Carmel Bernadette Agnes Mcgill et al v The Attorney General of St. Christopher And Nevis

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT CHRISTOPHER AND NEVIS CLAIM NO: SKBHCV2022/0043 FORMERLY CLAIM NO: SKBHCV2013/0025 BETWEEN: CARMEL BERNADETTE AGNES MCGILL LASZLO STEPHEN SIEGMUND Applicants/Claimants and THE ATTORNEY GENERAL OF ST. CHRISTOPHER AND NEVIS Respondent/Defendant Appearances: Mr. E. Anthony Ross KC and Ms. Kayla Theeuwen for the Applicants/Claimants Mrs. Simone Bullen Thompson, Solicitor General, with her Ms. Rivi Lake, Crown Counsel, for the Respondent/Defendant ----------------------------------------- 2022: July 12, 14; September 27. --------------------------------------- JUDGMENT ON ASSESSMENT OF COSTS

[1]GILL, M.: This is an assessment of costs on the claimants’ application following litigation on the compulsory acquisition of their land. The application is for costs in the sum of US$1,462,238.15 equivalent to EC$3,951,771.71.

Background

[2]On 8th November 2007, without notice, the Government of St. Christopher and Nevis acquired 3.79 acres of land at Southeast Peninsula, Ballast Bay, Salt Pond Estate, St. George, St. Kitts owned by the claimants. The acquisition was done by a declaration under the Land Acquisition Act.1 When the claimants found out about the acquisition, they made unsuccessful attempts to reverse it. All efforts to resolve the matter out of court failed, and after 5 years of engagement, on 1st February 2013, the claimants, Carmel Bernadette Agnes McGill and Laszlo Stephen Siegmund (hereinafter “the applicants”) filed a constitutional claim against the Government seeking, among other things, declarations, damages and costs.

[3]On 1st July 2016, a consent order entered into by the parties was made an order of the court. The consent order declared that the applicants’ constitutional right to protection from the deprivation of their property under section 8 of the Constitution of Saint Christopher and Nevis2 had been infringed by the compulsory acquisition. Further, the claimants’ damages were to be assessed, and the Government was ordered to pay the applicants’ costs of the claim fit for Queen’s Counsel, said costs to be assessed if not agreed.

[4]The Attorney General (hereinafter “the respondent”) appealed the decision of the learned trial judge which was delivered on 14th November 2018.3 The Court of Appeal largely reversed the court’s decision on damages.4 However, the ruling of the learned trial judge that costs be assessed in accordance with Rule 65.12 of the Civil Procedure Rules 2000 as amended (“CPR 2000”) was not disturbed by the Court of Appeal. The applicants contend that the parties are bound by the consent order in relation to costs.

[5]The applicants submitted an itemised bill of costs consisting of 14 pages. They seek US$1,300,476.06 in fees and US$161,762.09 in disbursements for a total of US$1,462,238.15 or EC$3,951,771.71. The respondent filed a response with a schedule outlining his position on the items in the bill of costs. The respondent filed a further affidavit and an amended schedule. This schedule includes a column for objections. The respondent does not object to paying costs but submits that costs should be reasonable and proportionate having regard to the nature of the matter and the work undertaken. The amended schedule slashes multiple items in the bill of costs and presents a substantially reduced total of EC$106,340.00.

Issue

[6]This court is to determine the quantum of costs to be awarded to the applicants.

The law

[7]In conducting the assessment, the court is guided by CPR 65.2. By virtue of CPR 65.2 (1), 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.

[8]Costs must be proportionate as well as reasonable.5 The overriding objective requires the court to deal with cases justly and to award costs proportionate to the case.6 A party is not to be indemnified for all his costs, but entitled to reasonable costs.7 Costs must not be embellished and unreasonable. It is not a punishment.8 Where costs are not disputed, the court retains the right to reduce or disallow costs which it finds are disproportionate.9

[9]The applicants submit that following the learning of the Privy Council in Blakes Estate Ltd v The Government of Montserrat,10 they are entitled to their full costs, which they contend are reasonable. At paragraph 25 of the judgment, Lord Carswell set out as follows: “A claimant should prima facie be entitled to his full costs of preparing and presenting his claim. The Board of Assessment’s discretion to reduce the award from the payment of full costs should be exercised judicially. If it holds that the claim was grossly excessive, it is necessary for the Board then to inquire whether the 5 HCVAP 2004/013 (Antigua and Barbuda), delivered July 18, 2008, per Chief Registrar Cenac-Phulgence (as she then was) at paragraph 10 6 Oliver MacDonna v Benjamin Wilson Richardson AXAHCVAP2005/0003, delivered November 25, 2013, per Gordon JA (Ag.) (as he then was) at paragraph 25 exaggeration gave rise to an obvious and substantial escalation in the costs over and above those which it was reasonable for the claimant to incur. If it is satisfied that this was the case, then it is open to the Board to exercise its discretion to deprive the claimant of part of his costs. The amount of departure from full payment of the claimant’s costs should be proportionate, having regard to the amount of waste of time and costs properly attributable to the claimant’s acts or omissions.”

[10]That claim concerned proceedings before a Board of Assessment in accordance with the Land Acquisition Act of Montserrat, which contains similar provisions as to costs under the Land Acquisition Act in this jurisdiction. In fact, Their Lordships remitted the issue of costs to the Board of Assessment for reconsideration. The applicants sought redress by the constitutional claim so that in the assessment before this court, the proceedings are governed by CPR 2000. Nonetheless, the principle of reasonableness runs through the legislation11 as well as the CPR.

[11]CPR 65.2(3) sets out the factors to be taken into account in determining what is reasonable, including: (a) any order that has already been made; (b) the care, speed and economy with which the case was prepared; (c) the conduct of the parties before as well as during the proceedings; (d) the degree of responsibility accepted by the legal practitioner; (e) the importance of the matter to the parties; (f) the novelty, weight and complexity of the case; (g) the time reasonably spent on the case; and (h) …

[12]In considering whether the sum claimed by the applicants is proportionate and reasonable in the circumstances of this case, the approach to be adopted was set out in Lownds v Home Office.12 Referring to a provision similar to CPR 65.2(3), Lord Woolf CJ pronounced: “…what is required is a two-stage approach. There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which CPR 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test then all that is normally required is that each item should have been reasonably incurred and the costs of that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court will want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item is reasonable.”13

[13]I will proceed to consider the factors set out in CPR 65.2(3). The parties have addressed the relevant factors in their submissions.

Any order that has already been made

[14]The consent order provides for the payment of costs fit for Queen’s Counsel. In the judgment of 14th November 2018, the learned trial judge ordered that costs be assessed in accordance with CPR 65.12. In any event, the parties agree that the award should reflect that costs for junior counsel should be an overall sum of two-thirds of that for Queen’s Counsel. The care, speed and economy with which the case was prepared

[15]The claim was filed in February 2013. Subsequent to the consent order of 1st July 2016 which established liability in the respondent, there was a subsequent consent order dated 1st March 2018 which dealt with the market value of the property, and which ordered compensation to the applicants in the sum of US$1,024,375.00 plus interest. The conduct of the parties before as well as during the proceedings

[16]The applicants do not seek costs incurred prior to the issuance of the claim, but make much moment of the government’s conduct in this matter. They outline their unsuccessful attempts to resolve the dispute and avoid protracted litigation. They allege that the government chose not to resolve issues related to compensation and so, the government forced their hands. The applicants contend that none of the litigation would have been necessary had the government taken steps to negotiate compensation payable to them.

[17]The applicants ask the court to consider the fact that despite the government acquiring the property and selling it, for which it was paid in full, it continued to assess and collect taxes from the applicants on the said property for the period 2007 to 2011.

[18]Further, once the claim was commenced, it took the parties over three years to reach the consent order of 1st July 2016. The applicants place the blame for this squarely on the shoulders of the respondent. They insist that the chronology of events reflects that the government employed its executive powers not only to effect an improper acquisition of the property, but thereafter to drag this matter on for years, at the applicants’ expense. They are of the view that the claim could have been settled within four months of its issuance.

[19]The respondent counters that the applicants’ assertions do not represent the true state of affairs in this matter and that the applicants contributed to the matter being protracted. They point out, among other things, the following: a) Based on the parties’ differing views in relation to the valuation of the property, they were at an impasse which prevented them from moving forward to amicable settlement. b) The consent order did not bring an end to the proceedings. The applicants pressed for further relief. They sought a declaration that the acquisition was void and also sought damages for breach of their constitutional rights guaranteed by section 8 of the Constitution. The court refused to declare the acquisition void in light of the consent order where it was agreed that damages be assessed for the compulsory acquisition of the applicants’ property. As mentioned earlier, the Court of Appeal subsequently allowed the respondent’s appeal on the learned trial judge’s substantial awards for damages. c) It was reasonable for the respondent to defend the matter, bearing in mind that the applicants’ assertion that their land was not acquired as the acquisition was void. The consequences, should the applicants’ claim had gone undefended, would have been severe.

[20]From the evidence provided, I cannot conclude that the matter was prolonged solely by the conduct of the respondent. The importance of the matter to the parties

[21]The matter involved a constitutional claim for the acquisition of land by the government for a public purpose. The applicants were deprived of their right to prior notice of the acquisition, an opportunity to be heard prior to the acquisition, and prompt payment of compensation. The matter was of great importance to both parties. The novelty, weight and complexity of the case

[22]The law relating to compulsory acquisition of land and prompt payment of compensation is well settled in this region.14 This case did not involve any new, complex or weighty issues. The time reasonably spent on the case

[23]The bill of costs sets out in detail significant time spent by Queen’s Counsel and junior counsel over five years between the issuance of the claim through to March 2018, the date of the second consent order. The bill shows that counsel for the applicants, among other things, prepared pleadings, including amended pleadings, made an intervenor application, prepared for and argued a stay application, prepared for numerous case management conferences, prepared for and argued an appeal, worked with appraisers to determine the market value of the property, and engaged in settlement discussions.

[24]The respondent takes issue with the hours claimed by the applicants in relation to multiple items. The respondent submits that time reasonably spent should take into account the nature of the work done and the time it should take for a lawyer of reasonable competence and skill to perform the tasks identified. The respondent contends that the total number of hours claimed over the life of the claim and the hours in relation to some items are excessive, and the bill of costs includes work that appears to be duplicative or repetitious. The objectionable items are identified and explained in the respondent’s amended schedule. The court has to decide what is reasonable in the circumstances of this case in relation to the items in the bill of costs.

Hourly rates for counsel

[25]The applicants point out that the matter was staffed lean, as at all times, a maximum of one Queen’s Counsel15 and one or the other of two junior counsel worked on the matter. They claim hourly rates in the range of US$700.00 – US$800.00 for Queen’s Counsel. Mr. E. Anthony Ross QC is admitted to the Bars of Nova Scotia (1973), St. Kitts and Nevis (1984) and Ontario (1997). The applicants cite the recent decision of Pariagsingh M (Ag.), as he then was, in Llewellyn Cumming v Anselm Clouden16 where the learned master accepted an hourly rate of EC$1,350.00 (equivalent to US$500.00) for Queen’s Counsel. Although not stated in the learned master’s decision, the applicants aver that Mr. James Bristol QC was admitted to practice in 1989. This is an obvious attempt to persuade the court that Mr. Ross QC, some sixteen Bar years senior to Mr. Bristol QC, can justifiably claim a higher hourly rate.

[26]The respondent recommends an hourly rate for Queen’s Counsel between EC$600.00 and EC$750.00, and uses the following three (3) cases from this jurisdiction to fortify that position: 1) Paradise Beach Holdings Limited v Nevis Paradise Limited and Others17 - hourly rate of EC$600.00 in respect of the most senior attorney in the matter. 2) Pinneys Hotel Development Limited and Another v The Nevis Island Administration18 - hourly rate of EC$500 for a senior attorney of almost thirty (30) years’ experience deemed not unreasonable. 3) Mark Brantley v Hensley Daniel and Others19 - EC$550 considered as an appropriate hourly rate for counsel of more than eighteen years call.

[27]The significant distinction between the arguments of the parties on this point is the fact that none of the attorneys, in the authorities cited by the respondent, although senior in terms of years at the Bar, carried the designation of Queen’s Counsel. That notwithstanding, I am of the view that an hourly rate of US$700.00 – US$800.00 (approximately EC$1,900.00 - EC$2,150.00) is disproportionate, and that in the circumstances of this case, a reasonable hourly rate for Queen’s Counsel in this matter is EC$1000.00.

Travel

[28]The bill of costs contains several items claiming the cost of travel, including transportation, accommodation and meals for Queen’s Counsel and one junior counsel. In Paradise Beach Holdings Limited v Nevis Paradise Limited and Others,20 Moise M., as he then was, stated, “Whilst it is entirely within the applicant’s right to select an attorney of its choice, it must do so with the knowledge that there is no specific right to be reimbursed for the travel expenses of counsel residing abroad.” In disallowing travel expenses, the court agreed with the submission that the most senior attorney in that case was called to the Bar in Nevis and could be considered a local attorney. The test is what is reasonable in the circumstances. Is it reasonable to allow travel expenses in the instant case where Queen’s Counsel and both junior counsel are admitted to the Bar of St. Kitts and Nevis and can be considered local counsel? The address for Queen’s Counsel on the filings in this matter is E. Anthony Ross Law, Unit C10, The Sands Complex, New Town Bay Road, Basseterre, St. Kitts. One of the junior counsel is admitted to the local Bar only. I note that in one instance, the Court of Appeal awarded costs of travel and accommodation to Queen’s Counsel for the period 11th – 13th June 2014, understandably so. The appeal was set for hearing on 12th June 2014. However, the respondent filed a without notice application for an adjournment. Apart from that occasion, in my respectful view, it is not reasonable to award travel expenses in the circumstances of this case. I will disallow the applicants’ claim for all such expenses.

[29]Taking into consideration the factors in CPR 65.2(3), and using Lord Woolf’s two-stage approach, on the global approach, I find that the sum of US$1,462,238.15 appears to be disproportionate in the circumstances of this matter. At the risk of stating a contradiction in terms, this was a “run of the mill” constitutional claim culminating in a consent order, albeit delayed. The market value of the property was agreed in another consent order as

[30]US$1,086,250.00 plus interest at five percent per annum from November 2016. The parties availed themselves of several of the processes and procedures allowed by the legal system and the matter became protracted. Therefore, the second stage, the item by item approach, must be employed.

[31]Fees claimed for Queen’s Counsel: Item Necessary Reasonable Allowed (Hours and amount @ EC$1,000.00 per hour) 1. Yes No $16,000.00 Initiating claim - 25.6 hours No No 0 2. Separate matter. Applicants’ intervenor application dismissed. No costs order against the respondent in applicants’ favour. 3. No No 0 Application dismissed. Application to intervene - 39 hours 4. Yes No $1,000.00 In respect of reply (4 pages) to respondent’s defence only, not KHT’s Reply to defences and considering application to strike claim – 25 hours 5. No. No 0 Stay application and Caribe action – 34 hours Separate matter. Applicants not parties. Application by KHT, not the respondent 6. $1,000.00 Amending pleadings – hours Yes No. Amendment not occasioned by any action or conduct of the respondent. Amended claim not substantially different from original claim. 7. Yes No. $5,000.00 Application to strike claim – 34 hours Uncomplicated interlocutory application 8. Yes No (except for travel) $3,000.00 First hearing (including travel, preparation and attendance) – 44 hours 9. Yes No $2,000.00 Written submissions on application to strike – 9 hours Yes No. 10. $12,000.00 Leave to appeal – 45.6 hours One application by the respondent, one by another defendant 11. Yes No Appeal – 39 hours $8,000.00 Respondent sought and was granted adjournment (doctor’s letter) Court of Appeal order limited to costs of travelling and accommodation of QC for June 11 – 13, 2014. Already paid. 12. No 0 Appeal – 25.9 Duplicated in Item 13 No hours 13. No 0 Appeal – 59 hours No. Appeal heard. Appearance by junior local counsel. Apologies for absence of QC 14. Yes No $2,000.00 Engaging in communication with clients, agent and third parties giving instructions to junior counsel – 21 hours 15. No No 0 Case management, engaging junior counsel – 25 hours 16. Yes No $2,000.00 Case management conference preparation – 25 hours 17. Yes No $1,000.00 Engaged in discussions with appraisers – 20 hours No authenticating documents. No appraisal presented. 18. Yes No Case management conference, October 2015 – 39 hours $1000.00 20. Yes No $1000.00 Case management conference, November 2015 – 34 hours 22. No No 0 Reviewing submissions on leave to amend fixed date claim form, January 2016 – 12.5 hours Includes a claim for costs in relation to KHT. Costs for this item accounted for in item 19 (not included in this table) for junior counsel 23. Yes No $3,000.00 Hearing for leave to amend claim, February 2016 – 36 hours 24. Yes No $3,000.00 Settlement discussions, March – May 2016 – 24.5 hours 25. Yes No $1,000.00 Attendance at hearing, May 2016 – 36 hours 26. No No 0 Advising on consent order – 3.5 hours Item 24 provides for engaging in settlement discussions 27. Yes No $2,000.00 Directions, including negotiations and finalising consent order of July 12,(sic) 2016 – 12 hours 28 – 43. No No 0 These costs relate to proceedings in relation to the assessment of damages. The Court of Appeal ordered costs in favour of the respondent in the Court of Appeal and in the court below. EC$64,000.00 Total amount allowed for QC Fees for junior counsel

[32]As stated earlier, it was agreed that fees for junior counsel be calculated at two-thirds of that for Queen’s Counsel. Accordingly, the amount allowed for junior counsel is EC$42,666.67.

Total fees allowed

[33]The total allowed for Queen’s Counsel and junior counsel is therefore EC$106,666.67.

Disbursements

[34]The respondent submits that items of disbursement must be related to the case and must be shown to have been reasonably incurred. The respondent objects to some of the items claimed as disbursements on the basis that they are not particularised or supported by documentation and should not be allowed. Further, it is submitted that the claims for meals should not be allowed. In JIPFA Investments Limited v Natalie Brewley and Others,21 Lanns M ruled: “The disbursements include amounts for travel expenses, meals, transportation and accommodation, deliveries service and postage, of documents. No documentary proof is shown as to how these costs were broken down or calculated. As to accommodation, no information is given as to where Mr. Walwyn was accommodated. If in a hotel, how long was the stay in the hotel? Were the hotel costs reasonably incurred? There is a cost for meals. To my mind no allowance should be made for meals. Normally, counsel would be responsible for his own meals. With no documentation or information showing how the figures for disbursements were arrived at, it becomes difficult for me to determine the reasonableness of the costs claimed.”

[35]The applicants face difficulties with regard to evidence in relation to claims for disbursements. Filings of evidence by the applicants on the morning set for hearing were abandoned to avoid further delay by the respondent requesting time to respond. Where it is difficult for the court to make a determination as to reasonableness, I will rule accordingly. AMOUNTS CLAIMED FOR DISBURSEMENTS DISBURSEMENT CLAIMED ALLOWED AS REASONABLE/NOT ALLOWED (IN USD) Yes Property Taxes paid from 2007 to 2011- $18,343.60 $18,343.60 Yes Scans, Faxes, Photocopies and Binding - $2,774.16 $2,774.16 Telephone charges - $207.46 Yes $207.46 Cyberbahn Searches - $33.90 Yes $33.90 No Payment to KWF, KHT’s lawyers for costs - $8,863.50 Not for respondent’s account DISBURSEMENT CLAIMED ALLOWED AS REASONABLE/NOT ALLOWED (IN USD) No Raheb Esq. - Payment for guarantee (4/29/2016) - $850.00 Not clear as to the guarantee or its relevance E. A. Ross QC's Travel Expenses, including: Transportation - $26,604.60 No Meals - $5,948.03 No Accommodations - $7,628.56 No K. Marciniak's Travel Expenses, including: Transportation - $3,940.38 No Meals - $120.71 No Accommodations - $3,722,67 No Client's Expenses, including: Transportation - $14,801.46 No Claim brought in St. Kitts. Claimant’s costs of litigation Meals - $1,929.19 No Accommodations - $3,551.17 No DISBURSEMENT CLAIMED ALLOWED AS REASONABLE/NOT ALLOWED (IN USD) Courier Fees, including: Counsel's Courier Fees - $2,633.75 Yes $2,633.75 Client's Courier Fees - $753.20 Yes $753.20 Agency Fees, including: H. Clauzel - $4,908.75 No D. Cato - $15,171.86 No Already claimed in the itemised bill of costs S. Aberdeen - $9,304.10 No Expert Fees, including: Rhon Boddie (10/7/2014) - $3,600.00 No. No indication of role in this matter. No report. No invoice. Pollard BCQS (9/24/2015) - $4,801.31 No (as above). Pollard BCQS (9/29/2015) - $4,030.62 No Goodfellow BCQS (8/18/2016) - $3,774.19 No Goodfellow BCQS (1/26/2017) - $3,348.61 No DISBURSEMENT CLAIMED ALLOWED AS REASONABLE/NOT ALLOWED (IN USD) Gillanders (11/28/2016) - $8,930.31 Yes $8,930.31 Gillanders (3/10/2017) - $484.00 Yes $484.00 Yes Expert Fee for Court attendance on 1 March 2018 – Gillanders (3/8/2018) - $702.00 $702.00 Disbursements Claimed US$161,762.09 Total Disbursements Allowed US$34,862.38 EC$94,128.44

[36]It was necessary to conduct the item by item approach as I consider the claim for US$1,462,238.15 or EC$3,951,771.71 to be grossly disproportionate in the circumstances of this case.

Order

[37]Based on the foregoing, it is hereby ordered that the applicants’ costs against the respondent are assessed in the sum of EC$200,795.11.

Tamara Gill

Master

By the Court

Registrar

THE EASTERN CARRIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT CHRISTOPHER AND NEVIS CLAIM NO: SKBHCV2022/0043 FORMERLY CLAIM NO: SKBHCV2013/0025 BETWEEN: CARMEL BERNADETTE AGNES MCGILL LASZLO STEPHEN SIEGMUND Applicants/Claimants and THE ATTORNEY GENERAL OF ST. CHRISTOPHER AND NEVIS Respondent/Defendant Appearances: Mr. E. Anthony Ross KC and Ms. Kayla Theeuwen for the Applicants/Claimants Mrs. Simone Bullen Thompson, Solicitor General, with her Ms. Rivi Lake, Crown Counsel, for the Respondent/Defendant —————————————– 2022: July 12, 14; September 27. ————————————— JUDGMENT ON ASSESSMENT OF COSTS

[1]GILL, M.: This is an assessment of costs on the claimants’ application following litigation on the compulsory acquisition of their land. The application is for costs in the sum of US$1,462,238.15 equivalent to EC$3,951,771.71. Background

[2]On 8th November 2007, without notice, the Government of St. Christopher and Nevis acquired 3.79 acres of land at Southeast Peninsula, Ballast Bay, Salt Pond Estate, St. George, St. Kitts owned by the claimants. The acquisition was done by a declaration under the Land Acquisition Act. When the claimants found out about the acquisition, they made unsuccessful attempts to reverse it. All efforts to resolve the matter out of court failed, and after 5 years of engagement, on 1st February 2013, the claimants, Carmel Bernadette Agnes McGill and Laszlo Stephen Siegmund (hereinafter “the applicants”) filed a constitutional claim against the Government seeking, among other things, declarations, damages and costs.

[3]On 1st July 2016, a consent order entered into by the parties was made an order of the court. The consent order declared that the applicants’ constitutional right to protection from the deprivation of their property under section 8 of the Constitution of Saint Christopher and Nevis had been infringed by the compulsory acquisition. Further, the claimants’ damages were to be assessed, and the Government was ordered to pay the applicants’ costs of the claim fit for Queen’s Counsel, said costs to be assessed if not agreed.

[4]The Attorney General (hereinafter “the respondent”) appealed the decision of the learned trial judge which was delivered on 14th November 2018. The Court of Appeal largely reversed the court’s decision on damages. However, the ruling of the learned trial judge that costs be assessed in accordance with Rule 65.12 of the Civil Procedure Rules 2000 as amended (“CPR 2000”) was not disturbed by the Court of Appeal. The applicants contend that the parties are bound by the consent order in relation to costs.

[5]The applicants submitted an itemised bill of costs consisting of 14 pages. They seek US$1,300,476.06 in fees and US$161,762.09 in disbursements for a total of US$1,462,238.15 or EC$3,951,771.71. The respondent filed a response with a schedule outlining his position on the items in the bill of costs. The respondent filed a further affidavit and an amended schedule. This schedule includes a column for objections. The respondent does not object to paying costs but submits that costs should be reasonable and proportionate having regard to the nature of the matter and the work undertaken. The amended schedule slashes multiple items in the bill of costs and presents a substantially reduced total of EC$106,340.00. Issue

[7]In conducting the assessment, the court is guided by CPR 65.2. By virtue of CPR 65.2 (1), 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.

[6]This court is to determine the quantum of costs to be awarded to the applicants. The law

[9]The applicants submit that following the learning of the Privy Council in Blakes Estate Ltd v The Government of Montserrat, they are entitled to their full costs, which they contend are reasonable. At paragraph 25 of the judgment, Lord Carswell set out as follows: “A claimant should prima facie be entitled to his full costs of preparing and presenting his claim. The Board of Assessment’s discretion to reduce the award from the payment of full costs should be exercised judicially. If it holds that the claim was grossly excessive, it is necessary for the Board then to inquire whether the exaggeration gave rise to an obvious and substantial escalation in the costs over and above those which it was reasonable for the claimant to incur. If it is satisfied that this was the case, then it is open to the Board to exercise its discretion to deprive the claimant of part of his costs. The amount of departure from full payment of the claimant’s costs should be proportionate, having regard to the amount of waste of time and costs properly attributable to the claimant’s acts or omissions.”

[8]Costs must be proportionate as well as reasonable. The overriding objective requires the court to deal with cases justly and to award costs proportionate to the case. A party is not to be indemnified for all his costs, but entitled to reasonable Costs Costs must not be embellished and unreasonable. It is not a punishment. Where costs are not disputed, the court retains the right to reduce or disallow costs which it finds are disproportionate.

[10]That claim concerned proceedings before a Board of Assessment in accordance with the Land Acquisition Act of Montserrat, which contains similar provisions as to costs under the Land Acquisition Act in this jurisdiction. In fact, Their Lordships remitted the issue of costs to the Board of Assessment for reconsideration. The applicants sought redress by the constitutional claim so that in the assessment before this court, the proceedings are governed by CPR 2000. Nonetheless, the principle of reasonableness runs through the legislation as well as the CPR.

[11]CPR 65.2(3) sets out the factors to be taken into account in determining what is reasonable, including: (a) any order that has already been made; (b) the care, speed and economy with which the case was prepared; (c) the conduct of the parties before as well as during the proceedings; (d) the degree of responsibility accepted by the legal practitioner; (e) the importance of the matter to the parties; (f) the novelty, weight and complexity of the case; (g) the time reasonably spent on the case; and (h) …

[12]In considering whether the sum claimed by the applicants is proportionate and reasonable in the circumstances of this case, the approach to be adopted was set out in Lownds v Home Office. Referring to a provision similar to CPR 65.2(3), Lord Woolf CJ pronounced: “…what is required is a two-stage approach. There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which CPR 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test then all that is normally required is that each item should have been reasonably incurred and the costs of that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court will want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item is reasonable.”

[13]I will proceed to consider the factors set out in CPR 65.2(3). The parties have addressed the relevant factors in their submissions. Any order that has already been made

[17]The applicants ask the court to consider the fact that despite the government acquiring the property and selling it, for which it was paid in full, it continued to assess and collect taxes from the applicants on the said property for the period 2007 to 2011.

[14]The consent order provides for the payment of costs fit for Queen’s Counsel. In the judgment of 14th November 2018, the learned trial judge ordered that costs be assessed in accordance with CPR 65.12. In any event, the parties agree that the award should reflect that costs for junior counsel should be an overall sum of two-thirds of that for Queen’s Counsel. The care, speed and economy with which the case was prepared

[15]The claim was filed in February 2013. Subsequent to the consent order of 1st July 2016 which established liability in the respondent, there was a subsequent consent order dated 1st March 2018 which dealt with the market value of the property, and which ordered compensation to the applicants in the sum of US$1,024,375.00 plus interest. The conduct of the parties before as well as during the proceedings

[16]The applicants do not seek costs incurred prior to the issuance of the claim, but make much moment of the government’s conduct in this matter. They outline their unsuccessful attempts to resolve the dispute and avoid protracted litigation. They allege that the government chose not to resolve issues related to compensation and so, the government forced their hands. The applicants contend that none of the litigation would have been necessary had the government taken steps to negotiate compensation payable to them.

[18]Further, once the claim was commenced, it took the parties over three years to reach the consent order of 1st July 2016. The applicants place the blame for this squarely on the shoulders of the respondent. They insist that the chronology of events reflects that the government employed its executive powers not only to effect an improper acquisition of the property, but thereafter to drag this matter on for years, at the applicants’ expense. They are of the view that the claim could have been settled within four months of its issuance.

[19]The respondent counters that the applicants’ assertions do not represent the true state of affairs in this matter and that the applicants contributed to the matter being protracted. They point out, among other things, the following: a) Based on the parties’ differing views in relation to the valuation of the property, they were at an impasse which prevented them from moving forward to amicable settlement. b) The consent order did not bring an end to the proceedings. The applicants pressed for further relief. They sought a declaration that the acquisition was void and also sought damages for breach of their constitutional rights guaranteed by section 8 of the Constitution. The court refused to declare the acquisition void in light of the consent order where it was agreed that damages be assessed for the compulsory acquisition of the applicants’ property. As mentioned earlier, the Court of Appeal subsequently allowed the respondent’s appeal on the learned trial judge’s substantial awards for damages. c) It was reasonable for the respondent to defend the matter, bearing in mind that the applicants’ assertion that their land was not acquired as the acquisition was void. The consequences, should the applicants’ claim had gone undefended, would have been severe.

[20]From the evidence provided, I cannot conclude that the matter was prolonged solely by the conduct of the respondent. The importance of the matter to the parties

[21]The matter involved a constitutional claim for the acquisition of land by the government for a public purpose. The applicants were deprived of their right to prior notice of the acquisition, an opportunity to be heard prior to the acquisition, and prompt payment of compensation. The matter was of great importance to both parties. The novelty, weight and complexity of the case

[22]The law relating to compulsory acquisition of land and prompt payment of compensation is well settled in this region. This case did not involve any new, complex or weighty issues. The time reasonably spent on the case

[23]The bill of costs sets out in detail significant time spent by Queen’s Counsel and junior counsel over five years between the issuance of the claim through to March 2018, the date of the second consent order. The bill shows that counsel for the applicants, among other things, prepared pleadings, including amended pleadings, made an intervenor application, prepared for and argued a stay application, prepared for numerous case management conferences, prepared for and argued an appeal, worked with appraisers to determine the market value of the property, and engaged in settlement discussions.

[24]The respondent takes issue with the hours claimed by the applicants in relation to multiple items. The respondent submits that time reasonably spent should take into account the nature of the work done and the time it should take for a lawyer of reasonable competence and skill to perform the tasks identified. The respondent contends that the total number of hours claimed over the life of the claim and the hours in relation to some items are excessive, and the bill of costs includes work that appears to be duplicative or repetitious. The objectionable items are identified and explained in the respondent’s amended schedule. The court has to decide what is reasonable in the circumstances of this case in relation to the items in the bill of costs. Hourly rates for counsel

[29]Taking into consideration the factors in CPR 65.2(3), and using Lord Woolf’s two-stage approach, on the global approach, I find that the sum of US$1,462,238.15 appears to be disproportionate in the circumstances of this matter. At the risk of stating a contradiction in terms, this was a “run of the mill” constitutional claim culminating in a consent order, albeit delayed. The market value of the property was agreed in another consent order as

[25]The applicants point out that the matter was staffed lean, as at all times, a maximum of one Queen’s Counsel and one or the other of two junior counsel worked on the matter. They claim hourly rates in the range of US$700.00 – US$800.00 for Queen’s Counsel. Mr. E. Anthony Ross QC is admitted to the Bars of Nova Scotia (1973), St. Kitts and Nevis (1984) and Ontario (1997). The applicants cite the recent decision of Pariagsingh M (Ag.), as he then was, in Llewellyn Cumming v Anselm Clouden where the learned master accepted an hourly rate of EC$1,350.00 (equivalent to US$500.00) for Queen’s Counsel. Although not stated in the learned master’s decision, the applicants aver that Mr. James Bristol QC was admitted to practice in 1989. This is an obvious attempt to persuade the court that Mr. Ross QC, some sixteen Bar years senior to Mr. Bristol QC, can justifiably claim a higher hourly rate.

[26]The respondent recommends an hourly rate for Queen’s Counsel between EC$600.00 and EC$750.00, and uses the following three (3) cases from this jurisdiction to fortify that position: 1) Paradise Beach Holdings Limited v Nevis Paradise Limited and Others – hourly rate of EC$600.00 in respect of the most senior attorney in the matter. 2) Pinneys Hotel Development Limited and Another v The Nevis Island Administration – hourly rate of EC$500 for a senior attorney of almost thirty (30) years’ experience deemed not unreasonable. 3) Mark Brantley v Hensley Daniel and Others – EC$550 considered as an appropriate hourly rate for counsel of more than eighteen years call.

[27]The significant distinction between the arguments of the parties on this point is the fact that none of the attorneys, in the authorities cited by the respondent, although senior in terms of years at the Bar, carried the designation of Queen’s Counsel. That notwithstanding, I am of the view that an hourly rate of US$700.00 – US$800.00 (approximately EC$1,900.00 – EC$2,150.00) is disproportionate, and that in the circumstances of this case, a reasonable hourly rate for Queen’s Counsel in this matter is EC$1000.00. Travel

2.No Separate matter. Applicants’ intervenor application dismissed. No costs order against the respondent in applicants’ favour. No 0

[28]The bill of costs contains several items claiming the cost of travel, including transportation, accommodation and meals for Queen’s Counsel and one junior counsel. In Paradise Beach Holdings Limited v Nevis Paradise Limited and Others, Moise M., as he then was, stated, “Whilst it is entirely within the applicant’s right to select an attorney of its choice, it must do so with the knowledge that there is no specific right to be reimbursed for the travel expenses of counsel residing abroad.” In disallowing travel expenses, the court agreed with the submission that the most senior attorney in that case was called to the Bar in Nevis and could be considered a local attorney. The test is what is reasonable in the circumstances. Is it reasonable to allow travel expenses in the instant case where Queen’s Counsel and both junior counsel are admitted to the Bar of St. Kitts and Nevis and can be considered local counsel? The address for Queen’s Counsel on the filings in this matter is E. Anthony Ross Law, Unit C10, The Sands Complex, New Town Bay Road, Basseterre, St. Kitts. One of the junior counsel is admitted to the local Bar only. I note that in one instance, the Court of Appeal awarded costs of travel and accommodation to Queen’s Counsel for the period 11th – 13th June 2014, understandably so. The appeal was set for hearing on 12th June 2014. However, the respondent filed a without notice application for an adjournment. Apart from that occasion, in my respectful view, it is not reasonable to award travel expenses in the circumstances of this case. I will disallow the applicants’ claim for all such expenses.

[30]US$1,086,250.00 plus interest at five percent per annum from November 2016. The parties availed themselves of several of the processes and procedures allowed by the legal system and the matter became protracted. Therefore, the second stage, the item by item approach, must be employed.

[31]Fees claimed for Queen’s Counsel: Item Necessary Reasonable Allowed (Hours and amount @ EC$1,000.00 per hour)

[32]As stated earlier, it was agreed that fees for junior counsel be calculated at two-thirds of that for Queen’s Counsel. Accordingly, the amount allowed for junior counsel is EC$42,666.67. Total fees allowed

8.First hearing (including travel, preparation and attendance) – 44 hours Yes (except for travel) No 3 $3,000.00

[33]The total allowed for Queen’s Counsel and junior counsel is therefore EC$106,666.67. Disbursements

10.Leave to appeal – 45.6 hours Yes No. One application by the respondent, one by another defendant 12 $12,000.00

[34]The respondent submits that items of disbursement must be related to the case and must be shown to have been reasonably incurred. The respondent objects to some of the items claimed as disbursements on the basis that they are not particularised or supported by documentation and should not be allowed. Further, it is submitted that the claims for meals should not be allowed. In JIPFA Investments Limited v Natalie Brewley and Others, Lanns M ruled: “The disbursements include amounts for travel expenses, meals, transportation and accommodation, deliveries service and postage, of documents. No documentary proof is shown as to how these costs were broken down or calculated. As to accommodation, no information is given as to where Mr. Walwyn was accommodated. If in a hotel, how long was the stay in the hotel? Were the hotel costs reasonably incurred? There is a cost for meals. To my mind no allowance should be made for meals. Normally, counsel would be responsible for his own meals. With no documentation or information showing how the figures for disbursements were arrived at, it becomes difficult for me to determine the reasonableness of the costs claimed.”

[35]The applicants face difficulties with regard to evidence in relation to claims for disbursements. Filings of evidence by the applicants on the morning set for hearing were abandoned to avoid further delay by the respondent requesting time to respond. Where it is difficult for the court to make a determination as to reasonableness, I will rule accordingly. AMOUNTS CLAIMED FOR DISBURSEMENTS DISBURSEMENT CLAIMED (IN USD) ALLOWED AS REASONABLE/NOT ALLOWED Property Taxes paid from 2007 to 2011- $18,343.60 Yes $18,343.60 Scans, Faxes, Photocopies and Binding – $2,774.16 Yes $2,774.16 Telephone charges – $207.46 Yes $207.46 Cyberbahn Searches – $33.90 Yes $33.90 Payment to KWF, KHT’s lawyers for costs – $8,863.50 No Not for respondent’s account Raheb Esq. – Payment for guarantee (4/29/2016) – $850.00 No Not clear as to the guarantee or its relevance E. A. Ross QC’s Travel Expenses, including: Transportation – $26,604.60 No Meals – $5,948.03 No Accommodations – $7,628.56 No K. Marciniak’s Travel Expenses, including: Transportation – $3,940.38 No Meals – $120.71 No Accommodations – $3,722,67 No Client’s Expenses, including: Transportation – $14,801.46 No Claim brought in St. Kitts. Claimant’s costs of litigation Meals – $1,929.19 No Accommodations – $3,551.17 No Courier Fees, including: Counsel’s Courier Fees – $2,633.75 Yes $2,633.75 Client’s Courier Fees – $753.20 Yes $753.20 Agency Fees, including: H. Clauzel – $4,908.75 No D. Cato – $15,171.86 No Already claimed in the itemised bill of costs S. Aberdeen – $9,304.10 No Expert Fees, including: Rhon Boddie (10/7/2014) – $3,600.00 No. No indication of role in this matter. No report. No invoice. Pollard BCQS (9/24/2015) – $4,801.31 No (as above). Pollard BCQS (9/29/2015) – $4,030.62 No Goodfellow BCQS (8/18/2016) – $3,774.19 No Goodfellow BCQS (1/26/2017) – $3,348.61 No Gillanders (11/28/2016) – $8,930.31 Yes $8,930.31 Gillanders (3/10/2017) – $484.00 Yes $484.00 Expert Fee for Court attendance on 1 March 2018 – Gillanders (3/8/2018) – $702.00 Yes $702.00 Disbursements Claimed US$161,762.09 Total Disbursements Allowed US$34,862.38 EC$94,128.44

[36]It was necessary to conduct the item by item approach as I consider the claim for US$1,462,238.15 or EC$3,951,771.71 to be grossly disproportionate in the circumstances of this case. Order

14.Engaging in communication with clients, agent and third parties giving instructions to junior counsel – 21 hours Yes No 2 $2,000.00

[37]Based on the foregoing, it is hereby ordered that the applicants’ costs against the respondent are assessed in the sum of EC$200,795.11. Tamara Gill Master By the Court < p style=”text-align: right;”> Registrar

16.Case management conference preparation – 25 hours Yes No 2 $2,000.00

17.Engaged in discussions with appraisers – 20 hours Yes No No authenticating documents. No appraisal presented. 1 $1,000.00

18.Case management conference, October 2015 – 39 hours

20.Case management conference, November 2015 – 34 hours

1.Initiating claim – 25.6 hours Yes No 16 $16,000.00

3.Application to intervene – 39 hours No Application dismissed. No 0

4.Reply to defences and considering application to strike claim – 25 hours Yes In respect of reply (4 pages) to respondent’s defence only, not KHT’s No $1,000.00

5.Stay application and Caribe action – 34 hours No. Separate matter. Applicants not parties. Application by KHT, not the respondent No 0

6.Amending pleadings – 22 hours Yes No. Amendment not occasioned by any action or conduct of the respondent. Amended claim not substantially different from original claim. 1 $1,000.00

7.Application to strike claim – 34 hours Yes No. Uncomplicated interlocutory application 5 $5,000.00

9.Written submissions on application to strike – 9 hours Yes No 2 $2,000.00

11.Appeal – 39 hours Yes Respondent sought and was granted adjournment (doctor’s letter) No Court of Appeal order limited to costs of travelling and accommodation of QC for June 11 – 13, 2014. Already paid. 8 $8,000.00

12.Appeal – 25.9 hours No Duplicated in Item 13 No

13.Appeal – 59 hours No. Appeal heard. Appearance by junior local counsel. Apologies for absence of QC No 0

15.Case management, engaging junior counsel – 25 hours No No 0

22.Reviewing submissions on leave to amend fixed date claim form, January 2016 – 12.5 hours Yes Yes No No No No Includes a claim for costs in relation to KHT. Costs for this item accounted for in item 19 (not included in this table) for junior counsel $1000.00 $1000.00

23.Hearing for leave to amend claim, February 2016 – 36 hours Yes No 3 $3,000.00

24.Settlement discussions, March – May 2016 – 24.5 hours Yes No 3 $3,000.00

25.Attendance at hearing, May 2016 – 36 hours Yes No 1 $1,000.00

26.Advising on consent order – 3.5 hours No Item 24 provides for engaging in settlement discussions No 0

27.Directions, including negotiations and finalising consent order of July 12,(sic) 2016 – 12 hours Yes No 2 $2,000.00 28 – 43. No These costs relate to proceedings in relation to the assessment of damages. The Court of Appeal ordered costs in favour of the respondent in the Court of Appeal and in the court below. No 0 Total amount allowed for QC EC$64,000.00 Fees for junior counsel