Bertolini v Ehlers and Another (320 of 2016) [2017] NAHCMD 289 (6 October 2017)

Bertolini v Ehlers and Another (320 of 2016) [2017] NAHCMD 289 (6 October 2017)

Plaintiff acted unreasonably by failing to issue a pre-litigation demand and by keeping defendant in proceedings after learning of misjoinder; improper use of third party procedure; defendant entitled to costs on party and party scale up to 16 February 2017 and attorney and client scale thereafter; no justification to exceed costs cap under rule 32(11).

Citation
[2017] NAHCMD 289
Parties
Plaintiff: Franklin Marcelino Bertolini; Defendant: Anthony Steven Ehlers; Third Party: Gerald Reginald Scott
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
6 October 2017
Case Number
320 of 2016
Procedural Posture
Interlocutory Application (costs) in Civil Action (delict) / Ruling on Costs Following Withdrawal of Proceedings Against Defendant
Outcome
Application for costs granted in favour of defendant; costs awarded on differentiated scales; further conduct of main action postponed.
Legal Topics
Withdrawal of Proceedings, Costs Orders, Misjoinder, Third Party Procedure, Judicial Case Management
Source Language
English
Civil Procedure Withdrawal of Proceedings Costs Orders Misjoinder Third Party Procedure Judicial Case Management

Case Brief

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Parties

Franklin Marcelino Bertolini

Plaintiff

Anthony Steven Ehlers

Defendant

Gerald Reginald Scott

Third Party

Procedural Posture

Interlocutory Application (costs) in Civil Action (delict) / Ruling on Costs Following Withdrawal of Proceedings Against Defendant

Legal Issues

  1. 1 Whether defendant is entitled to costs following plaintiff's withdrawal of proceedings
  2. 2 Appropriate scale of costs (party and party vs attorney and client)
  3. 3 Propriety of plaintiff's use of third party procedure under rule 50

Ratio Decidendi

Plaintiff acted unreasonably by failing to issue a pre-litigation demand and by keeping defendant in proceedings after learning of misjoinder; improper use of third party procedure; defendant entitled to costs on party and party scale up to 16 February 2017 and attorney and client scale thereafter; no justification to exceed costs cap under rule 32(11).

Court Disposition

Application for costs granted in favour of defendant; costs awarded on differentiated scales; further conduct of main action postponed.

Orders

  • Plaintiff to pay defendant's costs on party and party scale from institution of action until 16 February 2017.
  • Plaintiff to pay defendant's costs on attorney own client scale from 16 February 2017 until withdrawal of proceedings.