- The Gauteng MEC for Health successfully challenged part of a taxing master’s decision that allowed senior counsel’s travel costs between Mthatha and Johannesburg in a medical negligence costs dispute.
- Judge L Windell ruled that the key question during taxation is whether an expense was reasonably necessary for the litigation, not whether the travel was permitted under COVID-19 regulations.
- As consultations and pre-trial conferences could reasonably have been conducted virtually, the court held that travel costs could not be recovered on a party-and-party scale.
Flights taken by senior counsel between Mthatha and Johannesburg for consultations and pre-trial conferences should not be paid by the losing party where those meetings could reasonably have been conducted virtually, the High Court in Johannesburg has ruled.
The decision followed a review brought by the Gauteng MEC for Health against rulings made by the taxing master during the taxation of an advocate’s bill of costs. The bill arose from a medical negligence action instituted by Beatrice Ntuli on behalf of Mpilwenhle Thapelo Ntuli. After the trial on the merits, the MEC was ordered to pay costs on a party-and-party scale.
During taxation, the second respondent’s advocate’s bill initially claimed fees exceeding R2.1 million. The taxing master reduced the amount substantially and allowed R1,194,553.30. Despite that reduction, the MEC sought a review under Rule 48 of the Uniform Rules of Court, arguing that several items had been allowed on an incorrect basis.
One of the central disputes concerned travel expenses incurred by senior counsel who practised in Mthatha but travelled to Johannesburg to attend consultations with attorneys and experts and to participate in pre-trial conferences connected to the litigation.
The taxing master allowed these expenses, reasoning that the travel was permissible under the COVID-19 regulations in force at the time and that counsel was entitled to travel for litigation-related purposes.
Judge L Windell held that this approach applied the wrong test. “The relevant question is not whether travel was legally permissible, but whether it was reasonably necessary for the purposes of the litigation.”
Choice of counsel and responsibility for costs
The court emphasised that litigants are entitled to brief counsel of their choice, including counsel practising outside the jurisdiction where the matter is heard. However, this does not mean that the opposing party must automatically bear every additional cost that results from that decision.
Judge Windell explained that where counsel is briefed from another city, the court must still determine whether the resulting expenses were reasonably necessary in the context of the litigation. “The enquiry is ultimately whether the expenditure was necessary and reasonable in the context of the litigation.”
By the time the consultations and pre-trial conferences took place, virtual meeting platforms such as Zoom and Microsoft Teams had become widely used within the legal profession. Consultations between attorneys, counsel, and experts were frequently conducted remotely.
Judge Windell said the taxing master should therefore have considered whether those engagements could reasonably have been conducted online instead of requiring travel between provinces.
“In circumstances where consultations and pre-trial conferences could reasonably have been conducted virtually, the costs associated with senior counsel travelling between Mthatha and Johannesburg cannot readily be justified on a party-and-party scale.”
Court disallows travel costs
Because the taxing master focused on whether the travel complied with COVID-19 regulations rather than whether it was necessary for the conduct of the litigation, the court found that the discretion had been exercised on the wrong principle.
Judge Windell concluded that the travel expenses were not recoverable from the opposing party and should instead be treated as costs between attorney and client.
The High Court therefore upheld the review in part and ordered that the items relating to senior counsel’s travel expenses be disallowed, while confirming the remainder of the taxing master’s rulings, subject to adjustments made to certain fees claimed for preparing heads of argument.
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