Gill Godlonton & Gerrans v Mpofu (HC 3081 of 2014; HH 65 of 2017) [2017] ZWHHC 65 (2 February 2017)

1 HH 65-17 HC 3081/14 GILL GODLONTON & GERRANS versus JAPHET MPOFU HIGH COURT OF ZIMBABWE DUBE J HARARE, 20 January 2017 and 2 February 2017 Trial T Nleya, for the plaintiff N, L, A Mupure, for the defendant DUBE J: This matter was placed before me as a special case in terms of Order 29 r 199 of the High Court Rules, 1971. The brief history of this dispute is as follows. Around May 2010, the defendant engaged the services of the plaintiff, a firm of legal practitioners, to represent him in divorce proceedings instituted by his wife at the Bulawayo High Court. The plaintiff engaged correspondent legal practitioners in Bulawayo. At the conclusion of the divorce proceedings, the plaintiff put through a fee note for professional services rendered. A dispute arose as to how much was due to the plaintiff in respect of the fees. The parties agreed to have the bill taxed. The bill of costs was prepared and submitted to the Deputy Registrar in Bulawayo. The parties agreed that it would be convenient to have the bill taxed in Harare as they both resided there. The consent of the Registrar in Harare was sought by both parties to have the file transferred to Harare for the purposes of taxation. The Deputy Registrar in Bulawayo insisted that the taxation ought to be done in Bulawayo. The taxation was eventually done in Bulawayo. The taxing officer ordered the defendant to pay the sum of $47 373.40 in legal fees. The plaintiff has instituted these proceedings for recovery of the taxed costs. The issues the parties were not agreed on are as follows; HH 65-17 HC 3081/14 a) That the parties agreed on a specific figure in respect of fees for the entire work to be done in the divorce proceedings b) That the taxation would be held in Harare as opposed to Bulawayo. The plaintiff submitted that at the time of taking instructions, an estimate of $ 5000.00 was given to the defendant as the likely costs of the divorce proceedings up to the conclusion of the matter. It was the defendant’s desire that the costs did not exceed that figure but there was no specific agreement over the fees to be charged. The plaintiff insisted that the figure of $5000.00 given to the defendant was simply an estimate and that the plaintiff was not barred from charging for all work done. The plaintiff’s position regarding the place of taxation of the costs is that the parties agreed that it was convenient for the parties to have the taxation done in Harare. The decision to have the taxation done at Bulawayo was made by the deputy registrar at Bulawayo who insisted that the taxation be handled there. The plaintiff had no control over the decision. The defendant’s position is that the parties entered into an agreement with respect to the fees payable. The defendant submitted that it was mutually agreed that the defendant would pay a fee in the region of $5 000.00 and that he would pay an initial deposit of $3 000.00 which was paid to the correspondent legal practitioners. The defendant paid all the fees due to the plaintiff’s corresponding legal practitioners. The defendant argued that because the plaintiff did carry out services exceeding the agreed $5 000.00 contrary to the agreement, the loss falls where it lies. He urged the court to dismiss the claim. The defendant contends that the fees were not properly taxed by the taxing officer and disputes the taxed fees. The defendant takes issue with the taxation hearing being held in Bulawayo as opposed to Harare. Evidence available shows that both parties were desirous of having the costs taxed in Harare as they both resided in Harare. It was convenient to both and hence they agreed to seek the consent of the registrar to have the taxation done in Harare. The deputy registrar in Bulawayo shot down the proposal resulting in the taxation being done in Harare. The parties appeared before a taxing officer on 24 January 2014 and the taxation was postponed by consent and at the defendant’s instance to 4 March 2014 when it proceeded. It was not the decision of the plaintiff to have the taxation done in Bulawayo but that of the registrar of the court. There was no anomaly in holding the taxation in Bulawayo. The tariff used for taxation purposes is the same at both stations. It makes no material difference that the taxation was done in Bulawayo. The HH 65-17 HC 3081/14 argument that the taxation ought to have been done in Harare is simply not sustainable. The defendant later conceded that nothing turns on the fact that the taxation was done at Bulawayo. Moreover, the fact that the taxation was done at Bulawayo has no bearing on the merits of this claim. Legal fees are charged in accordance with the Law Society Tariff of Zimbabwe General Tariff of fees for Legal Practitioners. The tariff is set by the Law Society of Zimbabwe and serves as a guide to legal practitioners. The tariff is reviewed periodically. The tariff of charges lays out charges for specified work. Legal practitioners charge according to their experience. They are expected to charge fair and reasonable fees as well as recover all expenditure made. A litigant who engages a legal practitioner for professional services is entitled to request a rough estimate of the likely total cost of the services on offer. Conversely, it is permissible for a legal practitioner to indicate the likely costs of litigation to a client. It is also appropriate for a legal practitioner to agree with his client over charges for work to be done. The Legal Practitioners (Contingency Fee Agreements) Regulations, S. I 154/14 allows a legal practitioner to enter into a contingency fee agreement with a client regarding legal services, if in the legal practitioner’s opinion there is a reasonable prospect of success in such proceedings. The agreement must be reduced to writing in a document signed by both the legal practitioner and the client. The facts of this case do not fit into the setting envisaged by S. I 154/14. There is no written agreement between the parties nor is there any evidence that the parties agreed that contingency fees be charged. In his submissions, the defendant makes the admission that it was agreed that “the defendant would pay a fee within the region of $5000.00 and an initial deposit of $3000.00.” for the divorce proceedings. The phrase ‘within the region of’, when given its ordinary meaning simply means that the thing spoken of is not exact and could be higher or lower. This statement reveals that the defendant was given an estimate of the likely costs. An indication of how much is likely to be charged for work done constitutes an estimate. An estimate of how much is likely to be charged for work to be done is not an agreement over fees to be charged. There was no agreement between the parties to pay an agreed figure. How much the defendant would be required to pay would depend on the actual work done and billed as supported by the itemized billing. An itemized bill was furnished. An itemized bill records and summarises details of each item of services provided and charged by a legal HH 65-17 HC 3081/14 practitioner. It is the conduct of proceedings, work carried out by a legal practitioner and disbursement costs that determines how much a client is required to pay for the work billed by a legal practitioner. The defendant does not challenge the work done. Having given an estimate of the probable costs, the plaintiff was not barred from billing the defendant for the actual work done. The defendant’s case that there was an agreement between the parties over the amount the defendant was required to pay for professional services rendered does not find favour with the court. The defendant‘s defense is simply a ploy to avoid paying the legal costs charged. The defendant disputed the costs charged, resulting in the costs being referred for taxation. Taxation is a process carried out where a client disputes costs levied by a legal practitioner. Taxation is a process where the disputed costs are evaluated and measured by a taxing officer in order to accomplish a balance between the services rendered and costs levied by the legal practitioner. The fairness and reasonableness of the costs is tested . This process has over the years been defined as ’taxation’. Reference to the process as ‘taxation’ may be a bit misleading as an impression is created that the process has to do with collection or assessment of taxes or revenue . The process of taxation is carried out by an independent and neutral person, the taxing officer. The defendant is aggrieved by the fact that the taxing officer taxed costs which were supposedly agreed to, made a decision to conduct the taxation at Bulawayo instead of Harare and takes issue with the outcome of the taxation. The defendant sought to challenge the conduct and ruling of the taxing officer in these proceedings. Any party who is aggrieved by any decision of a taxation officer is entitled to challenge the decision. Order 38 r 314 provides a procedure for challenging decisions of a taxing officer. The rule reads as follows: “314. Review of taxation (1) A party aggrieved by the decision of a taxing officer may apply to court within four weeks after the taxation to review such taxation. The application shall be by court application to the taxing officer and to the opposite party, if such opposite party was present at the taxation or if the court decides that such opposite party should be represented.” [Subrules amended by S. I. 43 of 1992] The rule provides for review of the taxation process. In Zimbank v Trust Finance & Anor 2006 (2) ZLR 404 (H) the court held that the correct procedure to challenge taxation is to seek for a review in terms of Order 38 r 314. See also Cone Textiles v Pettigrew (Pvt) Ltd & Anor 1984 (1) ZLR 274 (SC), which lays down the grounds for interfering with a taxing officer’s HH 65-17 HC 3081/14 ruling on costs. The defendant has cited numerous cases involving the process of taxation. These cases are distinguishable from this case as they involve facts where an application for review of the decision of the taxing officers had been filed. The cases do not assist this court as this court is not seized with an application for review of the taxing officer’s ruling. Being discontented with the decisions of the taxing officer, the defendant’s recourse lay in a review in terms of r 314. The defendant was required to file a separate application to challenge the taxation process instead of seeking a review of the taxation proceedings through this trial. The defendant has not taken any steps to challenge the taxation process. The attempt by the defendant to challenge the taxing officer’s decision in this application is misplaced. A litigant who is aggrieved by a decision of the taxing officer is required to do so in terms of r 314, a rule which provides a review mechanism. A litigant may not ask for a review of the taxing officer’s decision in a matter brought by a legal practitioner seeking to recover his legal costs from him. Once the legal fees were taxed, they become due and payable. The defendant has not challenged the taxed costs. The taxed bill of costs has not been set aside and remains extant. For as long as the taxing officer’s determination has not been set aside, a legal practitioner remains entitled to petition the court for payment of his costs. The plaintiff is entitled to recover its costs as taxed. The plaintiff has shown an entitlement to the order sought. The plaintiff conceded in its heads of argument that the sum of $3000.00 paid by the defendant as a deposit reduces the sum claimed. In the result it is ordered as follows: 1) 2) The defendant shall pay to the plaintiff the sum of $44 373.40. Interest at the prescribed rate of 5% per annum from date of summons to date of payment in full. 3) Costs of suit. Gill, Godlonton and & Gerrans, plaintiff’s legal practitioners Antonio & Dzvetero, defendant’s legal practitioners HH 65-17 HC 3081/14