Collen v Tiry (1409/2008) [2010] ZAECPEHC 81 (23 November 2010)

Collen v Tiry (1409/2008) [2010] ZAECPEHC 81 (23 November 2010)

The court found that the plaintiff was not justified in pursuing the defamation action without securing proof of publication, which is an essential element of such a claim. The defendant's application to compel particulars was unnecessary, as the plaintiff had already indicated his intention to withdraw the action. Accordingly, the court held that each party should bear its own costs for the application to compel, but the plaintiff should pay the costs of the main action and the application for leave to withdraw, as he was in the position of an unsuccessful litigant.

Citation
[2010] ZAECPEHC 81
Parties
Defendant: Howard Collen; Plaintiff: Moosa Tiry
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
23 November 2010
Case Number
1409/2008
Procedural Posture
Civil Application / Costs Determination Following Withdrawal and Interlocutory Applications
Outcome
Plaintiff's action withdrawn; costs awarded against plaintiff for main action and withdrawal application; each party to pay own costs for application to compel particulars.
Judges
D.Z. Dukada
Legal Topics
Withdrawal of Action, Costs Award, Defamation, Publication Requirement
Civil Procedure Delict Withdrawal of Action Costs Award Defamation Publication Requirement

Case Brief

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Parties

Howard Collen

Defendant

Moosa Tiry

Plaintiff

Procedural Posture

Civil Application / Costs Determination Following Withdrawal and Interlocutory Applications

Legal Issues

  1. 1 Whether the plaintiff should bear the costs of the main action and the application for leave to withdraw.
  2. 2 Whether the defendant is entitled to costs for the application to compel delivery of particulars for trial.
  3. 3 Whether the plaintiff was justified in instituting and pursuing the defamation action without proof of publication.

Ratio Decidendi

The court found that the plaintiff was not justified in pursuing the defamation action without securing proof of publication, which is an essential element of such a claim. The defendant's application to compel particulars was unnecessary, as the plaintiff had already indicated his intention to withdraw the action. Accordingly, the court held that each party should bear its own costs for the application to compel, but the plaintiff should pay the costs of the main action and the application for leave to withdraw, as he was in the position of an unsuccessful litigant.

Court Disposition

Plaintiff's action withdrawn; costs awarded against plaintiff for main action and withdrawal application; each party to pay own costs for application to compel particulars.

Orders

  • Each party shall pay its own costs in respect of the application to compel plaintiff to deliver a reply to defendant's request for particulars for trial.
  • Plaintiff shall pay costs occasioned by the application for leave to withdraw the main action.