Matola v Yannakis & Anor. (Civil Cause 529 of 2016) [2018] MWHC 1135 (12 November 2018)

• /,"tl.,t \ I .. \ REPUBLIC OF MALAWI IN THE I:IIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL CAUSE NO. 529 OF 2016 BETWEEN JULIUS MA TOLA (Suing on behalf of the Estate of Hassan Matola, deceased) ..................................................................... PLAINTIFF AND NICHOL US Y ANNAKIS .................................................................................... 1st DEFENDANT GENERAL ALLIANCE INSURANCE LIMITED .................................................. 2nd DEFENDANT CORAM: WYSON CHAMDIMBA NKHATA Mr. Jere, of Counsel for the Plaintiff Ms. Nyemba, of Counsel for the Defendant Mr. Chitsulo, Official Interpreter/Court Reporter ORDER ON ASSESSMENT OF COSTS INTRODUCTION This matter was commenced by writ of summons which was issued on the 22nd of June 2016. The plaintiff was claiming damages for loss of expectation of life, loss of dependency, funeral expenses and costs of this action. On the pt of November 2017, the parties executed a consent joogment in favour of the plaintiff for .;.-~., Julius Matola v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 1 - payment of damages as well as costs of this action. The record indicates that the parties were heard on assessment of damages and the plaintiff was awarded K6,372,304.00 . Subsequently, the plaintiff took out a notice of appointment to tax costs. This court heard the parties on the taxation of costs and reserved the ruling on the same which I must now consider. The receiving party filed their Bill of Costs in which they are claiming KI4,088 ,490.00. The receiving party did not file their objections but they took the court through the bill expressing their dissatisfaction with most of the items that had been proposed by the receiving party. I shall go through the objections later in this ruling. Suffice to say for now that in general terms the paying party was of the view that the bill was unreasonable. It was their submission that costs ought not to be punitive. They indicated that the receiving party is claiming K 14,000 ,000.00 against damages that the 2nd defendant had to pay a maximum of K5 ,000 ,000.00. It is their view that it would be unfair for the paying party to pay a further K 14,000,000.00 in the circumstances. They further invite the court to consider that the matter was settled by consent. The receiving party maintained their position arguing that the matter was trial ready even though it was settled by consent. They further argue that the issue of costs and damages awarded do not reflect each other. THE LAW The law guiding the award of costs is Order 31 of the Courts (High Court) (Civil Procedure) Rules 2017. Under o.31 rule of the same it is provided 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 all 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. Basically, the principle upon which these costs should be taxed is that the successful party should be allowed costs reasonably incurred in prosecuting or defending the action. In my view, therefore, the taxing master must hold a balance: On one hand , the successful litigant, who has been awarded the costs so that he is made whole by being able to recover costs necessarily incurred and on another the unsuccessful party so that he does not pay an excessive amount of money. - Julius Matola v Nicholus Yannakis & Another Civil Cause No. 529 of 2016 Page 2 CONSIDERATION OF THE ITEMS OF THE BILL HOURLY RATE The receiving party seeks K25,000.00 as the hourly rate. They indicate that the matter was handled by Counsel of 11 years standing at the bar and contended that this is the minimum hourly rate recommended by the Malawi Law Society. Counsel for the defendants however submitted that the recommendations by Malawi Law Society could not be relied upon in the manner the plaintiff sought to. She argued that the resolutions were merely agreed upon and were not gazetted ancl they were not law under any Act. Counsel for the defendant went on to cite the case of Barrow Investments Ltd v MPICO Malls Limited Comm. No. 6 of 2013 in which Justice Mtambo found that recommendations have no force of law and could not fetter the discretion of the Registrar. She further stated that the Courts (High Court) (Civil Procedure) Rules 2017 under o.31 gave discretion to the Registrar. She also invited the court to see the decision by Her Honour Soko in the Leornard Ndindi v Panjwani Issa and Tourism Investment Limited t/a Hotel Victoria Civil cause No. 971 of 2016 in which she pointed out that the resolutions were not binding and should not be followed. The court in that case proceeded to allow Kl0,000.00 for Counsel of 10 years standing at the bar handling a personal injury case. Counsel for the defendants therefore proposed an hourly rate of K8,000.00 arguing that the matter herein was not complex as the deceased was injured from an accident. She further submitted that in the Barrow case Kl0,000.00 was allowed for a complex case involving almost half a billion Kwacha. The issue on this regard is whether the court ought to follow the resolutions by the Malawi law Society on the hourly rate. I wish to agree with Counsel for the defendant that they cannot be relied upon in manner that the claimant wish to. From the case of Barrow, it is clear that the same do not have the force of law. The same have not been gazetted and they are not binding to this court. Nevertheless, I was of the opinion that the same cannot be completely ignored. They still bear an unprecedented significance in providing a guide to the court on economic realities considering the empirical research that went into the promulgation of the same. I still feel obliged to use them to that extent. The case herein does not involve complex and novel issues. Clearly the K25,000 .00 sought by the receiving party is on the higher side. On the other hand, K8,000.00 suggested by the paying party is on the lower side. For lawyers of reasonably comparable skills, experience and reputation rendering a similar service as in the case herein, I will allow the K15,000.00 per hour as sought for by Counsel for the plaintiff. - Julius Matola v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 3 PART A: PREPARATIONS 3(a) RECEIVING INSTRUCTIONS The receiving party is proposing 8 hours for attending upon the claimant to receive instructions, reviewing all evidence, including Police and Death Reports and all relevant documentation and recording statements from the claimant and other witnesses. The paying party is of the view that the matter herein was a straight forward issue and could not demand 8 hours just to take instructions. It is pointed out that the claimants did not even attach a time sheet which made it even difficult for them to counter-propose the time that may have been taken. I agree that 8 hours is on the higher side for Counsel just to take instructions and review documents. I shall allow 4 hours. 3(b) WITNESSES The receiving party proposes 2 hours for attending upon eye witnesses in preparation for mediation. On the other hand, the paying party is of the view that 30 minutes was reasonable in that this was merely a pre mediation briefing where Counsel had already received the Police and the Medical reports. I shall allow lhour. 3(c) DOCUMENTS PERUSED The receiving party indicated 2 hours for the defence, 2 hours for the Defendant's statement of claim, 15 minutes for the certificate of termination of mediation and 2 hours for the order on assessment of damages. The paying party was of the opinion that all the documents were brief and proposed 30 minutes for the defence, 30 for the Defendant's statement of claim, 2 minutes for the certificate of termination of mediation and 30 minutes for the order on assessment of damages. This court went through the record to satisfy itself on the length of the documents said to have been perused. I believe it is reasonable to allow 30 minutes for the defence, 1 hr for the Defendant's statement of claim, 15 minutes for the certificate of termination of mediation and 1hr for the order on assessment of damages. 3( d) DOCUMENTS PREPARED The parties did not agree on the time allocated for each 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 by the parties and the court's findings were as follows: - Julius Mato la v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 4 DOCUMENT RECEIVING PARTY PAYING PARTY TIME ALLOWED BY THE COURT Writ of summons and 3Hrs IHr 2hrs statement of claim Notice of Mediation Plaintiff's statement of issues 15mins 3hrs 5mins 30mins 15mins 1hr Preparing certificate of 15mins 10mins 15mins termination of mediation Summons Directions for 15mins 5mins Order for Directions Plaintiff's witness statement for assessment of damages 15mins 3hrs 10mins 30mins 15mins 15mins 1 Yi hrs Plaintiff's skeletal 6hrs 2hrs 3hrs arguments for assessment of damages Bundle of pleadings Notice of assessment of damages 4hrs 15mins 30mins 2mins 1hr 15mins 3(e) BOOKS AND STATUTES READ - On this part, the receiving party proposes a total of 34 hours for the 8 items listed. The paying party however is counter-proposing that each item should be 30 mins save for the book on McGrivy on Damages which it is contended must be struck off as it was not cited. Essentially, they propose a total of 3.5 hours for the books and statutes read . On the book McGrivy on Damages, I am not sure whether it is correct to say that it must be struck off because it was not cited considering the fact that it may have been read during research but the contents did not agree with what Counsel may have been looking for. Indeed, the problem that may arise is Julius Mato la v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 5 proof as to whether it was in fact read. All the same, I will exercise the doubt in favour of the paying party and have it struck off. On the rest of the authorities, the court shall allow 2 hours each making a total of 14 hours. 3(f) CASE AUTHORITIES PERUSED The receiving party has indicated 3 hours against each of the 9 case authorities claimed to have been perused making a total of 27 hours. The paying party, on the other hand, proposes 30 mins for each making a total of 4Y:zhrs. It is argued that Counsel is already familiar with the same considering his experience. I was of the view that an hour for each would be more reasonable. I shall allow 9 hours for this item. 3(g) CONFERENCES On this item, the paying party was of the view that attending to the client to discuss the defence must be allocated 1 hr considering that the defence was very brief. I found this fair and reasonable. The paying party further argued that attending to the client for pre-mediation conference was a duplication of item 3b. I wish to agree with Counsel for the defendant on this part and disallow the 2hrs claimed under the same. CONFERENCE RECEIVING PARTY PAYING PARTY TIME ALLOWED Attending upon the client in 2hrs conference on 11th of June 2016 to discuss defence Attending upon the client 2hrs on 1 Qth August 2016 for pre- mediation conference 1hr - BY THE COURT lh - Attending upon the client in 1hr 30mins 30mins conference on 20th of December 2016 to discuss order for directions Attending upon the client in 1hr 30mins 30mins conference on 12th of April 201 7 to discuss the consent judgment - Julius Matola v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 6 Attending upon the client in 6hrs 30mins 2hrs conference on 30th of September 2015 to obtain a witness statement for assessment of damages conference Attending upon the client in 3hrs 30mins 1hr conference on 23rd July 2018 for a pre-assessment of damages conference Attending upon the client in 3hrs 30mins 1hr conference on 19th of September on assessment of damages 3(h) TRA YELLING AND WAITING The receiving party is proposing 3 hours for travelling to the locus in quo and 10 hours for travelling to the High Court Library and Law Society Library to conduct research. The paying party however challenges the necessity for the fee earner having visited the locus in quo. They argue that that costs should be reasonably incurred and that in a matter like the one herein it was not necessary for Counsel to visit the locus in quo. In the alternative they propose 1 hour for the visit to the locus in quo. I was of the opinion that making a finding that it was not necessary for Counsel to visit the locus in quo would be tantamount to detecting how Counsel should conduct his case. This would essentially be going beyond the discretion that the court is supposed to exercise in such proceedings. I shall allow this item. I checked the record and it indicates that the accident occurred at somewhere in Zomba and Counsel's practice is in Blantyre. I believe that 3 hours is reasonable. On the visit to the High Court library, the paying party is of the view that the same is redundant as the receiving - party had also claimed for resources expended. They add that if the same is to be allowed the court ought to take into consideration that the receiving party's practice is in Blantyre and the High Court is also in Blantyre. They therefore counter-propose 1 hour for the same. I shall allow 3 hours. Julius Matola v Nicholus Yannakis & Another Civil Cause No. 529 of 2016 Page 7 4. COURT ATTENDANCIES A TTENDANCIES RECEIVING PARTY PAYING PARTY TIME ALLOWED BY Attending mediation on the 2hrs 1hr 1hr THE COURT 1 oth of August 2016, inclusive travelling and waiting Attending court on the 24th of . 3hrs 2hrs 2hrs August 2018 for assessment of damages, inclusive travelling and waiting Attending court on the 19th of 2hrs 30mins 1hr September 2018 for delivery of the order on assessment of damages .. 4(iv) REFRESHER FEES The receiving is also claiming Kl,500,000.00 refresher fees. They state that the matter was called on two occasions and Counsel had to refresh on issues which related to pleadings and meeting with the witness. The receiving party is of the view that this is an item based on time spent and 1 hr would be reasonable. I shall allow KS00,000.00. 4(v) INSTRUCTION FEES The receiving party is claiming Kl,000,000.00 on the instruction fees. They state that Counsel acted for the claimant generally and performed the rate of barrister and solicitor duties to ensure the claim is properly presented. The paying party is of the view that the same should not be paid. They contend that this item to have been proved by a retainer or an invoice. I shall allow Kl,000,000.00. - 5. GENERAL CARE AND CONDUCT The receiving party proposes 75% of part A as general care and Conduct. They argue that the case was very important 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 remarkable skill in presenting the facts and the law. However, the paying party is of the view that the matter was straight Julius Matola v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 8 • .. forward and was settled by consent as such 30% would be reasonable. I agree that this was a straight forward case but I am of the view that 50% would be reasonable. 6. OTHER OUTLAYS The receiving claims K853,000.00 for disbursements. They have particularized the same as follows: Stationery Court fees Phones K200,000.00 K40,000.00 Kl 00,000.00 Messengers KS0,000.00 Photocopying K300,000.00 Secretarial Fuel Kl50,000.00 Kl50,000.00 The paying party contends that the same ought to have been proved by production of receipts. It is also contended that the figures are exaggerated and they drew the attention of the court to items like the Stationery, Phones, messengers and Photocopying. On fuel they further indicated that Counsel's practice is in Blantyre and Counsel could not have expended K150,000.00 on fuel. They further indicated that it is difficulty to counter-propose as Counsel should have produced receipts. They therefore suggest that the same be struck off. It is true that the outlays are not supported by any receipts. However, I still believe that there expenses made on the same. I think it is only proper that this court only makes deductions on some items that are evidently exaggerated. Stationery Court fees Phones Messengers K60,000.00 K40,000.00 K20,000.00 KS0,000.00 - Photocopying KS0,000.00 Secretarial Kl00,000.00 Fuel Total K60,000.00 K380,000.00 - Julius Matola v Nichol us Yannakis & Another Civil Cause No. 529 of 2016 Page 9 7. TAXATION The paying party proposes 12 hours for preparation of the bill of taxation. The receiving party is of the view that the same suggests that Counsel took more than the whole day working on the bill. They are of the view that 3 hrs is reasonable. On this item, I shall allow 6 hours having seen the bundle on taxation. On the issue of attending taxation proceedings, the receiving party proposes 3 hours and the paying is of the view that the actual time taken should be used by the court. The record indicates that the hearing on taxation took 50 minutes. The receiving party also claims 75% Care and Conduct for Taxation. They state that Counsel ensured that the bill contains all the relevant points and supervised the secretary to ensure that the bill was prepared accordingly. The paying party argues that the same is not provided for under the Rules and should be struck off. In the alternative they propose 30%. I shall allow 50%. SUMMARY I therefore tax the bill as follows: PART Part A Refresher Fee Instruction Fee General Care and Conduct (Part A) Taxation - 16.5 % Surtax Add disbursements TOTAL The costs are taxed at K4,665,161.25. AMOUNT K847,500.00 K500,000.00 Kl,000,000.00 K2,34 7,500.00 Kl, 173,750.00 K3,678,250.00 K3,521,250.00 Kl57,000.00 K606,911.25 K380,000.00 K4,665,161.25 • .. 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