Archive | July 2009

Court grants special cost order against RAF

Dear Reader,

Welcome to the first edition of Independent Actuarial Consultant’s (IAC) monthly newsletter.
Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents and the quantification of damages relating to personal injury claims. Our aim with this newsletter is to empower you, the reader, with a summary of the latest case law and developments in the quantification of damages field. We will also keep you updated of IAC events and training seminars and lighten up your day with a joke or inspirational quote.


In an action for damages in the Cape Provincial Division the plaintiff’s attorney had served a notice for further and better discovery in terms of rule 35(3) of the uniform rules of court on the defendant’s attorney.
The designated 10-day period came and went without any response from the defendant’s attorney and the plaintiff’s attorney then wrote a letter to the defendant’s attorney, requiring a reply. Again there was no response. The plaintiff’s attorney launched a further application claiming an order that the defendant reply to the plaintiff’s rule 35(3) notice within seven days. The defendant responded with a notice of intention to oppose “in that said application does not comply with rule 6(5) of the Supreme Court Rules”.

The Defendant’s attorneys addressed a telefax to the plaintiff’s attorney the next day in which it again stated that the plaintiff’s attorney had not given the defendant the prescribed five court days notice, as per rule 6(5) of the Supreme Court Rules, before setting down the matter to be heard and requested that the application be removed from the roll. Attached to the letter was a copy of an affidavit sworn to by a senior litigation officer in the defendant’s employ stating that the defendants was not in possession of the documents requested in plaintiff’s rule 35(3) notice.

Accordingly, on the next day, the court was faced with an opposed interlocutory application in which the only issue was one of costs, as defendant’s rule 35(3) affidavit had been (belatedly and irregularly) delivered. The application was postponed with an agreed timetable for filing of further affidavits and heads. Subsequent to this appearance the defendant served its rule 35(3) affidavit properly on the defendant. An answering affidavit was then filed, by an employee in defendant’s employ who stated that the file had been assigned to him and that he was aware of the contents of the file, wherein the Defendant raised a number of complaints concerning the plaintiff’s claim. A replying affidavit and heads were filed an the matter was set down and argument was heard on the question of who was entitled to costs of not only the original interlocutory application but to those occasioned by what has become a full blown opposed motion, including wasted costs of two previous appearances.

In its answering affidavit defendant alleged that the plaintiff deliberately failed to comply with the provisions of s 19(f)(i) by not submitting the required affidavit by the claimant and a rough sketch of the accident scene. In its replying affidavit the plaintiff annexed the index listing 27 items that accompanied the documents submitted with the RAF 1 form to the defendant. The sixth item of the index was the affidavit by the claimant and the eight item was the police accident report. The defendant further stated that “it is interesting to note that applicant does not allege in his particulars of claim that he complied with all the necessary provisions and time limits of the RAF Act”. In the circumstances the only interesting thing noted by the court was the absence of p4 from the defendant’s copy of the particulars of claim, annexed to its affidavit. The copy jumps straight from par 8.4 on p3 to the words “Dated at Cape TownB” According to the court the oversight might presumably explain why the defendant’s plea had failed to deal with paras 9-12 of the particulars of claim.

Finally defendant alleged that the plaintiff was dilatory in lodging his claim in that he lingered “10 days short of three years” before submitting the RAF 1 form and accordingly in these circumstances the respondent would suffer no prejudice “should rule 35(3) not be complied with at this stage”.

According to the court no explanation was necessary from the plaintiff as he was not out of time. Once action has been instituted, the further conduct of the litigation is to be conducted in terms of the rules of court and the court failed to appreciate how dilatoriness in instituting action would play a role in the requirement to effect discovery in accordance with the rules of court. Accordingly the court held that bearing in mind the defendant’s unexplainable initial delay in responding to the rule 35(3) notice and the subsequent letter requesting compliance; it’s initial
opposition to the application based on a misguided reliance on rule 6(5); and its subsequent affidavit, in which its representatives displayed a regrettable lack of familiarity with the case, compounded by misinformed and nigh reckless averments against the plaintiff’s attorney, all in an attempt to justify its own default, that the defendant should be ordered to pay the costs of the application to compel on the scale as between attorney and client.

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And I leave you with my parting joke for the month –
“What’s the difference between a good lawyer and a great lawyer?
A good lawyer knows the law. A great lawyer knows the judge. “