In defamation cases, the issue of whether a certificate should be issued by a judge to render the unsuccessful party liable for the successful party's costs at senior counsel rates is an important topic of discussion.
The case of Turtur Ao v Connor (No 2) [2021] SADC 151 provides valuable insights into the factors considered by the court when deciding whether to issue such a certificate.
The Test for Certifying an Action Fit for Senior Counsel
The test for determining whether an action should be certified fit for senior counsel was laid down by King CJ in Beasley v Marshall (No 3).
The test revolves around the question of whether a reasonable litigant, at the proper time for the delivery of briefs, would consider it necessary or at least prudent to brief Queen's Counsel / Senior Counsel for the adequate presentation of their case.
Factors for Issuing a Certificate
The court, in Turtur Ao v Connor (No 2), discussed several factors that might be relevant when deciding to certify an action fit for senior counsel. These factors include:
The difficulty of the case
The complexity of the issues of fact or law
Any demands which the case makes for the exercise of special professional skills
The court in Turtur Ao v Connor (No 2) ultimately declined to certify the action fit for senior counsel.
The judge found that the case was not of sufficient complexity to justify the briefing of senior counsel, as there were few witnesses called, and the issues were clearly defined.
Furthermore, the judge noted that the applicant's decision to retain senior counsel might have been prompted by his standing within the community and his concern at the publicity the action was likely to receive.
The court also considered that the respondent had not pleaded the defense of justification or contextual truth, which, if they had been pleaded, might have warranted the retention of senior counsel.
The judge acknowledged that the difference in the parties' respective positions before the trial was modest, and the costs incurred to retain senior counsel likely exceeded that difference.
Key take-aways
In determining whether to issue a certificate for senior counsel rates, the court considers factors such as the difficulty and complexity of the case, as well as the need for special professional skills.
It is crucial for legal practitioners to keep these factors in mind when deciding whether to engage senior counsel in a defamation case.
Cases mentioned in this blog post:
Turtur Ao v Connor (No 2) [2021] SADC 151
Beasley v Marshall (No 3) (1986) 41 SASR 321