Harel Freres Ltd vs.

Bhoojawon

1987 MR 13
1987 SCJ 43
Glover ACJ, Forget J

Ten persons (the present respondents) entered separate actions before the
Intermediate Court to claim damages allegedly sustained as a result of herbicide
spraying by the appellant which affected their plantations. Since the
complaints related to the same incident and responsibility was laid at the door
of the same party, the cases were consolidated.

There was eventually one trial, as there should have been, and judgment
was delivered against the appellant. Since the several claims were for varying
figures, the learned Magistrates awarded a different sum for each of the
plaintiffs, but they went on to say: "Defendant to pay the costs in each case".
We may here observe that all the plaintiffs were represented by the same counsel
and attorney.

Pursuant to the District and Intermediate Courts (Civil Jurisdiction)

Rules, the plaintiffs' attorney, purporting to act in accordance with the lower
Court's judgment, caused 10 bills of costs to be taxed: in each bill provision
was made for counsel and attorney's fee. The Clerk of the Court passed the
bills and, not unsurprisingly, the appellant, on receipt of the claims, took the
view that its opponents' counsel and attorney were acting rather highhandedly in
claiming out fees on their behalf ten times over.

The appellant thereupon, again pursuant to the Rules, put in at the

Intermediate Court an application for the review of the taxed bills. The
Magistrate of the Court, being one of those who heard the case, who proceeded to
hear and dispose of the application in Chambers alone was clearly in error. The
rules we are concerned with were enacted in 1860, at a time when there was no
Intermediate Court, and not even the former Bench of Magistrates. We are of
opinion that, since the provisions of the law which give one Magistrate of the
Intermediate Court (which must normally sit in a division composed of at least 2
Magistrates) power to do certain acts do not refer to a review of bills of
costs, such an application should have been heard by 2 Magistrates.

Since this Court rarely has to deal with decisions made by Magistrates on
reviewing taxed bills of costs, we feel it advisable to comment further on what
took place. The Magistrate fixed the hearing of the application on a date pro
forma: the appellant on the one hand and the respondent on the other were
represented. The matter was fixed to be heard and, on the relevant day, the
respondents' counsel and attorney-and this deserves to be highlighted - were
absent. The appellant's attorney argued the matter on the specific issue that
counsel and attorney's fees (counsel and attorney being in the singular) which
had been claimed 10 times and amounted to a specific figure, should be
apportioned. The Magistrate in Chambers erred a second time in not treating the
application as being unopposed (this being a civil matter). Of course he was
perfectly entitled, notwithstanding that he was dealing with an application
going by default, to enquire as to the genuineness of the merits thereof. But he
was wrong, in our view, being given the tenor of the application, and its
particulars as set out above, to refuse it, inter alia, on the ground that the
taxed bills had not been produced to him.

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 The learned Magistrate went on, in giving his reasons for refusing the
application to say this -

The defendant was ordered to pay the costs simpliciter in each case and
this has not been appealed against. Furthermore, the Court was not
addressed on the question of the apportionment of costs.

While these statements are factually correct, they were not, in our view, valid
reasons for refusing to entertain the application. The order of the Court in the
judgment delivered at the trial said no more than that the appellant should pay
the costs lawfully due and passed by the clerk, after taxation, in each case.
The order cannot have meant that the various respondents were entitled to
counsel and attorney's fee ten times over, because if that had been the
intention of the learned Magistrates they would have been usurping the functions
of the taxing clerk and fettering their own hands in the eventual exercise of
their powers of review.

Of course none of this would have occurred if the Magistrates had, as they
should have done, treated the consolidated actions as one cause. This Court has
had occasion to explain this more than once by saying that, in such instances,
there should only be one appeal. It would appear, however, that our Courts have
not been alive to a basic principle in the field of consolidation, the sole
purpose of which is to save costs and time. That principle, set out in the
Annual Practice, 1982 ed under Order 4 Rule 10, and explained in Lewis and
another v Daily Telegraph Ltd (No 2) [1964] 2 QB 601,is that consolidation is
practically impossible unless the relevant parties are represented by the same
solicitor. One may on the other hand envisage that the co-plaintiffs, or the co-
defendants as the case may be, may retain more than one counsel. Then, in the
case of co-plaintiffs, counsel for plaintiff No 1 may examine his client, and so
on; but if a witness is called in the case on behalf of the co-plaintiffs, he
will not be examined in chief 10 times; nor will the common defendant be subject
to 10 cross-examinations.

It follows in our view that, particularly as there was only one counsel
and attorney involved in the instant case, the respondents were only entitled to
counsel and attorney's fee once, to be apportioned between them equally or,
since the awards of damages were different, in such manner as the taxing clerk,
or the Magistrates on review, thought fit under rule 57 of the District and
Intermediate Courts (Civil Jurisdiction) Rules.

There was, however, a preliminary objection to this appeal which is made

on a number of grounds against the decision of the Magistrate of the
Intermediate Court sitting in Chambers refusing to review the taxation of costs.
It is to the effect that there is no right of appeal against such an order. We
agree with learned counsel for the respondents that, while it is settled that an
appeal may lie from an order of the Court allowing or disallowing costs wholly
or in part, which after all is an integral part of the Court's judgment, the law
makes no provision for an appeal against a Magistrate's decision, under rule 53
of the abovequoted rules, on review of a taxed bill of costs. It is to be
noted, on the other hand, that rule 158 of our Rules of the Supreme Court
expressly caters for an appeal against the decision of the Registrar, acting as
taxing officer in a Supreme Court case.

But instead of dismissing the appeal because it does not lie, we feel
that, since we are seized of the matter, and the more so as the exercise of the
Magistrate's powers under rule 53 would, it seems, have been questionable by way
of judicial review, because, as we said earlier, he should not have acted alone

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this is an appropriate case for us to exercise the powers vested in this Court
by section 82(l) of the Constitution to-
…supervise any civil or criminal proceedings before any subordinate Court
and may make such orders, issue such writs and give such direction as it
may consider appropriate for the purpose of ensuring that justice is duly
administered by any such Court.

We accordingly direct the Magistrates to review the taxing clerks' bills in the
light of this judgment. But we trust that the legal advisers will be able to
settle the matter in the appropriate spirit.

We would add that, for the reasons indicated earlier, the Magistrate was
wrong to order the appellant to furnish surety for the appeal 10 times in favour
of each respondent.

The appeal is accordingly dismissed but we make no order for costs.

6 February 1987

R D’Unienville for the appellant

G. Ithier for the respondent

Attorneys

V Koenig for the appellant

L Gujadhur for the respondent

Record No 4066

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