d plaintiff: the High cour .. t is less than K2, 500. 00. would only allow the plaintiff High Court } costs if there is a sufficient reason to bring the matter ,to the High Court:. This would also be the case where the pl:ai n tiff's evidence clearly established · the liabiJ..ity at le 9 s than KZ,500.00 / The 1 is t te!:lt is inexhaustible. In · al 1 is as was laid down by Glyn Jones, - ·J. in :Hopkins v. Rees and Kirby Ltd: '!'- 4',J, the other cases the In : such a cast-, h .. " Th e on 1 y q u es t ion f or J.m e as far as I can, in the position the time when he issued the writ, it was then obvious that this was i s putting mysel;, the plaintiff at am I satisfied a ~County . Court I; -~-i_;(-1 ~~il .. - ~~C !l1f,~, 'f.1il .. {,. . J1 l matter, or was 1 t an action w 1c 1 1 w 1en •"'•"-• e rather resulri ed exceeding £400. 00 excluding , any reduclio_n.;t,on con tr ibu tory . negligence?" than another I must h ' I ,,nave 7 - :; . . d \) . ' ;A►,}!, .:,~\, ' 11~7 ·W" ,:·~( . n'.t• ,~:,; . • '' r ··· ) "~ by ' one jud an • aw in the · ground ~ tbat Ap p .l,,ying the Court would have •~ warded This test was adopted by the Supreme Cour'.'f:~ of Appeal in Trustees of Dedza Diocese v. Rocha. the test t.b ; the present case, it cannot be said that the plaintiff. wou { ~ . have known tha¼ K2, 500. 00. Until the court awards damages\ it is not knowh how much would be awarded for Mt Mbendera urges that if the plaintiff Is <l egal practi tion had checked the authorities in · the Unitedt' l<ingdom, he wou H l "'" have known fo r children are very low. He argued that th}3!: sum of Kl,500.qA £$ th is case was a c tu a 11 y aw a rd e d to the awards in the UK. Mr Mbindera can only b ~ comp a r e d right if awards for loss of dependency/· •fare conventional\ like non-pecunious heads. They are not. Powe l l Duffyryn Associated Collieries Lt~- ft 611, Lord Wright said: In Davies v : ( 1942) 1\. C. 60 '•; ~J' loss of. L: dependency. loss of dependency the award v e 1y,n h i g h less that for i n i f i t ' ~ --~ '~ • • J ' j "Damages expectation reducible to money value." to be pecuniary are of assessed reasonab \~ s benefit !' ~ ci'ij/ the benefit or 'i1 'l At page 617 he says: ., ,.. :1 ~ be of or pain there cannot damage" I dependency bereavement "There is no question here of what may be called "sentimental and suffering; it is a hard matter of pounds, shillings and pence . . . . . . " J~' ~l·· f'. r' I ·f that predictabl e,', Loss especially where Th ~ pl~intiff here, therefore would not have ~nown that he wou l d In fact, th~re was a claim fo r · recover less than K2,500.00. fune r al expenses amounting to •i K2, 000. 00. ~t I held · that, th ~t that d ie could not be paid I because If Counsel had been' more careful , He depen d ants had paid. I hold, would have checked if it had ' actually been paid. however, that the plain tiff would not have known what amoun't The difficulty for him can be the Court was mesmerised from the reasoning exuded in the award. I would, therefore, award costs on a lligh Court scale on that score. · , .. ~ is no proof of earnings. there was ·:n'o proof to give. all . ./,.·. ~• -l ,;,.; · In this case, that liability is conceded. There is a further reason for awarding costs on ~a judgment was obtained by High Court scale. consent of the parties when they appeared1~1before me. It was agreed th £i.'t In the High{iCourt damages a:(e damages should be assessed. rt; is quite obvious normally assessed by the Registrar. that t he parties were proceeding on the S~sis that I shou t d assess the damages. The plaintiff, if he~] wanted, would, J t that stage I have app l ied to transfer I but as I have said before, he could not know that less than ' K2,500.00 was goi ~g ~ : It,}' was agreed . t:t, r {!1· .~.ill ,f! ;t,. ~ :A: . Ii\ :;:,~.j.· .. :,··. ~. . \'!M.,;8 - - ~, B In to j:._;; 1;},~.·.,, ~· .- ,1f•~! 11!~ the case ~- ;f:. • , • ' ~i-:-. Jt:l ', to be awarded. If the defendant so mindicl, he could hav~!.: the transferred the Subordinate Court. the Trustees of Dedza DioG~Se v. Rocha and.~ S u pre me Court, Attorney General v. Magombo, MSCA Civ. 9 ot 1985, were cases, where the Registrar, without a sigh from the parties, was to , assess the damages. The latter case fol} owed the earlier decision of the Supreme Court. The decisi~n there seemed ~o be hinged on the amount actually recovered j at the end of the In the 'l'rustees of Dedza Diocese .;;,~. Rocha, trial. the case of William v. 'stanley Jones and Co. ¾19 26 ) ~ 2 K. D. 3 7, also ~ , decision of the Court of Appeal in the United Kingdom, wa~; In that case, ~t?Y consent of th¢, not cited and considered. parties, the matter was refered to a speci~l referee of th~ · High Court, who awarded damages within :;.;. the County Court the Divisiona ! jurisdiction. Cou1~t•s Order thE\,re was un;rnimity~ the the ~.:, basis Lord Justice defendant should have applied for the cas~; to be remitted to the County Court. Said he, at page 44: In dismissing an appeal for Ila n k es proceeded lliqh Court costs, that f f om on ·;: that the official referee ought not "The def end ant appealed to the Div is ion Court on the ground to have awarded the plaintiff costs on a High Court scale; an the defendant must have absurd content.ion, because the County remitted the case applied Court, and it was largely owing to them that the case took to long." to have to on scale to have the case the High Court on i; remitted '. 'l ~ij~: Lord Justice Atkins was hesitant to hold that, because the defendant refrains from remitting the matter to the County Court, His the costs should be on a High Court scale. Lordship, however, was quick to hold the defendant liable to the defendant's costs an official acquiescence to ·,, referee. Said he: Sr~~ things ff. should have been "This deplorable state of obviated if the case had been remitted to the County the defendants, on wh'ose suggestion :a Court, and summons endorsed with the plaintt£f' s consent, wet_$ taken out to refer the action to an·) official referee', are responsible for it, and canno,t, complain if the official refers certified for High Jcourt costs. am far from saying that the mere fact j ~hat the defendant abstains from applying to remit he ttase to the County Court is sufficient ground for certifying costs on the High Court scale. Here, the d~fendants did much think the official referee was right in more, and, I certifying as he did." I ,. ~• !" l ·~ . . There was no unanimity in the Court of • Appeal on whether failure by a defendant to remit the case to the County Court If I was to choose between the entailed High Court costs. in Malawi, two opinions, subscribe the United Kingdom, whether Subordinary or High court costs may be the I would, because of to Lord Justice Bankes's view. law In /: ·l - - - - - - - ,,_., -· 9 - .,, I ' ' the that the Court. the question does not In Malawi, it is quite clear from It does ~warded, depends on the amount actually recovered, t;o a County Court ', not mr.iller whel:her Lhe case is remj LtP-d lligh Court wi. J 1 award Subordinate Court · costs because anyway. the ·courts Act that the Supreme Court, in ihe Trustees - of Dedza Diocese · v t turn i:· out . on , what w~s Rocha, actually awarded by , b~ Both ·" parties "must vigilant to save costs. At an early · stage the possibilit'{.•··, of transfer mu.,st be considered. The court : will, as a matter • of course, consider the question of transfer at the summons , In the exercise of the . jurisdiction under . for directions. section 31 ( 2), the question·· the whether proceedings could not have been transferred by defendant to save costs, The reason why · the defendant ih this case did not transfer the case to the : Subordinate Cour~ could very well be that he also was not iure that an award It is significant of less than 1<2,500.00 would be made. ih that the UK County Court section 19(3). The a fact transfer to the County Court, will determihe the question. this the defendant · resists the High Court must (1984) provides for regard that /\ct ,1.t they agreed Even the defendant thi.s case is caught by /\tkin's view. I if I have not adopted Lord Justice Bankes's the other view, in the parties aspect of Lord Justice the appeared before me damages. Surely, if the defendant felt that less should be awarded, and I am more inclined to think that the defendant was not so minded, he should not have acquiesced to my l:hat, even if the fact that a So assessing the damages. defendant does not apply to transfer the case to a County Court is not a reason for awarding High Court cos ts; the defendant, in the words of Lord Justice :_, /\tkin, "did much more'', in that he allowed me to assess the damages. On that score, I would award costs on the High Court scale. should assess that When MADE this 30th day of June 1992, in Chambe~s. ,;· t