Recovering costs for waiting in court and the true test for delivery rather than post
In Linton & Co v Assistant Taxing Master 1972 (2) SA 550 (D), two main points were considered by the court in the review of a taxation. First, the court had to consider the rules relating to the fees recoverable for the time spent by an attorney waiting in court for matters to be called. Second, the court had to determine the reasonableness of the plaintiff’s attorneys conduct in delivering letters, rather than posting it. On the first point, the court noted that there is no binding principle that attorneys who attend motion court for purposes of an opposed application are not entitled to any fee in respect of waiting time. The court held that, in terms of item E.1 of Rule 70, the enquiry is simply whether it was necessary for the attorney to be present in court to wait, followed by a consideration of the quantum of the fee (which would entail a consideration of the duration of the period necessarily spent waiting). On the second issue, the court distanced itself from the decision in Trop v Irish Linen Spinning and Weaving Co. 1938 (2) P.H. F16, where the court held that a letter should only be delivered (in contradistinction to positing) where there is real urgency. The court instead held that the test to be applied should be whether in all the circumstances of the case, the attorney acted not extravagantly or in an excess of caution, but with reasonable prudence and diligence in the discharge of his duty.