|PHG Group CC (“the Defendant”) raised an exception to Jacoti Construction CC (“the Plaintiff’s”) Summons and Particulars of Claim based on the fact that they lacked certain averments in order to adequately sustain a cause of action.
Subsequently, the Defendant’s exception was upheld and the Plaintiff was ordered to pay costs of the application. The Plaintiff then approached the High Court for a Review Application wherein it objected to certain rulings made by the Taxing Master during the taxation of a Bill of Costs.
The Plaintiff contested numerous items ruled by the Taxing Master in respect of her allowing the party and party scale to be applied to the matter, in its Notice to Review the Taxing Master’s ruling. The Plaintiff alleged that the Taxing Master had not applied her mind to the matter resulting in the findings of certain items being taxed on the lesser known scale, as between party and party. The Plaintiff, however, alleged that the items in dispute were to be taxed on the relatively higher scale, as between attorney and own client. Further, the Plaintiff raised that certain items were incorrectly investigated by the Taxing Master before making her ruling on same.
The Taxing Master had previously rejected the Plaintiff’s aforementioned objections on the basis that they lacked substance but because it was integral to the Defendant being able to defend the matter by raising an exception. Considering the above, the Taxing Master filed a stated case in terms of the Uniform Rules of Court together with the Plaintiff’s Notice for determination before the Review Court.
|The Review Court (“the Court”) emphasised the meaning of the party and party scale in accordance with the provisions of Rule 70(3) of the Uniform Rules of Court. This was done in order to illustrate that the Taxing Master ensures that costs, charges and expenses which are necessary in attaining justice or defending the rights of any party are permitted. And further to prevent charges which have been increased through negligence and or mistake , inter alia, by attorneys are not taken into consideration when taxing a bill of costs.
The Court went further to indicate the role of a Review Court, is one which must not undermine the rulings as made by the Taxing Master, only unless there exists reasons and evidence that the Taxing Master was incorrect in his rulings as such.
In reaching its finding, the Court held that the Taxing Master had not faulted in her duties. The general principle derived from the precedent the Court referenced, is that when taxing a bill of costs on a party and party scale, the Taxing Master must be able to discern the amount the opposing party is liable to contribute to the winning party’s reasonable fees.
The Reviewing Court will thus not interfere with the decisions of the Taxing Master unless it is discovered that his/she had acted in bad faith by virtue of failing to exercise his/her proper discretion in the matter, such as not applying his/her mind, having disregard for key factors of the matter and/or wrongly interpreting rules of law inter alia. The Court emphasised in its judgment again that a Taxing Master’s discretion to pass down a ruling he/she deems suitable in respect of a matter should not be set aside, but for, the reasons as stated above.
As such, in the present case the Court found that the Taxing Master had not been unfair, unreasonable or acted with malice. The Court found that in this case, the Taxing Master was correct in her rulings and deduced that her findings were made in the attainment of justice and in light of defending the rights of the party whose costs were being taxed. Furthermore, the Taxing Master’s discretion is not to be undermined and that the items in contention for review were indeed to be taxed on the party party scale. The Review Application was thus dismissed.
Reviewing courts scarcely to interfere with the rulings as made by Taxing Masters in the taxation of Bills of Costs in instances where reasonable discretion was used.
Written by Divina Naidoo and supervised by Dingumuzi Ndhlovu