Propriety Of Claiming Solicitors Fees_2018
It is trite law that where there is a legal wrong there must be a remedy as aptly captured in the latin maxim ubi jus, ibi remedium.
Introduction
It is trite law that where there is a legal wrong there must be a remedy as aptly captured in the latin maxim ubi jus, ibi remedium. It is also trite that costs follow events and a successful party is entitled to cost which he should not be deprived of except for a good or special
reason. 2 If the Claimant’s case seeking payment of outstanding sums in a civil matter succeeds, it is the writer’s humble view that the claim for expenses and costs (including
legal or solicitor’s fees) ought to be awarded as prayed as there would not have been a need to incur legal or solicitor’s fees whatsoever had the defendant (losing side) paid the Claimant (winning side) before the latter approached the court.
The above was the line of submissions in the final written address in respect of a recent matter in which the Claimant later won on all grounds except on the award of the solicitor’s fees in respect of which the above argument was put forth by the present writer. The court’s reasoning for not awarding the solicitor’s fees was that though properly pleaded as part of special damages, with the fees agreement with the Claimant duly tendered and received in evidence, it was not strictly proved as the Claimant only tendered the fees agreement between the Claimant and solicitor in evidence. The Claimant was adjudged not to have shown evidence that the expense was incurred. This write-up thus attempts to interrogate our courts’ general reluctance to award appropriate costs in deserving events; and particularly the court’s decision regarding whether fees agreement between the Claimant and solicitor is not sufficient proof that the Claimant had incurred expenses. Conversely, can expenses incurred but not yet paid be considered as not incurred solely on the basis that same is to be paid later? Or does the fact that an expense incurred has not been paid mean that the expense has not been incurred?
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