Mothebe v Barclays Bank of Botswana Ltd. (Civil Appeal No. 32 of 1996) [1997] BWCA 19; [1997] B.L.R. 123 (CA) (28 January 1997)

The applicant ex parte seeks leave to appeal to the Court of Appeal against a decision of Mr. Justice Nganunu delivered on the 30th August 1996 dismissing the application and an order by him that the costs of the application be paid by the applicant's attorney on the attorney and client scale. The order referred to was the result of proceedings commenced in the High Court by the Applicant for a declaration that an exception to the Writ of Summons and particulars of claim and a request for further and better particulars should be struck out with costs. These documents had been served by the Respondents as a result of an error by them under unusual circumstances which will be dealt with more fully below.

2 out should succeed: I am concerned only with the question of whether the application for leave should be granted. I will set out the facts only to the extent that they might appear in extracts from the from the judgment.

The basis of the judgment of Nganunu J on the merits was that the Applicant was not justified in proceeding with her application to strike out. The respondent's Attorney had realised that an error had occurred in their office and attempted to rectify it. It had not been appreciated that the second writ of summons replaced the first. The result of this had been that, for a period, instead consisting only the second writ of summons different attorney in the office dealt with the two documents as if they were commencing different actions. In the first case an exception was taken after notice to remove cause of complaint had been given. In the case of the second writ of summons a request for particulars was served.

The Attorneys for the defendants, when they later appreciated what had happened, sought to correct the error by withdrawing the exception. They also explained to the Plaintiffs Attorney what had happened and how they proposed to remedy the position. There is no doubt that at this stage the confusion should have been removed by agreement between the Attorneys.

The Attorney for the Plaintiff had however received instructions to proceed with an application to strike out the notice of exception and request for particulars in terms of Order 33 Rule 1 and was not deviated from this course by the information received from the Attorney for the defendant. The application to strike out was then the subject of the substantial dispute before Nganunu J.

'It is clear that at the time he received the fax on the 30th May from Armstrongs [the defendant's Attorney], he [the plaintiff Attorney] had not served any papers, but had at the most received instructions to make an application. He had a duty to his client and to the court not to make that application and to advise his client that it had become unnecessary after the withdrawal by the defendant."

The question of costs has given me some difficulty and particularly that part of it which concerns the award of costs on the attorney and client scale to be paid de bonis propriis by the Attorney for the plaintiff

It is not my function at this stage of proceedings to decide whether Nganunu J. was right when he awarded costs on the scale and with the direction which did. I have to decide whether it is reasonably possible that the Court of Appeal could take a different view.

"1. In awarding costs the Court has a discretion, to be exercised judicially upon a consideration of all the facts; and, as between the parties in essence it as a matter of fairness to both sides. See Gelb v Hawkins, 1960 [3] SA 687 [A.D at p 694 A: and Graham v Qdendaal 1972 [2] SA 611 [AD] at p616. Ethical consideration may also enter into the exercise of the discretion; see Mahomed v Nagdee 1952 [1] SA 410 [AD] at p. 420 in fin.

2. The same basic principles apply to costs on the attorney and client scale. For
example, vexatious, unscrupulous, dilatory or mendacious conduct [this list is not
exhaustive] on the part of an unsuccessful litigant may render it unfair for his
harassed opponent to be out of pocket in the matter of his own attorney and client
costs. See Nel v Waterberg Landbouers Ko-peratiewe Vereeniging, 1946 AD 597
at p 610 second paragraph. Moreover in such cases the Court's hand is not
shortened in the visitation of its displeasure; see Jewish Colonial Trust ltd v Estate
Nalham 1940 AD 163 at 184, lines 1 - 3.

3. In appeals against costs, the question is whether there was an improper
exercise of justical discretion, i.e. whether the award is vitiated by irregularity or
misdirection or is disquietingly inappropriate. The Court will not interfere
merely because it might have later a different view.

4. A unsucessful appeal against an order involving costs on the basis of attorney
and client does not necessarily entitle the Respondent to the costs of the appeal
on the same basis. A Court of Appeal must guard against inhibiting a legitimate
right of appeal and it requires the existence of very special circumstances before

awarding costs of appeal on an attorney and client basis; see Herold v Sinclair and Others 1954 [2] SA 531 (AD) at p 537. The decision also indicated the undesirability, in that case on elaborating of the expression "very special circumstances. Without seeking to limit it I think it safe to say that relevant considerations could include, amongst others the degree of reprehensibility of the appellant's conduct, the amount at stake, and his prospects of success in noting an appeal whether against the main order or against the special award of costs with its censorious implications."

The direction that the costs should be paid de bonis propriis in the case of an attorney is only to be made in a limited set at circumstance i.e. "serious cases such as cases of dishonesty, wilfulness or negligence in a serious degree" (Cilliers on Costs 2nd Ed. para 10.25.

I think, that in the present case the absence of positive findings of fact upon which to base the special award of costs could amount to an irregularity upon which a successful appeal could be based. Nganunu J. in his judgment at no stage said positively that the Attorney for the appellant had proceeded with the apphcation in order to manufacture costs or to embarrass the Defendant's attorneys or for some other nefarious purpose. He merely said that he was in breach of his duty to his client and the Court not to make the application when it had become unnecessary. I therefore am of the view that there is an arguable appeal on the issue of the scale of costs and payment by the appellant's Attorney.

I refuse leave to appeal against the decision of Nganunu J on the merits and on the general question of which of the two parties is to pay the costs.

I grant leave to appeal on the question of the scale of costs and whether the learned Judge should have ordered them to be paid de bonis propriis by the Attorney for the applicant. The costs of this application are costs in the appeal.

Botswana: Court of Appeal

Mothebe v Barclays Bank of Botswana Ltd. (Civil Appeal No. 32 of 1996) [1997] BWCA 19; [1997] B.L.R. 123 (CA) (28 January 1997)