Charan v Suva City Council [1994] FJHC 3; HBM1173j.1984s (26 August 1994)

Fiji Islands - Charan v Suva City Council - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. HBM1173.84

BETWEEN:

SURESH SUSHIL CHARAN
AND ANURADHA CHARAN
of 4 Evelyn Place, Nasese, Suva.
Plaintiffs

AND:

SUVA CITY COUNCIL
Defendant

Counsel: Plaintiff Suresh Sushil Charan in person
Ms. T. Jayatilleke for Dant

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Date of Hearing: 9th May 1994
Date of Decision: 26th August 1994

JUDGMENT OF MR. JUSTICE PAIN

This is an application made by the plaintif a Judge of this Court purs pursuant to Order 62 Rule 33 of the High Court Rules l988 to review the taxation of the plaintiffs costs in this action by a taxing officer.

In view of tolonged history of these proceedings it is appropriate to s to summarise the facts and circumstances that are material to the award of costs now under review. These have been gleaned from the documents tendered at the hearing and a perusal of the relevant parts of the Court file.

The Plaintiff commenced thison against the Defendant innt in December l984. The statement of claim pleaded three causes of action upon which the Plaintiffs sought damages, namely,

1. Wrongful prosecuosecution on a charge of engaging in business without a valid licence.

respass with an invalid Disd Distress for Rent Warrant in September l984.

p class=MsoNormal stal style="text-align: justify; text-indent: .55pt; margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> 3. Unlawful distress and sale of goods in November l984.

The action was hearore Sheehan J. who delivered a brief judgment on 1st Septemeptember l987. He found that the Plaintiffs' claims for wrongful distress had not been established but the Plaintiffs succeeded on the claim for wrongful prosecution. He gave judgment for the Plaintiff for "the actual costs of instituting proceedings necessary to have the conviction against him reversed", such costs to be fixed by the Registrar. He also awarded "costs in this action to the Plaintiff to be taxed if not agreed".

The Plaintiffs appealed to ourt of Appeal which deliveelivered its judgment on the 19th September l988. The Court of Appeal was critical of the trial Judges finding in favour of the Plaintiffs on their claim for wrongful prosecution. The Court said (page 4):

"In our view the appellants have not satisfied us that the prosecution was not brought reasonably and for proper cause or that it was malicious. We view the learned judge's decision as agreeing that the prosecution was wrongful in the sense that it should not have been brought but not as malicious. He awarded costs of that prosecution and entered judgement for the appellants with costs."

Earlier in its judgthe Court had said (page 2):

"There is no cross-appeal against the learned judge's judgement and the of costs must stand.

Had there been a cross appeal we may have set athe judgment. We cannot however disturb the judgment."

The Court further said (page 7):

"We do not disturb

Accord the judgment given by Sheehan J. on 1st September l987 in 7 in favour of the Plaintiffs for their "actual costs of instituting proceedings necessary to have the conviction reversed" remained good. Likewise the order for costs in favour of the Plaintiffs which followed that judgment.

I interp here, that the Court of Appeal allowed the Plaintiffs appe appeal in part, namely, in respect of the claim "based on the alleged illegality or irregularity of the second distress" and ordered a new trial thereon. However that is of no relevance to the matter now under consideration.

It shouso be mentioned that at all times throughout the proceedingedings before Sheehan J. and the Court of Appeal and in the earlier prosecution in the Magistrates Court and in the taxation hearings the Plaintiffs have appeared in person. The first-named Plaintiff, Suresh Charan, has appeared for both Plaintiffs.

istory of the fixing and taxation of the Plaintiffs costs ists in accordance with the judgment of Sheehan J. given on the 1st September 1987 is that the Plaintiffs filed a Bill of Costs for taxation on 29th June 1988. An amended Bill of Costs was filed on 5th October 1988. This Bill is divided into two parts being First the costs of "instituting proceedings necessary to have the conviction reversed" which was the judgment given by Sheehan J. in favour of the Plaintiffs and Secondly the costs awarded on that judgment. These together came to a total sum of $6012.84 made up as follows:

Judgmepan>

Solicitors fees 220.0an>

Plaintiffs time and attendances 690.00

Disbursements &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &n.>>47pp>/s class=MsoNormaNormal style="text-align: fy; m-top:argin-bottom: 1"> man">&nbsp

957.42

Interest thereon @ 13½% pa.

1.10.84 to 1.10.88 & &nsp; &nbssp; &nbssp; &nbp; &nbs; &nbbsp;&nnsp;&&nsp;; &bsp; 685.35l,&nnbs;&&nbs; &nbsp &nbbp;&nnbp;& 64p;77span>

n lang=EN-GB style="font- 12.0ont-f: Times New Roew Roman">man"> p class=MsoNormal smal smal style=tyle="text"text-alig-align: justify; margin-top: 1; margin-bottom: 1"> Costs

Solicitors fees 981.00

Plaintiffs time and attendances 2067.85

Disbursements &nnsp;&&nsp;;&nspp;&nssp;&nsp;  p;&nssp;  p; &nbp; &nbp; & p;&nbbnbsp&;&nbbsp; 2sp; 2.90

&nn">

3731.75

Interest thereon @ 13½%

p.a. 1.9.87 to 31.10.88 &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; &n638.32 nbsp; &;;&nbnbsp;nbsp; &nbsp 4,370.> $ 6,012.84

According to the Certificate of the Chief Registrar dated 4th December 1992, he c he completed the taxation of the Plaintiffs amended Bill of Costs on the 15th October 1992 and taxed a total sum of $3,356.50. However the Certificate was issued for the sum of $3,216.50 as a set-off was allowed for the costs of the Defendant of $90 pursuant to an order of Byrne J. on 22nd August l990 and $50 pursuant to an order of Jayaratne J. on 15th March 1991.

This taxation for $3,356.50 taxed the claims in the Plaintiffs' Bill of C of Costs on the following basis:

Judgment

Solicitors fees 120.00

Plaintiffs time and attendances 359.93

Disbursements 41.42 521.35

Costs

Solicitors Fees 384.64

Plaintiffs time and attendances 869.98

Disbursements 443.20 1,697.82

2,7

Interest thereon @ 10% p.a.

from l.9.87 to 15.10.92 1.137.33

$3,356.50

On 23rd November, 1992 the Plaintiffs filed an objection to this taxation setting out 27 items of contention. This was accepted as an application to the taxing officer for review pursuant to Order 62 Rule 31. The Chief Registrar (as the taxing officer) heard this application for review on the 11th March 1993. Written submissions were subsequently filed by the defendant on the 18th March l993 and by the plaintiffs on the 26th April 1993. In a review decision dated the 26th July 1993 and delivered on the 16th August l993 the Chief Registrar considered each of the plaintiffs 27 items of objection. He allowed one in whole and one in part and dismissed the remainder. The effect of this review was to increase the award of costs by $113.67.

The Registrar issued a Certificate of Taxation dated 31st Augu August l993 for $3,222 but this appears incorrect as the additional costs of $113.67 given on review have not been included. This Certificate of Taxation appears to comprise only:

Costs as originally taxed $.17

Interest thereon as allowed @ 10% pa. 1,137.33

Fee for Certificate of Taxation 5.50

$3,362.00

Less set-off of costs of $90 and $50

awarded to Defendant 140.00

$3,222.00

According to my calculation the total costs (including interest) fixed on review by the Taxing Officer amount to $3,470.17 as follows:

Judgment

Solicitors Fees 120.00

Plaintiffs time and attendances 359.93

Disbursements 41.42 521.35

Costs

Solicitors fees 384.64

Plaintiffs time and attendances 883.65

Disbursements 543.20 1,811.49

2,332.84

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Interest as previously allowed

(10% pa. on $2,219.17 from 1.9.87 to

15.10.92) 1,137.33

$3,470.17

At the hearing before me the Plaintiff and coufor the Defendant agreed wied with these calculations. It is this total figure of $3,470.17 that the Court is now reviewing. The Chief Registrar has allowed a further disbursement of $5.50 for the fee paid for the Certificate of Taxation but there is no dispute about that additional item.

In determining thisew I have read and considered the original pleadings, the jthe judgment of Sheehan J. dated 1st September 1987, the Judgment of the Court of Appeal dated 19th September 1988 the Plaintiffs amended Bill of Costs, the amendments made thereto by the Chief Registrar on taxation, the interim certificate of taxation dated 4 December 1992, the Plaintiffs objection to the taxation filed 23 November 1992, the defendants submissions on the Plaintiffs objection filed 18 March 1993, the Plaintiffs reply filed 26 April 1993, the review decision of the taxing officer dated 26 July 1993 and delivered on 16 August 1993, the certificate of taxation dated 31 August 1993, and the Plaintiffs summons for review dated 2 August 1993. I have also taken into account the submissions made to me by the Plaintiff and counsel for the defendant at the hearing on 9th May 1994 and considered the legal authorities referred to by them.

The review by the taxing officer dwith 27 specific items rais raised by the Plaintiffs in their Objections to Taxation dated 23rd November 1992. The taxing officer allowed only one objection (Item 21) in full. On this further review the Plaintiff has pursued his objections in respect of all the remaining 26 items. The grounds advanced are the same as those submitted to the taxing officer.

In terms of Order 62 rule 33 of the High Court Rules any party dissatisfied with the decision of a taxing officer "to allow or to disallow any item in whole or in part or with the amount allowed in respect of any item can apply to a Judge for an order to review that item or part of an item" Accordingly, on such a review I am restricted to a consideration of those 26 specific items disallowed in full or in part by the taxing officer. At no stage has the Defendant sought review of any items allowed on the original taxation or by the taxing officer on review. Therefore those taxed items are not in dispute.

Order 62 33 also provides that the Judge may "exercise alse all such powers and discretion as are vested in the taxing officer" in respect of the disallowed items. (O.33 R4). This gives the Judge an unfettered discretion to look at the disputed items afresh without being restricted to a consideration of the reasons or opinions given by the taxing officer in his review decision. (Madurasinghe v Penguin Electronics (a firm) (1993) 3 ALL ER 20)

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In my view it is appropriate to deal with the review in the two ctwo categories set out by the Plaintiffs in their amended Bill of Costs that was submitted for taxation. These are the Judgment items (being the actual costs to the Plaintiffs of instituting proceedings necessary to have the conviction set aside for which Sheehan J. gave judgment for the Plaintiffs in his decision dated 1st September 1987) and Costs (which are the costs awarded on that Judgment). Both have subsequently been amalgamated into a single Certificate of Taxation issued by the Chief Registrar. This is incorrect. The costs incurred by the Plaintiff in respect of the prosecution in the Magistrates Court are special damages for which judgment was awarded in the civil action. The other item comprises costs awarded in that action to be fixed under the High Court Rules. Different considerations apply to the assessment of these two items.

In reviewing the costs in these two separate categories it is convenientnient to deal with the various items in contention by reference to the numbering in the Plaintiffs objection dated 23rd November 1992. That succinctly identifies the 26 matters with cross references to the amended bill of costs, reasons for the objection, amounts claimed and amounts allowed. As the taxing officer did in his decision, I will group several items together where identical objections and issues apply.

JUDGMENT

In his judgment dated 1st September the trial judge, Sheehan J.an J. found for the Plaintiffs on only one part of their claim, namely wrongful prosecution. This is recorded on pages 1 and 3 in these terms:

"The claim of thentiff is for recompense for:-

(1) & p;&nssp&nbsp Thp; The costs of recti a ng a prosecution eventually acknowledged by the Defendant Suva City Council to have been wrongly instituted and the damages for losses such prosecution caused the Plaintiff's business.

"I find I do not accept the Plaintiff'ims of loss to his businessiness. He has not proved any before me. I do however accept he is entitled to the actual costs of instituting proceedings necessary to have the conviction against him reversed. Accordingly his costs are to be fixed by the Registrar."

"Returning to the costs ding the wrongful prosecutiecution claim, I enter judgment for the Plaintiff on that issue as to actual costs. ..........I enjoin the Chief Registrar to strictly assess such costs regarding the wrongful prosecution at the actual costs of documentation and a nominal figure for appearance time."

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Aingly these costs are to be assessed as special damages wits within this prescription. They are not an award of costs coming within the provisions of Order 62 of the High Court Rules. They are an assessment of damages for judgment in the action.

In these circumstances I doubt whether the assessment is subject to the review procedures contained in Rule 62. In the event of a dispute, the matter should properly have been referred back to the trial judge who had the ultimate responsibility to assess damages and enter judgment.

As the trial judge is no longer in Fiji and the parties have submitted to the taxation procedures to date without objection, I intend to proceed with a review of the taxed costs. However in doing so I am mindful that this exercise is the assessment of damages in accordance with the judgment and not strictly the review of costs. Although both parties have accepted the review procedures my function is to consider the appropriate costs as an assessment of damages within the trial judges direction that this is to be the "actual costs of documentation and a nominal figure for appearance time".

Effectively these damages have beeessed by the Chief Registraistrar and confirmed by the Taxing Officer on review for a total sum of $521.35 made up as follows:

Solicitors fees for legal advise

and preparation of papers$ 120.00

Plaintiffs pecuniary loss for time spent

attending Court, attending solicitor

&and preparing bill of costscosts 359.93

Disbursements 21.50

Mealwances during hearing in

MagistrCourt 14.00

Plaintiffs travelling expenses to

attend Court 5u>

$521.35

This assessment has been made on an over generous basis. It is not an awan award of costs in a civil action in the High Court. The Rules and scales in this Court are not applicable. It is an assessment of the costs for setting aside a conviction for a minor offence in the Magistrates Court in accordance with the judgment of Sheehan J. Compensating the Plaintiff $359.93 for his attendances is more than "a nominal figure for appearance time". Moreover the Judgment of Sheehan J. does not envisage fees for general legal advice but only "the actual costs of documentation".

The Plaintiffs objections within this Category are l, 2 and 26. There has bees been no cross-objection by the Defendant to the assessment of any item.

Items 1 & 2

ass=MsoNormal style="text-aext-align: justify; margin-top: 1; margin-bottom: 1">

These items are for two legal fees claimed by the Plaintiff for $100 each.

In support of these claims the Plaintiff roduced an account from Sohm Sohan Singh, Solicitor, dated 30 June 1988 which has an item of $220 for "legal advice on criminal action No. 2014/84 setting aside judgment". In his Bill of Costs the Plaintiff showed this as $l00 for legal advice after receiving the summons, $100 for legal advice upon conviction and $20 for preparation of the motion and affidavit to set aside conviction.

The taxing officer allowe claim for $20 in full and both claims for $100 were allowallowed at $50 each.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In my view these items are outside the purview of the judgment. The RThe Registrar was enjoined to strictly assess the actual costs of documentation and a nominal figure for appearance time. The cost of legal advice was not envisaged. Moreover, the claim includes the cost of obtaining legal advice on receiving the summons (i.e. before trial and conviction) and judgment was given for the "costs of instituting proceedings to have the conviction reversed."

If such legal costs could properly be included as part of the judgment, it would still be incumbent on the Plaintiff to show the reasonableness of them. He has merely produced an account for $220. It is not itemised and no explanation is given by the Plaintiff for the apportionment made by him in the Bill of Costs. The solicitors account contains no such division and no information has been given to enable the Court to determine whether the account is reasonable. This would require such details as the specific matters on which advice was given and the time spent. The Plaintiff has failed to establish this claim for the full amount of the legal fees.

Even if this was properly a review of costs fixed by the taxing xing officer, the same considerations would apply. The Plaintiff has failed to establish a reasonable sum to be allowed for the cost of obtaining legal advice to enable him to set aside the conviction. Indeed, it could be said that only the claim for $20 (allowed in full) and possibly all or a part of the claim for $100 for legal advise on conviction (allowed at $50) comes within this prescription. The further claim for $100 was for advice on receipt of the summons. The Plaintiff has been well treated in being allowed $120.

The defendant has accepted and paid the Chief Registrar's and Taxing Officer's assessment of $120 without objection. The plaintiffs objection seeking an increase is dismissed.

Item 26 (Interest)

In terms of the ion of Sheehan J. the Plaintiff is entitled to judgment fort for the total sum of $521.35 (being the costs of setting aside the conviction as fixed by the Registrar and subsequently paid by the Defendant).

In their amended Bill of Costs the Plaintiffs claimed interest @ 13½% f3½% from 1 October 1984 to 1 October 1988. On taxation and review by the taxing officer it has been allowed @ 10% from 1 September 1987 to 15 October 1992. It appears that the Plaintiffs claimed for the period from when the cause of action arose until the date of their Bill of Costs. It was taxed for the period from the date of judgment until the date of taxation.

In the absence of any specific contract between the parties or unique statustatutory provision for payment, there are three ways in which interest can be recovered in a civil action. These are:

1. &nbsp &nbssp; n i am of speciapecial dama damage if the Plaintiff pleads and can prove that he has suffered special damage as the result of the defendant's faito pe his ationer a act which includes udes defaudefault oflt of an o an obligabligation to pay money, provided such damage is not too remote (Wadsworth v Lydall (l98l) 1 ALL ER 401 and President of India v La Pintada Cia Navegacion SA (1984) 2 ALL ER 773).

2. &nnbsp;; &nsp; Usp; Under Section 3 ofLawe Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act (CAP 27). Thves turt a discretion to award interest at such rate as it thinks fit, on the whole orle or any any part of a judgment for any debt or damages, for the whole or any part of the period between the date when the cause of action arose and the date of judgment.

3. &nbbsp; &nbsp Uneer Sn tioof the (Imperimperial) Judgments Act 1838 (which is in force in Fiji by virtue of Section 22 of the Supreme Court Act, CAP 13). This provides that "every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied". This interest accrues automatically and no order of the Court is necessary. It runs from the date of pronouncement of judgment in Court (Parsons v Mather & Platt Ltd. (1977) 2 ALL ER 715 approved in Erven Warnink B.V. v Towend (J) and Sons (Hull) Ltd. (No.2) (1982) 3 ALL ER 312). It is payable on an order for costs (Hunt v R.M. Douglas (Roofing) Ltd.(1988) 3 ALL ER 823 and Charan v Suva City Council, Civil Appeal No.12 of 1989). The Court has no power to order a different rate from the statutory rate (Rocco Guiseppe & Figli v Tradax Export SA (1983) 3 ALL ER 598 (QB) and there has been no change to the rate of 4% per annum by statutory instrument in Fiji (Charan v Suva City Council, Civil Appeal 12 of 1989). Payment at this rate has recently been confirmed by the Court of Appeal in Byrne v. J.S. Hill & Assoc.Ltd. (Appeal No.33 of 1993).

ass=MsoNormaNormal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The award of interest as an item of special damage has no applicationation in this case. This was not an action by the Plaintiffs alleging default by the Defendant of an obligation to pay money. It was a claim for malicious or wrongful prosecution in which the Plaintiffs sought to recover by way of damages the expenses of setting aside the conviction and loss of business profits for the days requiring attendance at Court for that purpose. They obtained judgment for only the expenses of setting aside the conviction. No claim was pleaded for interest on this outlay as an item of special damages. The only claim pleaded for interest was on "earnings". The Plaintiffs claim in their Objections to Taxation that such interest is recoverable "as special damages for late payment of money" has no legal foundation whatsoever.

Section 3 of the Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act (CAP 27) gives the Court a discretion to award interest on the judgment. That judgment has now been quantified for the sum of $521.35. As calculated (and accepted and paid without objection by the Defendant) it represents actual loss to the Plaintiffs of $521.35 comprising payments to a solicitor ($120), pecuniary loss ($359.93) and disbursements ($41.42) incurred during a period from 1st October 1984 until 23rd November 1984. In such cases it is customary to include interest in the sum for which judgment is given and I see no reason why any exception should be made in this case. The matters to be determined are the period and rate for which it should be given.

The earlpermissible time would be from the date that the cause of a of action arose. That would be the date when the Defendant commenced its prosecution. Such date has not been provided, but as the Plaintiffs Bill of Costs shows the first attendance in the Magistrates Court on 1st October 1984 it is likely to have been in September 1984. However, in fairness, interest should only be awarded from the date when the expenditure was actually made. The purpose of awarding interest is to put the Plaintiffs in the same financial position they would have been if the sums had been reimbursed to them immediately upon payment. The pecuniary loss and disbursements were suffered or paid by the Plaintiffs over the period of the Magistrates Court hearings from 1st October 1984 to 23rd November 1984. The solicitors fees were incurred over this period but I have no evidence to substantiate when they were paid. Indeed the solicitors Bill of Costs is dated 30th June 1988 which could be an indication that the account had not been paid at that time. Again, it could be, that the account had been paid some years earlier and this was merely a copy of the account obtained by the Plaintiffs for the purposes of taxation. However, legal fees comprise less than a quarter of the judgment and the total amount is not a great sum in any event. Justice will be done if I assume that all payments had been made by the end of 1984 and fix the period from 1st January 1985 to the date of judgment (namely 1st September 1987).

The Plaintiffs ought to be allowed the customary rate of interest awarded during that period. Those were times of general financial buoyancy and interest rates on investment and borrowings were high. (For example, the statutory rate on judgment debts in England at the time was 15%) The Plaintiffs make the point that their bank account was in overdraft and they were required to pay the current rate at that time. On that basis they claim re-imbursement at 13½%. They deny consenting to a rate of 10% per annum and I do not have sufficient evidence to resolve that dispute. In all the papers I have read they have claimed interest at 13½% per annum. The Plaintiffs cited the case of Maganlal Brothers Limited v L.B. Narayan & Company (Civil Appeal No. 31 of 1984) in which the Court of Appeal awarded interest on a summary judgment at the rate of 13.5%. Jai Prakash Narayan v Savita Chandra (Civil Appeal No. 37 of 1985) is another case where interest was claimed and allowed at 13½%. These cases indicate that this was the customary rate being awarded at that time. It is appropriate that the Plaintiffs should have interest at this rate included in their judgment pursuant to the provisions of Section 3 of the Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act (CAP 27). To this extent I allow their objection.

I calculate interest at 13½% per annum on the judgment of $521.35 for the period from 1st January 1985 to 1st September 1987 as $187.65. With this interest the total amount of the judgment is $709.

COSTS

The Plaintiff is entitled to "such costs as were necessary or proper for the attainment of justice or for enforcing their rights" (Order 62 Rule 25 (2) ) which are to be assessed under the various provisions of Order 62 of the High Court Rules. However, in making this assessment regard must be given to the direction of the trial Judge who said, at page 3 of his judgment:

"As to the costs of these proceedings costs are to be taxed ifagreed and again the Chief Registrar is enjoined to be strict in allowing only those costs osts which he considers sufficient to establish the Plaintiffs claim".

The olaim established by the Plaintiffs was the claim for wrongfrongful prosecution. Accordingly they are entitled only to the costs for establishing that claim. They failed on the more substantial claim for damages for trespass and unlawful distraint and sale of goods. They are not entitled to costs for their endeavours to establish those claims. The Judge's direction indicates that where appropriate, costs properly incurred on the wrongful prosecution claim should be separated and distinguished from the costs on the other claim. Such a direction is a proper exercise of the Judges discretion to award costs, particularly in terms of Order 62 Rules 3(2) and 9(4). It is not a novel award, having been made at least since the decision of Sparrow v Hill & anor. [1881] UKLawRpKQB 77; (1881) 8 QBD 479. That was an action containing one cause of action consisting of three items of claim. The Plaintiff succeeded on one of the items but failed on the other two and was awarded costs rightly incurred in recovering on the successful item. The defendants were awarded costs on the two items they had successfully defended. The Court of Appeal held that this entitled the Plaintiff to recover the general costs of the action except those incurred on the two unsuccessful parts of his claim. The defendant was entitled to recover only the costs incurred on the two items which they had successfully defended. Other cases where a party has been awarded reduced costs when only partly successful in the action are Adamson v Birkenhead Corporation (1937) 1 CH 279, Bourne v Swan & Edgar [1902] UKLawRpCh 179; (1903) 1 CH 211 and Ruffy Arnell etc. v The King (1922) 1 KB 599. On the authority of these decisions, the Judge's award in this case entitles the Plaintiffs to recover the general costs on the action except for those incurred on the part of the claim that was unsuccessful.

In fixing these costs deration must be given to Order 62 Rule 27 which makes spec special provision for the assessment of costs of a litigant in person. These include allowance of disbursements in full and up to two-thirds of the sum that would have been allowed for work done by the litigant if that work had been done by a solicitor on the litigants behalf. However if no pecuniary loss is suffered by the litigant in doing the work he shall not be allowed more than $4 per hour. If necessary, this will require a division of the litigants work into that done when a pecuniary loss is suffered (e.g. during working hours) and that done when no pecuniary loss is suffered (e.g. leisure time) - See Hart v Aga Khan Foundation (UK) (1984) 1 ALL ER 239 at page 242f.

I also accept the authority of Malloch v Aberdeen Corporation (HL) (1973) 1 ALL ER 304 cited by the Plaintiffs. If a litigant in person employs a solicitor to help in preparation of documents and presentation of his case he may be "allowed such sum as reasonably necessary for him to spend in order to prepare his written case and equip himself to appear and argue his case in person".

With these principles in mind, I turn now to consider the Plhe Plaintiffs specific objections within this category of costs.

Items 3 to 13 (inc17 & 19

These items are all for solis fees and can convenientlyently be dealt with together. The plaintiffs claimed a total of $966 for solicitors fees incurred in conducting the action. In support of this claim they produced a copy of an account from Sohan Singh &Co., Solicitors, dated 30 June 1988 for $976 for "preparing and filing of various documents in action No. 1173/84 including advising on 5 day trial as per bill of costs". A detailed bill of costs from the solicitor has not been produced and the discrepancy of $10 between the solicitor's account and the amount claimed has not been explained. In their Bill of Costs for taxation the plaintiffs divided their claim for legal costs into 13 separate items. These comprise 8 items totalling $136 that are specifically provided for in Part 1 of Appendix 4 of the High Court Rules 1988 which have been claimed at the higher scale and 5 items totalling $830 for specific legal advice on various aspects and at various stages of the proceedings. The Chief Registrar taxed the scale items at $69.64 (disallowing one claim and allowing the others at two-thirds of the lower scale rate) and the claims for legal advice at $300 (disallowing two claims, allowing two-fifths of one claim and one-half of each of the other two). This total sum of $369.64 was confirmed by the taxing officer on review.

The Plaintiffs object to this taxation and claim payment of their full legal costs ofts of $966. This is totally unrealistic and unsustainable. The plaintiffs are not entitled to recover their full costs on the action but only the costs incurred on that part of the action that was successful. They cannot recover the costs incurred on the claims that were unsuccessful. A substantial portion of the legal costs were incurred and have been claimed in respect of the unsuccessful claims. These cannot be recovered and some division must be made.

The claim for ful prosecution was one of three causes of action. It was cwas clearly less substantial and less complex than the claims for trespass (with an invalid warrant) and unlawful distraint and sale of goods. Ultimately, it did not require full proof at trial because Sheehan J. said in his decision that the prosecution was "eventually acknowledged by the Defendant Suva City Council to have been wrongly instituted".

Moreover the Plaintiffs can onlyver their reasonable costs,osts, whether according to scale or not. Where appropriate, the provisions of the High Court Rules l988 must be taken into account.

It is convenie deal first with items 4,5,6,7,9,12,13 and 19 which are eace each specific claims for solicitors fees for particular work done within one of the specific categories set out in Appendix 4 to the Rules. A lower and a higher scale is provided for each matter in that Appendix.

Order 1 Rule 10(3) provides that thrd of solicitors costs at n at not less than the lower scale and not exceeding the higher scale is in the discretion of the taxing officer. In exercising that discretion the taxing officer shall have regard to all the relevant circumstances and in particular to the seven specific matters mentioned (complexity, skill required, number of documents, amount involved etc.). The Plaintiffs are not correct when they say at page 4 of their reply to the defendants submissions that the minimum scale is for actions in which the amount recovered is within the jurisdiction of the Magistrates Court and the higher scale is for judgments beyond that jurisdiction with no discretion vested in the taxing officer. If that was the position they could only recover costs at the lower scale in any event as their judgment for $709 (including interest) is within the jurisdiction of the Magistrates Court.

Consideration must also be given to the provisions of Ord Rule 27 which is the only only authorisation for a litigant in person to be awarded solicitors fees. These may be allowed for work done by the litigant as if the work had been done by a solicitor but with a limit of two-thirds of the sum that would have been allowed if the litigant had been represented.

Thentiffs claim in Item 4 for $10 was disallowed by the taxingaxing officer. This is a claim under No. 1 in the scale of costs in Appendix 4 to the Rules which provides a lower scale of $5 and a higher scale of $10 for "instructions for and writing letter before action or defence". This item of claim should be disallowed. The work must be done by the litigant before the fees can be paid and then the litigant is allowed costs as if the work was done by a solicitor. The litigant did not "receive instructions and write a letter before action". He may have consulted a solicitor but this cost would only be recoverable as a reasonable expense to prepare his written case and equip himself to appear in person at the hearing. It would not be a scale cost. The plaintiffs objection in respect of item 4 is dismissed.

Items 5,6,7,9,12,13 and 19 in the Plaintiffs Objections to Taxation are the remaining items which have been considered under the Scale in Appendix 4 to the High Court Rules. Where appropriate, the taxing officer fixed the lower scale and on each item allowed the plaintiffs two-thirds of the fee.

The Plaintiffs object to the lower scale being fixed and submit thit that the higher scale is appropriate. I have already dealt with and rejected their submission that the two scales are related to the civil jurisdiction of the Magistrates Court. A further submission that the case involved complex issues was supported by factors relating to the wrongful distress action and not the wrongful prosecution claim. Consideration of the appropriate scale to be allowed must be done under Order 1 Rule 9(3). The general circumstances in this case are that the Plaintiffs prosecuted their action as litigants in person, they succeeded on only one of three claims and in awarding costs the trial judge enjoined the Chief Registrar to be strict in allowing only those costs which he considered sufficient to establish that successful claim. Particular circumstances appropriate for consideration under Order 1 Rule 9(3)(b) are that the claim for wrongful prosecution has not been shown to involve any real complexity and was eventually conceded by the defendant. The cause may have been important to the Plaintiffs but they failed to prove their claim for damages and recovered only the costs of setting aside the conviction ($521.35 plus interest). In all the circumstances the Plaintiffs ought to be allowed costs on the Lower Scale only.

The Plaintiffs also object to the award of only two-thirds of the scalescale costs. They submit that the limitation of two-thirds under Order 62 Rule 27(2) is for "notional" costs, as if the work had been done by a solicitor. As a solicitor was actually retained by them they should be paid the full solicitors costs under the scale.

The Plaintiffs were litigants in person and can only be awarded solicitors costs in the action by virtue of Order 62 Rule 27. These are paid as compensation for work done by the litigant which would have been done by a solicitor if he had been represented. No matter what arrangements the plaintiffs may have had with a solicitor, for the purposes of this Rule the work was not done by a solicitor because they were unrepresented. The work was done by them as litigants in person although they may have had advice and assistance from a solicitor. Accordingly the solicitors costs to be awarded pursuant to Appendix 4 to the Rules cannot exceed two-thirds of the appropriate scale. The decision Malloch v Aberdeen Corporation (l973) 1 ALL ER 304 (applied in High Court Action No. 125 of 1985) cited by the Plaintiffs has no application in this particular situation. That case concerns legal expenses incurred by a litigant in person to enable him to prepare and argue his case. Such reasonable expenses may be allowed as costs. That is different from a claim by a litigant in person under Order 62 Rule 27 for payment of scale costs for legal work done by him.

Accordingly, for scale solicitors costs under Appendix 4 to the High Couh Court Rules, the Plaintiffs are only entitled to two-thirds of costs on the lower scale. Their objections in respect

of items 5,6,7,9,12,13 and 19 are therefore dismissed.

28.

Items 3,8,10,11 and 17 are claims by the Plaintiffs for obtaiobtaining specific legal advice as follows:

Item 3: Solicitors cost for ledvice re criminal action, 1on, 1st distress, 2nd distress and in regards to action 1124/84

100.00

Item 8: Solicitors fee for legal advice re standing defendants action to strike out the pleadings 24.7.85.

100.00

Item 10: Solicitors fee for preparing the arguments in defence of summons to strike out the pleadings.

30.00/b>

Item 11: Solicitors advice and fee for -

a. Summons to strike out the

pleadings.

b. Summons for direction.

c. Summonummons for ejectment 125/85.

d. 3rd distress in s in view of summons

for ejectment and still holding

$1500 yet accused of non payment

of rent.

e. Refusing to r to renew the rent.

100.00

Item 17: Solicitors fee for preparation of casf case for trial and thereafter refreshing the plaintiffs after each day of the trial lasting 5 days.

500.00 /b>

$0

On taxation (confirmed on review bytaxing officer) the claims aims for items l0 and 11 were disallowed. Items 3,8 and 17 were allowed for $50, $50 and $200 respectively.

As stated earlier in this judgment, the plaint as litigants in person, can, can be allowed such sum for legal expenses as were reasonably necessary for them to spend in order to prepare their written case and equip themselves to appear and argue their case in person. Only the trial judge would be in a position to assess the relevance, effect and use made by the plaintiffs of the legal advice obtained. In the circumstances, it is proper to assume that legal advice would have been necessary to enable the plaintiffs to prosecute their action and some award should be made.

The Plaintiffs can only be awarded reasonable expenses which hich may not necessarily be their actual expenses incurred for legal fees. In the absence of a detailed account from the solicitor specifying the work done, matters on which advice was given and time spent, the Court is unable to determine whether or not the fees charged are reasonable. The break-down of the charges into the various items in the Bill of Costs for Taxation is an artificial division undertaken by the Plaintiffs for the purposes of taxation. The fees were not charged by the solicitor on that basis.

Moreover, in this cahe Plaintiffs can only recover the reasonable solicitors chrs charges for work done and advice given in respect of the successful claim for wrongful prosecution. The charges attributable to the claims for trespass and unlawful distraint must be distinguished and cannot be recovered. This is a very difficult task. Some of the work done by the solicitor would be referable to the action generally, some would be referable to the claim for wrongful prosecution, some to the trespass claim and some to the claim for unlawful distraint. The first two categories would be recoverable and the latter two would not.

In all the circumstances, the best I can do is to assume (with some reluctance) that the total charges made by the solicitor are reasonable and assess the portion thereof that should be allowed in terms of the decision of Sheehan J. This requires a determination of the share of the costs that are general costs of the action plus those properly attributable to the claim for wrongful prosecution.

In all the circumstances, are were three causes of actf action I will apportion one-third of the solicitors account to the wrongful prosecution claim. This is somewhat on the generous side and a more realistic division may be one-half on the unlawful distress claim and one-quarter each on the trespass and wrongful prosecution claims. However I wish to be fair to the Plaintiffs and am conscious that, as the successful party with no award of costs being made to the Defendant on the claims it successfully defended, the Plaintiffs are entitled to the general costs incurred in bringing the action.

Applying this ruling to the claim for solicitors fees of $830 in items 3,8,10,11 and 17 d 17 the Plaintiffs are entitled to recover one-third which is $276.66. As the taxing officer approved a total of $300 on these items the Plaintiffs' objection is dismissed. There is no cross-appeal by the Defendant which would enable me to reduce the award.

Items 14, 15, 16 and 20

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> All these items are claims by the plaintiffs for their personal costscosts incurred in preparation of court documents as follows:

14 Pleadings Clas Claim $20.00 Allowed $10.00

15 Extra Pages " 19.00 " 9.50

16 Amend statement

of claim " " 13.6 13.67

20 Praecipes (5) &qu) " 40.00" Nil

$99.00 $23.17

The plaintiffs have claihe full amounts that a solicitor would be entitled to at that the higher scale under Appendix 4 Part 1 to the High Court Rules. As the work was not done by a solicitor but by the Plaintiffs themselves as litigants in person, Order 62 Rule 27 must be applied. On the papers before me and in oral submissions the Plaintiffs have not shown that they suffered pecuniary loss in undertaking this work. Indeed, there is no evidence to show that at the time this work was done (sometime in the period l985 to l987) the plaintiffs were conducting a business or were receiving wages from employment. Nor is there any evidence as to what portion of the work was alleged to have been done during work hours and what portion during leisure time. In these circumstances, in terms of Order 27 Rule 3, they are not entitled to recover more than the $4 per hour for the time reasonably spent on the work. No calculation of this time has been furnished. The sum of $23.17 allowed by the taxing officer would represent almost 6 hours at the maximum rate which would be a very fair allowance.

Evethe scale applied, I would not be prepared to allow any fury further costs for these items. As previously mentioned, the lower scale is appropriate in this case. Items l4 and l5 relate to the copies of pleadings to be lodged in Court pursuant to Order 34 Rule 4(2) when the action is set down for trial. The lower scale (No. 2 Appendix 4) allows $l5 plus 50 cents for each page in excess of 5. In accordance with the claim in the Plaintiffs Bill of Costs the total scale costs for this work (with 19 extra pages) is $24.50. Two-thirds of this sum is $16.33 which is less than the sum allowed by the taxing officer. Item l6 was allowed by the taxing officer at two-thirds of the lower scale rate which is appropriate. Item 20 is a claim by the Plaintiffs for preparing and filing 5 praecipes that the plaintiffs say were necessary for the issue of 5 subpoenas. There is no provision in the Scale of Costs for a separate allowance in respect of these items. No. 40 in the Scale provides for a fee of $8 for each subpoena "including issue and service". The plaintiffs have been allowed $40 for this item. It includes any praecipes required for the issue of the subpoenas.

The plaintiffs objes on Items l4, l5, l6 and 20 are dismissed.

/p>

Item 18

$200 which was confirmed on review.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> In their Objections to Taxation taintiffs give as their reas reasons for objection that "a solicitor is allowed $100 per day for trial". In their written submissions they state that this item "represents the cost allowed to a solicitor under the scale 24 where a solicitor is allowed $100 per day. Hence two-third of $600 is $400 out of which only $200 was allowed leaving a balance of $200".

In my view the basis postulated by the Plais for calculation of soliciolicitors fees for the hearing is erroneous. However assuming that a litigant in person is entitled to such costs, that the plaintiffs suffered pecuniary loss during that period and that the costs are to be calculated on the daily basis suggested for 6 days, the Plaintiffs' argument is still seriously flawed. A claim is made for the whole costs of the hearing and the plaintiffs are only entitled to recover costs on the successful part of their claim. The whole 5 days of the trial were not spent on the wrongful prosecution issue. The fixing of costs within the scale is discretionary and this item should (like the others) be taxed at the lower scale of $35. For 6 days this would be $210 and the two-thirds to be allowed to a litigant in person is $140. The Plaintiffs have been generously treated with an award of $200 by the taxing officer. That is equivalent to costs of $50 per day on the basis of the Plaintiffs calculations.

In any event I reject the plaintiffs submission that costs are payable for each dach day of the hearing at the full rate. The relevant items in Part l of Appendix 4 to the High Court Rules provide:

ass=MsoNormal stal style="text-align: justify; text-indent: 324.0pt; margin-top: 1; margin-bottom: 1"> Lower Higher

Scale & Scale

24 Attendance at trial of an action or

proceed35$100

26 Refreshes (sic) to barrister and

solicitor in respect of any

proceeding per day $20 45

Item 24 does not provide for a scale fee to be taxed and paid for every day of the trial. Items 24 and 26 must both be applied when assessing costs for a hearing extending beyond one day.

In my experience such scales normally make specific provision for, and costs are awarded on the basis of, a certain amount for the first day and a lesser sum for each subsequent day. This would be achieved by the application of both items 24 and 26. A refresher is essentially a fee for work done in court by counsel. Traditionally counsel is given a brief which he marks with his fee to include the first day of trial. Refreshers are agreed and paid for each subsequent day. In Fiji the High Court work is undertaken by lawyers who are admitted and practice as barristers and solicitors. There is no separate bar. The reference in item 26 to refreshers to "barrister and solicitor" could only refer to the barrister and solicitor who appeared and conducted the case for the party entitled to costs. Accordingly fees can be taxed under item 24 for the first day of hearing and under item 26 for subsequent days. On this basis the proper costs for the Plaintiffs for 6 days at the lower scale would be $90 which is considerably less than the sum awarded.

Finally, there may be some doubt whether a litigant in person can recover notional counsels fees for presenting his own case in court. The leading authority is Hart v Aga Khan Foundation (UK) (l984) 1 ALL ER 239 in which it was held that only up to two-thirds of notional solicitors work could be recovered and notional counsels fees were excluded. However the basis of this decision was that the relevant rule in England refers only to work done by the litigant which is to be treated as if done by a solicitor representing him. There is no mention of work notionally done by counsel. However that case may be distinguishable because Fiji has a fused legal profession and Order 62 Rule 27 of the High Court Rules refers to an allowance for work as if it had been done "by a barrister and solicitor on the litigant's behalf". The point has not been argued and I make no final determination on the issue.

For the reasons earlier given the Plaintiffs' objection to Item 18 m 18 is dismissed.

Item 22

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> This is a claim of $60 by the Plaintiffs for the cost of photocopyingpying 43 authorities (300 pages @ 20c). It was disallowed by the Chief Registrar and taxing officer.

In their objection and submissions the Plaintiffs claim that a total of 43 decisions ions were cited by them at the trial and in written submissions. Photocopies of these decisions were given to the trial judge.

It can be exceedingly helpful for a trial judge to be givengiven photocopies of authorities relied upon and in appropriate cases some reasonable costs could be allowed as a disbursement. This must depend on the particular circumstances of a case and such matters as the relevance and general availability of particular decisions need to be considered.

In this case the trial judge appears to have been inud with cases. It is difficufficult to see how so many authorities could have been necessary for determination of the issues at trial. The relevance of the authorities must be suspect if the cases cited to me on this review of costs are any guide. The Plaintiff is not a lawyer and does not have an expert understanding of legal concepts and principles. For instance, cases cited to me on the claim for interest were not relevant to and did not support the particular submissions made. The Plaintiff extracted principles from parts of these decisions which were totally misconceived.

Furthermore, as the Plaintiff is only entitled to costs on the claim for wrongwrongful prosecution only the cost of photocopying the authorities relevant to that issue can be awarded. No attempt has been made to separate such authorities from those referable to the trespass and wrongful distraint claims.

To finalise this matter I will again apportion one-third of the cost to the claim for for wrongful prosecution and assume that one-half of the authorities were relevant and necessary. On this basis the plaintiffs are entitled to $l0. To this extent their objection is allowed.

Item 23

This is a claim b Plaintiff for his own time spent in preparing his case. Ite. It is for $800 being 200 hours at $4 per hour. The Chief Registrar and taxing officer allowed only $200.

The Plaintiffsonly be allowed payment for this work by way of costs if itif it falls within the provisions of Order 62 Rule 27. This authorises an award of such costs "as would have been allowed if the work to which the costs relate had been done by a barrister and solicitor on the litigants behalf" (but subject to a maximum of two-thirds). It is therefore necessary to determine what costs would have been allowed to a barrister and solicitor for preparation in this case. The only provision that I can find is item 24 in the Scale of Costs in Part I in Appendix 4 to the High Court Rules. This provides:

LowerHigher

ScaleScale

23 Instructions for and

preparing for trial inclusive

of instructions for and

preparation of brief $20 $25

This is a set minimum and maximum fee no matter what time is involved. The scale is fixed and this is not a "special case" that would justify an award in excess of scale pursuant to Order 62 Rule 30 (l). If a solicitor is unable to claim an hourly rate for time spent in preparation, then a fortiori, a litigant in person cannot claim notional solicitors fees for his own time.

(1984) 1 ALL ER 239 in which hich a litigant in person was awarded costs at an hourly rate for 86 hours spent on preparation. However that decision is not good authority on this issue because the situation is quite different in England. The Rules of the Supreme Court 1965 (England) have always provided in Appendix 2 to Order 62 that costs for preparation are entirely discretionary. There is no scale for this item. Provision is made for costs to be assessed for work properly done in preparing for trial and particular work that can be included is itemised. Costs for preparation are customarily awarded at an hourly rate for the time reasonably expended. This is not the case in Fiji as the scale in Appendix 4 to the High Court Rules provides for a single payment only with a lower and higher scale.

Accordingly, on the lower scale which is appropriate, the proper costs for preparation are two-thirds of $20 which is $l6.66.

Even if ccould be awarded on the basis claimed by the Plaintiffs, ths, the sum of $200 taxed by the taxing officer is very liberal. The plaintiffs would only be entitled to payment at the appropriate rate for reasonable time spent on preparation. The rate of $4 per hour provided in Order 62 Rule 27(3) would be appropriate as the Plaintiffs have not established that they suffered any pecuniary loss. A claim of 200 hours for total preparation is grossly excessive. One hundred hours would be a very generous allowance. The Plaintiffs would then only be entitled to the proportion of that time spent on preparation for the claim for wrongful prosecution. Adopting the previously fixed proportion of one-third, would give an entitlement to 33 1/3 hours. At $4 per hour this is $133.33. The taxing officers award of $200 is equivalent to payment for l50 hours total preparation which is more than generous.

The Plaintiffs objection to item 23 is disallowed.

Item 24

This is a claim for $87.50 by the Plaintiffs for "meals 25 days x $3.50". The Chief Registrar allowed $17.50 which was confirmed on review.

From notes on the file it appears that the claim is for 5 days of the trial rial and a 6th day for legal argument for both plaintiffs and 13 other days for the plaintiff Mr. Charan only when he attended court for some purpose relating to the action.

In their written submissions the Plaintiffs "any court attenattendance after 11am full meals is allowed in like manner a police witness is paid". In oral submissions the Plaintiff Mr. Charan cited Section 349 of the Criminal Procedure Code and Morton v Douglas Homes Ltd. (No. 2) (1984) 2 NZLR 620 at page 629 as authority for payment.

These authorities have no application in the present case. Section 349 of the Criminal Procedure Code authorises the Court to order payment by the Government of reasonable expenses for any assessor, witness, or complainant attending court for the purposes of a criminal trial. It does not apply to civil proceedings. The passage in Morton v Douglas Homes Ltd. (No. 2) relates to qualifying expenses for expert witnesses being claimed as witness expenses and not damages. It has nothing whatever to do with reimbursement for meal expenses of party to the action.

There is no provision in the High Court Rules or the scales in the appendices for the award of a meal allowance to a successful party by way of costs. Reasonable expenses can be included but I know of no authority, precedent or practice for the inclusion of a meal allowance. The Plaintiffs are precluded from claiming any witness allowances for their attendance at the hearing by virtue of Order 62 Rule 27 (4).

The Plaintiffs objection to Item 24 is dismissed.

Item 25

This item does not relate to the taxed costs and did not form part of the review.

Item 26

The Plaintiffs claimed interest on their award of costs at the rate of 13.5% p.a. from trom the date of judgment (1st September 1987). The Chief Registrar and taxing officer fixed interest from that date at the rate of 10% p.a.

The Plaintiffs submission is that they are entitled to interest at this higher rate under Section 3 of the Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act (CAP 27) as special damages because of the delay in payment. The cases of Maganlal Brothers Ltd. v. L.B. Narayan & Co. (Civil Appeal No. 31 of 1984) and Hunt v R.M. Douglas (Roofing) Ltd. 1988 3 ALL ER 823 were cited to support this proposition.

This argument is totally misconceived. Interest under Section 3 of the Law Reform (Miscellaneous Provisions) (Deaths and Interest) Act is not awarded as damages (see Riches v Westminster Bank (1947 AC 390) but, more importantly, it can only be awarded on a debt or damages for a period up to the date of judgment. It cannot form the basis for a claim for interest after that date. The cases cited by the Plaintiffs do not support their argument. Maganlal Brothers Ltd. v L.B. Narayan & Co. (supra) merely held that interest under the Act could be awarded on a summary judgment. Hunt v R.M. Douglas (Roofing) Ltd. (supra) concerned interest payable under Section 17 of the Judgments Act 1838 and it was held that an order for costs carried interest as if it were a judgment and such interest ran from the date the judgment was pronounced.

In terms of Section 17 of the Judgments Act every judgment debt carries interest rest at 4% per annum from the date of judgment. No order of the Court is necessary. It accrues automatically and may be enforced by execution. As mentioned earlier in this judgment, the statutory rate of 4% has never been changed in Fiji and the Court has no power to increase the rate.

Accordingly the Court has no jurisdiction to order payment of interest at the rate of 13.5% (as claimed by the Plaintiffs) or 10% (as purported to be awarded by the Chief Registrar and taxing officer). I make no order. The legal situation is that the Plaintiffs judgment which has now been finally fixed for $709, automatically accrued interest from the date of judgment (1st September 1987) until the date of payment.

Item 27

This item relates to the deduction from the Plaintiffs taxed costs of $140 for two orders for costs made in favour of the Defendant in these proceedings. The Chief Registrar's interim certificate of taxation dated 4th December 1992 stated:

"......and by consent I have al the set off of the costs osts of the Defendant of the sum of $90 taxed on 18.11.92 pursuant to the order of Byrne J. dated 22.8.90 together with the Defendants costs of $50 pursuant to the order of Jayaratne J. dated 15.3.91".

The Plaintiffs object to the deduction of the sum of $90. They submit that the taxation at this figure is irregular because the order was sealed on the 13th September 1990 and the Defendants Bill of costs was filed out of time and without leave of the Court on the 8th February 1991. Further the Plaintiffs submit that, in any event, as counsel for the Defendant was an employee of the Defendant costs can only be recovered on the basis of a litigant in person.

In his decision on review the taxing officed that "on 19.1119.11.92 the Plaintiff consented to the sum of $90 being costs in favour of the Defendant as ordered by Byrne J. on 22.8.90 to be deducted from the taxed costs". Counsel for the Defendant said in her submissions that the Defendant's Bill of Costs for $155 was taxed after the Plaintiffs costs had been taxed. The Plaintiff was present. He made no objection to the taxation and agreed to the taxed costs of $90 being deducted from his costs. The Plaintiff, in his submissions, agreed that the Defendant's bill was taxed on the same day that the Plaintiffs bill was taxed but said that he did not consent to the deduction.

Order 62 Rule 20(2) of the High Rules certainly provides tdes that the party entitled to costs must begin proceedings for taxation by filing a bill of costs within 3 months after the judgment. The taxing officer is authorised by Order 62 Rule 15 to extend that time.

As none of the relevant documents relating to the taxation of the Defendants costs have been put before me, it is impossible to decide whether the Rules have been infringed. The onus of showing that must lie on the Plaintiffs. It is not so difficult to resolve the conflict about what occurred at the hearing when the Defendant's bill was taxed. I accept the finding of the taxing officer, supported by the submission of counsel for the Defendant, that the plaintiff raised no objection to the taxation and consented to the deduction of the taxed sum of $90 from his own costs. This must necessarily have involved a waiver of any time objection.

After such long delays, finality must be brought to these proceedings in respect of cost costs. The taxing officer taxed the Defendant's costs at $90. There has been no application by the Plaintiff for review of that taxation pursuant to Order 62 Rule 31. Those taxed costs are not reviewable by me. It is appropriate that they should be set off against the Plaintiffs costs pursuant to Order 62 Rule 17.

There is no merit in the Plai's argument that the Defendefendant is only entitled to costs assessed on the basis of a litigant in person. The Court of Appeal decision of In re Eastwood, Lloyds Bank Limited v Eastwood and others [1975] 1 Ch 112 cited by counsel for the Defendant is entirely on point. In that case the particular defendant (the Attorney General) was represented by the Treasury Solicitor and his department. It was held that the proper method of taxation of the bill of costs was to deal with it as though it were the bill of an independent solicitor and the court said (page 129) that this "principle would apply equally to the case of a local government authority".

The Plaintiffs objection in respect of Item 27 is dismisismissed.

That completes my review of all the objections raised by the Plaintiffs.

For completeness, there is one final matter to be mentioned.oned. The judgment containing the order for costs in favour of the Plaintiffs was given on the 1st September 1987. The High Court Rules in force at that time were the Rules of the Supreme Court 1965 (England) with certain modifications. These Rules contained no provision for costs to be awarded to a litigant in person. They remained in force until the 31st March 1988 when they were repealed and replaced by the High Court Rules 1988 which make provision for costs to be awarded to a litigant in person. All proceedings relating to the Plaintiffs costs (including this review) have been determined under the 1988 Rules. It is at least arguable that the earlier Rules, which were less favourable to the Plaintiffs, should have been applied. This would depend on the transitional or saving provisions contained in the new Rules. These are to be found in paragraph 3 of Legal Notice No. 37 of 1988 and Order 1 rule 13 of the High Court Rules 1988. It may well be that, in terms of these provisions, the judgment, order for costs and directions to the Chief Registrar contained in the decision of Sheehan J. on 1st September 1987 are to be treated as if made or given under the 1988 Rules. However I make no final determination on this matter as it was not raised at the hearing and has not been argued.

I am somewhat concerned that this judgment has developed into a prolix legal treatise that is out of all proportion to the subject matter, submissions and legal issues involved. However as the Plaintiffs are litigants in person, and as a matter of courtesy to the taxing officer with whom I have disagreed on some legal aspects, I have endeavoured to identify and explain all the issues that have arisen in this case.

To summarise, the effect of this decision is that the Plaintiffs are entitled to recover:

JUDGMENTp class=MsoNormal style="tee="text-align: justify; text-indent: 36.0pt; margin-top: 1; margin-bottom: 1">

Damages - being the costs of proceedings taken to the wrongful conviction setn set aside, (as fixed by taxing officer and Plaintiffs objection to two items having been dismissed on this review)

521.35

Interest under Law Reform (Miscellaneous

Provisions) (Deaths and Interest) Act awarded

at 13½% per annum from 1.1.85 to 1.9.87 &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; &nbp; &nbp; &nnbp;& &nnbsp; &nnp;&nnbsp;;&sp;;&nbssp; &nbsp187.65pp claoNormyle="text-align: justify; margin-top: 1; margttom:

$709.00

Costs

As fixed xing officer (with Plaintifintiffs

objections to all but one item having been

dismissed on this review). $1,811.49

Further allowance given on Item 22

(photocopying) on this review &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nbbsp; &nbp; &nbp; &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; 10.00<

$2,530.49

ass=MsoNormaNormal styl style="text-align: justify; text-indent: 36.0pt; margin-top: 1; margin-bottom: 1"> Further disbursement allowed by Chief

Registrar for fee for certificate of

Taxation &nnbsp; &bsp; &nbbp;&nnbp;&&nbp;; &nsp; ;&nspp;&nssp; &nbsssp; &nsp; &nsp;  p; &nnsp;&&nsp; &nbp; &nbs;&nbbs;&nnbsp; &nbp; &&&sp;pp;bsbbspn &nbbsp; &nbp; &nbp; p;&nbbsp;&& nbsp; nbsp;&nbsp

$2,535.99

In addition the Plaintiffs are entitled to interest under the (Imperial) Judgments Act 1838 on the sum of $2,530.49 at the rate of 4% per annum from the 1st September 1987 until the date of payment. I was advised at the hearing that cheques for the total sum fixed on review by the taxing officer were posted to the Plaintiffs on the 30th November 1992. I calculate interest to that date as $531.40. This makes the total sum payable as at that date to be $3,067.39.

The Plaintiffs succeeded on two items in this reviemely, an award of interest rest to be included in the judgment and an allowance for costs of photocopying. However this is off-set because interest payable subsequent to judgment is, by law, at a considerably lesser rate than that approved by the taxing officer. Moreover the taxation of the Plaintiffs costs by the taxing officer has been over generous. The Defendant now faces the dilemma of having accepted the taxation without objection and made an overpayment to the Plaintiffs. In all the circumstances I make no order for costs on this review.

JUSTICE D.B. PAIN

Hbm1173j.84s