Elfrida Alethea Hughes Claimant v Clive Hodge as Administrator of the Estate of Rupert Hodge, deceased Defendant [ECSC]
| Jurisdiction | Anguilla |
| Judge | Lanns, M |
| Judgment Date | 11 June 2012 |
| Judgment citation (vLex) | [2012] ECSC J0611-2 |
| Docket Number | CLAIM NO AXAHCV2008/0035 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 11 June 2012 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO AXAHCV2008/0035
Ms Kristy Richardson holding for Mrs Tara Ruan of Caribbean Juris Chambers for the Claimant
Ms Jenny Lindsay of Jenny Lindsay and Associates for the Defendant
Despite their efforts to negotiate a settlement of costs, the parties failed to settle, and thus, the assessment of costs falls to be considered by me on the written and oral submissions of the parties.
A short background to the assessment of costs as gleaned from the filings is as follows: The Claimant is the paternal Aunt of the Defendant. The Defendant is the Administrator of the Estate of his father Rupert Leopold Hodge, deceased.
On the 5 th June 2008, the Claimant issued a Claim Form and Statement of Claim seeking a Declaration that certain property at West End belongs to her. The property is identified as Parcel 196, Registration Section West End, Block 17709B. The Claimant also claimed mesne profits of US48,000.00 and interest pursuant to section 35A of the Supreme Court Act 1981, costs and further or other relief.
On even date, the Claimant also filed an application for substituted service and for leave to serve the Claim Form and Statement of Claim out of jurisdiction in the United Kingdom. Leave was granted for service out of the jurisdiction by electronic mail.
An Affidavit of Service of the Claim sworn by Patricia Hodge was filed on 27 th March 2009. It revealed that Mr Hodge had acknowledged service (via email), of the Claim Form and Statement of Claim and attachments on 4 th July 2008. However, no Acknowledgement of Service or Defence having been filed, the Claimant applied for and obtained Judgment in Default for failure to file an Acknowledgement of Service or Defence on 27 th March 2009. According to the Defendant, he received the judgment "on or about 21 st September 2009".
It turned out that the order granting leave to serve the Claim and Statement of Claim outside the jurisdiction was defective. Such order and subsequent service ran afoul of CPR 7.3 (2) (a) and CPR 7.5 of the Civil Procedure Rules 2000.
On 11 th November 2009, the Defendant through his newly retained counsel, Jenny Lindsay & Associates, filed an application asking for the following reliefs:
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1. That the Claim Form and Statement of Claim be struck out for want of service;
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2. In the alternative, that the Court exercises its inherent jurisdiction to set aside the Judgment in default on the basis that Judgment in Default was erroneously entered.
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3. In the alternative to relief in [1] above, that the Defendant be given leave to defend the Claim with following directions;
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(a) The Claimant do serve the Claim Form…;
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(b) The Defendant do file and serve the Acknowledgement of Service, and thereafter the Defence;
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(c) The Claimant do file and serve a Reply
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4. The monthly rents and / or profits paid into the escrow account be made subject to a preservation order;
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5. The Claimant and/or agents and /or servants do provide full details of the bank account and sort code where monthly rents were paid into escrow;
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6. The Claimant and /or agents and /or servants do provide a full accounting of the monthly rents and /or profits paid into escrow together with interest accruing on the total monthly rents and /or profits paid;
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7. The Respondent/Claimant shall pay the Applicant/Defendant's costs of and incidental to the Application.
The application came on for hearing on 8 th February 2010 before another Master. Mrs Tara Ruan and Mr Jonel Powell appeared for the Claimant, and Mr Mark Brantley of Counsel appeared for the Defendant. The result of the application was a consent Judgment in the following terms:
"UPON hearing Counsel for the Claimant and Counsel for the Defendant
IT IS ORDERED BY CONSENT as follows:
1. The Default Judgment entered herein on the 27 th March 2009 is set aside;
2. The Claim Form and Statement of Claim filed on the 5 th day of June 2008 are struck out for want of Service.
3. Costs to the Defendant to be assessed if not agreed.
The practical effect of the striking out of the Order is that there could be no basis for the entry of default judgment. The default judgment was first set aside and service of the claim was not validated. At the date of the Order, the Claim Form had expired. To extend the validity of the Claim Form required the filing of an application before the expiration of the validity of the Claim Form. The validity of the Claim Form expired on or about 5 th June 2009 — about five months before the application to strike was filed.
The consent order did not determine the substantive matter. The claim was not struck out as disclosing no reasonable ground for bringing the claim. It was not determined on its merits. It means that once the limitation period has not yet passed, the Claimant can put in the claim again. But so far as the Claim Form and Statement in this matter are concerned, they have been struck out. If a similar claim is commenced, the court office will be obliged to assign a new number and create a new file. However, rule 26.3 (2) will kick in. It states that if the court has struck out a claimant's statement of case; the claimant is ordered to pay costs to the defendant; and before those costs are paid, the claimant starts a similar claim against the same defendant based on substantially the same facts; the court may on the application of the defendant stay the subsequent claim until the costs of the first claim has been paid.
It is arguable then that this particular claim has been effectively discontinued or concluded with the consent of the parties. The parties agreed that costs were to be assessed if not agreed. The order does not reflect that the parties agreed, or that the court identified the rule that is to be applied to the assessment. There is now a dispute as to whether costs should be assessed under CPR 65.11 or 65.12.
The parties filed submissions pursuant to the order of the Master, and both parties addressed the court briefly. Both parties examined and discussed the provisions of Part 65 of the CPR 2000, and cited cases which examine and interpret those provisions.
The parties are not in accord as to which is the applicable rule. The thrust of the Defendant's submissions advanced by Ms Lindsay was that costs should be prescribed costs to be assessed pursuant under rule 65.12. She insists that the application before the Master was not a procedural application. The costs to be quantified are not costs of the application to strike out the Claim alone; they are the costs of the entire action, because the action was brought firmly to an end by the application to strike, counsel submitted. Counsel was adamant that the value of the claim should be set at EC$4,168,050.00, — the value of the subject land, adding that based on the formula set out in CPR 65.5 Appendices B and C, the costs to the Defendant amount to EC144,114.15.
Ms Lindsay placed heavy reliance on the following cases
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1) Norgulf Holdings Limited Incomeborts Limited v Michael Wilson & Partners Limited, British Virgin Islands Civil Appeal No 8 of 2007;
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2) Michael Wilson and Partners Limited v Temujin International Limited et al, Claim No BVIHCV2007/307; and
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3) Extracts from Cook on Costs
Mrs Ruan, on the other hand takes the position that the costs should not be prescribed costs to be assessed. Rather, costs should be assessed under CPR 65.11. She submitted that the Defendant is entitled to costs on the application only. She urged that the court should allow "a modest amount of costs". It was counsel's further submission that the court should consider that it was the court that formed the view that the requirements for service had been satisfied, and granted the order which was obeyed by the Claimant. Mrs Ruan pressed the court to look at the involvement of the Defendants in the proceedings. This involvement she stated to be:
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(a) Filed Affidavit and Application on November 11, 2008
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(b) Instructed his solicitor to appear before Master Lanns on 14 th December 2009;
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(c) Instructed solicitor to file submissions on 5 th February 2010;
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(d) Instructed his solicitor to attend court on 8 th February 2010
Counsel placed reliance on the case of Pacific International Sport Clubs Ltd v Commercial Limited Claim No BVIHCV2005/070. She submitted that the consent to strike out was similar to the Claimant discontinuing the claim in the Pacific case wherein the court was unable to value a claim and ordered $1000.00 on the application to discontinue. Counsel also relied on certain passages in the judgment in Michael Wilson and Partners Limited, v Temujin International Limited et al, supra. As to the value of the claim, counsel was of the view that the value attributed to the claim is unsubstantiated and excessive given the circumstances of the case. I think it is fitting to look at the discourse as presented by Barrow JA on the assessment provisions of the CPR 2000.
In Nugolph Holdings Limited and Michael Wilson and Partners Limited British Virgin Islands Civil Appeal No 8 of 2007, Barrow, J.A. made a close examination of the cost provisions under CPR. In relation to rule 65.11 he stated at page 5:
" a good starting point for appreciation of this rule is not to be misled by its heading. The rule clearly applies to more than just procedural applications because paragraph (1) of the rule says that "on determining any application" other than a case management conference, pre-trial review or at the trial...
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