K v K & Anor. (Probate Cause 466 of 2013) [2018] MWHC 982 (3 September 2018)

·, REPUBLIC OF MALA WI IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PROBATE CAUSE NO. 466 OF 2013 IN THE MATTER OF THE EST ATE OF I K (DECEASED) AND IN THE MATTER OF AN APPLICATION UNDER SECTION 16, 17, 20(1) AND 55 OF THE DECEASED ESTATE (WILLS, INHERITANCE AND PROTECTION ACT, 2011) FOR THE REMOVAL OF THE 2ND RESPONDENT AS THE ADMINISTRATOR AND REPLACEMENT THEREOF WITH THE APPLICANT BETWEEN S I K .................................................................................................. APPLICANT AND W K ................................................................................................. 1st RESPONDENT F K .................................................................................... 2nct RESPONDENT CORAM: WYSON CHAMDIMBA NKHATA Mr. Kamkwasi, of Counsel for the Plaintiff Mr. Chipembere, of Counsel for the Defendant Mr. Chitsulo, Official Interpreter/Court Reporter ORDER ON ASSESSMENT OF COSTS Page 1 . . The applicant commenced the action herein for an order of interlocutory injunction restraining National bank of Malawi Limited from transferring funds belonging to the late I K to the administrator of the estate pending revocation of Letters of Administration and costs of this action. Through a judgment dated on the gth of August 2016 by Justice Kenyatta Nyirenda the applicant turned out successful in his action and he was granted costs of this action as well. The parties appeared before this court on the 21st of March 2018 for hearing on assessment of costs. I reserved my ruling on the matter which I must now consider. I thought I should begin by mentioning that this court is aware that this process must ensure that only costs which are necessary and proper for the administration of justice are allowable. The principle upon which these costs should be taxed is that the successful party should be allowed costs reasonably incurred in prosecuting or defending the action. In the case of Fullerton v. Matsqui, 74 B. C. L. R. (2d) 311, Justice Cumming adopted these words: Party-and-party costs are in effect damages awarded to the successful litigant as compensation for the expense to which he has been put by reason of the litigation. In my view, therefore, the taxing master must hold a balance: On one hand, the successful litigant, who has been awarded the costs so that he is made whole by being able to recover costs necessarily incurred and on another the unsuccessful party so that he does not pay an excessive amount of money. Order 31 rule 3 of the Courts (High Court) (Civil Procedure) Rules . -· 2017 states that the Court shall also have regard to: (a) the conduct of all the parties; (b) the amount or value of any money or property involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialized knowledge and responsibility involved; (I) the time spent on the case; and (g) the place where and the circumstances in which work or any part of it was done. In this case, I went through the bill of costs as presented by Counsel for the applicant. He is claiming Kl 5,664,890.00 in total. Firstly, on the issue of the hourly rate, Counsel for the applicant proposes Kl 5,000.00 per hour. He is of 16 years standing at the bar. Counsel for the respondent however is of the view that the same has no basis in law. He contends that the court has discretion to decide the rate taking into account among other things the complexity, difficulty and novelty of the issues involved. He is of the opinion that in this case Kl 0,000.00 per hour would suffice in that the case did not require specialized skills or knowledge being a case involving an injunction. Be that as it may, I am of the view that the rate sought for is in tandem with prevailing PagE:__2 rates by lawyers of reasonably comparable skills, experience and reputation rendering a similar service as in the case herein. I will allow the K15,000.00 per hour as sought for by Counsel for the applicant. PREP ARA TORY WORK Counsel for the applicant is claiming 8 hours for attending upon the client to take instructions and weighing whether or not to commence legal proceedings. He further states that he corresponded with the client and took and prepared proof of evidence. He further seeks 6 hours for attending upon and with other parties including the respondents. I take note that there was no objection by Counsel for the respondents. However, I am inclined to allow 5 hours and 4 hours for the conferences with the client and other parties respectively. DOCUMENTS PREPARED On documents prepared, upon weighing the submissions both Counsel and upon going through the record, I thought I should allow the following rates with respect to various documents prepared: -- - DOCUMENT i No. of Docs Time/document I I· 1 Notices I -- : Summons Affidavit Subpoena Orders I ~ett~~s __ -- Trial Bundle Total 4 1 1 f - --1 I ___ ... - - Yi hr 1 Yi hrs 2 hrs Yi hr Yi hr lhrs 2hrs - - - - - - - - - j l DOCUMENTS PERUSED On documents perused, upon weighing the submissions both Counsel and upon going through the record,· I thought I should allow the following rates with respect to various documents perused: i DOCUMENT ----- No. of Docs Time/document - 30mins - 30mins 2hrs 1 3 - ~ I I I 1~ l I ______ ,____ - - - - · - - - - --+----------, 3hrs lhrs 3 2hrs 2hrs Total ···-·-······--··- ·--·- 4 hrs l 6mins 26 hrs Yi hrs 2hrs lOhrs -· 2hrs 50Yi hrs I I L I l I Total ---------1 ----- ---j 211i hrs ____ -----·---- ·-·-- - ----, I 30mins --- --- ! - - i ---------1 _ . I! 2hrs -- - - 6hrs 4hrs 18hrs Page 3 I ·- - Notices - · Summons I • I Affidavit I ' Skeletal arguments I 1 Order/Judgment L . - - - f Letters .. Total - - - - - - - CASE AUTHORITIES Apparently Counsel or the applicant has listed 41 cases and is claiming 3 hours for each. On the other hand, Counsel for the respondents is arguing that the cases are of different lengths and yet Counsel for the applicant s is seeking 3 hours for each. He further argues that Counsel applied there or four of the case and yet he lists 41 cases. He therefore moves the court to trim the cases to 10 and award half an hour for each. I agree that it is always important to exercise due diligence in handling every matter no matter how simple it may look. However, in a case like the one herein involving an injunction restraining a bank from transferring one's estate does not really warrant reading 41 cases. I shall trim them to 20 and award an hour for each. BOOKS AND STATUTES On the books and statutes, Counsel claims to have referred to order 29 rule 1 and rule 1(2) of the Rules of the Supreme Court. He further refers to ss.16, 17(1 ), 20, 32, 33, 43, 55 and 62. I wish to agree with Counsel for the respondents that 2 hours for each of the provisions is on the higher side. I shall adopt an hour for each. ATTENDANCES (INCLUSIVE OF TRA YELLING AND WAITING) On this regard Counsel for the respondents bemoans the inconsistencies. He points out that Counsel for the applicants is asking for 2hrs for some documents and 5 hours for others. Further Counsel is asking fot"7hrs for attending trial and 5 hours in others. Counsel is of the view that the inconsistencies should be used against the applicants. Have weighed and gone through the court record I allow 2 hours for every attendance on filing documents which appears to be 21 times. I further allow 3 hours for each attendance for trial and it appears there were 3 times. GENERAL CARE AND CONDUCT The court takes note that the applicant is claiming 50% of part 3 for preparation of trial and then 80% of part 3 General Care and Conduct. I wish to join Counsel for the respondents in that the narrations for the two are more or less the same. Clearly, it is a redundancy. I shall disregard the part on preparation for trial and make an award for General care and Conduct. On this part 80% is not warranted for. It was just an injunction and letters of administration. I shall adopt 60% of Part 3. DISBURSEMENTS On disbursement the applicant is claiming K210,000.00 being K40,000.00 for stationery, K30,000.00 for printing and photocopying, K60,000.00 for telephone and K80,000.00 for travelling. Counser-for tfie respondents argues that the same have not been supported by any evidence. In my view, there is abundant Page 4 evidence that the same were indeed incurred. I expected Counsel for the respondents to challenge the amounts allocated for each. Further to this, Counsel for the respondents has issues with the K80,000.00 on travelling in that it has already been claimed under attendances. I believe the same are different in that under attendances Counsel for the applicant is claiming for time spent travelling and waiting at the court while under disbursements Counsel is claiming for fuel refund used in travelling to court. I shall allow K260,000.00 for disbursements. TAXATION I am of the view that 8 hours is reasonable. I further award 30 mins for the notice to appointment to tax costs and 2 hours for attending taxation proceedings. On the part of General Care and Conduct I believe 50% is just and fair. In total this part shall be awarded K236,250.00. I therefore tax the bill as follows: PART Preparatory work Documents prepared Documents perused Case authorities Books and Statutes Attendances Total for Part 3 TIME 9 hrs 50 Yi hrs 18hrs 20hrs lOhrs 57hrs General Care and Conduct 60% of Part 3 Taxation 16.5 % Surtax Add disbursements TOTAL The costs are taxed at K5,040, 286.25. MADE IN CHAMBERS T AMOUNT .. -- K135 ,000.00 K757,500.00 K270,000.00 K300,000.00 Kl 50,000.00 K855 ,000.00 .. -- K2,332,500.00 Kl,399,500.00 K236,250.00 K677,036.25 -- K260,000.00 K5,040, 286.25 -· ATA Page 5