Webster Dyrud Mitchell (A Partnership) v Jenny Lindsay

• Jurisdiction: Anguilla
• Judge: ‘Blenman JA’
• Judgment Date: 20 September 2021
• Judgment citation (vLex): [2021] ECSC J0920-1
• Docket Number: AXAHCVAP2017/0001
• Court: Court of Appeal (Anguilla)

[2021] ECSC J0920-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Louise Esther Blenman Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Dexter Theodore Justice of Appeal [Ag.]

AXAHCVAP2017/0001

Between:

[1] Webster Dyrud Mitchell (A Partnership)

[2] John Dyrud

[3] Palmavon Webster

Appellants

and

Jenny Lindsay

Respondent

Appearances:

Mr. John Carrington, QC, with him Ms. Rayana Dowden for the Appellants

Ms. Jenny Lindsay, in person

Civil appeal — Breach of contract — Repudiatory breach — Findings of facts — Whether judge erred in findings on counterclaim — Approach of appellate court to challenges of findings by judge — Breach of natural justice — Right to be heard on the hearing of costs — Exercise of judicial discretion — Whether judge erred in ordering that each party should bear their own costs without hearing — Exercise of discretion afresh by appellate court — Whether in the circumstances Court should exercise its discretion afresh — General principle costs follow the event — Rule 64.6 of the Civil Procedure Rules 2000 — Circumstances in which costs follow the event principle is disapplied — Misconduct — Denying successful party's costs where there is misconduct — Costs — Prescribed costs — Rule 65.5(2) of Civil Procedure Rules — Value of claim — Whether it is open to this Court to determine the value of the claim

Ms. Jenny Lindsay (“Ms. Lindsay”), an attorney-at-law, was hired by the partnership Webster Dyrud Mitchell (a Partnership) (“WDM”), as the head of the Litigation Department, by virtue of a contract of employment (“the Contract”). At that time, Mr. John Dyrud and Ms. Palmavon Webster were partners of WDM (collectively the “Employers”). Less than a year and a half later, the employment relationship between the Employers and Ms. Lindsay deteriorated and she left WDM.

Following this, Ms. Lindsay sued WDM and alleged, among other things, that WDM had engaged in repudiatory conduct; which included, WDM's breach of express terms within the Contract, WDM's breach of the implied term of good faith, mutual respect and confidence and WDM's unilateral changes to the Contract. She contended that this conduct was sufficiently serious to justify her resignation and therefore she considered herself constructively dismissed. She claimed, among other things, for payment for three months' notice, damages for unfair dismissal, compensation for loss of reputation, interests and costs. WDM counterclaimed that Ms. Lindsay was in breach of her implied duties towards it; failing to observe the lawful and reasonable orders of her employers and that she had also breached several express terms of the Contract. WDM also contended that it had suffered loss and damage and therefore sought various declarations, compensation for overpayment of salary and vacation leave, damages for breach of contract and costs.

The learned judge dismissed Ms. Lindsay's claim and found that the Employers had succeeded in prosecuting the majority of their counterclaim and ordered, among other things, that each party bear their own costs, given the conduct of the parties before and during proceedings. Importantly, the learned judge held that, there was no evidence to substantiate the Employers' claim that Ms. Lindsay owed them monies flowing from the excess vacation leave that she had allegedly taken, as the evidence provided by the Employers was inadequate.

Being dissatisfied, the Employers filed two grounds of appeal challenging both the learned judge's conclusions in relation to the excess vacation leave and the judge's exercise of discretion in relation to the costs order. Ms. Lindsay was also dissatisfied with the learned judge's costs order, however she did not file a counter appeal. Three main issues arise for this Court's determination based on the written submissions and oral arguments, namely: (i) whether the learned judge erred in her finding that the Employers had failed to prove their counterclaim for the reimbursement of excess vacation leave taken by Ms. Lindsay; (ii) whether the learned judge erred in the exercise of her discretion by determining that each party should bear their own costs; and (iii) if so, whether this Court should exercise its discretion afresh to award the Employers costs.

Held: dismissing the appeal in part; allowing the appeal against the costs order; awarding the Employers prescribed costs on the claim valued at $50,000.00 XCD and the counterclaim in the court below; and on the appeal, half of two-thirds of the prescribed costs awarded in the court below; and making the orders set out at paragraph 75 of the judgment, that:

• 1. It is settled law that an appellate court must show fidelity to the well-settled principles governing the appellate review of a trial judge's findings of facts, the evaluation of those facts and the inferences drawn from them by the trial judge. Importantly, the appellate court is enjoined to exercise restraint in its review of the findings of the lower court that was immersed in all aspects of the trial and has advantages that the appellate court does not possess. Therefore, in order to successfully challenge findings of fact and inferences, the appellant must demonstrate to this Court that the judge made findings or came to conclusions which cannot be supported by the evidence or which were not open to her. In the High Court, the Employers' contention that Ms. Lindsay had taken excess vacation leave was resisted. While the Employers provided oral evidence in relation to excess vacation leave, this was vigorously disputed by Ms. Lindsay. However, the Employers provided no documentary evidence to the learned judge on the issue of excess vacation leave. The judge quite properly expressed her dissatisfaction with the quality of evidence provided and was simply unable to conclude that the Employers had proven that aspect of its case. It follows therefore, that it was open to the judge to make the conclusions that she did as it related to the claim for excess vacation leave allegedly taken by Ms. Lindsay. There is no basis upon which this Court can impugn the judge's conclusions on the cogency of the evidence. The decision of the judge on the excess vacation leave is therefore affirmed.

  Watt (or Thomas) v Thomas [1947] A.C. 484 followed; Yates Associates Construction Company Ltd v Blue Sands Investments Limited [2016] ECSCJ No. 63 (delivered 20 ^th April 2016) followed; Ming Siu Hung and others v J F Ming Inc and another [2021] UKPC 1 applied; Shaista Trading Company Limited v First Caribbean International Bank (Barbados) Ltd [2021] ECSCJ No. 534 (delivered 26 ^th April 2021) followed; Shankar Khushalani et al v Lindsay Mason GDAHCVAP2016/0017 (delivered 11th June 2021, unreported) followed.

• 2. It is settled law that in order to challenge a judge's exercise of discretion, a party must demonstrate, to the appellate court, that the judge erred in principle either by failing to take into account or giving too little or too much weight to relevant factors and considerations, or by taking into account or being influenced by irrelevant factors and considerations; and that, as a result of the error or the degree of the error in principle the trial judge's decision exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be clearly or blatantly wrong. Indeed, the appellate court must exercise judicial restraint in its review of the exercise of discretion by the judge, save in these very limited circumstances.

  Michel Dufour and Others v Helenair Corporation Limited and Others (1996) 52 WIR 188 followed.

• 3. In making a costs order, basic procedural fairness demands that the judge hears from the parties. A party whose interests or rights may be affected by a decision should be given adequate notice to apprise himself of the case that he has to meet and a fair and reasonable opportunity to be heard and to defend himself. In the case at bar, natural justice or procedural fairness required the trial judge to invite either oral or written submissions from the parties on the issue of costs. Accordingly, this Court must set aside the judge's cost order insofar as the judge's order was made without giving the parties an opportunity to be heard on the question of costs. It therefore falls to this Court to exercise its discretion afresh.

  Patricia Anne Huggins v Lloyd Browne SVGHCVAP2018/0007 (delivered 14th June 2021, unreported) followed; Novel Blaze Limited (In Liquidation) v Chance Talent Management Limited BVIHCVAP2020/0006 (delivered 16th April 2021, unreported) followed.

• 4. In the exercise of the court's discretion, the general costs rule is that the unsuccessful party will be ordered to pay the costs of the proceedings to the successful party. The court is, however, given very wide discretionary powers to vary the application of the general rule. These include the power to order a successful party to pay all or part of the costs of an unsuccessful party or make no order as to costs or to pay only certain portions of another person's costs. Importantly, the judge, in the exercise of his or her discretion, must give real weight to the principle that costs follow the event. It follows therefore that it is incumbent on a judge to give reasons for departing from the usual rule that costs follow the event. Further, in exercising this discretion as to costs, the court is required to have regard to all the circumstances and to act judicially.

  Rule 64.6 of the Civil Procedure Rules 2000 considered; The Hon. Attorney General et al v D. Gisele Isaac [2016] ECSCJ No. 35 (delivered 11 ^th March 2016) followed; Aspin v Metric Group Ltd [2007] EWCA Civ 922 followed; AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 W.L.R. 1507 applied; Rochamel Construction Limited v National Insurance Corporation [2003] ECSCJ No. 83...