- December 5, 2022
- |Concise Law Reports (CLR), Costs And Taxation
The parties in this matter have since October 2006, been embroiled in litigation resulting from the rental of a 4×4 vehicle from the defendants, by the plaintiff while on safari in Namibia. This vehicle became damaged when the plaintiff attempted to cross a river. The plaintiff claimed that the defendants misrepresented to him that the vehicle was insured, resulting in him having to pay for the damage to the vehicle, on the basis that the risk occurring was not covered.
The court handed down judgment on 5 December 2016, and held that the plaintiff made out a case that the second and third defendants represented to him that he enjoyed insurance during the period of rental of the vehicle. It was further held that the plaintiff also bore the onus to prove that the negligent conduct on his part was not responsible for the loss, but for the misrepresentations, and the plaintiff failed to discharge his onus in that respect. The court further found that the plaintiff had also established an alternative claim of unjust enrichment, but only against the first defendant, a close corporation as the plaintiff failed to allege and prove personal liability of the second and third defendants. The plaintiff was thus only partially successful, and was ordered to pay the costs of the second and third defendants for the portion of the claim that he lost.
At taxation, the parties settled a substantial portion of the bill, save for a number of items to be decided on by the Taxing Master. The main objection of the plaintiff related to two main issues. Firstly, the translator’s fees, where the plaintiff argued that the expenses of a translator are attorney-client fees. In the alternative, that the translation fee was too high in the circumstances. Secondly, the instructed counsel’s fee. The plaintiff argued that the maximum amounts set in the tariffs in the High Court Rules, was allowed for instructed counsel’s fee for various attendances by instructed counsel in preparation for and appearance at the trial, which was not justified considering the quantum of the claim.
The plaintiff, aggrieved by a number of rulings made by the Taxing Master during the taxation of a bill of costs, sought to have them reviewed under Rule 125 of the High Court Rules. Only certain of the items taxed in terms of the allocatur issued and dated 6 May 2020, were objected to by the plaintiff.
SCHIMMING-CHASE J considered the review and held that:
- The Taxing Master is the functionary enjoined with the obligation to ensure that only the costs, charges and expenses as appear to him or her to have been necessary or proper for the attainment of justice or for defending the rights of any party, are allowed.
- The Court will on review allow the Taxing Master a significant degree of appreciation in the exercise of his or her discretion. The court will only interfere with the Taxing Master’s rulings, if he or she has not exercised the discretion judicially, that is if it is exercised it improperly, or if he or she has not brought their mind to bear upon the question, or has acted on a wrong principle.
- The Taxing Master’s decision on the objectionable items were upheld, as the discretion was not capriciously exercised.
As a result, the taxation review failed, with costs, and the Taxing Master’s allocatur dated 6 May 2020 is upheld.
Dannecker v Leopard Tours Car and Camping Hire CC and Others (I 2909-2006) [2022] NAHCMD 658 (5 December 2022)