Issue of Perusal – First Edition

The current High Court tariff, which has been amended and came into force 24 February 2015, with respect, has a number of weaknesses. Attention is drawn to High Court Rule 70 (C) – Attendance and perusal as from 24 February 2015 will be allowed at R 53.00 perusal rate of one tariff page; this creates great confusion with each division and taxing masters adopting a different approach as how to assess and quantify perusal particularly with regard to second of third time perusal such as discovery. When dealing with perusal it is imperative to discuss Rule 70(9) which states “Save for the forms set out in the First Schedule to these Rules, a page shall contain at least 250 words and four figures shall be counted as a word.”

The tariff page is peremptory; a page shall contain at least 250 words. The difficulty which is created, for example, a lease agreement had to be perused as it formed the crux or central point of the plaintiff’s case, a document such as a lease agreement or intricate contract can amount to three tariff pages per physical page, due to small print and lengthy paragraphs; assuming the agreement amounted to 40 tariff pages, applying the R 53.00 per tariff page rule this amounts to R 2,120.00. The current hourly rate as prescribed by the tariff amounts to R 1,052.00, thus extrapolated to the hourly rate it would have taken a practitioner in the region of two hours to apply a legal mind to the agreement. On the face of it, using this example, it would appear the tariff is accurate and reasonable, the problems arise when large numbers of documents have to be perused, discovery, transcripts, trial bundles and other documentation directly related to the trial, it is not uncommon for the tariff pages to amount to 3000+ pages, applying the R 53.00 per tariff page rule this amounts to R159, 000.00 invariably the perusal on one or two attendances can constitute 80% of the fee component pertaining to litigation which spanned a number of years and in in one fell swoop the value of the fee component has been inflated by 70% – 80%. This is clearly a problem; it sometimes does not make sense relative to the other work done by the practitioner over a number of years, which the fee component is dominated by two perusal attendances, it is not always a fair reflection of the work done. The nature of the documentation perused plays a prominent role in determining fair and reasonable costs.

Many attempts have been made throughout South Africa by taxing masters and legal costs consultants to address this problem of perusal, with the effect that different approaches have been adopted by different Divisions.

The bottom line, without an amended tariff, as it pertains to perusal, the current inconsistency and lack of a logical uniform approach will persist and mire the waters of what is fair and reasonable. The current perusal rate as prescribed by the tariff creates a situation that is wholly out of proportion to the value of the services rendered.

The most common approach when departing from the tariff in terms of Rule 70(5)     is to adopt the approach enunciated in the Review Judgment of Van der Byl AJ – in the case of Juanita Van Rooyen v Road Accident Fund where it was held that a time spent basis of 40 pages per hour was acceptable and was applied in the Review Judgment. It is submitted, that this is not a clear cut solution – There is opinion, that the taxing master is not obliged to tax the costs of perusal on a time basis, see East London Municipality v SAR&H 1953(1) SA 433 (E). Where a file note has been kept, cannot allow perusal on a time basis at 40 pages per hour. It is work actually done that is allowed. Doveton & 15 others v Richards Bay Transitional Local Council & 9 others unreported NPD 3328/2000. Is only in regard to unimportant documents, relevant but not individually important that the Taxing Master can deal with them as a batch and allowed a fee for perusal for purposes of discovery on a time basis. Oshry & Lazar v Taxing Master 1947(1) SA 657 T.

The difficulties the writer has with the forty pages per hour approach and generally with applying an hourly rate attached to perusal are as follows;

Firstly, applying the forty pages per hour approach does not take into account the complexity of the document(s) perused, often a practitioner has to apply his mind to ancillary documentation (not debited) in order to understand and consider the nature and content of that which is being perused and claimed for, very often in such an instance applying the forty pages per hour approach will leave the successful party out of pocket. Furthermore, the difficulty that then arises that the taxing master cannot correlate the complexity and the time necessarily spent on the perusal.

Secondly, the writer agrees with the view held in the case of KwaZulu-Natal Bookmakers Society v KwaZulu-Natal Gaming And Betting Board and Another (11034/14) [2015] ZAKZPHC 33 (17 June 2015) the court held, that “the principle flowing from this is that time charged is not decisive. An objective assessment of the features of the case in primary, and time actually spent in preparing an appeal cannot be decisive in determining the reasonableness, between party and party, of a fee for that work. The reason is that time alone would put a premium on slow and inefficient work and would conduce to the charging of fees wholly out of proportion to the value of the services rendered.’ 

Each case has to be treated on its merits – in the opinion of the writer, the current High Court tariff, which has been amended and came into force 24 February 2015, is in need of amendment in respect of perusal, and proposes a three tier perusal rate; similar to the Supreme Court Tariff which was repealed in 1996. (A) Highest (B) Intermediary and (C) Lesser; such an amendment will greatly assist taxing masters and legal costs consultants alike and lead to a conclusion necessary or proper for the attainment of justice .

Contributor

Stan Horowitz