Kara v Karmali (Civil Case No. 167 of 1945) [1946] EACA 78 (1 January 1946)

## ORIGINAL CIVIL

Before DE LESTANG, AG. J.

## HASHAM KARA, Plaintiff

$\nu$ .

## ABDUL MOHAMED HUSSEIN KARMALI, Defendant

## Civil Case No. 167 of 1945

Suit for recovery of a loan of Sh. 1,840-Suit dismissed-Successful defendant's bill of costs-Claimed Sh. 1,200 for instructions to defend-On taxation allowed Sh. 1,000—Appeal from taxation—Misdirection of taxing officer and application of wrong principle.

The defendant being successful in a suit for the recovery of a loan of Sh. 1.840 submitted a bill of costs in which a sum of Sh. 1,200 was claimed for "instructions to defend". The taxing officer found that the work involved was considerable and allowed Sh. 1,000. The case was a simple one involving questions of facts only. The plaintiff appealed from the order in taxation.

Held (21-5-46).-(1) That the finding of the taxing officer that the work involved was considerable was unreasonable.

(2) That from the very fact of allowing such a large sum in such a simple case it was clear that the taxing officer must have acted on a wrong principle.

Appeal allowed and bill of costs remitted to taxing officer for re-taxing.

Case referred to: Pelster v. Pelster (1936) 3 A. E. L. R. 783.

Mangat for Plaintiff.

Madan for Defendant.

ORDER.—This is an appeal from the Registrar's taxation of a bill of costs. It is the principal item in the bill which is questioned and this item is: "To instructions to file defence to a claim for Sh. 1,840 for cash lent and advanced, denied in toto by defendant." For that item Sh. 1,200 was claimed and the Registrar allowed Sh. 1,000 on the ground that "the work done by Mr. Madan, Advocate for the defendant, was considerable". Mr. Mangat contends that the Registrar has not exercised his discretion judicially and has allowed a fee which is excessive and unreasonable.

The principles on which this Court acts in deciding appeals against taxation have been the subject of repeated judicial pronouncements and are consequently well settled. I cannot do better than quote the following extract from the judgment of Sir Boyd Merriman, P., in Pelster v. Pelster (1936) 3 A. E. L. R. p. 783 at p. 784 where the principles applicable are succinctly stated:—

"Nothing is more clearly settled with regard to the taxation of costs than that the taxing master is supreme in all questions of amount, and unless some question of principle is involved it is not for a judge to interfere with his discretion. As long ago as 1854, in Re Catlin (1854) 18 Beav. 508; 42 Digest 216, 2423, Sir John Romilly, M. R., said, at p. 509:

'It is admitted, on both sides, that this Court can only be called upon to determine on the propriety of allowing or disallowing items which involve some principle, and not where a question only of *quantum* arises.'

In In the Estate of Ogilvie, Ogilvie v. Massey (1910) p. 243; 42 Digest 216, 2430 at p. 244, Cozens-Hardy, M. R., quoting that sentence with approval, added:

'I should be very sorry if any doubt were cast on that, for I can scarcely imagine a tribunal more unfit than a Judge of the High Court to deal with questions of *quantum* on the taxation of costs.'

I accordingly re-echo those words, but with the qualification which was introduced by another Master of the Rolls, then Swinfen Eady, L. J., when in *Slingsby v. A. G.* (1918) p. 236; 42 Digest 150, 1483, he said this at p. 239:

'The decision of the taxing master is not absolutely final even on a question of quantum. For instance, a large sum might be allowed, but from the very fact of the amount the Court might see that the Master, in arriving at so large a sum, must have acted on a wrong principle, or have taken something into consideration which he ought not to have done. It doubtless requires an exceptional case to call for the interference of the Court, but exceptional cases do occasionally arise."

The value of the subject-matter of this suit is Sh. 1,840. The nature of the suit was for money lent and the defence was a denial of the loan. The decision turned solely on the facts and no questions of law were involved. That being so it is difficult to understand the Registrar's finding that "the work done by Mr. Madan, Advocate for the defendant, was considerable".

It must be assumed that every case must entail a certain amount of labour and there was no material in this case on which the Registrar could reasonably hold that "considerable work had to be done" or even that more work had to be done than in the average case of that nature. The amount claimed in this case for "instructions" seems to me to be extravagant and in allowing such a large sum the Registrar must have acted on a wrong principle. I consider that the proper procedure would be to remit the bill of costs to the Registrar with a direction to retax the disputed item on the basis that the case did not involve considerable work.

Appeal allowed with costs.