Oliver Macdonna (Personal Representative of Margaret Richardson, (Widowed) deceased) Appellant v Benjamin Wilson Richardson (Personal Representative for John Richards Richardson, deceased) Respondent [ECSC]

• Jurisdiction: Anguilla
• Judge: Gordon JA [AG.],Michael Gordon, QC,Justice of Appeal [Ag.],Ola Mae Edwards,Justice of Appeal,Davidson K. Baptiste
• Judgment Date: 25 November 2013
• Judgment citation (vLex): [2013] ECSC J1125-1
• Docket Number: AXAHCVAP2005/0003
• Date: 25 November 2013
• Court: Court of Appeal (Anguilla)

[2013] ECSC J1125-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mr. Davidson K. Baptiste Justice of Appeal [Ag.]

The Hon. Mr. Michael Gordon, QC Justice of Appeal [Ag.]

AXAHCVAP2005/0003

Between:

Oliver Macdonna (Personal Representative of Margaret Richardson, (Widowed) deceased)

Appellant

and

Benjamin Wilson Richardson (Personal Representative for John Richards Richardson, deceased)

Respondent

Appearances:

Ms. Dahlia Joseph for the Appellant

Mrs. Joyce Kentish-Egan for the Respondent

Civil appeal — Application to strike — Costs — Costs to be assessed — Special circumstances — Whether Court should award costs outside of the one-tenth prescribed limit per CPR 65.11

In 2003, the appellant filed a claim opposing the respondent's ownership of a parcel of land. The claim was a non-monetary claim and no application was made to value the claim. The respondent filed a notice to strike out the claim. The claim was struck out and, without filing leave to appeal, the appellant filed a notice of appeal. The respondent was again successful on an application to strike out the appeal. Afterwards, there were a number of applications filed by the appellant and the respondent with the result that an application to strike came on for hearing before the Full Court. This application was conceded by the appellant on the morning of the hearing. At the sitting, the Court ordered that costs in the Court of Appeal be assessed and that submissions be filed in relation thereto.

On that basis, the respondent submitted that costs should exceed the one-tenth limit prescribed by rule 65.11(7) of the Civil Procedure Rules 2000 ("CPR") as the special circumstances in the case would justify this. The special circumstances include the appellant's vigorous litigation in the matter, the respondent's hiring of senior counsel, the preparation for the hearing of an appeal and the appellant's failure to file leave to appeal.

The appellant argued that no special circumstances exist; as such the one-tenth prescribed limit would be applicable.

Held: awarding costs in the sum of $1,400.00, that:

• 1. The appellant's vigorous litigation of the matter along with (1) the respondent's hiring of senior counsel; (2) the preparation of the hearing of an appeal; and (3) the appellant's failure to file leave to appeal cannot be considered as special circumstances within the context of the CPR.

• 2. The Court should actively manage a case to give effect to the overriding objective of the CPR. In that regard, the cost orders ought to further that objective. The Court must keep in mind what was reasonable and proportionate. In light of this, a costs order in the sum claimed by the respondent, for a striking out application, can neither be fair nor reasonable.

Rochamel Construction Limited v National Insurance Corporation Saint Lucia, High Court Civil Appeal SLUHCVAP2003/0010 ( delivered 24th November 2003, unreported) followed.

Gordon JA [AG.]

1 This is an assessment of costs pursuant to an order of the Court dated 13 ^th October 2008.

2 A short background to this assessment is as follows:

• (i) Sometime in 2003, legal proceedings were instituted by the appellant concerning the ownership of a parcel of land registered as West End Block 180 IIB Parcels 181, 182, 199, 200 and Block 181 11B Parcel 28, 29, 30, 31, 32, 33 and 34 ("the land").

• (ii) In 2004, Edwards J in the High Court acceded to an application by the respondent to strike out the claim as an abuse of process, indicating that the issue of the ownership of the land had been conclusively determined in earlier proceedings. She held that the latest attempt before her, by another member of the same family that had previously claimed ownership of the land as against the registered owner, a member of a different branch of the family, was an abuse of process. She therefore struck out the claim on the respondent's application at an interlocutory stage.

• (iii) In 2005, the appellant filed a notice of appeal of the judgment of Edwards J.

• (iv) In 2006, an amended notice of appeal was filed by the appellant.

• (v) In 2006, there was an application to strike out the notice of appeal by the respondent.

• (vi) In that same year the appellant filed an affidavit opposing the striking out of the appeal.

• (vii) In early 2007, Justice of Appeal Barrow struck out the notice of appeal and made an award of costs in favour of the respondent in the sum of $1,000.00.

• (viii) In the same year the appellant applied to set aside the order of Barrow JA.

• (viiii) On that application, Barrow JA set aside his previous order on the grounds that he had not seen the appellant's latest submissions when he had made it and directed that the application to strike out be considered afresh by a single judge of the Court of Appeal to be assigned by the Chief Justice.

• (x) Later in 2007, the single judge assigned by the Chief Justice requested written submissions on the issue of whether leave to appeal from the order of Edwards J was required.

• (xi) After written submissions were made, Barrow JA, the single judge of the Court of Appeal, again struck out the notice of appeal on 13 ^th June 2007.

• (xii) The appellant then filed an application to set aside that order of Barrow JA.

• (xiii) On 29 ^th June 2007, there was a written judgment of the Court in support of the order of 13 ^th June 2007.

• (xiv) In that same year, the appellant once again applied to set aside Barrow JA's order by way of an amendment of the notice of application. In this amended version, the appellant applied for permission to appeal.

• (xv) On 10 ^th October 2008, communication was sent by counsel for the appellant to counsel for the respondent stating that the appellant wished to discontinue the application for permission to appeal.

• (xvi) On 13 ^th October 2008, a notice of discontinuance was filed by the appellant. On that same day the Full Court ordered that costs in the Court of Appeal be assessed and that submissions be filed pertaining to such costs.

3 All those matters have brought us to this point. As one can appreciate, the matter was quite a protracted one. It is noteworthy that Barrow JA stated in his judgment that the appeal before him was the seventh litigation event regarding ownership of the land.

The Assessment

4 Barrow JA in Norgulf Holdings Limited et al v Michael Wilson & Partners Limited1 confirmed that rule 65.11 of the Civil Procedure Rules 2000 ("CPR") applies to more than just procedural applications. He said:

"A good starting point for appreciating 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 at a case management conference, pre-trial review or at the trial, the court must: decide whether to award costs of that application and which party should pay them; assess the amount of such costs; and direct when they are to be paid. These are decisions the court must make for applications generally, and not just for procedural applications. Paragraph (2), similarly, is of general application in providing that the general rule is that the unsuccessful party must pay the costs of the successful party." 2 (My emphasis).

He summed it up by saying, "… rule [65.11] applies only where the court determines an application". As it was on the application to strike out that was being determined, it follows that rule 65.11 would apply.

5 Rule 65.11 reads as follows:

" Assessed costs — procedural applications

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.

• (2) In deciding which party, if any, should pay the costs of the application the general rule is that the unsuccessful party must pay the costs of the successful party.

• (3) The court must take into account all the circumstances including the factors set out in rule 64.6(6) but where the application is —

  • (a) an application to amend a statement of case;

  • (b) an application to extend the time specified for doing any act under these Rules or an order or 5 direction of the court;

  • (c) an application for relief under rule 26.8 (relief from sanctions); or

  • (d) one that could reasonably have been made at a case management conference or pretrial review;

    the court must order the applicant to pay the costs of the respondent unless there are special circumstances.

• (4) In assessing the amount of costs to be paid by any party the court must take into account any representations as to the time that was reasonably spent in making the application and preparing for and attending the hearing and must allow such sum as it considers fair and reasonable.

• (5) A party seeking assessed costs must supply to the court and to all other parties a brief statement showing —

  • (a) any counsel's fees incurred;

  • (b) how that party's legal representative's costs are calculated; and

  • (c) the disbursements incurred.

• (6) The statement under paragraph (5) must comply with any relevant practice direction.

• (7) The costs allowed under this rule may not exceed one tenth of the amount of the prescribed costs appropriate to the claim unless the court considers that there are special circumstances of the case justifying a higher amount."

6 This rule notably states the principles by which the Court must guide itself in exercising its discretion in assessing and awarding costs. The discretion is especially conferred by rule 65.11(7). The rule also states that the Court, in deciding which party, if any, should pay costs, must take into account all the circumstances of the case. Those...