CIVIL PRACTICE – TAXATION OF FOREIGN INSTRUCTED COUNSEL’S FEES

CIVIL PRACTICE – TAXATION OF FOREIGN INSTRUCTED COUNSEL’S FEES

Whereas the Court had ordered the applicant to pay the respondent’s legal costs, such costs to include the costs of three instructed counsel and one instructing counsel. One bill of costs was for Engling, Stritter & Partners, a Namibian based law firm which acted as correspondent legal practitioners on the instructions of Bowman Gilfillan, a South African based law firm. The other bill of costs was for Bowman Gilfillan. At the taxation, the applicant’s legal practitioner objected to the taxing of the bills of costs contending that the taxing master did not have the authority to tax a bill of costs of a law firm whose lawyers have not been admitted to practice law in Namibia. The taxing master ruled that he had the authority to tax the bill of costs. The applicant launched a review application in which it sought an order setting aside the taxing master’s said ruling. The court found that the taxing master did not have the authority in law to tax Bowman Gilfillan’s bill of costs. It accordingly made an order on 24 March 2021 setting aside the taxing master’s aforesaid ruling.

Thereafter the respondent amended its bill of costs to include the fees of its three South African instructed counsel, all of whom it had employed to act on its behalf. Bowman Gilfillan’s bill of costs was not presented for taxation. The applicant again objected to the fees of the South African instructed counsel as well as to the fees and disbursements of Engling, Stritter & Partners that related to attendances between the two firms which were previously included in Bowman Gilfillan’s bill of costs. The applicant’s argued that the respondent was prevented by the principle of res judicata from amending its bill of costs because of the court’s order of 24 March 2021. Furthermore, the applicant objected to the taxation of the South African instructed counsel’s invoices, on the basis that those counsel were instructed by Bowman Gilfillan who are not admitted to practice in Namibia. The taxing master upheld the objection and disallowed the fees in respect of the fees of the respondent’s three South African instructed counsel.

ANGULA DJP considered the matter and held, inter alia that:

1. Instructed counsel who have been permitted by the Chief Justice to appear in this court in terms of section 85 of the Legal Practitioners Act 15 of 1995 are deemed to be legal practitioners of this court and their clients are entitled to be reimbursed such counsel’s fees – A successful party is therefore entitled, by way of the indemnity principle, to claim costs paid to its foreign instructed counsel for legal services rendered in this jurisdiction.

Namibia Competition Commission v Puma Energy (Pty) Ltd NAHCMD 19 July 2022