Ostling N.O v Road Accident Fund (656/07) [2008] ZAECHC 34 (6 May 2008)

Ostling N.O v Road Accident Fund (656/07) [2008] ZAECHC 34 (6 May 2008)

The court held that the qualifying fees for Dr Holmes were reasonably and properly incurred at a time when his employment as an expert was necessary for the proper conduct of the litigation. The decision to engage Dr Holmes was prompted by a material change in the injured party's condition, and the subsequent abandonment of the amended claim and decision not to call him as a witness were due to unforeseen circumstances (the injured party's death) and the need to settle. The entitlement to qualifying fees is determined by the necessity at the time of incurrence, not by hindsight or the fact that the expert was not ultimately called. The court found no reason to penalize the plaintiff for...

Citation
[2008] ZAECHC 34
Parties
Plaintiff: Hilmer Walter Ostling N.O.; Defendant: Road Accident Fund
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
6 May 2008
Case Number
656/07
Procedural Posture
Civil Trial / Costs Determination Following Settlement
Outcome
Plaintiff's entitlement to the qualifying fees of Dr Holmes as part of taxed party and party costs is confirmed.
Judges
RJW Jones
Legal Topics
Expert Witness Costs, Taxation of Costs, Qualifying Fees, Settlement, Personal Injury
Civil Procedure Expert Witness Costs Taxation of Costs Qualifying Fees Settlement Personal Injury

Case Brief

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Parties

Hilmer Walter Ostling N.O.

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Costs Determination Following Settlement

Legal Issues

  1. 1 Whether the plaintiff is entitled to recover the qualifying fees of an expert witness who was not called to testify.
  2. 2 Whether the costs incurred for the expert were reasonably necessary for the proper conduct of the litigation.
  3. 3 Whether the abandonment of the amended claim and the decision not to call the expert affects entitlement to qualifying fees.

Ratio Decidendi

The court held that the qualifying fees for Dr Holmes were reasonably and properly incurred at a time when his employment as an expert was necessary for the proper conduct of the litigation. The decision to engage Dr Holmes was prompted by a material change in the injured party's condition, and the subsequent abandonment of the amended claim and decision not to call him as a witness were due to unforeseen circumstances (the injured party's death) and the need to settle. The entitlement to qualifying fees is determined by the necessity at the time of incurrence, not by hindsight or the fact that the expert was not ultimately called. The court found no reason to penalize the plaintiff for...

Court Disposition

Plaintiff's entitlement to the qualifying fees of Dr Holmes as part of taxed party and party costs is confirmed.

Orders

  • The defendant is ordered to pay the costs and reasonable qualifying expenses, if any, of Dr Richard G Holmes, Psychologist, as part of the taxed party and party costs.
  • The provisions of paragraphs 1, 2, 3 and 4 of the draft order are incorporated as identified and marked.