TAXATION – REVIEW OF TAXING MASTER’S ALLOCATUR – PRINCIPLE OF FULL COMPENSATION OF NECESSARY AND REASONABLE EXPENSES

TAXATION – REVIEW OF TAXING MASTER’S ALLOCATUR – PRINCIPLE OF FULL COMPENSATION OF NECESSARY AND REASONABLE EXPENSES

 

In Chambers Review Judgment: FRANK AJA

 

The applicant in the present case sought to review the taxing master’s allocatur. The issue on review was the amounts allowed in respect of two instructed legal practitioners of the applicant (as expressly sanctioned by a costs order of this Court). The applicant’s complaint was that the fees were substantially reduced – amounting to a non-adherence to the notes in the tariff which entitles the taxing master to allow amounts in his discretion when there are extraordinary or exceptional circumstances so as to ensure just recompense to a party in line with the principle of full compensation to a party of necessary and reasonable expenses.

 

At the taxation, the taxing master explained to the legal practitioners of the parties that he would deal with the instructed legal practitioners’ fee as indicated in the judgement of Afshani & another v Vaatz 2007 (2) NR 381 (SC) (in that he applies an hourly rate of N$1500 and N$1800 in respect of the junior instructed legal practitioner and the senior instructed legal practitioner respectively). At the time, no objection was raised in respect of the amounts determined by the taxing master.

 

The taxing master contended that the general rule stated that objections at the taxation stage are a prerequisite for the bringing of a review of an allocatur. The court, at present, was required to determine whether there are circumstances where such general rule does not apply, and whether the present case is such a case. And to further determine whether the taxing master took into consideration the fact that instructed legal practitioners are entitled to fees for ‘court appearance’ which are not the same as fees for ‘court attendance.’ Held that:

 

1. While the taxing master cannot be faulted for using his discretion, he failed to adhere to the approach spelled out in the Afshani case when it comes to appeals.
2. It follows that the approach by the taxing master in the taxation of the fees of the instructed legal practitioners was fatally flawed as he never attempted to determine the reasonable composite fees for their appearances in the appeal but simply cut down the hours of their claim.
3. Also held that, despite the present circumstances where the applicant’s objections were considered without being previously raised at the taxation, the Court cautioned legal practitioners that this should not be seen as a green light to seek reviews of items in bills of costs where they were not objected to at the taxation.

 

As a result, the taxation review succeeds and the taxing master’s allocatur is set aside and substituted in the sum of N$ 64 942,50.

 

Municipal Council of Windhoek v Pioneerspark Dam Investment CC (SA 70-2019) [2022] NASC (16 November 2022)