Pillane v Commercial Union Assurance Company Limited (Civil Cause 207 of 1984) [1986] MWHC 20 (28 November 1986)

INTHE HIGH COURT OF MALAWI, BLANTYRE\ . PRINCIPAL REGISTRY a? CIVIL CAUSE NO. 207 OF 1984 BETWEEN: WILSON PILLANE .. Le ee eee ccc cc wc ewe PLAINTIFF - and - COMMERCIAL UNION ASSURANCE CO. LTD. ..... DEFENDANT Coram: MAKUTA, Chief Justice Nakanga, Counsel for the Plaintiff Msisha, Counsel for the Defendant Kalimbuka, Court Clerk RULING On 19th June, 1986, the Taxing Master taxed a bill filed by Mr. Nakanga who acted for the plaintiff. The bill was taxed in the sum of K928.00. Mr. Msisha acting for the defendant applied for review, objecting to items 1, 4, 6, 7 and 8, On review the bill was taxed in the sum of K476.00. Mr. Nakanga then applied for a further review to a Judge in Chambers and requested reasons for the Taxing Master's decision. During the review the Taxing Master taxed off K300.00 which he allowed originally for a brief fee and gave his reason as not being allowable. This was an interlocutory appeal and Mr. Nakanga submitted that since it was an appeal to a Judge it is taxed separately under 0.62/A2/22. It is observed that the rule deals, inter alia, with instruction fee for any final or interlocutory appeal in any action, cause or matter and has nothing to do with brief fee. The fact that 0.62/A2/22 also deals with allowance for interlocutory appeal should not, in my view, be taken to include brief fee since this order, as already mentioned above, deals with instruction fees. This matter had not yet reached a stage where legal proceedings could be instituted because the action was premature and was stayed by a Judge pending reference to arbitration. This was, according to the Insurance Policy,. a condition precedent and that remedy had to be exhausted first. Of wan's ae « I therefore agree with the Taxing Master's ruling that a brief fee was not payable since counsel could not be briefed at this stage. The fact that there was some attendance in Chambers before a Judge does not, in my view, make any difference. I now come to instruction fees. The amount originaliy allowed was K500 and it was reduced to K350. Mr. Nakanga submitted that the value cf the Kwacha has gone down and the award was that of 1984. What has to be considered is not the value of the Kwacha, although that may be an important factor, but what issues were involved. In my view the matter was not complex. The Insurance Policy has an arbitration clause and the question was whether it should go to arbitration or alternatively it should be dismissed as premature. As it turned out the action was dismissec and there was an appeal on the dismissal. Before the Judge, the question was which of the alternatives was to be adopted. In these circumstances it cannot be said that it was a complex matter unless one wants to make it so, perhaps for the sake of getting costs. The Taxing Master was justified in making a further reduction of K150. For the reasons given above I do not intend to interfere with the Taxing Master's ruling. MADE in Chambers this 28th day of November, 1986 at Blantyre. See FUE Makuta CHIEF JUSTICE