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Bobroff ordered to repay quadriplegic R2.1m

Update: Norman Berger and Partners dispute that their fee agreement was illegal.

JOHANNESBURG – The South Gauteng High Court (SGHC) handed down two judgments on Friday morning against Ronald Bobroff & Partners (RBP). First the court denied RBP leave to appeal against a previous judgement, and secondly, to refund a previous client R2.1 million immediately.

Both matters related to Anthony de Pontes, a former Mercedes Benz motor mechanic, who was rendered quadriplegic in a motor vehicle collision in 2007. RBP then handled De Pontes’s claim against the Road Accident Fund (RAF).

Leave to appeal denied

In March 2013 Alta de Pontes, Anthony’s mother, asked the SGHC to place Anthony under curatorship, because he is unable to manage his financial affairs.

Although De Pontes is fully compos mentis, his quadriplegia makes him unable to do basic things, such as draw his own money from his bank account, or use a telephone.

The SGHC appointed Advocate Justin Bitter as De Pontes’s curator to represent him in his dealings with RBP. Bitter immediately demanded full and proper accounting of the money the RAF paid to De Pontes’s behalf. When this happened, RBP challenged the legitimacy of Bitter’s appointment.

Judge Khami Makhafola heard the matter, and, in September last year, ruled against RBP – with punitive costs.

Advocate Ian Zidel SC, for RBP, on Friday morning asked Judge Makhafola to grant RBP leave to appeal the judgment, but she dismissed this judgement with costs.

Refund to De Pontes

Immediately after Judge Makhafola had dismissed RBP”s request for leave to appeal, Judge Haseena Mayat handed down a judgment in which she ordered that RBP provide an itemised account to Bitter within thirty days and that RBP must immediately pay R2.1m into Bitter’s trust account.

Judge Mayat found that RBP’s fee agreement had been illegal. She noted in her judgment that Advocate Zidel conceded that RBP’s fee agreement with De Pontes was indeed “unlawful”.

The judge endorsed the submissions made by Advocate Bernard Ancer SC, for De Pontes, saying, “I agree with Mr Ancer that the application is obviously motivated by the ulterior purpose of not paying a debt to Anthony, which had been outstanding for more than three years. The application constitutes an abuse of the court process.”

She echoed Ancer’s argument that “RBP is abusing this court’s process, as a recalcitrant debtor, simply with a view to delaying the inevitable payment to Anthony.”

Costs

Regarding Judge Mayat’s costs order she said: “Bitter seeks costs on an attorney and client scale, including the costs of two advocates. The senior partner of RBP, as an experienced practitioner, must have been aware that the overwhelming view of distinguished authorities, including the Supreme Court of Appeal, was to the effect that any agreement for fees which did not comply with the law was invalid, and could in the proper context, also amount to improper conduct.”

She made a punitive costs order against RBP.

De Pontes’s attorney, Anthony Millar, told Moneyweb: “It is a rare pleasure as an attorney to work with a client such as Anthony de Pontes and his family, and to achieve a result that will genuinely improve his life, and restore his faith in the legal profession.”

Ronald Bobroff has been asked for comment. We shall publish as soon we receive it.

Read Judge Mayat’s judgment here.

Following publication of this article, RBP attorney Philippa Farraj commented on the judgement. See her full response to Moneyweb here:

Dear Mr Beamish

As the attorney who dealt with Mr De Pontes’s claim I am responding to your request for comment on today’s judgments in the de Pontes matter.

1.     I have specialised in personal injury work for well over a decade, and I and Counsel in the matter believe that the result obtained for Mr de Pontes was most satisfactory. That was also the consensus of opinion by the numerous experts instructed by me in this matter.

2.     I note that the many years of High Court litigation on Mr De Pontes’s behalf which involved the incurring of extensive disbursements in respect of experts and Advocates, in addition to hundreds of hours of my professional time, was done entirely at the risk and cost of my employers Ronald Bobroff & Partners Inc.

3.     The fee which I charged Mr De Pontes was entirely in accordance with rulings made by the Law Society of the Northern Provinces in 2002 and 2003, and consistently supported by it until very recently, to the effect that its members are entitled to accept instructions from clients on the basis of a straight percentage fee, and that whilst a guideline suggestion of 25% was made, the Law Society specifically did not lay down any maximum percentage and made reference to various circumstances in accordance with which an attorney could contract for a higher percentage.

4.     As you are aware, many well-known attorneys utilized the same Law Society compliant fee agreements as I did and you in fact have copies thereof.

5.     Mr De Pontes and his family were extremely satisfied with the outcome of the claim and the fee.

6.     I have noted the order made by Mayat J and will be giving effect to paragraph (i) thereof.

7.     However I have been advised by Counsel that the learned Judge erred in directing that any amount be paid to Applicant’s attorney prior to the fee being taxed or assessed, for a number of reasons including the fact that my employers have already paid VAT on the fee and which is included in the amount referred to in the order of court. 

8.     I have also been advised that the learned Judge erred in directing that interest run on the difference between the fee as may be assessed, and the Law Society ruling compliant fee I charged, as from 2011.

9.     As you are aware Mr Millar, representing Mr De Pontes, himself has for at least a decade and even recently, utilized a common-law contingency fee agreement, a copy of which I understand is in your possession, and which in no way complies with the Contingency Fees Act. I trust that you will in fairness publish this fact in any report .

Sincerely

MS PHILIPPA FARRAJ

Norman Berger and Partners have disputed that their fee agreement was illegal, as Farraj and Bobroff allege. Read their full response here. 

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