R H Christie Incorporated v Taxing Master – Supreme Court of Appeal

This case involved a Rule 17 Review of Taxation of a bill of costs. The underlying matter was a divorce appeal concerning whether a spouse's Living Annuities should be included in an accrual calculation. R H Christie Incorporated (applicant) was the attorney acting for Charmaine Helen Montanari (second respondent) on an attorney and own client basis. The appeal progressed through the Gauteng Division High Court, the Full Court, and ultimately the Supreme Court of Appeal following a petition. Z F Joubert SC was instructed in December 2016 to represent the second respondent at an agreed hourly rate of R3,600 (excluding VAT). The Taxing Master (first respondent) significantly reduced counsel's fees and disallowed various disbursements including travelling costs, costs related to a condonation application arising from late filing due to a systems failure at the applicant's offices, and numerous general items considered duplications or unnecessary. The second respondent was impecunious and had terminated the applicant's mandate after becoming aware of her rights to challenge the fees. The applicant sought review of the taxation.

• What test applies when a court reviews a ruling by a taxing master?
• What expenses may be recovered on an attorney and own client scale?
• What constitutes 'overreaching' by an attorney in relation to fees charged to a client?
• Whether the taxing master erred in disallowing counsel's fees despite an agreed hourly rate?
• Whether the taxing master erred in disallowing disbursements for travelling costs to file documents?
• Whether the taxing master erred in disallowing costs related to a condonation application arising from the attorney's systems failure?
• Whether the taxing master erred in disallowing various items as duplications or unnecessary communications?

The review was successful only to the extent reflected in paragraphs 59 to 62 of the judgment (items 404, 4 and 5, 306, 307, 410-416, and 422 should have been allowed). No order as to costs was made. The allocator was remitted to the taxing master to be redrawn on the basis set out in the judgment.

On an attorney and own client bill of costs, a taxing master has discretion to disallow expenses where an attorney has overreached a client, been negligent or acted mala fide. An agreement on an hourly rate for counsel does not extend an open-ended invitation for unlimited hours to be spent on a case. The taxing master must ensure that expenses are normal, usual, and fall within what might have been authorized, and must not impose an unjust liability on a costs debtor. A client should not bear substantial costs arising from the attorney's own systems failures or mishaps, particularly where there was ample time to comply with court rules. A court will only interfere with a taxing master's ruling if the taxing master acted mala fide, from improper motives, failed to apply his mind, disregarded regulatory prescripts, or was clearly wrong - i.e., where the court's view differs so materially from the taxing master's that it vitiates the ruling.

The court noted that the fact that the matter was novel and resulted in new law being created does not automatically justify excessive fees - the Supreme Court of Appeal frequently faces novel questions requiring departure from prior decisions in South Africa's constitutional order. The court observed that if a client were asked in advance whether they should pay substantial costs for a mishap not of their making (such as a condonation application arising from the attorney's systems failure), where there had been ample time to meet court-imposed deadlines, the answer would be obvious. The court also noted that prior payment of accounts without objection should not be regarded as a bar to testing whether there was overreaching or imposition of unfair liability for costs, particularly where the litigant was uninformed, struggling financially, and unaware of their rights to challenge fees until advised by subsequent legal representatives. The submission that no complaint had been lodged with the Cape Bar was deemed not useful in these circumstances.

This case provides important guidance on the principles governing review of taxation of costs in South Africa, particularly on attorney and own client bills. It clarifies that: (1) an agreed hourly rate for counsel does not constitute carte blanche for unlimited hours to be charged; (2) a taxing master retains discretion to disallow expenses even on an attorney and own client scale where there is overreaching, negligence or mala fides; (3) clients should not bear costs arising from their attorney's systems failures or negligence; (4) prior payment of accounts without objection by an uninformed, financially struggling litigant does not bar subsequent challenge; and (5) expenses incurred through over-caution, duplication, or failure to use cost-effective methods (such as using correspondents rather than flying staff to file documents) may properly be disallowed even on an attorney and own client scale. The case reinforces that the legal system does not permit a taxing master to impose an unjust liability on a costs debtor.