RAGHIB BEY HJ. HASSAN ν. GERASIMO, ABBOT OF KYKKO. (V3) 1 CLR 53

(1)A sum of £14 15s. 4cp., the amount of expenses for the defendant's witnesses.

(2)A sum of £1 15s. 7cp., the cost of obtaining the translation of a document.

(3)£75 counsels' fees.

(4)£3, a sum paid to certain priests for attendance in Court on behalf of the defendant. With regard to the first item, it was alleged on behalf of the plaintiff that the defendant's witnesses had been allowed expenses for their attendance in Court for days after they had given their evidence, that they had been allowed for their attendance from the day on which the hearing commenced, and that there was no necessity for their presence on those days on which the plaintiff's witnesses were heard, inasmuch, as it was known that the case must occupy some considerable time, and the defendant need not have had his witnesses present from the commencement. It was also urged that they had been paid at the rate of 2s. a day, and that is. a day was the usual allowance: and that the plaintiff was only liable to pay for those witnesses who were actually examined. For the defendant it is urged that he could not say when the plaintiff's case would conclude, and that it was reasonably necessary for him to have his witnesses ready to begin whenever required: that they were paid only for those days on which they attended the Court in order to give their evidence, and their attendance was not charged for after the day on which each gave his evidence: that 1s. per diem is the allowance for witnesses residing in Nicosia, and that witnesses coming from outside Nicosia are paid at a higher rate. No evidence has been placed before us by either party, and the information supplied by the Judge's notes is very slight. So far as appears from these notes, the objection was then confined to one point, viz.: that the defendant was only entitled to claim for the expenses of his witnesses for the days occupied by the hearing of the defence. We have made enquiry as to the way in which this item for witnesses was taxed, and we are informed that the costs were allowed for the number of days that they were proved to have attended the Court, and that the allowance was fixed on the usual scale of witnesses coming from Lakatamia. We are unable to agree in the contention that the expenses can only be charged for those days occupied by the case for the defence. The defendant could hardly do otherwise than be ready to commence his case whenever he might be called upon to do so, and it would be very inconvenient as a matter of principle, that a defendant must endeavour to find out how long his opponent's case will last, and not have his witnesses in attendance until the time at which he estimates they will be required. A defendant might not infrequently find himself saddled with the costs of an adjournment, even if judgment were not given against him, either owing to the misstatement of the plaintiff or miscalculation on his own part. The case of one witness was mentioned to us, who had been summoned and examined by the plaintiff, and who was subsequently called on the part of the defendant, and it was contended by the plaintiff that his expenses were improperly allowed. If his evidence on the second occasion were confined to facts which the defendant's counsel could have elicited from him when he was called by the plaintiff, there would be some force in this contention. He was examined on the first occasion on the 28th July, 1893, and, subsequently, on the 21st December, 1893, the substance of his evidence then appearing to be, to detail the result of experiments made by him in December as to the distance at which voices could be heard from Lakatamia and other places at some spot which we suppose is in dispute. He is, to this extent, in the position of a new witness, and we see no reason why the defendant should not be entitled to recover his costs from the plaintiff. It was also urged that the defendant was only entitled, as against the plaintiff, to charge for payments made to witnesses who had actually been examined. Ten witnesses, we are informed, were examined on the defendant's behalf, and the costs of thirteen or fourteen have been allowed. We are of opinion that it is not necessary that the witnesses should have been actually examined in order that a party should be entitled to charge his unsuccessful opponent with the costs of procuring their attendance, but it is sufficient that the taxing officer should have been satisfied that it was reasonably necessary for the party calling them to have them in attendance. Nothing has been adduced before us to lead us to the conclusion that the Registrar's discretion, or that of the Court below, was wrongly exercised, with regard to the allowance of the costs of the attendance of these three or four witnesses. Another point raised was, that the defendant was not entitled to charge for the attendance of those of his witnesses who were re-examined, pursuant to the order of the Supreme Court of the 14th April last. It was urged that the necessity for this re-hearing was owing to no fault of the plaintiff: but neither was it due to the fault of the defendant. It sometimes happens, that we have to decide which of two innocent parties has to bear the costs of some proceeding necessitated by no act or default of either of them, and we see no reason to depart in this case from our general rule, that the unsuccessful party must be saddled with the cost.

1. With regard to the item of £1 15s. 7cp. for translation of a document, it does not appear to us that this should have been allowed. There is nothing in the present Rules of Court which would sanction this allowance. It cannot be included under the heading "the production of necessary evidence." The document itself forms, of course, the evidence, and the translation must have been procured, either for the convenience of the party, or for that of the Court. From neither point of view does it appear to us that the defendant is entitled to charge the plaintiff with the cost of preparing the translation. The plaintiff's translation may have been incorrect, as was contended, but the Court officials are, presumably, able to translate documents written in either of the native languages, which they may be required by the Judges of the Court to translate, and the Court would, no doubt, take care to see that any translation put in was a correct translation of the original before accepting it as correct. There is no Rule of Court requiring any party to a proceeding to furnish the Court with the translations of any document put in evidence. It is the duty of the Interpret attached to the Court, to interpret any evidence given or expressed in the languages which he is appointed to interpret for the Judges of the Court. It may be, and no doubt is, frequently very convenient to the Courts to have translations of documents handed in, but there is no rule requiring this to be done, and we do not think, on principle, that this item for translation can be charged by the defendant to the plaintiff. This item must be struck out of the bill of the costs as taxed.
2. With regard to the amount allowed as counsels' fees, it does not appear to us that we can interfere with it. The amount, no doubt, seems large in comparison with the amounts allowed in ordinary actions: but regard must be had to the nature of the action, the length of time it occupied, the number of witnesses to be examined and the questions at issue. The Court below is in a far better position to judge of this matter than we are, and unless it were made out that an amount had been allowed out of all proportion to the services rendered, we should not interfere with the discretion of the Court. The case undeniably lasted a long time, a large number of witnesses were called on both sides, the file of proceedings is extremely bulky, and, though we have not read it through, we have seen enough to show us that the questions at issue are of considerable importance. It must not be lost sight of also that the fees allowed to counsel here are not intended to represent only the actual work in Court, but are to cover all the services of the advocate rendered to his client in advising and getting up the case. We can well believe that the services, in a case of the magnitude of the one before us, were by no means slight, and we see no reason to interfere with the amount taxed by the Court below. It was stated by the Queen's Advocate that no case could be found in which more than from £3 to £5 per diem had been allowed as counsel's fees. Mr. Pascal cited some recent case in the District Court of Nicosia, in which he was engaged with the Queen's Advocate, the hearing of which lasted for three days, in which counsel's fees had been allowed at £
3. If this be the case, proportionally heavier fees appear to have been allowed there than in the case before us. Our records show that in the Supreme Court, in cases of any importance, fees even greater in proportion have been allowed to counsel. In the case referred to by the Queen's Advocate, La Pierre v. The Anglo-Egyptian Bank, the records of the Supreme Court show that £30 was allowed to the Queen's Advocate and £21 to Mr. Diran Augustin. We have taken the trouble to look up the Judges' notes of the case, and we find that about half a day was occupied in hearing the appeal which resulted in an order that the case should be re-heard. It was re-heard before the Supreme Court, the time occupied being about two and a half days. Eleven witnesses were heard on behalf of the parties and two others were called and shortly examined by the Court. The case was not of a complicated nature, the point being, whether certain alleged mortgages of immovable property were valid or not, and whether the plaintiffs, who were minors, had authorised or could authorise their brother to enter into mortgages for them. The fee of £21 allowed on taxation to Mr. Diran Augustin included his fee for attending in the Court below. In that Court the proceedings consisted largely of an argument on a point of law, and six or seven witnesses only were called. In another case, a libel action, which occupied the District Court of Nicosia about five days, the fees of one counsel were allowed at £94 10s. (a special fee of £100 charged in addition being disallowed), and the fee of the second counsel at £42, this sum including also the services rendered by this counsel on the hearing of the appeal. The sums of £94 10s. and £42 were exclusive of items charged for consultations, pleadings, advising on evidence, etc., etc., which were charged for and allowed separately. On the hearing of an election petition at Trikomo, the petitioner's counsel was allowed £96 10s. the hearing having lasted eight days. On the hearing of a recent appeal before the Supreme Court, the arguments occupying portions of two days, the fees of two counsel for the appellant were allowed at £15 and £5 respectively, no witnesses at all being examined. We have mentioned these instances, and others could have been added, because of the suggestion that amounts of an unprecedented nature had been allowed in the present case, and we thought it right that this notion should, if possible, be dispelled. We see nothing in the case before us which would lead us to the conclusion that the amount at which this item of counsels' fees has been taxed, is otherwise than fair and reasonable. The last objection is to an item of £3 allowed as the expenses of two priests who attended the Court. We do not think that this item can be allowed. It is not contended that they were witnesses but only that they possessed useful information winch rendered it convenient to the defendant that they should be in Court. We do not see how the plaintiff can be charged with the costs of their attendance, and we shall direct that this item be disallowed. One other small item was subsequently called to our notice. A sum of 5s. is added to the bill which it is alleged represents the fee payable on notice of review of taxation. The notice of review was given by the plaintiff and it was alleged that the fee had been paid by him, and that it was, no doubt, by error that the amount was added to the amount of the taxed costs. We made enquiries into the matter, and are informed that both parties applied for a review of taxation and paid a fee. Why the defendant objected to the costs as taxed we do not know, and, so far as we can see, no objection by him to the amount of costs as taxed was heard. As all questions appear to have been disposed of on the plaintiff's objections, we see no reason why the defendant should have given notice of review, or if he abandoned his objection, why the plaintiff can be called upon to pay to the defendant the amount of the fee paid by the latter for a useless proceeding or one which he abandoned. The result of the appeal is that the amount at which the defendant's costs were allowed on review, viz.: £109 9s. will be reduced to £104 8s. 2cp. As the appellant has been successful in getting only so small a sum knocked off, we shall make no order as to costs of the appeal. Order varied. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο