Delta Petroleum v Anguilla Electricity Company

• Jurisdiction: Anguilla
• Judge: Moise, J.
• Judgment Date: 14 May 2025
• Judgment citation (vLex): [2025] ECSC J0514-2
• Year: 2025
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Docket Number: CLAIM NO: AXAHCV2022/0008

Between:

Delta Petroleum (Anguilla) Ltd.

Claimant

and

Anguilla Electricity Company Limited

Defendant

[2025] ECSC J0514-2

Before:

His Lordship, The Honourable Justice Ermin Moise

CLAIM NO: AXAHCV2022/0008

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Ms. Rayana Dowden for the Claimant

Mrs. Tana'ania Small-Davis KC and with her Mrs. Jacinth Jeffers of counsel for the Respondent

Moise, J.

1 This is an application to determine the value of a claim which was discontinued prior to the deadline for filing a defence. The applicant also seeks an assessment of costs. In essence, the outstanding issue in this matter is that of the appropriate costs order to be made in the claim as well as an interim injunction which had been dismissed by the court. In order to determine these issues, it is important to briefly outline the procedural history of this litigation.

2 This matter initially commenced by way of claim form and statement of claim filed on 16 ^th March, 2022. In addition to the claim, an application for an interim injunction was also filed on the same date. The issue between the parties centered around an alleged breach of a consent order which settled previous litigation between them. In essence, Delta Petroleum (DELTA) and the Anguilla Electricity Company Limited (ANGLEC) were previously parties to an agreement for the supply of fuel. DELTA complained that ANGLEC had breached the contract and commenced litigation in case number AXAHCV2020/0030. In settlement of that claim, the parties agreed that any tender process for the new fuel supply undertaken by ANGLEC would be conducted in a “fair, open and transparent manner.” On that basis, DELTA discontinued its previous claim in accordance with the consent order.

3 In the current proceedings, DELTA complained that a new tender for the supply of fuel was issued by ANGLEC and subsequently withdrawn and replaced twice. It was contended that ANGLEC was in breach of the consent order in that the tender process was not fair, open and transparent. The court denied an application for an interim injunction on 29 ^th July, 2022 and ordered that DELTA pay costs to ANGLEC. The court also ordered that the costs were to be assessed if the parties could not agree on reasonable costs within a period of 21 days. The parties could not agree on the costs to be paid on the injunction. However, on 12 ^th August, 2022, DELTA discontinued the claim altogether. At that point the time for filing a defence had not expired and ANGLEC had not done so. The parties are now at variance as to how the issue of costs ought to be determined.

4 ANGLEC has filed an application and submits that costs should be determined pursuant to Rule 65.5 (2)(a) of the CPR. It is contended that the claim should be valued at US$1,000,000.00 as the tender documents for the fuel supply indicate that the contract is valued in the region of US$1,000,000.00. ANGLEC also argued that the Court, in dismissing DELTA's application for an interim injunction, determined that, among other things, damages was an adequate remedy against the alleged breach. If the sum of US$1,000,000.00 is determined to be the value of the claim, then prescribed costs under the CPR would amount to $US42,187.50, given that the claim was discontinued prior to the filing of the defence.

5 In addition to that, ANGLEC also presented a bill of costs on the injunction application which totaled the sum of US$20,640.00. However, it is noted by counsel for ANGLEC that the appropriate rule to be applied for costs in an interim injunction is 65.11. If this is the case, then this rule would cap the costs of the injunction at no more than 10% of the full prescribed costs which would be awarded in the claim. If ANGLEC is successful in its submission that the claim should be valued at US$1,000,000.00, then even after assessing the bill of costs, it is submitted, that costs on the interim injunction would be no more than US$9,350.00

6 DELTA, on the other hand, argues that the applicable rule is 65.5(2)(b) and that the claim should be valued at $50,000.00EC as it was not a claim for damages. What DELTA was in fact seeking was an injunction, although damages had been claimed as an alternative remedy. In the alternative, DELTA argues that although the fuel supply contract which was put to tender was valued at US$1,000,000.00, that would not have been the profits made if DELTA had been successful in a bid. In fact, it was argued that the profit was more likely to be US$100,000.00 per annum for a contract period of 3 years. Therefore, if the court were to reject the applicability of rule 65.5(2)(b) the proper value to be placed on the claim was US$300,000.00. If that value is to be placed, then the prescribed costs on the claim would be US$17,435.00 (considering that the claim was discontinued prior to the filing of a defence) and with the cap on the costs of the injunction, the maximum award would be $3,875.00US. I note that counsel for ANGLEC, in their submissions, was prepared to accept an award in keeping with a value of US$300,000.00 if the court rejects their initial submissions.

Costs and the CPR

7 Whilst counsel for the parties have centered their arguments on the applicability of rule 65.5(2) (a) or (b), the starting point in determining the issue of costs, especially on the interim injunction, is in fact rule 65.2 which states that [i]f the court has a discretion as to the amount of costs to be allowed to a party, the sum to be allowed is – (a) the amount that the court deems to be reasonable were the work to be carried out by a legal practitioner of reasonable competence; and (b) which appears to the court to be fair both to the person paying and the person receiving such costs. In light of this, it is always worth reminding ourselves that the applicant is not entitled to an indemnity of all costs. The respondent should only be expected to pay costs which were reasonably incurred and were proportionate to the issues before the court

8 Insofar as the interim injunction is concerned, the court has already awarded costs to be assessed. As I have already noted, counsel for ANGLEC filed an itemized bill along with the current application. Both parties have submitted that the assessment of the costs should be done in accordance with CPR 65.11. Counsel for ANGLEC, at paragraph 18 of their submission notes that it has been consistently held that interim injunctions are procedural applications and therefore should be assessed under CPR 65.11. The rule states that:

65.11(1) On determining any application except at a case management conference, pre-trial review or the trial, the court must –

(a) decide which party, if any, should pay the costs of that application;

(b) assess the amount of such costs; and

(c) direct when such costs are to be paid.

In the CPR 2000...