Legal costs of Aussenkehr battle revealed

ONE of Namibia’s most bitterly fought and drawn-out civil court cases since Independence made brief a return to the High Court last week – this time in the form of a dispute about who should pay part of the huge legal costs of the courtroom battle that pitted the grape-farming industry at Aussenkehr against a company looking into pursuing diamond mining in the same area.

As with the original High Court and Supreme Court contests between a section of the grape-farming industry at Aussenkehr and Northbank Diamonds, a prospective diamond mining company with a licence to prospect for possible diamond deposits at Aussenkehr, the latest match-up again ended with the grape farmers in the loser’s corner. Aussenkehr Farms, which has played a pioneering role in establishing vineyards producing export grapes at Aussenkehr on the northern bank of the Orange River, and a collection of its partners in the grape-farming, exporting and marketing business first launched a High Court case in which they tried to stop Northbank Diamonds from carrying out diamond prospecting activities at Aussenkehr in May 2000.After a hard-fought – and at times vicious – battle in the High Court, where the hearing of arguments from both sides took 35 days, Acting Judge John Manyarara dismissed the grape farmers’ and marketers’ case with costs.That was in late June 2002.Aussenkehr Farms and its business partners appealed to the Supreme Court, where they again lost, with the court again ordering them to pay their opponents’ legal costs, in late October 2004.On Thursday last week, Acting Judge Manyarara once again ruled against Aussenkehr Farms, when he dismissed an application in which it asked for an alteration to the costs order he made in June 2002.Through its return to court, the huge costs of the original case have now been revealed publicly for the first time.In Aussenkehr Farms’ view, Acting Manyarara neglected, due to an oversight, to order that Northbank Diamonds had to carry that part of the legal costs related to the drawing up of, and courtroom fight over, a bulky affidavit by a Northbank Diamonds executive of which the main part was struck from the record at the request of Aussenkehr Farms.Together with its annexures, that affidavit amounted to 1 186 pages, of which a total of 1 068 pages were ordered struck from the record after Aussenkehr Farms’ lawyer, Theo Barnard, had attacked them as being vexatious, defamatory and scandalous, amongst other things.The affidavit was not only that, but it must also have been “the most expensive affidavit in legal history”, Barnard commented at the time.Barnard told the court that the two advocates who represented Northbank Diamonds in the original hearing before Acting Judge Manyarara, senior counsel Pieter Henning and his co-counsel, Pierre Rossouw, billed their client some N$390 000 for the preparation of the affidavit of which the main part ended up being struck from the record.In 24 years of practising law, he had never encountered an affidavit costing so much to draw up, Barnard commented.According to Philip Ellis, whose law firm instructed Henning and Rossouw to act for Northbank Diamonds, Aussenkehr Farms had tried to create a misleading impression with the court on that score.In an affidavit setting out Northbank’s opposition to the application to vary the judgement, Ellis indicated that the two counsel’s fees related to the affidavit in question amounted to about N$324 000.The Taxing Master – who has to assess what portion of an opponent’s legal fees the losing party in a case actually has to pay – had “taken an extremely conservative view” in allowing Aussenkehr Farms and its partners to be held accountable for these fees, and had decided that they should have to pay only about N$86 600 of these fees, Ellis pointed out.He at the same time also threw some light on a feature of the Aussenkehr grapes versus diamonds case that had remained hidden from the public record until now: the matter of the legal costs.According to the statement of fees that Ellis’s law firm, Ellis & Partners, submitted to the Taxing Master, the case cost Northbank Diamonds alone more than N$1,6 million between May 2000 and the end of June 2002.This does not include the costs of the Supreme Court appeal.Of this total, the two advocates earned close to N$1,5 million, while Ellis & Partners’ own fees amounted to some N$138 000.Henning’s fees were charged at a rate of N$12 000 a day, while Rossouw charged at a daily rate of N$8 000.It is that bill that Aussenkehr Farms and its partners will have to help pay.Acting Judge Manyarara dismissed their attempt to get an order that Northbank Diamonds pay at least the portion of the legal fees related to the affidavit of which a major part was struck from the record.The main reason for his decision was that in his view the more than three-year-long delay by Aussenkehr Farms in taking steps to have the judgement altered, was “grossly unreasonable” and indicated that the company had accepted the judgement that they now wanted to have changed.As before, Aussenkehr Farms has again been ordered to pay the costs of this part of the litigation against Northbank Diamonds.Aussenkehr Farms, which has played a pioneering role in establishing vineyards producing export grapes at Aussenkehr on the northern bank of the Orange River, and a collection of its partners in the grape-farming, exporting and marketing business first launched a High Court case in which they tried to stop Northbank Diamonds from carrying out diamond prospecting activities at Aussenkehr in May 2000.After a hard-fought – and at times vicious – battle in the High Court, where the hearing of arguments from both sides took 35 days, Acting Judge John Manyarara dismissed the grape farmers’ and marketers’ case with costs.That was in late June 2002.Aussenkehr Farms and its business partners appealed to the Supreme Court, where they again lost, with the court again ordering them to pay their opponents’ legal costs, in late October 2004.On Thursday last week, Acting Judge Manyarara once again ruled against Aussenkehr Farms, when he dismissed an application in which it asked for an alteration to the costs order he made in June 2002.Through its return to court, the huge costs of the original case have now been revealed publicly for the first time.In Aussenkehr Farms’ view, Acting Manyarara neglected, due to an oversight, to order that Northbank Diamonds had to carry that part of the legal costs related to the drawing up of, and courtroom fight over, a bulky affidavit by a Northbank Diamonds executive of which the main part was struck from the record at the request of Aussenkehr Farms.Together with its annexures, that affidavit amounted to 1 186 pages, of which a total of 1 068 pages were ordered struck from the record after Aussenkehr Farms’ lawyer, Theo Barnard, had attacked them as being vexatious, defamatory and scandalous, amongst other things.The affidavit was not only that, but it must also have been “the most expensive affidavit in legal history”, Barnard commented at the time.Barnard told the court that the two advocates who represented Northbank Diamonds in the original hearing before Acting Judge Manyarara, senior counsel Pieter Henning and his co-counsel, Pierre Rossouw, billed their client some N$390 000 for the preparation of the affidavit of which the main part ended up being struck from the record.In 24 years of practising law, he had never encountered an affidavit costing so much to draw up, Barnard commented.According to Philip Ellis, whose law firm instructed Henning and Rossouw to act for Northbank Diamonds, Aussenkehr Farms had tried to create a misleading impression with the court on that score.In an affidavit setting out Northbank’s opposition to the application to vary the judgement, Ellis indicated that the two counsel’s fees related to the affidavit in question amounted to about N$324 000.The Taxing Master – who has to assess what portion of an opponent’s legal fees the losing party in a case actually has to pay – had “taken an extremely conservative view” in allowing Aussenkehr Farms and its partners to be held accountable for these fees, and had decided that they should have to pay only about N$86 600 of these fees, Ellis pointed out.He at the same time also threw some light on a feature of the Aussenkehr grapes versus diamonds case that had remained hidden from the public record until now: the matter of the legal costs.According to the statement of fees that Ellis’s law firm, Ellis & Partners, submitted to the Taxing Master, the case cost Northbank Diamonds alone more than N$1,6 million between May 2000 and the end of June 2002.This does not include the costs of the Supreme Court appeal.Of this total, the two advocates earned close to N$1,5 million, while Ellis & Partners’ own fees amounted to some N$138 000.Henning’s fees were charged at a rate of N$12 000 a day, while Rossouw charged at a daily rate of N$8 000. It is that bill that Aussenkehr Farms and its partners will have to help pay.Acting Judge Manyarara dismissed their attempt to get an order that Northbank Diamonds pay at least the portion of the legal fees related to the affidavit of which a major part was struck from the record.The main reason for his decision was that in his view the more than three-year-long delay by Aussenkehr Farms in taking steps to have the judgement altered, was “grossly unreasonable” and indicated that the company had accepted the judgement that they now wanted to have changed.As before, Aussenkehr Farms has again been ordered to pay the costs of this part of the litigation against Northbank Diamonds.