WILLIAMS v THE TAXING MASTER 1982 (2) ZLR 122 (H)

Flynote

Practice and procedure — High Court Rules — Rule 311 — engagement of a second legal practitioner in a relatively straightforward matter — not precluded by Rules and indeed may be desirable — discretion of Taxing Master in taxation of bill of costs — Court's power of review.

Headnote

The applicant had brought proceedings to sequestrate the estate of a debtor. The legal practitioners who acted for the applicant framed the petition for sequestration on the basis that another legal practitioner would be instructed to appear when the proceedings were heard in court. In the event the proceedings were unopposed.

When the bill of costs was presented for taxation, the Taxing Master disallowed the amount which he considered reflected the further cost of instructing a second legal practitioner. His grounds for so doing were that there was no justification in this case for a second practitioner to be instructed.

Held, remitting the matter to Taxing Master to tax the bill of costs afresh, that the normal basis for review of an official's decision is very much wider when it comes to review by a Court of its own officers; it may reverse his ruling, not only on the grounds of failure to exercise a proper discretion, but also if it is clearly of the view that he is wrong.

Held, further, that the Taxing Master had taken a wrong view of Rule 311 (a) of the High Court Rules, the proviso to which was clearly designed to disallow the fees of second counsel in an unopposed matter. This did not mean that one instructing legal practitioner may no longer employ another when the matter is unopposed. He is still required to allow the fee of one counsel, that is, a practitioner instructed by another practitioner.

Held, further, that as a matter of practice, the Taxing Master was not justified in his ruling. In the first place, fusion of the legal profession was a recent event, and many former attorneys would feel, justifiably, that they were unfamiliar with and inexperienced in certain fields, so the interests of their clients would be better served by briefing a practitioner who was familiar. Secondly, an experienced practitioner might be unable, through pressure of work, to leave