Access Bank Zambia Limited v Mulenga Mundashi Kasonde Legal Practitioners (Sued as a Firm) (2016/HP/0996) [2026] ZMHC 6 (7 January 2026)

IN THE HIGH COURT FOR ZAMBIA 2016/HP/0996 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN PRINICIPAL 7 JAN 2026 GISTRY. 7 50067,l. U ACCESS BANK ZAMBIA LIMITED PLAINTIFF AND MULENGA MUNDASHI D EFENDANT KASONDE LEGAL PRACTITIONERS (Sued as a firm) Before the Honourable Lady Justice C. M Lombe in open Court. For the Plaint~ff: Mr. L. Yeta of Messrs Central Chambers For the Defendunt: Mr. JP Sangwa S. C, Mr. J Chimankata both of Messrs. Simeza Sangwa and Associates JUDGMENT CASES REFERRED TO: I. Masauso Zulu v Avondale Housing Project Limited [1982} ZR 172 2. 3. 4. Sobek Lodges Limited v Zambia Wildlife Authority (2011)(2) ZR 235 Industrial Finance Company Limited v Jacques and Partners (1981) Z. R. 75 Arthur JS. Hall and Co. v Simons (2000 / 3 All ER 673 5. Ridehalgh v H orse.field [1994] Ch. 205 J1 . '- 6. 7. 8. 9. Ronde! v Worsley [1967} 3 WLR 1666 Saif Ali v Sydney Mitchell & Co. [1978} UKHL 11102-2 Zambia Revenue Authority v Shah (SCZ JO of 2001) [2001} ZMSC 23 (25 June 2001) July Danobo TI A Juldan Motors v Chimsoro Farms Limited (SCZ Judgement 15 of 2009) JO. Edna Nyasalu v the Attorney General (1983) ZR 105 11. Zambia National Building Society v Ernest Mukwamataba Nayunda (No. 11 of 1998) 12. Savenda Management Services v Stanbic {Appeal 37 of 2017) 13. Khalid Mohamed v The Attorney General 1982 ZR 66 14. Blyth v Birmingham Waterworks Company [1856) 11 EX 781 15. Shiells v Blackburne ({I 789), I Hy Bl 158 at p 162) 16. Hedley Byrne & Co Limited v Heller & Partners Limited 17. Bem'/lvR. HE 18. Abraham M ohamed and Alantara Transport Limited v Safeli Chumbu (1993-1994) ZR 4 I 9. Andrew Tony Mutate v Crushed Stone Sales Limited {I 994) S. J 98 (SC) 20. Phillips Mhango v Dorothy Ngulube and Others (1983) ZR. 61. 21. Zambia Telecommunications Company Limited v Bernard Aaron Saka/a Appeal No. 152/2010. LEGISLATION REFERRED TO: 1. The Legal Practitioners' Practice Rules, 2002 J2 OTHER MATERIALS REFERRED TO: 1. Blair, Brennan, Jacob, and Langstaff, Bullen and Leake, and Jacob's Precedents of Pleading~ Seventeen Edition, Volume 2, {Thomson Reuters (Professional) U. K Limited, 2012). Jackson and Powell on Professional Liability, seventh edition (Sweet and Maxwell, 2012). 2. 3. R. A. Percy, Charlesworth on Negligence, 6th Edition, {London, Sweet and Maxwell, 1997). 4. Phipson on Evidence l?h Edition by Sweet & Maxwell (2010) 5. A Gardner, Black's Law Dictionary 8th Edition, St Paul, Thomas West John Murphy, Street on Torts, thirteenth Edition, (Oxford University Press, 6. 2012). Z A. Cordery, Cordery's Laws Relating to Solicitors, ?h Edition, (London, Butterworth~ 1981) I. INTRODUCTION 1.1. This is a claim founded in professional negligence against a law firm. The Plaintiff alleges that the Defendant, while acting as counsel on record in appellate proceedings before the Supreme Court of Zambia, failed to competently prepare and maintain a compliant Record of Appeal, resulting in the appeal being dismissed on a preliminary objection for non-compliance with the Rules of Court. 1.2. The Plaintiff, Access Bank Zambia Limited (hereinafter Access Bank), commenced this action against the Defendant, Mulenga Mundashi Kasonde Legal Practitioners (herein after MMKLP), on J3 • ., 19th May 2016 by way of writ of summons and statement of claim. The Defendant equally filed their Defence to the action. 2. PLEADINGS 2.1. WRIT OF SUMMONS AND STATEMENT OF CLAIM 2.2. The endorsement on the Writ was as follows: t. Damages arising from the professional negligence and I or breach of duty of care of the Defendant in providing professional services to the Plaintiff and/ or tt. Damages in the sum of ZMW23, 955,636.56 being money lost as a result of the professional negligence and breach of duty of care by the Defendant and I or; m. Refand of ZMWJ0J, 752. 72 being legal fees charged by the Defendant to the Plaintiff for services rendered not to the required standard of skill expected of them and/or iv. Damages and/ or indemnity for a claim for legal costs from Messrs D. H Kemp and Co. arising from an order for costs made against the Plaintiff caused by the Defendant's negligent provision of services. Special damages in the sum of US$11, 600. 00. Interest on any award at the commercial bank lending rate as placed by the Bank v. vi. of Zambia from the date of the wn't to the date of payment. vtt. Any other relief the court may deem fit to give to the Plaintiff vm. Costs. 2.3. In the statement of claim the Plaintiff stated that on or about 5th May 2011, it retained the services of the Defendant to act as its advocates to J4 defend it, in an action commenced by a Joint Venture Group challenging a set-off, particulars of which are set out in the action Group Five/ZCONv Access Bank Cause No. 201 l / HPC/ 0180. 2.4. It was further stated that on or about 26th February 2014, the High Court of Zambia delivered aJudgment in Cause No. 2011/HPC/0180 which upheld the claims by the Joint Venture and made the following orders: z. ii. m. zv. That the Plaintiff should pay the sum ofZAR38,108,914. 73 That the Plaintiff should pay the sum of ZMW 20,000. 00 as damages for breach of statutory duty. Interest on the above sums. Costs 2.5. Following the Judgment, the Plaintiff consulted the Defendant on the said Judgment whereupon the Defendant advised the Plaintiff that it had a reasonable chance of success on appeal in the Supreme Court. The Plaintiff acted on the advice of the Defendant and proceeded to instruct the Defendant to appeal theJudgment to the Supreme Court. 2.6. It was stated that the Defendant in agreemg to undertake the said instructions, had implied terms of the retainer as follows: i. That the Defendant would carry out the Plaintijf's instructions with reasonable diligence; and ii. That the Defendant would exercise reasonable skill and care with performance pursuant to the retainer. JS 2.7. It was stated that in the alternative, the Defendant in agreeing to undertake the said instructions owed the Plaintiff a duty of care in tort to the like effect pursuant to the said retainer. 2.8. It was further stated that in line with the instructions given to the Defendant, the Plaintiff was notified by the Defendant that Appeal No. 76 of 2014 was lodged in the Supreme Court on 28th April 2014 and in addition, an application for stay of execution of the High CourtJudgment. 2.9. It was also stated that consonant with the above, the High Court granted the Plaintiff a stay of execution of theJudgment dated 26th February 2014 but ordered the Plaintiff to pay into Court the sum of ZMW23 ,955,636.56 which was the subject matter of the dispute in the High Court and directed the amount to remain in the High Court pending hearing of the appeal in the Supreme Court. 2 .10. The Plaintiff stated that there was an implied term of the retainer that the funds paid into Court would be returned upon the successful conclusion of the appeal process in the Supreme Court. 2.11. The Plaintiff further stated that it never heard from the Defendant concerning the Appeal from the time of its lodgement on 28th April 2014, until 16th February 2015 , when the Defendant informed the Plaintiff that its Appeal was dismissed on 28th November 2014. In addition, the Plaintiff was also informed that the stay of execution granted was also discharged. J6 2.12. It was stated that it was later discovered that when Group Five/ ZCON, the Respondent to the Appeal were served with the Record of Appeal, they raised a preliminary objection on 5th August 2014 to the effect that the Record of Appeal was prepared in breach of or non - compliance with the Supreme Court Rules and was therefore incompetent. 2.13. The Plaintiff further stated that the Defendant had notice of the Respondent's intention to raise a preliminary objection 7 days before the hearing and could have acted to remedy the situation but did nothing. It was stated that a further period of four (4) months elapsed between the date of filing the Appeal to the date of hearing but the Defendant elected not to remedy the defective Record of Appeal filed before the Supreme Court. 2.14. The Plaintiff also stated that, when the appeal was called for hearing, it was dismissed based on the preliminary objection raised. In dismissing the Plaintiffs Appeal No. 76/ 2014, the Supreme Court in itsJudgment dated 28th November 2014 made a finding that, the Record of Appeal was incompetent and that the breaches in preparing the said record in terms of Rule 10 (1) and (5) and Rule 58 (1) and (4) were fatal and went to the very root of the Appeal process. 2.15. The Supreme Court further observed that the appeal was filed on 28th April 2014 and the Appeal was cause listed four months later on 13th August 2014, therefore giving the Defendant time to apply to amend the Record of Appeal under Rule 68 (1), or withdrawn the Appeal and filed a J7 competent Record of Appeal but they simply sat back until the appeal was called for hearing. 2.16. The Plaintiff stated that, in consequence of the Appeal being dismissed for being incompetent, the stay of execution granted by the Supreme Court was discharged and the sum of ZMW23,955,636.56 deposited into Court was paid out, much to the Plaintiffs prejudice. 2.17. The Plaintiff maintained that while all this occurred it was not made aware by the Defendant. The Plaintiff stated that, in an attempt to mitigate the effects of the dismissal of the appeal, the Defendant recommended to the Plaintiff that there was a need to engage second Counsel of the rank and dignity of State Counsel to launch a Notice of Motion in the Supreme Court to challenge theJudgment dismissing the appeal. 2.18. It was stated that the Defendant convinced the Plaintiff to bring on board Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners who launched a Notice of Motion on behalf of the Plaintiff in Cause No. SCZ/8/52/2014 which Notice of Motion was dismissed by the Supreme Court. 2.19. The Plaintiff further stated that US$11,600.00 was paid to Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners for their services. In dismissing the Notice of Motion in Cause No. SCZ/8/ 52/2014 on 26th February 2016, the Supreme Court maintained that the Record of Appeal in Appeal No. 76 of 2014 was prepared in breach of the Rules of the Court and thus incompetent. J8 2.20. It was stated that the Defendant negligently handled the Plaintiffs case, by failing to carry out the Plaintiffs instructions with reasonable diligence or to exercise reasonable skill and care in the performance of its duties pursuant to the said retainer and implied terms. 2.21. The Plaintiff particularised the negligence as follows: t. Preparing a defective record of appeal contrary to the Rules of the Supreme Court led to the appeal being dismissed for being incompetent. tt. Failing to process the Appeal with reasonable diligence, in particular, failing to compile the record of appeal in accordance with the rules of the Supreme Court. m. Failing to advise the Plaintiff at timely intervals of the occurrences in the case, in particular, failing to inform the Plaintiff of the ramifications of the dismissal of Appeal and none disclosure and recklessly misleading the fact that, money paid into court believed to have been held by Court was in fact, paid out to the Joint Venture Group 5 months after the initial independent discovery by the Plaintiff. iv. Failing to take corrective measures to cure the defect even after being served with the Notice of Intention to make a preliminary objection on the Record of Appeal by the Respondent Advocates 7 days before the date of hearing. J9 v. Failing to take corrective measures to cure the defect notwithstanding the fact that the Defendant had a period of four (4) months from lodgement of appeal to date of hearing to correct the defects. vt. Failing to select the correct measures to cure the defects, in particular, the choice of submitting a supplementary record of appeal not provided for by law to cure the defect when they could have simply applied to amend the record of appeal or withdrawn the record of Appeal and filed a fresh one. vtt. Failing to exercise reasonable due diligence thereby causing or permitting the Plaintiff's Appeal to be dismissed without being heard on its merits. 2.22. The Plaintiff further particularised its loss and damage as follows: t. The Plaintiff has lost the sum of ZMW23, 955,636.56 paid into court pending the determination of Appeal u. The Plaintiff has lost the sum of ZMW301, 725. 72 being money paid to the Defendants relating to their legal costs for representing it in the Appeal which consideration was wholly wasted/failed as a result of the Defendant's professional negligence. m. The Plaintiff has been condemned to pay the costs of the proceedings in the Supreme Court following the dismissal of the appeal as costs usually follow the event. 2.23. The Plaintiff also pleaded special damages as follows: JlO .. t. US$] 1,600.00 being money incurred in mitigating its damage, including but not limited to fees incurred in retaining new Counsel Messrs, Eric Silwamba, Jalasi and Linyama Legal Practitioners in relation to the Notice of Motion to resist the application to dismiss the Appeal. 2.24. It was lastly stated that the Plaintiff wrote a letter of demand dated 21 st March 2016 to the Defendant to make good on their claim to which no favourable response has been received. It was stated that because of the Defendant's negligent actions, the Plaintiff suffered consequential loss and damage. 2.25. DEFENCE 2.26. The Defendant responded by way of an Amended Defence filed on 27th April 2022. The Defendant stated that its representations to the Plaintiff on the possible outcome of the Appeal embodied the opinion of the Defendant based on the review of the proceedings before the High Court and understanding of the law at the material time. 2.27. It was stated that the Plaintiff made its own independent decision to engage and instruct the Defendant to act for the Plaintiff in the Appeal before the Supreme Court. 2.28. The Defendant stated that it enjoyed immunity against suit at the instance of the Plaintiff in respect of its conduct and management of the Appeal before the Supreme Court as well as the preliminary work J11 connected with the Appeal such as the settlement of grounds of appeal, arguments in support of the grounds of appeal and the Record of Appeal. 2.29. The Defendant denied that there was an implied term that funds would be reimbursed to the Plaintiff and stated that there was no such term implied or express to guarantee the Plaintiff the outcome of the appeal and the Defendant had no such obligation at law. 2.30. The Defendant agreed that the order of the High Court staying execution lapsed after the Appeal was dismissed by the Supreme Court in theJudgment dated 28th November 2014. The Defendant maintained that information and developments as were relevant to the Appeal were communicated to the Plaintiff from time to time. 2.31. It was stated that the Respondent in Appeal No. 76 of 2014, filed a preliminary notice of objection, which any Respondent to an appeal before the Supreme Court was entitled to do in line with the Supreme Court Rules. It was further stated that the Defendant took the appropriate necessary steps given the circumstance of the case. The Supreme Court heard the parties and upheld the Respondent's objection. 2.32. The Defendant stated that based on the various decisions of the Supreme Court at the time of lodging the Appeal, it was not reasonably foreseeable that the lodging of the Record of Appeal prepared in a manner that did not comply with the Supreme Court Rules would result in the dismissal of the entire Appeal. J12 2.33. The Defendant further stated that the Plaintiff was kept informed on the developments relevant to the appeal. The Defendant advised the Plaintiff that it had the right to move the Supreme Court to review its decision dismissing the appeal and that Messrs Eric Silwamba, Jalasi & Linyama, which the Defendant has a close working relationship would be, in their judgment, better placed to lodge and prosecute such an application. 2.34. It was stated that notwithstanding the Defendant's advice to the Plaintiff to engage the firm of Messrs Eric Silwamba, J alasi & Linyama, the Plaintiff made its own independent decision to retain the said firm. The Defendant stated that it was not privy to the terms of engagement between the Plaintiff and Messrs Eric Silwamba, Jalasi & Linyama. 2.35. The Defendant maintained that it enjoyed immunity from suit by Plaintiff in respect of its conduct and management of the Appeal before the Supreme Court and the preliminary work connected with the Appeal such as the settlement of grounds of appeal, arguments in support of the grounds of appeal and the Record of Appeal. 2.36. The Defendant denied that it was guilty of any negligence or breach of duty as alleged in the statement of claim. It was stated that any injury, loss or damage which the Plaintiff may have suffered or sustained as alleged or at all was not caused by the alleged negligence of the Defendant. 2.37. It was stated that the sum of ZMW23,955 ,636.56 was part of the money, which the Plaintiff was obliged to pay under Cause No. 2011 / HPC/ 180, based on the High Court decision of 26th February 2014 in the same J13 cause. ZMW30 1, 725. 72 was neither loss nor damages suffered by the Plaintiff, but money paid for legal services rendered by the Defendant to the Plaintiff based on the terms of engagement agreed between themselves; and US$11,600.00 is neither loss nor damage suffered by the Plaintiff, but legal fees paid to Messrs Eric Silwamba, Jalasi & Linyama for services rendered. 2.38. The Defendant stated that in the alternative, following the dismissal of the Appeal by the Supreme Court on the premise that the Record of Appeal was defective the Plaintiff had the right to take such steps as were necessary to renew the Appeal before the Supreme Court and file a fresh Record of Appeal in line with theJudgment of the Supreme Court of 28th November 2014. 2.39. Lastly, the Defendant stated that the Plaintiff was not entitled to any of the reliefs claimed. 2.40. REPLY 2.41. In Reply the Plaintiff maintained that it expected the Defendant as legal practitioners, to execute its instructions with reasonable diligence and to exercise reasonable skill and care that oflawyers. 2.42. T he Plaintiff denied that the Defendant enjoyed immunity. The Plaintiff maintained that it was only informed of the discharge of the order of stay J14 .! of execution on 16th February 2015 and never received any updates or progress reports from the Defendant from the time of giving instructions. 2.43. It was stated that the Defendant, failed, for four (4) months, to take remedial steps to prevent the Appeal from being dismissed and in essence withheld information on the status of the appeal for 5 months which was prejudicial to the Plaintiff. 2.44. The Plaintiff further stated that the Defendant recommended second Counsel of the rank and dignity of State Counsel be engaged to launch a Motion in the Supreme Court to challenge the Judgment of the said Court dismissing the Plaintiff1s Appeal and it acted on this recommendation. 2.45. Lastly, the Plaintiff reiterated that the Defendant had no immunity as pleaded and suffered loss and damage as a result of which it was entitled to a remedy. The Plaintiff stated that the Defendant, as lawyers retained to act for it in the matter, ought to have advised it on the steps to take but failed to do so. 3. TRIAL 3.1. PLAINTIFF'S CASE 3.2. Ndubuisi Lotenna Muoneneh (PWI) was the Plaintiffs sole witness. He confirmed that he filed a witness statement dated 10th May 2022, which was admitted into evidence as his evidence in chief, in which he stated that he was the Plaintiffs Group Head of Commercial Banking at the J15 time the Defendant was retained and engaged to represent the Plaintiff under Cause No. 201 l / HPC/ 0180 - Group Five/ZCONv Access Bank on or about srh May 2011. 3.3. PWI further testified that on or about 26th February 2014, the High Court of Zambia delivered a Judgment in favour of Group Five/ZCONand made the following orders: (i) That the Plaintiff should pay the sum of ZAR38, 108,914.73 (ii) That the Plaintiff should pay the sum of ZMW 20,000.00 as damages for breach of statutory duty. (iii) Interest on the above sums. (iv) Costs 3.4. PWI went on to state that following the aforestated Judgment of the High Court the Plaintiff consulted the Defendant, who advised the Plaintiff that it had a reasonable chance of overturning the decision on appeal in the Supreme Court. The Plaintiff acting on the advice of the Defendant proceeded to instruct the Defendant to launch an appeal in the Supreme Court which instructions the Defendant agreed to undertake. 3.5. PWI stated that the Plaintiff was notified by the Defendant that Appeal No. 76 of 2014 was lodged in the Supreme Court on 28th April 2014 and in addition, the Defendant applied for a stay of execution of the High Court decision, which was granted but on condition that the Plaintiff paid into Court the sum of ZMW23,955,636.56, which was the subject matter of the dispute in the High Court pending hearing of the appeal in the Supreme Court. J16 3.6. PWl further testified that, between the time of lodging the Appeal on 28th April 2014 and 16th February 2015, the Plaintiff did not hear anything from the Defendant and was completely in the dark as to what was going on, until 16th February 2015 when the Defendant informed the Plaintiff that the Appeal filed on 28th April 2014 was dismissed on 28th November 2014 and in addition that the stay of execution was also discharged. 3. 7. PWI stated that the Defendant never furnished the Plaintiff with the reasons as to why the appeal was dismissed. Reference was made to a letter appearing at page 453 of the Plaintiff's Bundle of Documents. 3.8. He further stated that it was later discovered that when Group Five/ZCONbeing the Respondent in Appeal No. 76 of 2014 was served with the Record of Appeal, it raised a preliminary objection on 5th August 2014, that the Record of Appeal was prepared in breach of or that it was non - compliant with the Supreme Court Rules and was therefore incompetent. 3.9. Reference was made to pages 1 to 446 of the Plaintiff's Bundle of Documents consisting of the incompetent Record of Appeal, Preliminary Issue raised, Record of Proceedings and the subsequentJudgment dismissing the Appeal all to show the failure to professionally prepare the Record of Appeal by the Defendant. 3 .1 O. It was stated that the Defendant had notice of the Respondent's intention to raise a preliminary objection 7 days before the hearing and J17 PWI verily believed that, the Defendant could have acted to remedy the situation but did nothing. 3 .11. PWI further stated that, if one clearly and strictly looked at the circumstances, a period of four ( 4) months elapsed between the date of filing the appeal to the date of hearing but the Defendant elected not to remedy the defective Record of Appeal filed . 3.12. PWI stated that when the Appeal was called for hearing, it was dismissed based on the preliminary objection raised by the Respondent. Reference was made to theJudgment appearing at pages 441 to 446 of the Plaintiff's Bundle of Documents specifically as follows: "the Record of Appeal was incompetent and that the breaches in preparing the said record in terms of Rule 10 (1) and (5) and Rule 58 (1) and (4) were fatal and went to the very root of the appeal process .... the Record of Appeal was filed on 28th April 2014 and the Appeal came up almost four months later on 13th August 2014, thus the Defendant could either have applied to amend the record under Rule 68 (1), or withdrawn the Appeal and filed a competent Record of Appeal but they simply sat back until the appeal was called for hearing." 3.13. PWI testified that as a consequence of the Appeal being dismissed for being incompetent, the stay of execution granted was discharged and the sum of K23 ,955,636.56 paid into Court was paid out to the Joint Venture Group much to the Plaintiff's prejudice. The Plaintiff in the J18 ! meantime was not made a ware of all of this by the Defendant, which PWl believed was an ethical violation. 3.14. It was stated that for 5 months, the Defendant withheld information and did not inform the Plaintiff that the sum of K.23,955 ,636.56 was paid out to the Group Five/con Business Venture. Reference was made to the letter appearing at pages 450 and 453 of the Plaintiffs Bundle of Documents evidencing this fact. 3.15. PWl testified that that in an attempt to mitigate the direct consequences and/ or effects of the dismissed Appeal, the Defendant recommended to the Plaintiff that there was a need to engage Counsel of the rank and dignity of State Counsel to launch a Notice of Motion in the Supreme Court to challenge theJudgment dismissing the appeal. 3 .16. PW 1 further testified that, the Defendant convinced the Plaintiff to bring on board Messrs Eric Silwamba, J alasi and Linyama Legal Practitioners who launched a Notice of Motion on behalf of the Plaintiff in Cause No. SCZ/ 8/ 52/ 2014 which Notice of Motion was dismissed. The said Messrs Eric Silwamba, J alasi and Linyama Legal Practitioners, were paid US$11 ,600.00 as shown at pages 453 and 454 of the Plaintiffs Bundle of Documents. 3.17. PWl stated that in dismissing the Notice of Motion in Cause No. SCZ/ 8/52/ 2014 on 26th February 2016, the Supreme Court stood its ground in holding that the Record of Appeal in Appeal No. 76 of 2014 was prepared in breach of the Rules of the Court and was incompetent. J19 This was confirmed by the Judgment appearing at pages 455 to 488 of the Plaintiffs Bundle of Documents. 3.18. He further stated that the matter was taken to the Constitutional Court in the hope of reversing the Supreme Court decision however, the Constitutional Court in upholding the Supreme Court position on 27th March 2019 delivered its judgment dismissing this attempt. This was evidenced by the Judgment appearing at pages 490 to 520 of the Plaintiffs Bundle of Documents. 3 .19. PWl stated that as a result the Plaintiff suffered loss and damage for which the Defendant was liable and claimed as follows: (i) The Plaintiff lost the sum of ZMW23, 955, 636.56 being money paid into Court pending determination of the appeal which appeal could not be determined on its merits because of the Defendant's negligence which led to its dismissal. The money paid into Court was evidenced at page 526 of the Plaintiff's Bundle of Documents. (ii) The Plaintiff lost the sum ofK301,725.72 being money paid to the Defendant relating to its legal costs in representing the Plaintiff in the Appeal which consideration was wholly wasted/ failed as a result of the Defendant's professional negligence. PWl verily believed that the Plaintiff should not have to pay for work that resulted in the dismissal of its Appeal. J20 (iii) The Plaintiff was condemned to costs of the proceedings in the Supreme Court and Constitutional Court following the dismissal of the Appeal and mitigating applications in the sum of K574,868.36, which as a result of the Defendant's negligence should be borne by the Defendant and/ or indemnified by them. Reference was made to the Proof of payments to Messrs DH Kempt at page 526 of the Plaintiff's Bundle of Documents. Particulars of Special damage (iv) Furthermore, the Plaintiff lost the sum of USDl 1,600.00 being money incurred in mitigating its damage, including but not limited to fees incurred in retaining new Counsel Messrs, Eric Silwamba, J alasi and Linyama Legal Practitioners in relation to the notice of motion to resist the application to dismiss the appeal. This was confirmed at page 454 of the Bundle. 3.20. PWl further testified that an effort to settle this matter amicably was made to allow the Defendant make good on its negligence to no avail. PWl stated that he believed that the Defendant acted negligently in the handling of its case in breach of a duty of care inherent in all professional bodies who hold themselves out to be qualified persons. 3.21. PWl prayed that the court uphold the reliefs claimed. PWl was not cross-examined. 3.22. This marked the end of the Plaintiff's case. J21 3.23. DEFENDANT'S CASE 3.24. Mulenga Chiteba (DWI), a lawyer and partner in the firm of Mulenga Mundashi Legal Practitioners was the sole witness for the Defendant. He testified that the Defendant was retained sometime in May 2011, in respect of litigation that was ongoing in the High Court in which the Plaintiff had been sued by Group Five/ ZCON- a joint venture, for the wrongful debit of about ZMW23,000,000.00 from their account. 3.25. According to DWI, the joint venture was made up of two entities, a local company namely ZCONand a South African company called Group Five. In determinant to the joint venture, ZCON Limited had a facility with the Plaintiff and side by side with that the joint venture had bank accounts, operational accounts which were holding funds for the construction of Levy Business Park. 3.26. He stated that to manage their exposure to ZCON, the Plaintiff called in the facilities that were held by ZCON and in so doing debited the sum of about ZMW23,000,000.00 which was equivalent to about ZAR38,000,000.00 from the joint venture account. The Plaintiff did so in exercise of their right to set off under their facility with ZCON. 3.27. DWI testified that the joint venture protested this action by the Plaintiff, firstly in writing and in addition commenced legal action against the bank, in 2011 seeking reversal of the amount that was J22 debited from the joint venture account among other claims including breach of the duty to act on the client's instructions. 3.28. DWl further testified that when the matter was commenced the firm Mesdames Theotis Mataka and Sampa Legal Practitioners (hereinafter referred to as TMS) were the Plaintiffs advocates and the Defendant was approached by Ms Ann Sampa who was a partner in the firm and asked the Defendant to join the Plaintiffs defence against the joint venture. 3.29. DWl testified that that based on the approach, the Defendant reviewed the documentation and agreed to sign an engagement letter which provided for the scope of services which included providing a legal opinion on the merits of the claim as well as acting for the Plaintiff in the litigation. 3.30. He stated that after reviewing the documentation, a proposal was made that subject to some amendments to the Defence that was before the Court, the Plaintiff had reasonable prospects of success in respect of the claim. The initial Defence that was put forward by the Plaintiff was the Defence of set-off in accordance with the facility letters that the Plaintiff had with ZCON. 3.31. DWI testified that the proposed amendments were accepted by the Plaintiff in addition to the Defence of common law rights of equitable settlement. He stated that in terms of the application in the manner in which the settlement was done, it appeared on the face of it that the set- J23 off was done against the party that was not privy to the facility between the Plaintiff and ZCON. 3.32. The advice was based on the concept of equitable set-off, which may have been permissible although it was a novel issue in the jurisdiction as there had not been a specific decision on the point then by the Zambian Courts. 3.33. DWI narrated that their instructions to proceed were confirmed. He stated that in terms of remuneration for the services provided, the same was based on hourly rates that were agreed in line with the letter of engagement. DWI testified that that the Defendant then proceeded to make amendments to the Defence as well as assume joint conduct of the matter with TMS . 3.34. DWI further testified that that an application was made seeking to remove TMS from acting for the Plaintiff based on a conflict of interest as one of the partners in TMS was a Director on the PlaintifPs board. TMS withdrew as Advocates on record. 3.35. DWI mentioned that at the time the Defendant was approached by TMS, to join the team as co-advocates, the interactions with the client were generally either through TMS or with their involvement and this continued even after they formerly withdrew from the proceedings. 3.36. DWI testified that the matter between Group Five/ZCONand the Plaintiff proceeded to trial and in early 2014, a Judgment was rendered by Judge Wood, sitting as High Court Judge in favour of Group J24 Five/ZCON. The Judgment ordered among other things for the payment of about ZAR38,000,000.00 and ZMW20,000.00 in respect of a breach of statutory duty payable immediately in relation to the breach of the duty of care of the Bank to its customer. 3.37. DWI further testified that the Plaintiff was notified and their immediate reaction was to try and safeguard themselves from the possibility of execution given the amount that was ordered to be paid. A meeting was held and attended by Ms. Theotis ofTMS as well as the Plaintitrs Chief Executive Officer, to enable the Defendant to provide a review of the judgement and options available to the client. 3.38. DWI stated that the Plaintiff was advised that the matter was worth appealing because it raised a novel issue on which a determination by a higher Court would have been necessary. He stated that although they couldn't give a guarantee of success there was a chance of success. 3.39. According to DWI they were instructed to appeal immediately and applied for a stay of execution of the High Court Judgement. They proceeded to settle the Record of Appeal and Memorandum of Appeal and draw up an application for stay of execution. 3.40. DWI stated that Honourable Justice A. M Wood initially declined to grant the stay and made the matter inter-partes. He stated that before the Judge could hear the matter he ascended to the Supreme Court and the matter was reallocated to Judge W. S Mweemba who granted the stay pending appeal. J25 3.41. He stated that the stay was granted on condition that the Judgement sum was paid into Court. An agreement had to be made on how the payment was to be made considering that the judgment sum was in South African Rands. Instructions were sought with TMS and ultimately there was a confirmation of the rate at which the money would be paid and was paid. 3.42. DWI testified that that they proceeded to prepare the Record of Appeal which was filed at the end of April and served the record on the Respondent's advocates. He stated that the Plaintiff requested a copy of the Record of Appeal and Heads of Arguments through TMS which was availed. 3.43. He further testified that that the matter was set down for hearing at the Kabwe Session in August 2014, and the Plaintiff was notified through TMS and waited to be saved, Heads of Arguments in opposition to the Appeal. DWI stated that no Heads of Arguments in opposition were served, but on 6th August 2014, exactly a week before the hearing of the Appeal, a notice of objection was received, which sought a dismissal of the Appeal on the basis that there were defects in the Record of Appeal. 3.44. DWI testified that the notice of objection was received at a fairly short notice and within the window, no application was filed before the Supreme Court. He stated that their considered view was that the objection lacked merit and was unlikely to succeed based on the established practice of the Supreme Court in hearing appeals on their J26 merits. The view was also taken because the objection was unusual in the manner in which it was couched. 3 .45. DWI further testified that the objection was unusual as it was not on the basis that there were mandatory documents omitted from the record, but rather, the Respondents to the appeal went to great lengths, pointing out that some particular lines of the record were not clear or easily legible. DWI reiterated that based on established principles, this was not a reason on which an Appeal was ever dismissed prior to this case. 3.46. DWI stated that the Supreme Court's response to such applications was to allow matters to be heard on their merits, as long as the breach complained of, was not fatal to the determination of the Appeal. He stated that the Defendant then decided to take steps to remedy the defects as well as to oppose the notice of objection. 3.47. DWI testified that that to remedy the defects, they reviewed all the pages that had been complained of, reprinted what they could and bound them into a Supplementary Record of Appeal which they sought to file before the Court. He stated that at the hearing they opposed the objection and statedthat it was an unusual objection, and the defects were curable and the Court was asked if a supplementary record could be filed. 3.48. DWI testified that at the beginning of December 2014, they received aJudgment, and before thisJudgment, they had sent a report to their J27 client in respect of what had happened at the hearing and the fact that theJudgment had been reserved. 3.49. According to DWI after theJudgment which dismissed the Appeal, the Defendant got in touch with their client through TMS and requested a meeting to discuss the way forward. A meeting was held with Ms Theotis of TMS as well as the Plaintiffs Chief Executive Officer, at which theJudgment was explained and the options available. 3.50. DWI testified that that, the Defendant also asked for a bit more time to come up with a more detailed position in terms of options for challenging theJudgment of the Supreme Court. He stated that one option they had was to ask ZCON, to be joined to the Appeal as a party that had not been heard, because that would introduce a fresh course to the proceedings, however, the parties to the joint venture, were not on the same page. 3.51. DWI further testified that that they were eventually given instructions to proceed with notice of motion, after their detailed review which statedthat theJudgment was contrary to the well-established practice of the Court, and that any defects that had been identified were curable. He stated that a grave injustice had been done to the Plaintiff in the matter. 3.52. DWI testified that side by side with the notice of motion, the Defendant applied before a single Judge to stay theJudgment of the Supreme Court pending the determination of the motion, as per the Plaintiffs instructions. The application was initially granted, and the heard inter- J28 partes before Judge Malila, sitting as a single Judge, who discharged the initial stay, on the basis that a single Judge, did not have the jurisdiction to stay a decision of the Supreme Court. 3.53. DWI further testified that the Plaintiff was informed about this development, a meeting was had and subsequently, correspondence was sent. According to DWI, an opinion was also sought from a retired Supreme Court Judge, on the merits of the motion, which opinion confirmed that considering that the Court had departed from its established practice, there was some light of success. 3.54. DWI testified that that theJudgment dismissing the appeal came with a great sense of shock, and efforts were made to mitigate the after effect. One proposal made to the Plaintiff was to consider engaging additional Counsel of the rank of State Counsel for the hearing of the motion and a decision was made to engage Eric Silwamba as co-counsel. 3.55. He stated that the Plaintiff confirmed and signed a retainer with Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners, as co advocates. One of the recommendations which was made to the Plaintiff was to apply to the Supreme Court, to have the full bench of the Court being a panel of five Judges as opposed to three, to enhance the prospects of success. The request was not granted by the Court and the matter was eventually listed for hearing before three Judges in January 2016. 3.56. DWI testified that that before the hearing of the Notice of Motion, the Defendant's retainer with the Plaintiff was terminated and it ceased to J29 - - - - - - - - - - - - - - - - -- - - - , , act for the Plaintiff. DWI stated that a report was then rendered to the Plaintiff and files were handed over to it. He further stated that despite the termination of the retainer the Defendant took a keen interest in the motion which was found to be unsuccessful following a judgment of the Supreme Court, in about March 2016. 3.57. DWI stated that he became aware that subsequently the Plaintiff also took out a petition before the Constitutional Court, against the Attorney General, challenging the dismissal of the appeal, in contravention of Article 118(2) of the Republican Constitution and the Plaintiff was represented by Messrs Eric Silwamba, J alasi and Linyama Legal Practitioners, in that matter. 3.58. Lastly, DWI stated that it never applied to amend the Record of Appeal or withdraw it as the action that it proposed to take, was within the power of the Court to grant, which was the filing of a Supplementary Record of Appeal. 3.59. When cross-examined DWI confirmed that the preparation of a Record of Appeal was provided for by statute. He stated that it was possible for a defective record of appeal to fall prey to an application for its dismissal. When referred to page 2 of the Plaintiffs Bundle of Documents, DWI confirmed that at the time the position was that the Record of Appeal was prepared in accordance with the rules of the Supreme Court. J30 3.60. He maintained that when the preliminary objection was served on the Defendant, its view was that under the established practice the particular record was not fatal and the defects could be corrected. 3.61. DWI confirmed that he was aware of the Supreme Court Judgment of July Danobo TI A Juldan Motors v Chimsoro Farms Limited, however, he stated that the circumstances in that case and what happened to the Plaintiff were different. DWI was adamant that the filing of a supplementary record could have corrected the situation. 3.62. When referred to page 443 of the Plaintiffs Bundle of Documents DWI confirmed that the Supreme Court held the filing of a Supplementary Record of Appeal was not one of the corrective measures it could have taken. 3.63. When further referred to page 445 of the Plaintiffs Bundle of Documents, DWI denied that the Defendant had the opportunity to take corrective measures and did nothing. He stated that although the Court said t~e Defendant had 4 months, it had filed copies of Heads of Arguments in support of the Appeal with extensive reference to the record of appeal and it was only made aware of the breaches a week before the hearing. As far as it was concerned the record of appeal was competent for hearing of the Appeal. 3.64. DWI confirmed. that TMS was not involved in the preparation of the record of appeal, and maintained that the chain of communication was with the Plaintiff directly and at times with TMS. J31 3.65. DWI testified that that whilst the Defence filed in this matter, never mentioned TMS , his evidence amplified what was in the Defence as to what transpired and was not an afterthought. 3.66. DWI confirmed that the Defendant was on the record that dealt with the preliminary objection leading to theJudgment that dismissed the Plaintiffs Appeal. He further confirmed that Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners were only brought in later when theJ udgmen t was given by the full bench dismissing the appeal to bolster the prospects of the new motion that it intended to launch. 3.67. DWI stated that it would be fair to assume that had the Supreme Court granted leave to proceed with the appeal initially Messrs Eric Silwamba, Jalasi and Linyama Legal Practitioners .would not have been engaged as this was a direct consequence of the dismissed appeal. 3.68. DWI further stated that the stay of execution was granted on condition that money was paid into Court pending determination of the Appeal, and after the appeal was dismissed and was never heard on its merit, there was no reason for the stay to be sustained and money was paid out. 3.69. There was no re-examination. 3.70. This marked the close of the Defendant's case. 4. SUBMISSIONS J32 4.1 . At the close of the trial, the parties were invited to make their submissions. 4.2. I will not reproduce them here but will provide a summary of the thrust of the submissions. It must be stated from the outset that the purpose of submissions is to assist the Court in arriving at a just decision. 4.3. The Court is therefore by no means bound by the propositions advanced in the submission nor is the Court unduly swayed by the perceptions created by them. 4.4. PLAINTIFF'S SUB1\.1ISSIONS 4.5. In relation to whether or not the Plaintiff was entitled to the reliefs sought, it was stated that he who alleges must prove, reference was made to the ) and Sobek case of Masauso Zulu v Avondale Housing Project Limited < Lodges Limited v Zambia Wildlife Authority < >- 4.6. According to the Plaintiff what needed to be determined by this Court was as follows: 1) Whether the Defendant was guilty of professional negligence and; 2) If the answer in (1) above was in the affirmative, what damages are payable to the Plaintiff as a result of this breach? 4.7. The Court's attention was drawn to the case of Industrial Finance Company Limited v Jacques and Partners < > which held that: J33 "where a lawyer has instructions, he has a professional duty to protect his client so that where it is shown that the advocate has failed to exercise his duty at the expense of his client, then the lawyer must make good and pay for the damage" 4.8. Furthcrmore, Reference was madeto the case of Arthur J. S. Hall and Co. v Simons <4> which cited with approval the case of Ridehalgh v Horsefield <5> in which Sir Thomas Bingham held that "individuals differ in their style and approach. It is only when, with all allowances made, an advocate's conduct of court proceedings is quite plainly unjustifiable that it can be appropriate to make a wasted costs order against him. " 4.9. The Plaintiff referred to the learned authors of Bullen and Leake and > as follows: Jacob's Precedent of Pleadings < "Negligence by a professional person can give rise to liability to the victim in contract or tort. There is usually some contractual arrangement between the claimant and the professional person whereby the latter came to be appointed to provide professional services in question. Any contract whereby a person was appointed to provide professional services would, in the absence of any exclusion clause contain express, or implied obligations to provide the services with the circumstances. The content of such implied term would almost always J34 be coterminous with the duty of care which such relationship would give rise to as between the parties to the contract. " 4.10. Further reference was made to the learned authors of Jackson and Powell, on Professional Liability <2lwho stated as follows: "once proceedings are underway, the claimant's solicitor has a duty to prosecute the action with reasonable diligence. Jf therefore, the action is struck out for delay such as failing to comply with time limits, he will have no defence to an action for breach of duty, unless the client has caused or consented to the delay. It appears that delay by counsel does not afford the solicitor a defence. Jf counsel is dilatory, the solicitor should regularly chase up, and if no response is forthcoming withdraw his instructions, and pass them to another barrister for more ready response" 4.11 . Reliance was placed on the learned authors of Charlesworth on Negligence <3l who opined as follows: "it follows that an action for negligence will lie for damages caused by the failure to exercise due care and skill by proving either that the defendant did not possess the requisite skills or by showing that, although he possessed it, he did not exercise it in a particular case. " 4.12. It was submitted that the Defendant accepted the Plaintiffs instructions as per the evidence on record and with that was an express or implied duty of care either statutory or contract. Reference was made to the learned authors of Bullen and Leake and Jacob's Precedent of Pleadings J35 O)in that any contract whereby a person was appointed to provide professional services would, in the absence of any exclusion clause contain express, or implied obligations to provide the services with the circumstances and that as per the case of Industrial Finance Company ) a duty arose the minute instructions Limited v Jacques and partners C were accepted. 4.13. It was submitted that the preparation of a record of appeal was provided for by statute under the Supreme Court Rules, therefore the Defendant had a duty of care in contract, tort and statute being a professional. 4.14. It was further submitted that the Defendant was mandated to file the Record of Appeal in accordance with the rules but failed to do so and the Judgments produced under the Plaintiffs Bundle of Documents at pages 441, 455 and 490 confirmed this failure. It was stated that there was enough jurisprudence at the time to have alerted the Defendant that a defective record was liable to be dismissed. 4.15. It was also submitted that the Defendant was knowledgeable and possessed the requisite skill as it issued an Advocates' Certificate stating that it prepared the Record of Appeal in accordance with the Rules of the Supreme Court when in fact not and therefore was in breach of its duty. 4.16. According to the Plaintiff, it suffered damages as a result of its dismissed appeal which was not heard on its merits. The amounts paid into Court, pending the appeal were paid out and the Plaintiff further suffered wasted costs in trying to mitigate the dismissal of the appeal, such as the J36 engagement of Messrs Eric Silwamba Jalasi and Linyama Legal Practitioners. 4.17. It was submitted that on a balance of probabilities, the Plaintiff had adequately shown that the Defendant was guilty of professional negligence and ought to be condemned to damages. 4.18. In relation to damages payable, it was submitted that the law reaffirmed time and time that damages aim to bring the victim to a position they were in before the breach occurred. 4.19. DEFENDANT'S SUB1\.11SSIONS 4.20. The Defendant's submissions were broken down into four parts, part 1 addressed the Plaintiffs pleadings and how according to the Defendant, it failed to identify the issues in controversy between the parties. Part 2 tackled the Defendant's immunity from suit for negligence when involved in litigation. Part 3 revolved around negligence and lastly, part 4 dealt with damages to which the Defendant argued the Plaintiff was not entitled. 4.21. It was submitted that once the pleadings were settled neither the trial Court nor the parties to the action had the right to depart from or ignore them. Evidence must be adduced to prove issues in controversy between the parties and evidence that seeks to establish issues outside the pleadings is inadmissible. A plethora of decided cases were cited in relation to functions of pleadings. J37 4.22. It was stated that the Plaintiff had the duty during trial to prove the issues which could be gleaned from the pleadings that were in dispute between the parties. According to the Defendant based on the pleadings, two issues had to be determined if the Court was to find in favour of the Plaintiff: 1) That the Defendant does not enjoy immunity from the suit. 2) That the Defendant was liable to the Plaintiff for negligence. 4.23. It was submitted that if the Plaintiff failed to establish that the Defendant enjoyed no immunity, then there was no cause to consider the allegation of negligence. The Defendant held the view that the first issue for determination was whether the Defendant enjoyed immunity from suit and the burden was on the Plaintiff to prove that the Defendant enjoyed no such immunity. It was stated that if the Court held that there was no immunity to be enjoyed, the burden was again on the Plaintiff to prove that the Defendant was negligent in the manner it handled the Appeal. 4.24. The Defendant also stated that the Plaintiff failed to address the issue of negligence in its submissions and the issue of immunity being legal in nature, the Plaintiff ought to have done so. 4.25. Turning to the Defendant's immunity, it was submitted that the same was a common law Defence. The Defendant took the approach that despite the abolition of the immunity in the United Kingdom, this trial Court J38 should hold that as a matter of public policy legal practitioners in Zambia enjoy immunity from suit for negligence in litigation. 4.26. Reference was made to the case of Arthur J. S. Hall & Co. v Simmons < l on the immunity of advocates against suits for negligence and the rationale. It was stated that the reasons advanced in support of the decision to abolish immunity in England, do not currently exist m Zambia and therefore Courts in Zambia must follow the decision m Ronde! v Worsley <6l and Saif Ali v Sydney Mitchell & Co < 7l . 4.27. It was submitted that one of the issues, which informed the decisions in Ronde! v Worsley <6l and Saif Ali v Sydney Mitchell & Co < 7l was the need to prevent the re-litigation, and in this particular cause the Plaintiff seeks to relitigate the appeal, as it has refused to accept the decision of the Supreme Court and seeks to achieve, through this action, what it hoped to have achieved through the appeal, as evidenced from the claims set out in the statement of claim. 4.28. It was further submitted that based on the Rules of the Supreme Court , the preparation of a Record of Appeal was so intimately connected with the conduct or hearing of the appeal in the Supreme Court. It was indisputable, that this action arose out of the dismissal of an Appeal before the Supreme Court in Appeal No. 76 of 2014 on the ground that the record of appeal before the Court was incompetent as a consequence of breaches in its preparation. 4.29. The Defendant, maintained that at common law it was immune from suit founded in the way it handled the Appeal. J39 4.30. Addressing the negligence claim, it was submitted that the Defendant was not negligent in the manner in which it handled the appeal. It was stated that for one to succeed in negligence, one must prove that he was owed a duty of care, the duty of care was breached, and the breach resulted in damage or loss. 4.31. It was submitted that the Defendant as Advocates owed the Plaintiff a duty of care, but what was in contention was whether the Defendant breached the duty of care in the prosecution of Appeal No. 76 of 2014. 4.32. Reference was made to the learned authors of Charlesworth on Negligence (3) as follows: "Requirement of special skills. Where special ski// is required for the work to be done, a reasonable man would not be expected to attempt it, unless he is capable of performing it by possessing such special ski//. In the latter event, he is bound to exercise the ski// and competence of an ordinarily competent practitioner in that calling. "Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and ski//. He does not undertake, if he is an attorney, that at al/ events you sha/1 gain your case, nor does a surgeon undertake that he wi/1 perform a cure; nor does he undertake to use the highest possible degree of ski//. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of ski//. " J40 ! "The standard of care and skill. The standard of care and skill is that possessed by a person of ordinary competence and exercising the same calling. This is so, even where a professional had held himself out as having especially high professional standards, claimed to have been above those of an average practitioner of that profession, and he had been retained on that basis. Similarly, the law required of a junior hospital doctor is the same standard of care as was expected of his more senior colleagues, so, inexperience could not be a defence to an action for medical negligence. Such skill will require the specialist to have a practical working knowledge of the law, which relates to the calling in question. Nevertheless, where specialists had knowledge of the particular purpose required by the plaintiff, the duty imposed on them was held to have been higher than merely to exercise that degree of care and skill which was to be expected of such specialists of ordinary competence and experience." 4.33. Reference was also made to the case of Arthur J S Hall & Co. v Simmons <4> supra wherein, Lord Hob house of Woodboro ugh commented as follows: "The advocate, independently of any immunity, has certain protections. The standard of care to be applied in negligence actions against an advocate is the same as that applicable to any other skilled professional who has to work in an environment where decisions and exercises of judgment have to be made in often difficult and time constrained circumstances. It requires a plaintiff to show that the error J41 was one which no reasonably competent member of the relevant profession would have made." 4.34. It was stated that the appeal being dismissed was not proof of negligence. It was further stated that the Plaintiff had the burden to show that the alleged error was one which no reasonably competent member of the legal profession would have made. according to the Defendant, they did not have four months to remedy the alleged defects in the appeal but six days, and upon becoming aware of the objection raised they reviewed the matters and decided to take two steps. 4.35. The first step was to oppose the notice of objection, which they did and secondly, they prepared a supplementary record of appeal containing the legible pages, that were said to be illegible in the record of appeal and sought leave of Court to have it admitted. It was stated that the steps were guided by the decisions of the Supreme Court and, in particular, that, of Zambia Revenue Authority v Shah (Bl. 4.36. It was submitted that the Plaintiff in alleging that the Defendant prepared a defective record of appeal contrary to the rules of the Supreme Court, did not refer the Court to Rules of the Supreme Court that were not followed by the Defendant in preparing the record of appeal nor did it explain how and to what extent the record of appeal prepared by the Defendant was defective. 4.37. It was stated that it was not enough to allege, but evidence must be presented for each allegation raised. J42 4.38. Lastly, the Defendant argued that for the plaintiff to succeed in an action for negligence it must prove that it suffered damage as a consequence of the said negligent act. The Court's attention was drawn to the learned authors of Charlesworth on Negligence < 3l as follows: "once the existence of a duty of care has been established, which has been followed by a breach of that duty, the final element to be proved of these essential components of actionable negligence is that consequential damage has been suffered. However, to enable the plaintiff to have a good cause of action in negligence, the damage alleged must not only have been so occasioned by such breach of duty, but it must be damage, which the law will recognise and give its protection by an award of compensation. 11 4.39. It was submitted that a Court would not consider this element as having been satisfied where the damage that ensued as a consequence of the negligent act was too remote. It was apparent that it was no longer sufficient to satisfy the final element of negligence for the sole reason that an event, amounting to damage, was a direct consequence of the negligent act. 4.40. The Defendant stated that neither party disputed that a duty of care was owed to the Plaintiff and consequently, it is not in issue that in consenting to act for the Plaintiff, the Defendant committed to exercise the standard of care and skill possessed by legal practitioners of ordinary competence, in dealing with the Plaintiffs matters. J43 4.41. The Defendant maintained that it enjoyed immunity and if the Court was not inclined to hold this position, it was argued that the Plaintiff was not entitled to any of the damages claimed as there was no connection between the alleged negligence and the Plaintiffs claims. It was stated that the Plaintiff must show that the amounts of money claimed as losses were a direct result of the alleged negligence. 4.42. It was submitted that the money claimed was a judgment debt, which was ordered to be paid into Court as a condition to stay execution of the judgment pending the hearing of the appeal. The Defendant statedthat there was no evidence to show that had the appeal not been dismissed, it would have succeeded, and the Plaintiff would not have been ordered to pay the judgment sum and or costs. 4.43. In summation, it was stated that the Plaintiff failed to discharge the burden of proof to be entitled to judgment. The Defendant accordingly prayed that the Plaintiffs case be dismissed. 4.44. PLAINTIFF'S REPLY 4.45. In reply to the Defendant's submission, it was submitted that the Plaintiff misapprehended the facts of this case and/ or has willingly ignored the Plaintiffs submissions at their own peril. It was stated that the legal issue of whether lawyers were immune or not was addressed by the Plaintiff in its Pleadings, Witness Statement, Bundles of Documents and Submissions. J44 4.46. It was argued that by way of admission, immunity was a legal question and there was no need to belabour the argument in light of the case of Industrial Finance Company Limited v Jacques and Partners < > which settled the position in Zambia. The Plaintiff contended that the defence as put forward by the Defendant was not tenable at law. 4.47. In response to whether the Defendant enjoyed immunity from suit, the Plaintiff statedthat foreign law conflicted with Zambian Law. It was submitted that in Zambia the law was settled and could be found in the case of Industrial Finance Company Limited v Jacques and Partners < > supra in that lawyers are not immune. 4.48. The Plaintiff opined that the cases being relied upon by the Defendant 6 > and Saif Ali v Sydney Mitchell & Co < namely Rondel v Worsley < > were not binding and were promulgated earlier than Industrial Finance Company Limited <3> and the position adopted therein was that lawyers are not immune. 4.49. It was submitted that even if the Defendant was indulged that legal practitioners were immune from suit following the cases of Rondel v Worsley <6> and Saif Ali v Sydney Mitchell & Co (7), the circumstances required to attain immunity did not apply to the Defendant herein. 4.50. It was further submitted that the work being complained of by the Plaintiff was the preparation of the record of appeal which was provided for in statute and the dismissed appeal was a result of the failure to compile the record according to the rules. The failure by the Defendant to prepare the record of appeal has no defence and the dismissal of the J45 appeal was a direct result of the Defendant's failure to use reasonable skill to compile the record. 4.51. In relation to re-litigation, it was statedthat the claims endorsed on the Writ of Summons and Statement of claim were made in the alternative and the substantive claim was for Damages for professional negligence. 4.52. The Court was asked to take judicial notice of the fact that damages often took the form of compensating an aggrieved party to the extent that they be placed back in the position they would have been had the wrong not occurred. 4.53. Touching on whether the Defendant was negligent, it was submitted that the Court should limit itself to the following questions: a) was a duty of care owed to the Plaintiff? b) was that the duty breached; c) did the Plaintiff suffer injury or harm caused by the breach? 4.54. It was stated that contrary to the Defendant's arguments there was no negligence and that there was no evidence of negligence. It was submitted that the Defendant conceded at trial that it had a duty of care to compile the record of appeal in accordance with the rules. 4.55. The Plaintiff contended that a breach of the duty of care occurred as the issues in question were provided for by operation of the law and represented a reasonable standard expected of a member of the legal profession. It was stated that it was known that in the case of July J46 Danobo TI A Juldan Motors v Chimsoro Farms Limited, < ) an appeal could be dismissed if incompetently presented. 4.56. Reference was madeto the case of Edna Nyasalu v the Attorney General <10> which held as follows : "the Court will not draw an inference of negligence in cases involving professionals unless there is direct evidential proof thereof, on a balance of probabilities. " 4.57. It was submitted that the Record of Appeal was direct evidence of the negligence occasioned, to which as a consequence the Plaintiff suffered damages. The Court was lastly referred to the cases of Zambia National Building Society v Ernest Mukwamataba Nayunda < > and Savenda Management Services v Stanbic < ) touching on damages. 5. LAW 5.1. The learned authors of Phipson on Evidence < > at paragraphs 6-06 on page 15, state that: "In so far as that persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts that affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. " J47 5.2. The above principle has also been well articulated m a plethora of authorities including the case of Khalid Mohamed v The Attorney General < 13>. 5.3. What needs to be determined, is whether the Defendant was professionally negligent as complained ofby the Plaintiff. Black's Law Dictionary < > defines negligence as follows: "the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; or any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, or wilfully disregardful of others' rights. A person has acted negligently if he has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. " 5 .4. In Blyth v Birmingham Waterworks Company < > negligence was defined in the following terms: "Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." 5.5. In the case of Shiells v Blackburne < 15>Lord Loughborough opined as follows: J48 "If a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence. " 5.6. In Hedley Byrne & Co Limited v Heller & Partners Limited (16 > the rule was established that irrespective of contract if someone who possesses a special skill undertakes to apply that skill for the assistance of another person who relies upon that skill, a duty of care will arise. 5.7. The learned authors of Street on Torts (6 > at pages 130 and 132 respectively had this to say on professional negligence: Very often, the duty of care will arise concurrently in tort and within the contract between the professional and his client. "The standard of care imposed will reflect the level of skill and expertise that the professional holds himself out as having, or which it is otherwise reasonable to expect in the circumstances. In the latter case, the defendant must exhibit the degree of skill which a member of the public would expect from a person in his or her position. The law will presume that the professional person will have sufficient time and resources properly to provide the service requested. This includes the time necessary to conduct any research required to reach an informed opinion about a matter. Pressures on him - even pressures for which he is in no way responsible - will not excuse an error on his part. " 5.8. In order to determine whether an act is negligent, a claimant must prove: J49 1. a duty of care is owed 2. prove that the duty was breached 3. that damage resulted as a consequence of the breach. 5.9. In addition, it is relevant to determine whether any reasonable person would foresee that the act would cause damage. Slade, J., in Berrill v R. H. E c17> stated that: "You are not bound to foresee every extremity of folly which occurs on the road. Equally, you are certainly not entitled to drive on the footing that other users of the road, either drivers or pedestrians, will exercise reasonable care. You are bound to anticipate any act which is reasonably foreseeable, that is to say, anything which the experience of road users teaches them that people do, albeit negligently." 5.10. At common law, the obligations of advocate arising out of a retainer are set out in Cordeny's Laws Relating to Solicitors C > where the learned authors state: "At common law, a solicitor contracts to be skilful and careful for a professional man gives an implied undertaking to bring to the exercise of his profession a reasonable degree of care and skill. It follows that this undertaking is not fulfilled by a solicitor who either does not possess the requisite skill or does not exercise it. It is immaterial whether the solicitor is retained for reward or volunteers his services, or whether or not he has a practising certificate in force at the time. A solicitor's duty is to use reasonable care and skill in giving such JSO advice and taking such action as the facts of the particular case demand. The standard of care is that of the reasonably competent solicitor, and the duty is directly related to the confines of the retainer. It has been said that the court should beware of imposing on solicitors duties going beyond the scope of what they are requested and undertake to do. There is no such thing as a general retainer imposing on the solicitor a duty. Whenever consulted to consider all aspects of the clients' interests generally, a solicitor is not bound to have a perfect knowledge of the law, but he should have a good knowledge e.g.: he should know about the statutes of limitation. Although a solicitor is not liable for a mistake as to the construction of a doubtful statute, difficult to interpret or unexplained by decisions, he may be liable if he fails to realize that the statute presents difficulties of interpretation. On the question as to how far a solicitor may be liable in negligence for delay, it has been said that it would be wrong to hold a professional man guilty of negligence because everything is not dealt with by return of post." 5.11 . In Arthur J. S. Hall and Co. v Simons < 4> supra it was held as follows: "Advocates no longer enjoyed immunity from suit in respect of their conduct of civil and (Lord Hope, Lord Hutton and Lord Hobhouse dissenting) criminal p roceedings. Such an immunity was not needed to deal with collateral attacks on criminal and civil decisions. Rather, the public interest was satisfactorily protected by independent principles and powers of the court. A collateral civil challenge to a JSl subsisting criminal conviction would ordinarily be struck out as an abuse of process, but the public policy against such a challenge would no longer bar an action in negligence by a client who had succeeded in having his conviction set aside. Similarly, the principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with the risk of collateral challenges to civil decisions. Nor was the immunity needed to ensure that advocates would respect their duty to the court. In that respect, a comparison with other professionals was important. Doctors, for example, were sometimes faced with a tension between their duties to their patients and their duties to an ethical code, but nobody argued that they should have an immunity from suits in negligence. Furthermore, experience in other jurisdictions, particularly Canada, tended to demonstrate that it was unduly pessimistic to fear that the possibility of actions in negligence would undermine the public interest in advocates respecting their duty to the court. Moreover, benefits would be gained from ending the immunity. It would bring to an end an anomalous exception to the basic premise that there should be a remedy for a wrong, and there was no reason to fear a flood of negligence suits against barristers. The mere performance by an advocate of his duty to the court, to the detriment of his client, could never be called negligent, and there would be no possibility of the court holding an advocate to be negligent if his conduct was bona fide dictated by his perception of his duty to the court. Moreover, courts would take into account the difficult situations faced daily by barristers working in demanding situations to tight timetables. The J52 courts could be trusted to differentiate between errors of judgment and true negligence, and in any event, claimants would face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome. Unmeritorious claims against barristers would be struck out, and the CPR had made it easier to dispose summarily of such claims. Moreover, far from weakening the legal system, the abolition of the immunity would strengthen it by exposing isolated acts of incompetence at the Bar. In contrast, confidence in the legal system would be eroded if advocates, alone among professionals, were immune from liability in negligence. It followed that it was no longer in the public interest to maintain the immunity in favour of advocates" 5.12. In the case of Industrial Finance Company Limited v Jacques and Partners < > it was held as follows : (i) Where a lawyer has instructions, he has a professional duty to protect his client so that where it is shown that the advocate has failed to exercise his duty to the cost of his client, the lawyer must make good and pay for that damage. (ii) Where a party to the proceedings of this nature is given time and ample opportunity to oppose entry of judgment, and does not do so, so as to disclose a defence whether that defence is acceptable by the court or not, the other party is entitled to have the judgment entered in his favour. 5.13. The Legal Practitioners' Practice Rules provide as follows in Rules 35, 36 and 37. J53 35. (1) A practitioner shall- ( a) in all professional activities be courteous and act promptly, conscientiously, diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the court's time and to ensure that professional engagements are fulfilled; (b) inform the client forthwith: (i) if it becomes apparent that the practitioner will not be able to do the work within a reasonable time after receipt of instructions; (ii) if there is an appreciable risk that the practitioner may not be able to undertake instructions or fulfil any other professional engagement which the practitioner has accepted. (2) Whether or not the relation of practitioner and client continues, a practitioner shall preserve the confidentially of the clients' affairs and shall not without the prior consent of the client or as permitted by law lend or reveal the consents of the client's instruments or communicate to any third person (other than an associate or any of the staff in the practice of the practitioner who need to know it for the performance of their duties) information which has been entrusted to the practitioner the practitioner in confidence or use such information to the practitioner's clients' detriment or to the practitioner's advantage or to another clients' advantage. J54 (3) A practitioner shall not, in relation to any current matter in which the practitioner is or has been briefed, offer the practitioner's personal view or opinion to or in any news or current affairs media upon the facts of or the issues arising in that matter. ( 4) A practitioner shall not when interviewing out of court place witnesses who are being interviewed under any pressure to provide other than a truthful account of their evidence. (5) A practitioner shall not devise fact which will assist in advancing the client's case and shall not draft any originating process, pleading, affidavit, witness statement or notice of appeal containing ( a) any statement of fact or contention which is not supported by the client or by the brief or instruments; (b) any allegation of fraud unless the practitioner has clear instruments to make such allegation and has before him or her reasonably credible material which as it stands established a prima facie case of fraud; (c) in the case of an affidavit or witness statement any statement of fact other than the evidence which in substance according to the practitioner's instruments the practitioner reasonably believes the witness would give if the evidence contained in the affidavit or witness statement were being given viva voce: Provided that nothing in this paragraph shall prevent a practitioner drafting a pleading, affidavit or witness statement containing specific facts, matters or contentions included by the practitioner subject to the client's confirmation as to accuracy. JSS 36. A practitioner when conducting proceedings at Court- ( a) Shall be personally responsible for the conduct and presentation of the client's case and shall exercise personal judgment upon the substance and Purpose of statements made and question asked; (b) shall ensure that the court is informed of all relevant decisions and legislative provisions of which the practitioner is aware whether the effective is favourable or unfavourable towards the contention for which the practitioner argues and shall bring any procedural irregularity to the attention of the court during the hearing and not reserve such matter to be raised on appeal; or (c) shall not adduce evidence obtained otherwise than from on through the practitioner's client or devise facts which will assist in advancing the client's case. 37. (1) A practitioner shall only communicate with the client or authorized representatives of the client. (2) Where there is any reason to doubt the propriety of any action or proposed course of action, a practitioner shall satisfy himself or herself that the client has received and understood any warnings or advice which it may be appropriate to offer. A practitioner shall not communicate about a particular case directly with any person whom the practitioner knows to be represented in that case by another practitioner without the latter's consent. J56 5.14. In the case of Zambia National Building Society v Ernest Mukwamataba Nayunda < > it was stated that "the essence of damages has always been that the injured party should be put, as far as monetary compensation can go, in about the same position he would have been had he not been injured. He should not be in a prejudiced position nor be unjustly enriched." 5 .15. In Abraham Mohamed and Alantara Transport Limited v Safeli Chumbu < > the Court held that: "the general rule as to the normal measure of damages for tort is the value of a chattel at the time of the loss. " 5.16. Concerning special damages, it was held in the case of Andrew Tony Mutale v Crushed Stone Sales Limited < 191 that for special damages to be awarded they must be pleaded, and must be proved satisfactorily before they are awarded. 5.17. It is trite law that when special damages are claimed, these must be itemized specifically with the amounts that are alleged and claimed to be special damages. In Phillips Mhango v Dorothy Ngulube and Others < 20>, it was held that: "It is, of course for any party claiming a special loss to prove that loss and to do so with evidence which makes it possible for the court to J57 determine the value of that loss with a fair amount of certainty. As a general rule, therefore, any shortcomings in the proof of a special loss should react against the claimant. " 5.18. In the case of Zambia Telecommunications Company Limited v Bernard Aaron Sakala <21>, the Supreme Court observed thus at J.19 to 120 as regards special and general damages and proof thereof: - "As to the allegation of damage, the distinction between special and general damage must be carefully observed. General damage such as the law will presume to be the natural or probable consequence of the defendant's act need not be specifically pleaded. It arises by inference of law and need not, therefore, be proved by evidence, and may be stated generally. In some cases, however, part of the general damages which it is sought to recover may have resulted from the wrong complained of in an unexpected though foreseeable way, in which case particulars should be given so as to avoid surprise at the trial and to enable your opponent to consider making a payment into court. Special damage, on the other hand, is such loss as the law will not presume to be the consequence of the defendant's act, but which depends in part, at least, on the special circumstances of the case. It must therefore always be explicitly claimed on the pleadings and at the trial, it must be proved by evidence both that the loss was incurred and that it was the direct result of the defendant's conduct. A mere expectation or apprehension of loss is not sufficient. And no damages can be recovered for a loss actually sustained unless it is either the J58 natural or probable consequence of the defendant's act or such a consequence as he in fact contemplated or could reasonably have foreseen when he so acted. All other damage is held 'remote'. From the above, it is clear that special damages must not only be pleaded but proved as well. In the case before us, the special damages claimed by the Respondent were neither pleaded nor proved. Therefore, they cannot be awarded. " 6. ANALYSIS 6.1. From the foregoing summary of the evidence and as can be deciphered from the pleadings and submissions on the record it is clear that the Defendant's primary shield is the plea of advocate's immunity in respect of work connected with litigation, particularly the preparation of the Record of Appeal. That defence must be confronted at the threshold. 6.2. Historically, at common law, immunity was justified on public policy grounds: finality of litigation, avoidance of collateral attacks on judgments, and protection of advocates' independence. Those rationales found expression in Rondel v Worsley and Saif Ali v Sydney Mitchell & Co. However, Commonwealth jurisprudence has since evolved decisively. J59 6.3. In Arthur JS Hall & Co v Simons, the House of Lords abolished the immunity, holding that modern procedural doctrines- res judicata, abuse of process, issue estoppel, and summary dismissal- were sufficient to protect the integrity of the justice system. Closer home, the Zambian position was articulated much earlier in Industrial Finance Company Ltd v Jacques and Partners, where the High Court held, in unambiguous terms, that a legal practitioner who fails to protect a client,s interests in accordance with instructions may be held liable in negligence, whether in contract or tort. That decision did not draw any distinction between contentious and non contentious work, and nothing in subsequent Zambian jurisprudence has resurrected a doctrine of immunity. 6.4. In addition, the Legal Practitioners, Practice Rules, 2002 impose positive statutory duties of diligence, competence, and candour. It would be incongruous to recognise those duties while simultaneously insulating practitioners from civil accountability for their breach. 6.5. I therefore find that the Defendant did not enjoy immunity from suit. The defence of immunity is inconsistent with Zambian authority, modern Commonwealth jurisprudence, and the regulatory framework governing legal practice in Zambia. 6.6. The other issue that arose, although it was not seriously contested, pertained to whether the Defendant owed the Plaintiff a duty of care. Upon accepting the retainer to prosecute an appeal to the Supreme J60 Court, the Defendant owed the Plaintiff a duty in contract, arising from the implied term to exercise reasonable skill and care and in tort, arising from the assumption of responsibility by a professional holding itself out as competent in appellate litigation. 6. 7. The preparation of a Record of Appeal is not a matter of forensic judgment or advocacy style; it is a technical, rule-bound task prescribed by statute. The duty to comply with the Supreme Court Rules is therefore at the very core of the retainer. 6. 8. What then begs an answer is whether the duty of care was breached. The evidence on this issue is overwhelming and, significantly, comes not only from the Plaintiff but from the Supreme Court itself. The Supreme Court expressly found that the Record of Appeal was prepared in breach of Rules 10 and 58, the breaches were fatal and went to the root of the appeal and the Defendant had ample time almost four months- to apply to amend the Record or withdraw and re-file a competent appeal, but "simply sat back until the appeal was called for hearing. " 6.9. This was not a borderline error of judgment. Courts consistently distinguish between errors of forensic judgment, which are generally not negligent and procedural incompetence knowing, or reasonably ' expected to know, the governing rules, which may amount to negligence. 6.10. T he Defendant's attempt to justify its conduct by reference to "established practice" cannot prevail against the clear wording of the J61 Rules of the Supreme Court, existing Zambian authority warning that incompetent appeals are liable to dismissal and the Supreme Court's own finding that remedial steps were available but not taken. I therefore find that the Defendant breached its duty of care. 6.11. The next issue for consideration is whether the breach caused the Plaintiffs loss. The Defendant argued that the Plaintiff cannot prove that the appeal would have succeeded, and therefore cannot recover the judgment sum paid out. This submission misconceives the nature of the loss. 6.12. The actionable damage here is not the loss of the appeal, but the loss of the opportunity to have the appeal determined on its merits. Courts have long recognised loss of a chance as recoverable damage where a real and substantial chance existed and that chance was destroyed by professional negligence. 6.13. In the present case the Defendant itself advised that the appeal had reasonable prospects. Also that the appeal raised novel legal issues acknowledged even by the Defendant's witness and that the appeal was never heard because of procedural incompetence. The causal link between the Defendant's breach and the Plaintiffs loss is therefore direct. But for the defective Record of Appeal and the failure to cure it, the appeal would have been heard. Causatioin was therefore proved by the Plaintiff. J62 6.14. In relation to damages, having found that the Defendant was professionally negligent and that such negligence caused actionable loss to the Plaintiff, the Court must now determine the appropriate measure of damages. The guiding principle, long settled in our jurisprudence, is that damages are compensatory and are intended, so far as money can do it, to place the injured party in the position it would have occupied had the wrong not occurred. 6 .15. The claims for damages are several as follows: 6 .15 .1. In relation to the claim for the judgment sum paid into Court (ZMW 23,955,636.56), the payment into Court of which was conditional upon the pendency of a competent appeal, it is found that once the appeal was dismissed on technical grounds, the stay lapsed and the funds were released. 6.15 .2. It is common cause that the payment into Court was conditional upon the pendency of a competent appeal. The appeal was dismissed without being heard on its merits due to an incompetent Record of Appeal. Further, the stay of execution lapsed automatically upon such dismissal, resulting in the release of the funds. 6.15.3. The Defendant argued that this sum represents a judgment debt and would have been payable in any event. I am unable to accept that submission in its absolute form . 6.15.4. The actionable loss here is not the High Court judgment per se, but the loss of the protective and suspensive benefit of a properly prosecuted appeal, including the chance-real and not J63 merely speculative- of either reversal or variation of the judgment or continued suspension of execution pending a merits determination. The Plaintiff was deprived of the opportunity to contest the judgment through a competent appellate process, and the immediate loss of the funds was the direct and foreseeable consequence of that deprivation. 6.15 .5. Where negligence causes the premature crystallisation of a liability that would otherwise have remained contingent, compensatory damages may be awarded. However, as what is up for challenge is not the judgment itself but the protective and suspensive benefit, I am not convinced that the Defendant is liable to pay the full judgment sum. The loss suffered by the Plaintiff while causally linked to the Defendant's negligence and is recoverable in principle should be subjected to assessment. 6.15.6. Applying principles from Zambia National Building Society v Nayunda the Court must assess what position the Plaintiff would have been in had the duty not been breached. At minimum, the Plaintiff lost the chance to avoid immediate execution through a properly prosecuted appeal. 6.15.7. While this Court cannot speculate on the ultimate success of the appeal, it can and must recognise that the loss flowed directly from professional negligence. That is what has been proved in this case. In terms of the qunatum of damages to be recovered for this injury, the same cannot be said to be the exact J64 same amount of the money paid into Court. It is ordered that the amount to be recovered be assessed. 6.15.8. Turning to the claim for wasted legal fees (ZMW 301,725.72) relating to the professional services which were rendered negligently resulting in a nullity. In the present case the Defendant was retained to prosecute a competent appeal. The appeal was dismissed without being heard due to procedural non-compliance attributable to the Defendant therefore the services rendered failed in their essential purpose. I therefore find that the consideration for which these fees were paid wholly failed. The Plaintiff received no benefit in law from the Defendant's services in the appeal. The sum of ZMW 301 ,725. 72 was specifically pleaded and proved. It is ordered that the Plaintiff shall recover the pleaded amount. 6.15.9. The Plaintiff further claims USD 11,600.00, being legal fees paid to Messrs Eric Silwamba, J alasi and Linyama Legal Practitioners in an effort to mitigate the consequences of the dismissed appeal. The law imposes a duty on an injured party to take reasonable steps to mitigate its loss. Reasonable mitigation expenses are recoverable provided they are causally connected to the breach, reasonable in amount; and specifically pleaded and proved. 6.15.10. In this case, the engagement of State Counsel to explore procedural remedies following the dismissal of the appeal was both reasonable and foreseeable. The Defendant itself J65 \" recommended the engagement of additional counsel. The fees were pleaded as special damages and proved by documentary evidence. I accordingly allow the claim for USD 11,600.00. 6.15.11. Costs and mitigation expenses (including USD 11,600.00) relating to the engagement of new counsel was a reasonable and foreseeable mitigation step, directly occasioned by the Defendant's default. These sums were pleaded and strictly proved. These will be recovered in the same amount. 6.15.12. The Plaintiff has prayed for interest at the commercial bank lending rate as prescribed by the Bank of Zambia. Given the substantial sums involved and the period during which the Plaintiff was deprived of its funds, interest is both appropriate and just. Interest shall run on the sums awarded, at the applicable commercial bank lending rate, from the date of the Writ to the date of full payment. 7. CONCLUSION 7 .1. This case is not about an advocate losing a difficult case. It is about a litigant being denied access to appellate justice through avoidable professional default. In view of the foregoing the following are the Court's findings: 1. The Defendant did not enjoy immunity from suit. J66 2. The Defendant owed the Plaintiff a duty of care in contract and tort. 3. That duty was breached by the preparation of an incompetent Record of Appeal and the failure to take available remedial steps in a timely manner. 4. The breach caused the Plaintiff to lose a real and substantial opportunity to have its appeal heard on the merits. 5. The Plaintiff suffered recoverable loss, including wasted costs and mitigation expenses. 7.2 Accordingly, judgment 1s entered for the Plaintiff. The precise quantification of damages follows what is stated in paragraph 6 above. 8 7. 3 Costs are ordered for the Plaintiff to be assessed in default of agreement. 8.4 Leave to appeal is granted Dated at Lusaka this .. X.~day of January, 2026 HIGH COURT JUDGE J67