IN THE HIGH COURT OF FIJI
AT LAUTOKA
WESTERN DIVISION

HBC No. 300 of 2003

BETWEEN:

SURENDRA PRASAD 
of Lautoka, Retired Magistrate.
PLAINTIFF

AND:

LAUTOKA CITY COUNCIL
a body corporate duly established under the provisions of the Local Government Act (Cap 25).
DEFENDANT

Before : Master Anare Tuilevuka.

Counsel Appearing : Mr. N. Nand of Vijay Naidu & Associates for the Plaintiff.
:Mr. Anu Patel of S.B. Patel & Company for the Defendant.

Date of Ruling : Friday 27 January 2012.

RULING
INTRODUCTION

[1].	This matter had been fixed for trial for three days before Mr. Justice Yohan Fernando at the Lautoka High Court. However, trial was vacated when Mr. Nand was granted an adjournment to take instructions from the plaintiff on some preliminary points that Mr. Patel had raised on the first day of trial. There is no need for me to set out here the three preliminary points raised. Suffice it to say that because the adjournment necessitated the trial being vacated, Fernando J ruled ordered on 23 May 2011 that the defendant is "entitled to taxed costs for the 3 trial dates vacated" and then referred the file to this court for taxation on the standard basis.

[2].	However, on 19 July 2011, the plaintiff's solicitors filed a motion seeking leave to withdraw the action and that "the costs of the application be paid by the Defendant to be taxed in default of agreement". The affidavit filed in support of the application simply states that "the plaintiff does not wish to proceed with this action any further. He now intends to wholly and completely discontinue this action against the Defendant".

[3].	The defendant has since presented its bill of costs for taxation which was annexed to the affidavit of Mr. Jone Qio Nakauvadra which is filed herein. Mr. Nakauvadra deposes simply that the defendant does not object to the plaintiff discontinuing the action as long as he pays the defendant's costs.

[4].	The High Court's power to award costs is discretionary (see Order 62 Rule 3(3)).

If the Court in the exercise of its discretion sees fit to make any order as to the costs of those proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

[5].	In other words, the loser will be ordered to pay the winner's costs and will be left to bear his own. 

[6].	Where the plaintiff has discontinued or withdrawn his claim without ever going to trial as happened in this case, there is strictly no "winner" and/or "looser" formally declared by the court. But in such cases, an order for costs will be deemed to have been made (see Order 62 Rule 5(3)) against the party who is withdrawing his claim/counterclaim and in favour of the other party. In such cases, costs will be assessed up to the time of receipt of notice of discontinuance or withdrawal:

Where a party by notice in writing and without leave discontinues an action or counterclaim or withdraws any particular claim made by him as against any other party, that other party shall be entitled to his costs of the action or counterclaim or his costs occasioned by the claim withdrawn, as the case may be, incurred to the time of receipt of the notice of discontinuance or withdrawal

[7].	In my view, in the majority of (if not all) cases that come under Order 62 Rule 5(3), the reason for the plaintiff's withdrawal or discontinuance of his claim (or defendant's withdrawal or discontinuance of his counter-claim) will not affect the defendant's (or the plaintiff's) entitlement to costs.

[8].	Hence, in this case, what I am to do is to assess:

(i)	the taxing of the defendant's costs for the three trial dates vacated as ordered by Fernando J.

(ii)	the taxing of the defendant's costs occasioned by the plaintiff withdrawing his claim up to the time of withdrawal.

[9].	Mr. Nand has raised no objection about the form and/or manner in which taxation has proceeded in this case. Nor does he question the attendances itemized in the bill of costs. Rather, Mr. Nand simply wants all attendances taxed on the lower scale and also the fees for the three trial dates vacated be reduced to $1,500 only. When taxing costs on standard basis, any doubt is resolved in favour of the party to be taxed.

[10].	I am not convinced that the attendances should all be taxed on the higher scale. The case, in my view is not so complicated – nor has any reason been given to me such as to warrant taxation on a higher scale. Below is the taxed Bill of Costs.

Taxed Bill of Costs

ATTENDANCE	SCALE OF COSTS – STANDARD BASIS
(Legal Practitioners (High Court Costs) Regulations 2006.
	 COSTS ALLOWED	
Instructions for Statement of Defence inclusive of preparation, filing and service.	Lower	Higher	

$200-00	
	$75-00	$250-00		
Appearance on Summons for Directions on 03/12/03 before Deputy Registrar.	$50-00	$50-00	$50-00	
Instructions for and preparation of List of Documents and service thereof filed on 09/03/04.	$75-00	$150-00	$120-00
(reasonably long List of documents)	
Affidavit Verifying List	$20-00	$30-00	$25-00	
Production or inspection of documents pursuant to notice inclusive of all services incidental thereto.	$25-00	$50-00	$35-00	
Receipt of Amended Statement of Claim filed 10/04/08.	---	---	---	
Instructions for Amended Statement of Defence	$75-00	$250-00	$200-00
(amendments noted not substantively different from original Defence)	
Perusing and execution of Minutes of PTC.	Not Covered	Not Covered	$100-00	
Attendances in preparation, filing and service of subpoena to 2 witnesses	$20-00
(per witness)	$40-00
(per witness)	$40-00
(@ $20-00 per witness x 2 witnesses)	
Appearing before Master on 26/02/08 when matter adjourned to 10/04/08 to convene PTC, exchange docs.			$50-00
(case was called pursuant to Order 25 Rule 9 Motion by Court against PF).	
Appearing before Master on 10/04/08 when Plaintiff ordered to file and serve Amended SoC by 27/04/08, Amended SoD by 15/05/08, PTC to be amended and filed by 30/05/08, ABoD and CP by 15/06/08 and trial dates set for 30/06/08 and 01/07/08.	N/C	N/C	$50-00	
Instructions for and preparing for trial inclusive of instructions for and preparation for and preparations for brief.	$150-00	$300-00	$300-00
(allowing costs on higher scale as this was first ever instructions for trial)	
Appearing before Master on 27/06/08 when matter taken off cause list as Plaintiff sick and unable to travel to Fiji for hearing set down for 30/06/08 and 01/07/08.			No award as records show no one appeared for defendant.	
Appearing before Master on 24/08/09 on Order 25 Rule 9 Notice issued by Court. PF was given 28 days to finalise PTC and matter adjourned to 24/09/09.			$50-00	
Appearing before Master on 24/09/09. Ordered to convene PTC by 16/10/09. Matter adjourned to 20/10/09.			$50-00	
Appearing before Master on 20/10/09 when 7 days given to execute PTC Minutes. Matter adjourned to 30/10/09.			$50-00	
Appearing before Master on 30/10/09 and parties ordered to complete PTC and file minutes by 13/11/09, ABoD and CP by 27/11/09 and matter adjourned to Judge for trial date.			$50-00	
Appearing before Fernando J on 08/12/09 when trial dates fixed for 13 and 14 October 2010.			$50-00	
Instructions for and preparing for trial inclusive of instructions for and preparation of brief for hearing on 13 and 14 October 2010.	$150-00	$300-00	$250-00
(this is second preparation for trial so awarding costs on lowest scale).	
Receiving notice from High Court on 07/09/10 that hearing for 13 & 14 Oct vacated and matter marked for mention on 03/12/10.			No costs allowed.
Parties o bear own costs here as adjourned no fault of either party.	
Appearing before Master on 03/12/10 when matter adjourned to 14/12/10.			No costs allowed.
Parties o bear own costs here as adjourned no fault of either party.	
Appearing before Master on 14/12/10 when matter adjourned to 24/01/11 for CP and ABoD.			$50-00
Award Costs here as now evident PF dragging his feet in not attending to CP. PF was not at all ready for trial on 13 & 14 Oct 2010 as he had not even filed CP.	
Appearing before Master on 24/01/11 when matter adjourned to 15/02/11 for CP and ABoD.			$50-00
(as above)	
Appearing before Master on 15/02/11 when matter adjourned to 04/03/11 for mention.			$50-00
(Court records show CP and ABoD not ready).	
Appearing before Master on 04/03/11 when Master referred file to DR to send NOAH before trial judge to fix trial dates.			$50-00	
Appearing before Judge on 31/03/11 when matter fixed for hearing on 23 and 24 May 2011. 			$50-00	
Subpoena Ad Testificandum including issue and service for each 2 witnesses.	$20-00	$40-00	$40-00
(@ $20 per witness x 2 witnesses)	
Instructions for and preparations for trial, researching relevant case authorities, inclusive of instructions for and preparation of brief for the hearing on 23 and 24 May 2011.	$150-00	$300-00	$200-00
(this is third preparation for trial so awarding costs on lowest scale).	
Appearing before Judge on 23/05/11 and arguing two preliminary points:-
•	Whether PF entitled to bring action on own accord without joining other two parties mentioned in the Option Agreement.
•	No Case to Answer.

Hearing vacated as PF's solicitors granted an adjournment to take client's instructions. Matter adjourned to Master to consider Ord. 15 Rule 4(2) application if made and amended pleadings.		

	$350-00
(this is costs only for argument on preliminary points. I reach this figure after comparing with item 26 on Scale of Costs.
	
		$300 - $600 per day is scale of costs for attendance at trial of an action or proceeding per day (See item 20 on Scale of Costs).	$500-00 costs allowed per day (this is assessed as per Fernando J's Orders).
	
			TOTAL = $1,500 + $350 = $1,850-00	
Appearing before the Master on 06/06/11 when matter adjourned to 29/06/11 for mention.			$50-00	
Appearing before Master on 29/06/11 when matter adjourned to 18/08/11 for mention.			$50-00	
Instructions to appear on PF's application for leave to withdraw action and costs application, appearing before Master on 18/08/11 when matter adjourned to DR for notice to be sent to pasties.			$100-00.	
TOTAL		$4110-00 	
Add VAT		(parties to calculate and add VAT)	
Add disbursements	Mr. Nand does not really contest disbursements claimed which totals $581.55 comprising of filing fees, conduct money, agency fees and telephone, internet, photocopying fees – so I award $581.55 in disbursements to the defendant.	$581-55	

[11].	The defendant's costs as taxed up to the time of receipt of Notice of Discontinuance or Withdrawal is $4110-00 (four thousand one hundred and ten dollars) plus disbursements of $581-55 (five hundred and eighty one dollars and fifty five cents). VAT is to be added to the $4110-00.

…………………………..
Anare Tuilevuka
Master

At Lautoka.
27 January 2012.