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Costs and SC status
The situation of costs of senior attorneys who appear in matters in the High Court without using counsel, needs to be addressed.
When I appear, I usually ask the court to order that my fees be taxed ‘on the same rate as would be awarded to counsel of senior status’, and have been granted many such orders. This is as a result of a line of judgments who have held that attorneys who appear in the High Court should be treated no differently to counsel. I was, however, recently refused this order on the basis that the judge felt that he was not competent to make any order, which prescribed the level or rate at which my fees were to be taxed, as the judge was of the opinion that the level or rate of taxation is a matter in the discretion of the Taxing Master, and it was up to the Taxing Master to inquire as to whether an attorney would so qualify. All the judge could order was ‘the costs of counsel/costs of two counsel’.
This at first glance may seem fair, but practically it has difficulties. The difference lies in the title of the Senior Counsel (SC). As soon as a judge awards ‘costs of counsel’, and the SC submits their bill, there is no inquiry at the taxation as to whether they are indeed entitled to have their bill taxed at a higher rate or not. The SC is automatically given the benefit of the doubt by virtue of their title, and is not questioned. Why should an attorney then have to prove to the Taxing Master that they were of equivalent experience as the silk? I ask the opinion of our colleagues – is a court not entitled to include in its order, the prayer requested by me?
This leads to the second issue. As the entitlement to use the title of SC emanates from the President of South Africa ‘conferring honours’ on advocates in terms of s 84(k) of the Constitution, is it not long overdue that the attorneys profession start facilitating the conferring of such status on attorneys of senior status? After all, as the courts have held, why should attorneys be treated any different to advocates?
Gary Austin, attorney, Johannesburg
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This article was first published in De Rebus in 2018 (May) DR 4.
