Cahill v Saunders (No 2) No. DCCIV-99-1095

[2001] SADC 16

JOHN VINCENT CAHILL  v  NICHOLAS SAUNDERS
THURSDAY, 15 FEBRUARY 2001
RELATING TO P.20 OF TRANSCRIPT
CHIEF JUDGE WORTHINGTON (ex tempore)

HIS HONOUR:      Two issues arise on costs.

Firstly, on 2 June 2000, the defendant served on the plaintiff an offer to consent to judgment for $28,160 and the plaintiff has judgment for only $26,780. Secondly, the plaintiff has recovered less than $30,000 which is the threshold figure under s.42(2) of the District Court Act 1991 for an entitlement to costs. That figure of $30,000 is half the jurisdictional limit of the Magistrates Court. I will deal with each separately.

The first is that the defendant seeks costs under Rule 40.05 against the plaintiff from 14 days after service of the offer. The plaintiff submits that this is inappropriate and that, in all the circumstances, there should be no order in favour of the defendant. Alternatively, the plaintiff says that if there is an order, the defendant should only be entitled to partial costs because there were a number of issues, either pleaded or relied upon, and explored by the defendant, on which the defendant did not succeed.  Further, it was put that the verdict is only about $1,000 or so below the offer.

I need not repeat the details of the matters raised or the helpful submissions advanced only a short time ago by Mr Britton, for the plaintiff,  and by Mr Day, for the defendant.

Rule 40.05 entitles the defendant to costs unless the court thinks it proper to make some other order. There is nothing about this case, or the quantum of the judgment, that gives grounds for relieving the plaintiff of an obligation to meet an order for costs under that rule. It is true that the figure offered by the defendant to satisfy the judgment is close to the verdict but that, by itself, is not enough. Although one of the principal issues in the trial related to the plaintiff’s psychological condition, there is nothing to suggest that this involved any incapacity or difficulty on the plaintiff’s part to understand, or deal with, the offer made by the defendant.

While it is correct to say that there were some issues on which the defendant’s submissions did not succeed, equally there were issues on which the plaintiff failed.  There is nothing exceptional about this action such as to lead the court to make a differential order giving the defendant only partial costs.

There is no feature about the case which triggers relief from Rule 40.05. The plaintiff will, therefore, pay the defendant’s costs of action, to be taxed or agreed, on and from 17 June 2000.

I come to the second point. The combined effect of s.42(2) of the District Court Act and Rule 101.2A is that because the plaintiff was awarded less than $30,000, there should be no order for costs unless the court is of the opinion that such an order is just in the circumstances. The plaintiff submits that because of the complexities of the case, notably the psychological issues, the court should not deprive him of costs prior to 17 June 2000. Again, I need not repeat the arguments and matters advanced by both counsel a short time ago.

There is ample authority for the proposition that s.42(2) is not just to protect the defendant against being brought into a more expensive court, i.e., this Court instead of the Magistrates Court. It is designed to encourage plaintiffs to use the Magistrates Court where the value of the claim is within the monetary jurisdiction of that court and to achieve that by penalising a plaintiff who comes to this court unnecessarily, in costs: Burton v Litton (1977) 16 SASR 162 per King CJ at 171. The court is obliged to give weight to this legislative purpose in deciding whether to allow costs.

In my opinion, there is nothing about this case which takes it outside the prohibition imposed by s.42(2). The issues were not complex. There were no issues of law of any moment. The psychological evidence was not complex. There was little or no practical difference in the opinions of the two psychiatrists, Dr Ash and Prof. Goldney. The expert evidence about the physical injuries was straightforward enough. The principal area of contention was whether the plaintiff was as disabled by his condition as he claimed and, thus, whether he had suffered as much loss of earning capacity as he claimed or, indeed, any. The findings speak for themselves.

I do not accept the plaintiff’s submission. In my opinion there are no circumstances that call for an order outside the provisions of s.42(2) or even that there should be a modified order for costs prior to 17 June 2000.

Therefore, I refuse the plaintiff’s application for costs.

Any further matters?

MR BRITTON:      No.

MR DAY:  No.

ADJOURNED 11.55 A.M.