MAHE MBE v MATAMBO 2003 (1) ZLR 148 (H)

Flynote

Costs ” legal practitioner and client scale ” when such costs should be awarded ” principles c

Headnote

The applicant applied for, and was granted, a provisional order against the respondent. The respondent subsequently opposed the application and filed opposing papers. He failed to file his heads of argument and also failed to appear on the day of the hearing. The applicant prayed for confirmation of the provisional order (which was granted) and asked for costs at a higher scale.

Held, that awards of legal practitioner and client costs not authorised by statute are made when, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the court considers it just, by means of such an order, to ensure more effectively than it can do by means of a judgment for party and party costs, that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation. Considerations include: dishonest conduct either in the transaction giving rise to the proceedings or in the proceedings themselves; malicious conduct; vexatious proceedings; reckless proceedings; and frivolous proceedings.