IN THE HIGH COURT FOR ZAMBIA 2002/HP/0201
AT THE PRINCIPAL REGISTRY
LUSAKA
(Civil Jurisdiction)

IN THE MATTER OF THE LEGAL PRACTITIONERS ACT CAP 30
AND IN THE MATTER OF THE LEGAL PRACTITIONERS (C0STS) ORDER, 2001.
AND IN THE MATTER OF THE LEGAL PRACTITIONERS COMMITTEE OF THE LAW ASSOCIATION OF ZAMBIA

RULING
This is an application by the Law Association of Zambia, hereinafter referred to as ‘LAZ’, for the interpretation of the provisions in the Legal Practitioners Act as to costs and costs orders on the grounds contained in the Affidavit in support thereof. I have decided to dispense with the attendance of Counsel as I feel that and find the supporting affidavit sufficiently comprehensive to enable me deal with the matter adequately.
From the Affidavit sworn to by one CLAYDON HAKASENKE, the main problem for which the Applicants are seeking the Court’s interpretation of the law on the matter is that the Legal Practitioners Committee is receiving complaints from the general public against practitioners and that these complaints relate to the issue of costs in which clients are claiming that as the judgment ordered that costs are for the Plaintiff or the Defendant, as the case may be, that all the costs so ordered are for the client and that the advocate should hand over all of these to the client. On the other hand, the advocates argue that the costs go to the advocates, except for the client’s out of pocket expenses where same have been incurred by the client and collected from the losing litigant and that the Statutory Instrument providing for the taxation of legal costs relates to the remuneration of the practitioners and not to the litigants. It must be observed that if the litigants’ contention was to be accepted, then his lawyer would represent him for nothing.
In paragraph 10 of his Affidavit in support of the application, Mr. Hakasenke has deposed, referring to the case of HENRY CHIPALE vs. KABWE MUNICIPAL COUNCIL, SCZ Judgment No. 9 of 2000, and the case of KAMBIKAMBI vs. ZAMBIA RAILWAYS, SCZ Judgment No. 6 of 1999, that costs awarded to the litigant appearing in person are to be limited to the disbursements or out of pocket expenses and that the Statutory Instrument used for taxation of legal costs is made pursuant to Section 70 of the Legal Practitioners Act Cap 30, which deals with the remuneration of practitioners. He further states in paragraph 11 of his said Affidavit that it is the committee’s view on costs that the taxation or agreed costs go to the advocate acting for the successful party but that the said advocate should include in that agreement or taxation his client’s out of pocket expense, including the legal fees paid by the client and the advocate should pay the client that portion of the agreed or taxed costs relating to the client’s out of pocket expenses, including legal fees paid by the client.

The issue at hand therefore, is between the successful client who has been awarded costs by the court and his advocate, to whom do legal costs belong? To answer this question let us first define what legal costs are. I would venture to answer this question in this way, that legal costs are the prices in money terms or monetary value of the work done and materials, including services used by that successful litigant is representing himself, the cost of prosecuting or defending his case will comprise of, among other things, transport expenses by road, in this case taxis or buses or by train or by air, as the case may be, where that has been incurred. It does not include the cost of preparing or conducting the case in court as this element of legal costs is only chargeable by a lawyer, having in force a practicing certificate. Further, a component of monetary value is to be added to these legal expenses for actual preparation and presentation of the case in court where a lawyer entitled to practice law is engaged by the litigant and this component is what is called ‘profit costs’ which is an amount payable for services rendered and professional skill provided by the lawyer on behalf of the litigant who has hired that lawyer to represent him in that case.
If the above definition of legal costs is accepted, then the successful litigant is not entitled to share with his lawyer or indeed to receive that part of legal costs comprised in the profit costs as those are only payable to a lawyer representing the successful litigant. It he represents himself, then he is only entitled to out of pocket expenses. In fact in this case, even the lawyer himself if he happens to be a party to a court action and is representing himself, he can only claim entitlement to profit costs if he has in force a practicing certificate and that if he does not have the same, he cannot in his bill include profit costs to his out of pocket expenses because he is an unqualified person under the Legal Practitioners Act Cap 30. The definition Section 2 of the Legal Practitioners Act Cap 30 of the Laws of Zambia defines unqualified person for the purposes of the Act as “including a practitioner who has not in force a practicing certificate”. This thinking is in line with the above referred to cases where the Supreme Court held that “costs awarded to the litigant appearing in person are to be limited to disbursements or out of pocket expenses and that the Statutory Instrument made pursuant to Section 70 of the Legal Practitioner’s Act, is for he purposes of taxation or agreed costs, to be paid to the advocate (who is practicing law), acting for the party to the action. To buttress this view, let us look at Sections 70 of the Legal Practitioner’s Act.
Section 70 reads as follows:

“ REMUNERATION OF PRACTITIONERS
70. (1) For the purposes of this Part there shall be a committee to be known as the Remuneration Committee which shall consist of five practitioners to be nominated by the Association, of whom three shall form a quorum.

(2) On the recommendation of the Remuneration Committee:-
(a) THE chief Justice in regard to non-contentious business; and
(b) The High Court Rules Committee established under the High Court Act in regard to contentious business;
May, by statutory instrument, make general orders prescribing and regulating such manner as they think fit the remuneration of practitioners, and may revoke or alter any such order, or any order, or any order made before the commencement of this Act, which provides for the remuneration of practitioners’. (Note that a Practitioner under the Act is one having in force a Practicing Certificate).
If, however, that successful client paid a deposit to his advocate on account of legal costs, that deposit must be returned or paid back to him if the legal costs recovered by the advocate from the unsuccessful party add up to the taxed bill, where there is no prior agreement on the legal costs. If the advocate cannot recover all his legal costs from the unsuccessful party on the ground of impecuniosity on the apart of that unsuccessful party, the advocate will obviously have resource to his client to top up the shortfall, otherwise the advocate may end up doing charity work when he should be paid for his services and professional skill by the litigant who hired him because, in any case, the advocate has to be paid at the end of the day by his client!
That said, it is a misconception of the Law governing legal costs on the part of those litigants who have hired advocates to represent them in court and who, on being successful in that action and are awarded legal costs by the court, demand that legal costs, by which expression I mean profit costs, as opposed to legal expenses or out of pocket expenses as explained above, should be passed or out of pocket expenses as explained above, should be passed onto them by their advocates after the latter has been paid same by the unsuccessful party.
I therefore, find that in law, litigants are not entitled to legal costs or legal fees awarded by the court to the successful litigant in so far as same relate to profit costs save his out of pocket expenses only and so I find.
Date at Lusaka this day of 2002.

A. J NYANGULU
JUDGE

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