Scott Svirsky et Al v SOF 82 Anguilla Holdings LLC et Al
| Jurisdiction | Anguilla |
| Judge | Moise, J. |
| Judgment Date | 22 June 2023 |
| Judgment citation (vLex) | [2023] ECSC J0622-1 |
| Docket Number | CLAIM NO. AXAHCV2023/0005 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
His Lordship The Honourable Justice Ermin Moise
CLAIM NO. AXAHCV2023/0005
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Mr. Timothy Prudhoe with Mr. Carlyle Rogers of counsel for the Claimants/Applicants
Mr. Devin Hodge of counsel for the 1 st Defendant/Respondent
The Honourable Attorney General, Mr. Dwight Horsford appears with Mr. Sasha Courtney and Mr. Theon Tross pursuant to an order of the court dated 29 th March, 2023
Ms. Merline Barrett, President of the Bar Association pursuant to order of the court dated
This is an application for the court's approval of a letter of engagement dated 24 th September, 2022 entered into between the claimants and the law firm on record as their representatives in the substantive claim. Given the nature of the application, the Learned Master ordered that submissions be filed by the office of the Attorney General of Anguilla and the Bar Association of Anguilla. The submissions were duly filed, and after having initially filed affidavit evidence in support of the application and submissions in support, the claimants filed additional submissions in response to those of the Attorney General and the Bar Association.
The matter was referred by order of the learned master dated 22 nd May, 2023. The matter was scheduled for determination of the court on 5 th June, 2023. Having read the submissions and having heard from counsel for the claimant, I determined that the application should be dismissed with no order as to costs. I undertook to give written reasons for my decision and I do so now.
However, before addressing the facts of this case, I wish to highlight an issue which arose at the start of the hearing of this matter. The application for consideration was filed on 14 th March, 2023. The claimants also filed affidavit evidence in support of the application on the same day. Again on 23 rd March, 2023, the claimants filed an additional affidavit in support of the application. One of the grounds upon which the application was based was that the claimants were unable to fund the litigation and therefore entered into a letter of engagement on a contingency fee basis. None of the affidavits necessarily addressed the facts upon which it was being represented that they were unable to fund the litigation.
In addition to the affidavits filed, the claimants filed skeleton arguments in support of the application on 23 rd March, 2023. Whilst these are referred to as skeleton arguments, they were in fact substantive submissions on the issues raised in the application. On the invitation of the learned master, the Attorney General put in a notice of objection to the application on 26 th April, 2023. The Anguilla Bar Association filed submissions on 28 th April, 2023. The Attorney General filed submissions on 8 th May, 2023. Again, all the submissions filed were rather substantive, together with authorities to support the arguments made in relation to the points in question. On 15 th May, 2023, the claimants filed submissions in reply to those of the Attorney General and the Bar Association.
The application came up before the master on 22 nd May, 2023 and it was agreed that the issues raised were best determined by the Judge. The master stayed the proceedings and referred the matter “for the determination of the notice of application filed on 14 th March, 2023.” The matter was subsequently listed for hearing on 5 th June, 2023. At that point affidavits and full submissions had been filed. The matter was therefore listed for hearing and determination of the issues.
On the morning of the hearing however, counsel appeared for the claimant and requested time to file additional affidavit evidence to substantiate the assertion that the claimants were unable to fund the litigation without the engagement letter. The court was of the view that to have waited until the morning of the hearing to make such a request was not proper. In any event, the court was also of the view that it was capable of addressing the substantive issues in the application without the filing of additional evidence. If the engagement letter was deemed to be valid in law and capable of endorsement by this court, then I would have been prepared to allow for the additional affidavit to be filed and the matter reverted back to the master for the assessment of the claimant's capacity to fund the litigation. That was not objected to by either of the other parties as a reasonable approach to take.
However, counsel for the claimants then indicated that he was not prepared to argue the application because he had somewhere else to be and was of the view that the matter was listed for a case management hearing without any such order having ever been made. Counsel also indicated that he had no documents before him and was not prepared to argue. This is despite the fact that all the documents were lodged on an e-litigation portal for at least two (2) weeks prior to the hearing of the application in circumstances where a claim for personal injury has been stayed. The court expressed the view that this was not a valid reason for an adjournment of the matter. Affidavits and substantive submissions having been filed, a claim has been stayed for the determination of what were narrow points of law, it was not acceptable for counsel to simply indicate that he was ill-prepared to deal with the application on the date for which it had been set. It was the court's view that there was another counsel present, who had in fact filed and signed the submissions and who, in the court's view, was competent to make the submissions if Mr. Prudhoe felt himself unable to do so. The court was not prepared to grant an adjournment.
It is the duty of counsel to assist in ensuring that the overriding objectives of the rules are met at all times. This includes the need to deal with cases expeditiously. All too often the court's discretion to grant adjournments are taken for granted. When an application of this nature is filed, affidavits and submissions are also filed, counsel cannot take it for granted that an oral application without notice for an adjournment will readily be given. That is a decision which is in the court's discretion. There is no reason to find that counsel can simply appear and state that he has another engagement and therefore request an adjournment. If counsel appears before the court he must be prepared to proceed with the application in the event that the court is not minded to grant an adjournment. In order to give regard to the overriding objective, the court must also be slow to grant such adjournments and counsel must always bare this in mind. The adjournment was therefore not granted.
The claimants were all passengers on a charter boat on 18 th June, 2022. As has been pleaded in the statement of claim, the boat was chartered for the claimant's engagement in the watersport activity known as “tubing” in the waters of Anguilla on the western side of the island for a period of 2 hours. In addition, the party of persons onboard was to travel to Sandy Island, an offshore cay of Anguilla. Unfortunately, the boat was involved in an accident in which the claimants suffered personal injury. They have therefore brought this action against the defendants to recover damages for personal injury as a result of breach of contract and for the alleged negligence of the defendants. The statement of claim was filed on 24 th February, 2023.
However, on 24 th September, 2022, prior to the filing of the claim, counsel, whose chambers has been engaged to represent the claimants, presented an engagement letter to the claimants which highlighted the terms upon which chambers was to be engaged. Insofar as it relates to the fees chargeable under the engagement, the letter can be described as a Contingency Fee Agreement (CFA) for un-liquidated damages. The relevant clauses of the letter are as follows:
“If, and only if, Either, (i) such an order that one or both of the intended defendants pays your legal costs or the claim each of you intends to bring with the help of the firm is either settled (paid) by either or both of the defendants or (ii) a damages award is ordered by the court, we will enforce the debt owed by you in respect of the legal costs incurred by you.
Subject to the content of this letter, the firm, at your request, agrees to payment in the form of contingency of 33.3% of the damages award(s) (“The Contingency Payment”). It is an agreed condition of the engagement that any settlement payment(s) or court award damages shall be paid directly to the firm, such that the contingency payment can and shall be deducted from the gross amount received.”
In addition to the contingency fee of 33.3%, the engagement letter also goes on to state that the for the purpose of costs recoverable from the other side, the firm would be entitled to log billable hours. The rate at which those hours are to be charged was not specified in the letter. However, the letter confirmed that the claimants would not be charged for both the contingency fee and the billable hours logged by the Firm.
The engagement letter goes on to state that the legislation regarding contingency fee agreements in Anguilla is not clear as it relates to claims for un-liquidated damages, into which category this letter would fall. As such, it was represented to the claimants that it would be necessary to seek the court's approval of the engagement letter. It is for this reason...
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