Taxation of legal costs: Is a cost creditor shielded by legal professional privilege?

Abstract

Taxation of legal costs in the high courts of South Africa is a quasi-judicial proceeding during which a Taxing Master assesses the fairness of a bill of costs, quantifies the amount payable to a cost creditor, and issues an allocatur which certifies the sum payable by a cost debtor. It is argued that this legal process, which is regulated by Uniform Rule 70 read with Uniform Rule 69, implicates a cost debtor’s fundamental right, under s 34 of the Constitution of the Republic of South Africa, 1996, to fair dispute resolution at any independent forum. In terms of Uniform Rule 70(3B) (a), prior to the enrolment of a bill for taxation, a cost debtor is entitled ‘to inspect such documents or notes pertaining to any item on the bill’. This article argues that the inspection envisaged is a pre-taxation discovery procedure aimed at enabling a cost debtor to determine which items on a bill of costs are objectionable, and the grounds therefor. With reference to relevant judicial precedent and the established principles of interpretation, this article hypothesises that, having regard to the clear, unambiguous, peremptory language of Uniform Rule 70(3B)(a), as well as the purpose sought to be achieved by the right of inspection, the law has, in this context, excluded the operation of the cost creditor’s common-law right to assert legal professional privilege as regards documentation pertaining to any item claimed in the bill of costs. This is unlike the position prevailing at a pre-trial discovery procedure catered for in Uniform Rule 35. This article also argues that, in accordance with s 39(2) of the Constitution, the broad construction of the right of inspection under Uniform Rule 70(3B)(a) advanced here promotes both a cost debtor’s fundamental right in s 34 of the Constitution, and the values of justice and the rule of law which are deeply imbricated in the Bill of Rights.