Pick Our Brain

Do you have a question regarding legal cost issues? In order to assist you in managing your costs better, you can now pick our brain with your questions - whether it is in respect of practices, tariffs, legal cost principles or any similar issues - and we will endeavor to find the best possible answers for your questions.

Previously Asked Questions

Is preparation for pre-trial by the Attorney allowed on a Party and Party basis if Counsel was also employed?
- Mari Roux The answer is no. Only when an Attorney appears in terms of the Right of Appearance Act may he/she recover for time spent preparing.
When an Attorney draws up fees, irrespective of whether its according to the Magistrate's Court tariff or High Court tariff, may he charge the firm's tariff for e-mails "as the Court's tariffs do not specifically make provision for e-mails"?
~ Belinda Most of our Courts and their Taxing Masters do not draw a distinction between a letter and an e-mail as, in essence, it is the same thing serving the same purpose. If you however have a specific fee agreement with your Client, you may charge the firm's rate for such e-mails
Is it absolutely necessary to file a Notice of Intention to Oppose a Bill of Cost in the High Court?
~ Sihle Shamase If there are attendances or charges that you do not agree on or is to be disputed, then it is necessary to file a Notice of Intention to Oppose timeously. Should one fail to do so, the bill may be taxed on an unopposed basis without any further notice. See Rule 70 in this regard.
Can an Attorney charge you for phone calls he receives from you? If yes should he not inform you that he will invoice you a set amount per phone calls received?
~ JACQUES Yes, an Attorney may raise a charge for calls received from you. Depending on the nature of the matter, various prescribed tariffs will apply eg. for a High Court matter there is a prescribed tariff and for a Lower Court matter a different tariff. Should the Attorney wish to apply a tariff other than is prescribed, then, in that instance, he is obliged to advise and agree that alternate tariff with you.
If you issue Summons in the Magistrate's Court and no Notice to Defend is received and Judgement was taken but thereafter they lodge an Application for Rescission of Judgement, do you use the undefended scale for the first part of the account and thereafter the other matters scale or can you use the defended scale?
~ Mari Roux To the best of our experience the scale of fees recoverable will depend on the status of the matter at the time of the Taxation. If a matter has progressed from undefended to defended and a cost order in the end provides for recovery of costs, then such costs should be recoverable on a defended basis, from inception to the end.
Is there any decided case to dispel an Advocate appearing in a Magistrate's Court but Taxing on the High Court tariffs? Secondly what would be a daily limit in terms of fees to charge by an Advocate appearing in a Magistrate's Court where cost orders were granted in favour of the party briefing such Advocae on an Attorney and Client scale?
~ Elias As you are aware the Magistrate's Court tariff also provides for and prescribe a tariff for Counsel. As the Rule and the tariff is a creature of statute, this tariff shall apply whether it be as between Party and Party or Attorney and Client. In order to depart from the tariff, the Court Order should so indicate to give a Taxing Master that descression, alternatively the parties may also so agree. The maximum day-fee for Counsel in the Magistrate's Court is currently R1 360.00 in respect of a Trial in contested matters.
May an Attorney charge for travelling on a Party and Party Scale for time spent travelling to and from Court for the service and filing of Pleadings (in addition to the actual service and filing fee) in cases where the Firm does not have a messenger?
~ Kimberley Nel When considering the tariff closely, you will notice that where the tariff allows the Attorney a fee for the drafting/preparing of a Pleading, the filing and service fee is included in that fee and can a separate fee for travelling to file and serve not be allowed.
Can an Attorney charge you for phone calls he receives from you? If yes, should he not inform you that he will invoice you a set amount per phone call received?
Can an Attorney charge you for phone calls he receives from you? If yes, should he not inform you that he will invoice you a set amount per phone call received?
What can a Junior Advocate charge for an unopposed divorce?
~ Samantha This is a difficult one due to the fact that even amongst the Junior Counsel certain ranks of seniority exist. Depending on whether the Counsel is Junior or Senior, Junior Counsel's charges may vary between R900 p/h and R1500 p/h. In an unopposed divorce one would expect charges to be liberal,not luxurious. You may of course agree a fixed fee with Counsel also.
Does Section 101(1)(G) of the National Credit Act cap an Attorney's legal costs (even if taxed) equal to the capital being collected for ones Client? The Law Society of the Northern Provinces does not want to give their view. This will obviously have a vast and detrimental effect on all Attorney firms doing collections
~ Christian Steyn After due consideration of NEDBANK LTD AND OTHERS v NATIONAL CREDIT REGULATOR AND ANOTHER 2011 (3) SA 581 (SCA) and after soliciting opinions from Senior Legal Practitioners knowledgable in the area, I must deduce and conclude that an Attorney's fees and charges, when acting as Agent for a Credit Provider, are NOT automatically capped as provided in Section 101(G) of the National Credit Act. It is my humble view that the relationship between the Credit Provider (the Client) and his Agent (the Attorney) are un-affected by the Act as this Attorney and Client relationship appears to clearly stand outside the limitations of Section 101. What the Act does do is to limit the Credit Provider on recovery of collection fees, as you also argue. This limitation must be seen in the same light as collection commission (in the Tariff) capping such charges recoverable as between "Party and Party" (for want of a better comparison). As between "Attorney and Client", however, the Attorney should not be limited in any way to do work and render an account as per the normal, UNLESS the Credit Provider wishes to bind and limit the Agent in terms of Section 101, in which case the Attorney should have the freedom of choice to NOT bind himself in that manner. In short it appears that should a Credit Provider choose to employ an Agent (Attorney) to do collections, and if the costs of so doing exceeds those as capped by Section 101, then such additional costs incurred shall be for the Credit Provider's own account, the end-user not to be burdened by the Credit Provider's decision.
I got a costs order in my favour in the Magistrate's Court on a Party and Party scale. I consulted with the Client the day before the trial for three hours to prepare her for direct examination and cross-examination. I then prepared for trial in the afternoon. When I submited the bill the first item, being the consultation, was lopped off as it came under "preparing for trial". Was the Taxing Master correct?
~ Greg Marsh I respectfully submit that the Taxing Master is wrong. The fee due to an Attorney for preparation is in respect of him/her preparing to PRESENT argument by researching the Law where necessary, re-aufeing himself with the facts of the matter etc. Similar to what a Counsel will do. Time spent with a Client or Witness has a totally different purpose i.e to prepare THAT person, with no legal knowledge of Court procedure, to GIVE evidence.
Under what circumstances are you entitled to travelling fees on a Party and Party scale?
~ Jan Luitingh Travelling time will be allowed when it is incurred necessarily to further your Client's case. For example, to conduct an inspection in loco, to attend a medical examination where necessary etc. Examples of travelling that is not recoverable as between Party and Party are; to attend on your Client or Witness for a consultation (unless he/she is severely paraplegic) as they have to attend at your office, to attend Court as you are either at the seat of the Court or have a Correspondent on brief etc. On the latter issue I must point out that we have had a practice in Cape Town since 1962 where the Suburban Attorney will be allowed to travel to Court. The variety of scenarios on your question is however so large that it would be impossible to sample you with every one and we suggest that if a certain scenario present itself in a particular case, please contact us and we will do our best to find an answer for you.
When are fees allowed for research on a Party and Party scale?
~ Lauren Marshall An Attorney, when acting in that capacity, shall not normally be allowed a charge for research as this function or task is usually reserved for Counsel. If the Attorney, however act as Counsel in terms of the Right of Appearance Act, there will then be no distinction between research done by Counsel or the Attorney and it will then be recoverable as between Party and Party.
If an Advocate appears in the Magistrate's Court for a matter that could have been attended by an Attorney, on what scale should a cost order be computed, i.e Attorneys Fees or Advocate's Fees? ~ Stephen
~ Stephen Because the Rules allow for the briefing of Counsel, even in apparently simple and uncomplicated matters, one must expect our Taxing Masters to allow Counsel's fee, but as per the prescribed Magistrate's Court tariff. What is however important to consider is the fact that the Taxing Master does have a discression to depart from that tariff and allow a lesser fee/charge should he/she find that the briefing of Counsel is a luxurious indulgence by a party. From experience we can confirm that, when argued convincingly, Taxing Masters have in the past interfered and reduced a Counsel's charge to that of an Attorney.
What is the latest fee per kilometer for travelling?
~ Rozell You would be able to recover on both fees and disbursements when travelling. Fees are calculated on a time basis whilst the disbursement component is calculated per kilometer. such charges are as follows for the High and Lower Court tariffs: High Court: R213.00 per 15 minutes on fees / R4.50 per kilometer on disbursements Lower Court: Scale A & B: R79.00 per 15 minutes on fees / Scale C: R95.00 per 15 minutes on fees / R4.50 per kilometer on disbursements on all three(3) scales.
What does Wasted Costs include? What is the specific steps that needs to be taken to have a taxation on review?
~ Ronel Kemp Thank you for your questions. We will deal with each in order of appearance.

WASTED COSTS

Wasted Costs, by definition, are all such costs that has to be repeated or has become unusable to the Party who is awarded wasted costs. For example: when a matter is postponed, attendances like a Notice of Set Down, phone calls made or letters written to set up attendances at Court or for preparatory consultations and the time spent at Court becomes wasted because it will have to be repeated in future. The time spent preparing for the hearing eg. consultations with Experts and Witnesses etc. are also partially wasted because a big portion of that will again have to be repeated in future in order to refresh everyone's minds before the next hearing. The same principle applies in respect of Counsel's attendances.

REVIEW OF TAXATION

The first requirement in respect of a Review in terms of Rule 48 is that the Taxing Master must be functus officio and that the bill must be allocated proper before one can review any of his/her decisions. Second thing to know is that only such items that were objected to on taxation can be reviewed. The Rule does not provide for new items or new argument to be introduced. A Notice in terms of Rule 48(1) should ideally contain the following: (a) a short background/history of the matter, (b) identify the item/s being reviewed, (c) a short summary of the argument/grounds for objection, (d) a short summary of the counter-argument and (e) a short summary of the Taxing Master's findings of facts in respect of the items being Reviewed. Such Notice of Review must be filed within 14 days from the date of allocator.
How is the signed Mandate between Attorney and his Client considered by a Taxing Master when he taxes an Attorney-Client cost order?
~ Paul Baise Thank you for your question, also one which is raised at taxation often in similar situations. Older case law suggest that an Attorney and Client cost Order payable by the other side does not automatically entitle the succesful party to a higher tariff, hence the distinction between Attorney and Own Client and Attorney and Client in the older case law. Later views suggests that there should not be any such distinctions made when recovering Attorney and Client costs from the other side as in almost all cases the Court, when making the Order, were not requested to consider or make such a distinction either. It is however clear that the Court, by making such an Order, does intend for the successful party to recover costs more generously than would be possible as between Party and Party. The correct approach, in our view, is to use the tariff as a guide when drawing the bill and to incorporate therein the higher tariff as agreed with the Client. This provides for recovery of costs on a more generous (or intermediate) basis that does not border on overreaching on the part of the successful party. Remember always that our Taxing Masters at all times have a discression in this regard, but he is also not to vary or interpret the Court's Order and must give effect thereto.
I would just like to know that if a judgment handed down in the Western Cape High Court recently stated that my client is to pay the costs of the applicant and the costs of only one counsel (two were used by the applicant), does that mean the costs are payable on a party and party scale and how do we know which counsel we must pay for? A Senior and a Junior were used by our opponent. It does not state in the judgment on which scale my client is to pay. (ie party and party OR attorney client)
~ Karen Towsey, Western Cape It is important to remember always that, if the Court orders "COSTS" to be paid and does not specifically state that such costs are recoverable on a basis as between "ATTORNEY AND CLIENT", then "COSTS" shall at all times mean "PARTY AND PART" cost. This is also applicable in the Lower Court. Also,(and very important to remember always) in the event of a Party utilising the services of more than one Counsel, only the costs of ONE Counsel may be recovered UNLESS THE COURT ORDERS OTHERWISE (See Rule 69) It is the practice countrywide that in such an instance the costs of the more Senior Counsel should be allowed.