J.B. Metcalfe Walton v J.J. Hantche (Civil Appeal Cause 35 of 1941) [1941] ZMHCNR 16 (31 December 1941)

204 Vol. II] J. B. METCALFE W A LTO N v. J . J . H A N TC H E . C ivil A ppeal Cause N o. 35 of 1941. Solicitor appearing in person—costs. The Subordinate Court gave judgment for the appellant on 28th August, 1941, and summarily determined the amount o f costs to be awarded to the appellant as £2 12s. Id. On 1st September the appellant gave notice as follows: “ Take notice that the Plaintiff will apply to the Court that the Order for costs payable b y the Defendant to the Plaintiff herein be reviewed and taxed as under: . . . Letter before action ............... Preparing Summons............... Copy to serve ............... Preparing affidavit and fair copy •• ............... Copy to serve Attending to swear............. ... Attending to enter Summons ... Attending Court when case defended Attending to hear deferred judgment Preparing this notice Letter to Court and Defendant enclosing • • ... .. ... copy ... ••• Two copies of Notice Paid disbursements. On W rit £0 14 3 Extra service fee at present unascertained. Paid train fares to Lusaka and return £0 19 6 Ann Disb u r se m e n ts................ Total .............. To which may be added the Costs o f any attendance at Court in connection with this review ............... .. £ s. d. 0 5 0 0 5 0 0 2 0 0 3 4 1 0 3 4 3 4 1 1 0 0 6 8 0 3 4 0 10 0 0 2 0 £3 6 0 — — Dated at Broken Hill this 1st day o f September, 1941. This application will be made on W ednesday, the 10th day of September, 1941.” The extra service fee was later ascertained to be £2 6s. 8d. This made the disbursements claimed by the appellant £4 Os. 5d. and the total o f the costs claimed £7 6s. 5d. On the 24th September, at the hearing o f the application, the appellant stated he had decided to appeal against the order instead o f applying for a review o f the order. On the hearing o f the appeal the High Court laid down the [Vol. II principles applicable where a solicitor appears in person and accord­ ingly disallowed certain o f the items o f the costs claimed by the appellant. L aw , C . J .: The learned Resident Magistrate gave judgment for the appellant for £7 4s. 8d. and for costs on the undefended scale £2 12s. Id. The appellant has appealed against that part o f the judgment which relates to the costs. There can be no doubt that the order for costs was wrong because the case was contested and costs should have been taxed accordingly. 2. The appellant first gave notice to the respondent by letter dated the 1st September, 1941, that he would apply to the Resident Magistrate (Lusaka) for a Review o f Taxation on the 10th September, 1941. The appellant appears to have been under some misapprehension as to the meaning o f Order 35 Rules 1 and 2, Subordinate Court (Civil Jurisdiction) Rules, 1940, and in consequence thereof he abandoned his Application for Review and filed a Notice o f Appeal on the 25th September, 1941. 3. The costs claimed by the appellant are itemised in his Notice o f Review. Before examining those items it must be borne in mind that the appellant, a legal practitioner, was conducting his own case. It is clear from the decided cases that a solicitor who successfully sues or defends in person is entitled to party and party costs except in respect of certain services which he alone can give (The London Scottish Benefit Society v. Chorley, Crawford and Chester, 1883-4, 12 Q. B. D., p. 452 and (on appeal) 1883-4, 13 Q. B. D., p. 872, which was followed and approved in H. Tolputt and Co., Ltd. v. Mole (1911) 1 K. B. D., p. 836. The principles to be followed in taxation in such cases appear at page 876 in the 13 Q. B. D, report where Brett, M. R. said: “ The unsuccessful adversary o f a solicitor appearing in person cannot be charged for what does not exist, he cannot be charged for the solicitor consulting himself, or instructing himself, or attending upon himself. The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing in person, subject to this restriction, that no costs which are really unnecessary can be recovered.” 4. Applying those principles, as also Annexure D o f the Subordinate Court Rules, the following items are disallowed from appellant’s bill o f costs as shown in his Notice o f Review: Copy to serve £ s. d. .............. 0 1 0 No provision. Item 29 not applicable. Attending to swear ... 0 3 4 See remarks o f Brett, M. R. Letter to Court and De- 0 7 6 fendant. 2 copies o f Notice . . . 0 2 0 referred to above. Item 11 authorises 2s. 6d. Item 44 not applicable. No provision. Item 29 not applicable. Train fares to Lusaka ... 0 19 6 Item 50, Note (a). £1 13 4 Vol. II] The mileage service fee £2 6s. 8d. appears to have been overlooked by the Resident Magistrate and must be allowed to the appellant. 5. The question o f costs remains to be considered. In this con* nection I consider that this matter could have been more properly and expeditiously disposed o f on a taxation and that this appeal was un­ necessary because an Application for Review had already been made. In these circumstances, and in the exercise o f m y judicial discretion J allow 6s. 8d. as costs which is the amount which would have been allowed In the under Item 41. No other costs for this appeal will be awarded. result, the appeal is allowed and the appellant’s costs are fixed at £5 19s. 9d, in lieu o f the £2 12s. Id. which were allowed b y the Resident Magistrate. In addition, of course, the appellant has had judgment for £7 4s. 8d. Consequently, the respondent has to pay the appellant £13 4s. 5d, in all in respect o f this case.