1. Paul Webster 2. Marjorie Maclean 3. Marjorie Connor 4. Phillippe Chamlault 5. Christine Champault 6. Anne Keller 7. Lloyd Sinclair 8. Neil Freeman 9. Wendy Freeman Applicants v Attorney General (for the Government of Anguilla) Respondent Dolphin Discovery Interested Party [ECSC]
| Jurisdiction | Anguilla |
| Judge | Lanns, M |
| Judgment Date | 11 June 2012 |
| Judgment citation (vLex) | [2012] ECSC J0611-3 |
| Date | 11 June 2012 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Docket Number | CLAIM NO AXAHCV2008/0015 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO AXAHCV2008/0015
and
Mr Gerhard Wallbank, of Webster, Dyrud Mitchell for the Applicants
Mr Ivor Greene for the Attorney General
Ms Yanique Stewart for Interested Third Party
This is an assessment of costs pursuant to a Judgment handed down by Her Ladyship Tana'ania Small-Davis J [Ag] on 13 th September 2010.
Paragraphs [238] to [241] of the Judgment are in the following terms:
"Costs
"[238] The parties were directed to file submissions on costs on or before 17 th August 2008. The Claimants filed a Skeletal Bill of Costs. The Defendant and the Interested Party filed submissions in each case, arguing that the Claimants were entirely misguided and that the general rule not to award costs against an unsuccessful claimant for judicial review should not be followed."
"[239] The Claimants have been successful on some parts of the claim, and the Defendant and the Interested Party have prevailed on others. Where the Claimants have been successful, it has been on the ground of illegality and or procedural irregularity of the impugned decision. For this reason, I consider that the Claimants should have 50% of their costs."
[ 240] CPR 65.12 (5) directs me to CPR64.12 as the proper method of assessing costs in judicial review cases.
"[241] The Defendant shall pay 50% of the Claimants' costs, such costs to be assessed pursuant to CPR 65.12(3) on application to the Master for directions as to how the assessment is to be carried out. The Defendant and the Interested Party shall bear their own costs."
The learned Judge concluded her judgment by commending counsel for their tremendous assistance and diligence in the conduct of the case.
I glean from the judgment and other documents on record that the case concerned the judicial review of a decision by the Land Development Control Committee to approve the planning application of Dolphin Discovery (the Interested Party in this matter) to construct a pier and /or dolphinarium and to carry out associated works at Blowing Point, Anguilla.
Prior to the initiation of judicial review proceedings, an injunction was granted on application by the Claimants, which had the effect of putting on hold the construction works being undertaken by Dolphin Discovery. The Court directed a cessation of all construction works of pier or structure or any encroachment or the foreclosure at the foreshore or floor of the sea at Sandy Point.
I am not familiar with the case, so it is arguable that CPR 65.12 (2) kicks in. This rule provides that if the assessment relates to part of court proceedings it must be carried out by the judge, master or registrar hearing the proceedings. (Emphasis mine). However, it appears that CPR65.12 (2) has to be read in conjunction with CPR 65.12 (3) which provides that if the assessment does not fall to be carried out at the hearing of any proceedings, then the person entitled to the costs must apply to a master or the registrar for directions as to how the assessment is to be carried out. ( CPR 65.12 (3).
The matter came before me on 24 th January 2011 for status hearing, but it was adjourned to allow the parties to attempt settlement of the assessment of costs. They were unable to come to a final agreement, so the Claimants have approached the court on an application pursuant to the Order of Small-Davis J [Ag] seeking an order that the court assess its costs in the sum of EC$ EC$714,464.14. The Application was filed on 14 th January 2011. Accompanying the application was a Bill of Costs fulfilling the requirement of CPR 65 12 (4).
On 28 th March 2011, I gave directions on the assessment. The parties complied. After a period of delay, the assessment eventually came on for hearing on 12 th December 2011.
At that hearing, the court formed the opinion that the assessment was appropriate for disposition by way of the written representations as filed. The parties agreed. Therefore, the assessment of costs has proceeded on the written representations submitted on behalf of the Claimants and the Defendant.
As can be seen from paragraph [241] of the judgment of Small-Davis J, [Ag], Dolphin Discovery, the Interested Party is not involved in this assessment.
The Defendant disputes the amount claimed by the Claimants, but has not put forward any serious challenge to the costs claimed. The Defendant's main ground for the disputes is a bald disagreement with almost all of the items, on the basis that the costs claimed appear excessive. The Defendant gives no or no sufficient supporting basis for the bald assertions that the costs appear excessive. His submissions in response to the Claimants' Bill of Costs are woefully inadequate to assist the court in carrying out the assessment.
The Claimants were careful to point out that the Bill of Costs gives figures before the 50% reduction was applied by the Judge.
They urged that in carrying out the assessment, the court should consider that this matter concerned issues of foremost public importance to Anguilla, i.e., whether or not permission for an international dolphin tourist facility located within the limits of Blowing Point Harbour should be overturned or allowed to stand. This issue, they submitted, required the degree of preparation and professional attention which the Claimants lawyers applied to it.
Neither party provided the court with any authority in support of the assessment, although they were not directed to do so. Part 2 of the CPR require the parties to assist the court in furthering the overriding objective to save expenses and to deal with the case in a way that is proportionate to the nature of the case. Upon review, it would appear that evidence on affidavit and authorities in support of each party's position would have greatly assisted the court with the assessment of the Bill of Costs to determine the reasonableness of the costs claimed. The directions may have been inadequate in this regard.
Notwithstanding the odds, I will attempt to do the best I can with what I have before me.
The court has before it
a) The Claimants' Second Bill of Costs; which obviously supersedes the first one that was before the learned Judge
b) Copies of Counsel's fee notes
c) Experts' fee invoices
d) Accounts for other disbursements
e) The Defendant's response to the Bill of Costs; and
f) The Claimants' submissions in reply to the Defendant's response to the Claimants' Bill of Costs.
I have carried out the assessment based upon the principles which govern assessment of costs, the rules of court, the documents on record and the written submissions in support of, and in opposition to the Bill of Costs.
The principle upon which costs are awarded is laid down in CPR, 65.2(1) which is to the effect that a party can only be allowed costs which the court deems reasonable.
The principle of reasonableness has been expounded and applied in several cases and in several Papers on costs.
In a Paper entitled " Costs under the CPR", dated 24 th February 2003, Sir Dennis Byron Chief Justice (as he then was) outlined the principles of reasonableness by stating among other things that
"The Court must consider the time spent in making, preparing for and attendance at hearing and allow a reasonable and fair sum…."
In Michael Wilson & Partners ltd v Temujin International Limited et al – Claim No. BVIHCV2006/0307 – British Virgin Islands, Her Ladyship Indra Hariprashad-Charles stated at paragraph 39
a) "Ultimately, the court must allow such sum that is reasonable taking into consideration the matters set out in CPR 64.6 (6) and CPR 65.2(3).
And in Peter Maxymych v Global Convertible Megatren Ltd and Anor Claim No 246 of 2006, Olivetti J found it necessary to refer to the Privy Counsel decision in Horsford v Bird 43/2004 (28the November 2006), for the principle that no party can be expected to be fully indemnified for his costs; he is only entitled to reasonable costs.
In Horsford v Bird supra, Lord Hope of Craigshead stated:
"It has to be borne in mind in judging what was reasonable and proportionate in this case, that the basis of the award was not that the appellant was to be indemnified for all his costs. The respondent was to be required to pay only such costs as were reasonably incurred for the conduct of the hearing before the judge and were proportionate."
It is clear from the above paragraphs 18 to 22 that reasonableness is key. The Claimants must satisfy the court that their costs are reasonable. To do this, the Claimants must produce evidence that their costs are reasonable as the court, in assessing costs is required to be fair and reasonable. Any doubts must be resolved in favour of the paying party. The Claimants cannot just say that the Defendant has not shown any bases for saying the costs are excessive, or that that the Defendant makes a bald assertion of disagreement. He who asserts must prove. At the same time, it behoves the Defendant to show some basis for concluding that the costs are excessive. The Defendant cannot just limit himself to saying that the costs appear to be excessive for the work performed, and that a lower sum has been claimed for similar cases. As noted by Sir Dennis, in his paper "Costs under the CPR" the parties must assist the court.
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