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Can counsel’s advice on evidence be recovered?

Parties embroiled in litigation often has to call on the expertise of their Counsel to consider the evidence at hand for trial purposes.

The question that now arises is : Whether the costs of employing Counsel to consider and give advice on evidence is recoverable from the other side should a party be successful and be awarded costs in their favour ?

The answer hereto is summed up best in : Herbert Penny Ltd v Stone 1948 (3) SA 1033 © at 1036 – “Advice on evidence is a most important factor in any trial and involves a mastery of all the facts and much of the law in a case”.

In the case of : Oshry & Lazar v Taxing Master & another 1947 (1) SA 657 (T) at 662 the Court also has this to say about advice on evidence : “ In preparing advice on evidence the whole case has to be considered; the pleadings have to be considered, the documents discovered have to be considered and then Counsel applies his mind to advising the client what evidence is necessary to produce at the trial “

There can thus be no doubt that such an important step in the litigation process is in fact recoverable from the other side when successful.

Advice on evidence must however not be confused with advice on the prospect of success, which is usually also based on the evidence at hand. The latter is not recoverable from the other side even when successful.