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Friday, 21 December 2012 11:25

Barrister Gayan to pay “wasted costs”

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Barrister Mr Anil Kumar Gayan, Senior Counsel, has been ordered by Justices Eddy Balancy and Saheed Bhaukaurally to pay Rs 10,000 as “wasted costs” in the case of Smegh Ltd versus Vinesh Hookoolah, for not having submitted in time to the bench his “skeleton arguments” as required by law in this appeal case.
This judgment relates to a preliminary point raised by respondent Gookoolah. Subsequent to this preliminary point raised in the skeleton arguments of the respondent dated 9 November 2012, the barrister, appearing for Smegh Ltd, made an attempt at seeking a postponement of the case, which was scheduled for merits on 12 November 2012 on the ground that he had been taken up with an assizes case over the preceding week.

The bench noted that Gayan’s request, which was objected to by Mr Kishore Pertab, counsel for the respondent, was refused in a verbal ruling of this Court, with regards to the fact that the skeleton arguments of the appellant were due to be filed a long time before the preceding week and to the actual preliminary point raised which an overall postponement would defeat altogether.

Upon a motion of Mr Gayan to which Mr Pertab did not object the bench allowed the skeleton arguments to be filed at the hearing of the case although they had not yet been communicated to the Judges and had been communicated to Mr Pertab, just before the case was called. The arguments were heard on the preliminary point. Mr Gayan submitted that if, in accordance with the pronouncement of the case Apex Ltd v The Moka Flacq District (2010) SCJ 369) wasted costs are awarded against the appellant’s side, they should also be awarded against the respondent’s side since the respondent has not respected the time limit for filing the skeleton arguments. Mr Pertab has in reply stated that, rightly or wrongly, he has been awaiting the appellant’s skeleton arguments till the last minute.

In their ruling the two Judges underlined that the powers of the Court to impose a wasted costs order against defaulting Counsel or Attorney cannot be questioned in their view. “We feel that it is time that this Court should show that its warnings have been given in vain.

We are prepared in the present case to be indulgent viz-à-vis the respondent’s counsel (Pertab) whose skeleton arguments were admittedly filed belatedly, but nonetheless prior to the day of the trial, in view of his explanation that he had been waiting for the skeleton arguments of the appellant. However, we are not prepared to show similar leniency towards the appellant’s counsel, Mr A.Gayan, SC, who has no reasonable excuse for his laches. We accordingly make as against him a wasted costs order to the amount of Rs 10,000.




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