J.J.V.R v Taxing Master, High Court of South Africa (Western Cape Division) and Others (15120/2022)  ZAWCHC 261 (20 October 2023)
Bench: P.A.L. Gamble, D.M. Thulare, JJ & R. Wathen-Falken, AJ – Delivered: 20 October 2023
In a recent reportable judgment, the court addressed the complex issue of whether costs consultants can appear before a Taxing Master in the Supreme Court. This case brings to light the ongoing debate on who is permitted to practice in such a court, particularly concerning the taxation of litigants’ bills of costs.
Traditionally, only persons admitted to practice as legal practitioners under the Legal Practice Act, 28 of 2014 (the LPA), have been allowed to appear before a Taxing Master. However, some costs consultants have argued that they should be permitted to present the bill of costs at taxation, provided they are accompanied by a qualified attorney.
The LPA aims to regulate the affairs of all legal practitioners and candidate legal practitioners. It prescribes that only those admitted and enrolled as legal practitioners can appear in any court of law or before any board, tribunal, or similar institution where only legal practitioners are entitled to appear. Violation of these provisions could result in criminal sanctions.
Fee Sharing and Costs Consultants
Justice Gamble agreed with the submission by the LPC that when an attorney pays a fee to a costs consultant who is not an admitted legal practitioner for their appearance at the taxation, and then seeks to recover that fee from the client, it amounts to a prohibited sharing of fees under Item 12.1 of the Code. The only party entitled to claim the fees stipulated in the Tariff of Fees under Rule 70 is the attorney.
However, it is permissible for an attorney to appoint a third party, including a costs consultant, to draft a bill of costs. In such cases, the attorney must prepare a certificate to accompany the bill of costs, certifying that it has been properly perused and found to be correct. This function does not constitute a sharing of fees. The certification by the attorney is an important requirement, indicative of the trust and professional responsibility reposed in the legal practitioner, which cannot be expected of a costs consultant who is not an admitted legal practitioner.
Conclusion of the Case
According to the judgment costs consultant who is not an admitted legal practitioner cannot be expected to have the same trust and/or responsibility as a legal practitioner. While it is permissible for an attorney to appoint a third party (which may include a costs consultant who is not an admitted attorney) to draft a bill of costs, the attorney must prepare a certificate that is to accompany the bill of costs in which the attorney certifies that the bill of costs has been properly perused and found to be correct.
This judgment reaffirms the traditional view that only qualified legal practitioners have the right to appear before a Taxing Master. It also highlights the importance of maintaining the integrity of the legal profession and serves as a cautionary tale for costs consultants seeking to overstep their boundaries. The case also clarifies the limitations on the role of costs consultants, particularly concerning fee sharing, and underscores the importance of adhering to established legal norms and standards.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
Read the case here: