Nakanga & Company v Lihoma (Civil Cause 255 of 1984) [1987] MWHC 25 (9 June 1987)

ee AM ec IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.255 OF 1984 BETWEEN: W. W. MKWEPU NAKANGA & CO......cccccccce eco ccee sce APPLICANT - and - P.eL. LIHOMA cs sccct acs vaascesecesecsos occ ee sec oe oe RESPONDENT Coram: UNYOLO Nakanga of counsel for the applicant Msosa, Chier Legal Aid Advocate, for the respondent Kadyakale, Law Clerk RULING This is an appeal from a decision of the Taxing Master given on the 7th April, 1987 wherein he refused to tax a solicitor-and-own-client bill of costs. The following facts emerge. On the 14th June, 1984 Messrs. Mkwepu Nakanga and Company instituted proceedings on behalf ot the plaintiff, F. W. Lihoma, claiming damages from the defendant, Malawi Railways Limited, for false imprisonment and trespass to person. The defendant put in a defence through its legal practitioners, Messrs. Wilson and Morgan. A few other things took place. For example, an order for directions was obtained and thereafter the parties proceeded to file their affidavits of documents. The case did not however proceed to trial. The parties struck a settlement out of court. The agreed amount was K1500 for damages and K1500 for costs, making an aggregate sum of K3000 and in due time this amount was duly paid over to the said Messrs. Mkwepu Nakanga and Company. There is one other matter which must be mentioned here. It is this. At the time of giving his instruc- tions to the said Messrs. Mkwepu Nakanga & Company to commence the action in this case the plaintiff undertook, in black and white, to pay the sum of K500 to the said Messrs. Mkwepu Nakanga & Company as a deposit. Offa snc And after the dispute arose betwe & Company and the fr Subsequently, the ¢ Legal Aid and asked the matter. And on Nakanga & Company f solicitor-and-own-c of K40,169.50, fcx that the total is v myself and the corr At the taxati representing the pl contending that the erroneously present (a) that Mes earlier (b) that the the said included Mr. Nakanga retorte the K500 was only a pointed out that as paid K30 leaving a the pertinent facts "But can M/s Nak own-client bill do not think sc full costs fron arrived at by a costs and the p that the losing ful party. I + get full costs same time “ile In this regard in the case of I therefore Cis It is against Nakanga & Company a that as he understa that because party a third party, name on that ground from bill of costs. different from soli several cases in su; rong. balance of K470. Leal is erroneous in tha’ 2 ~ K3000 was paid by the defendant, a en the said Messrs. Mkwepu Nakanga laintiff on the question of costs. laintiff went to the Department of the Department to represent him in the 5th November, 1986 Messrs. Mkwepu resented to the court a lient bill of costs, for a total sum taxation. It however appears to me I added the figures in the bill ect total should be K3429.50. on Mrs. Msosa, Chief Legal Aid Advocate, aintiff, raised a preliminary point biil of costs was without basis and ed on two grounds, viz:- srs. Mkwepu Nakanga & Company had agreed to a fee of K500 only, and K2000 paid by the defendant to Messrs. Mkwepu Nakanga & Company the full costs of the action. d to these arguments by saying that deposit and not the full fee. He a matter of fact the plaintiff only And after reviewing the learned Taxing Master stated - canga & Company file a solicitor-and- of costs in these circumstances. I M/s Nakanga and Company had their 1 the defendant. These costs were igreement. These were party and party uuxpose of party and party costs is party snould indemnify the success- Hunk it is not right for counsel to fiom the losing party and then at the bill of costs against the client. would lixe to refer to my om ruling C, Makwekwa_v. Oil Company of Malawi Civil Cause No.77 of 1981 (unreported). allow the whole bill of costs." ° a z S. this decision that Messrs. Mkwepu ppeal to this Court. Mr. Nakanga said nds it, the learned Taxing Master opined and party costs were already paid by ly the defendant, his firm is precluded taxing a solicitor-and-own-client rned counsel submitted that this reasoning t party and party costs are essentially citor-and-own-client costs. He cited oport of the submission. 2/ aR = 3 a Pausing there, I think that I must commend counsel for their industry in looking up the law and for their lucid and learned argument. I was impressed greatly and indeed assisted. It is common case the K1500 costs paid by the defendant to Messrs. Mkwepu Nakanga & Company, as part of the settlement package, were party and party costs. I would agree with the learned Taxing Master that the object of such costs (party and party costs) is to indemnify a successful party against the expense to which he has been put in either prosecuting or defending an action. Richardson v. Richardson (1895) p.346 is authority for this proposition. Solicitor-and-own-client bills of costs are however essentially different from party and party costs and on taxation or assessment thereof different principles apply. See 0.62/28 and 0.62/29 R. S. C. If I may summarise the position: party and party costs include all such costs as are necessary or proper for the attainment of justice between a plaintiff and a defendant or for enforcing or defending the right of the party whose costs are being taxed. See Morey v. Woodfield (1964) 1Q. B.1. Where however a solicitor's bill against his own client is taxed {other than a bill payable out of the legal aid fund or a bill with regard to non-contentious business) all costs are allowable unless the same are of an unreasonable amount or were unreasonably incurred. As was stated by Lord Denning in Goodwin v. Storrar (1947) 1 All E. R. 203, a taxation as between solicitor and own client is an inquiry as to the costs which a client ought properly to pay his solicitor; as distinct from taxation between party and party which is an inquiry as to the costs which he should recover from the opposite side. A situation may therefore arise where certain costs would be refused on a party and party taxation but which would be payable on a solicitor-and-own-client bill of costs since the assessment in the latter case is ona somewhat generous scale. Indeed decided cases abound where solicitor-and-own-client bills of costs were taxed despite the fact that party and party costs had already been taxed and/or paid. See In re Mercantile Lighterage Co. Ltd. (1906) 1 Ch. 491, In re Osborn and Osborn (1913) 3 K. B. 862 and A. H. Alimahomed v. B. M. Peter and Another: M. S. C. A. Civil Appeal No.2 of 1984 (unreported), to mention only a few. Reverting to the present case, the ratio decidendi of the decision appealed from was, as Mr. Nakanga contended, that the defendant having paid party.and party costs to the plaintiff's former legal practitioners, Messrs Mkwepu Nakanga and Company, it is now not open to the said Messrs. Mkwepu Nakanga and Company to tax a solicitor-and-own-client bill of costs. With respect I am unable to assent to this view, for the reasons I have already advanced above. A/ooo The learned Taxing Master, in my view, acted on wrong principles. It may well be that Messrs. Mkwepu Nakanga and Company will be able to show that there still are some costs which ought properly to be paid to them by the plaintiff and, as I have indicated earlier, the inquiry in that regard is what a taxation of a solicitor-and-own- client bill of costs is all about. Perhaps I should add that in saying this I am mindful of the fact that Messrs. Mkwepu Nakanga and Company did give full and informed consent to the out-of-court settlement wherein costs were agreed at K1500. But again those were party and party costs. If Mr. Nakanga is really minded to proceed he is free to do so and the learned Taxing Master will have the opportunity of hearing argument from counsel on both sides and tax the bill in the usual manner. There is one other issue upon which I was addressed by counsel. It concerns the scale on which such costs would be taxed - whether on the High Court scale or the Subordinate Court scale. Pausing here, it is observable that the provisions of section 31 of the Courts Act do not apply since that section only deals with a plaintiff's costs, party and party costs as a matter of fact, as distinct from solicitor~and-own-client costs. It is however not without significance that Messrs. Mkwepu Nakanga & Company did agree to a settlement on behalf of the plaintiff at, as already indicated, K1500 - an amount which lies within a Subordinate Court scale. They also agreed to party-and-party costs at K1500, as little as that. It seems to me that this was an implicit affirmation that the action was not all that substantial. Indeed the plaintiff's claim was, as indicated earlier, for damages for false imprisonment and trespass to person and I take the view, considering the total facts, that both the facts and law were such that a subordinate court was capable of resolving them. I would therefore hold that if Messrs Mkwepu Nakanga & Company are entitled to any solicitor-and-own-client costs at all such costs be taxed on the Subordinate Court scale. In conclusion I allow the appeal. The learned Taxing Master's decision is rescinded and it is ordered that he proceed to tax the bill herein, on the Subordinate Court scale, if Messrs. Mkwepu Nakanga and Company are still minded to tax the same. The plaintiff is condemned in the costs of the appeal. DELIVERED in Chambers this 9th day of June, 1987 at Blantyre. ol JUDGE