Ginelle Jerome v Errol Felix et al

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATESi IN THE HIGH COURT OF JUSTICE (crvrL) GRENADA Claim Number: GDAHCV2008/0478 Between : GINELLE JEROME Claimant AND ERROL FELIX ORAL NARINE ALEX BAIN (By his guardian ad litem, GRACE BAIN) Defendants Before: Raulston Glasgow Master Appearances: Celia Edwards Q C along with Deloni Edwards for the Claimant/Respondent Skeeta Chitan for the 1st Defendant Alban John along with Thandiwye Lyle for the 2no DefendanVApplicant Cathisha Williams for the 3,0 Defendant 2014: October 31; December 15; 2015: January 29 I\SSESSMENT OF COSTS APPLICATION tll GLASGOW, M [AG,]; On June ?.0,2014, his Lordship Cumberbatch i ruled that the action against the second defendant (hereinalter the applicant) should be struck out for failing to disclose a reasonable ground for bringing the action and that the continuaticn of the claim against the applicant is likely to obstruct ther just disposal of the proceedings. In terms of costs, his Lordship ruled that the costs are to be dr:termined by the master if not agreecl by the parties. The parties have not arrived at any consensus on costs and as such the application has been made for me to assess the costs to be awarded. RELEVANT FACTS On February 23,2008, the appli,:antsold his car to the third named dr:fendant. Two days later, he t2l attended the Inland Revenue Department, Licensing Division to execute a transfer of the registration of the vehicle from his name to that of the third named defendant. The applicant requested that the third defendant attend the licensing department at the same time to effect the transfer but he did not appear. On February 26,2008, the applicant surrendered his policy of insurance to the insurers of the vehicle. The oolicv of insurance was cancelled with effect from that date. On the very day when the applicant surrendered the insurance policy (February 26, 2008) and after Lvl he had signed a transfer of registration at the licensing division of the Inland Revenue, the claimant (hereinafter the respondent) was injured in an accident involving the said vehicle. A claim was filed against the applicant and the third defendant for the injuries and losses suffered by the respondent. On November 6, 2008 the applicant applied to strike out the claim as aforesaid. His Lordship Cumberbatch J found that the prima facie evidence of ownership by reason of registration was refuted by the evidence of the third defendant whereby he admitted in his defence that he had in fact purchased the vehicle from the applicant and had taken ownersl'ip of the same on February 23,2008, (3) days before the acr:ident. His Lordship found that on the day of the accident the third defendant held the vehicle as owner Accordingly, since the applioant had been divested of ownership of the vehicle, there was no basis for joining him as a defendant on the claim. The claim against him was struck out. He wishes the court to assess the cosl:s as ordered by the judge. Curiously, the claimant disagree:; that the applicant should be allowed his costs for the reasons set out herein below. ARGUMENTS ON COSTS The applicant's position is that l-re is entitled to costs either granted irr accordance with CPR 65.5 t4l (prescribed costs) or costs as as;sessed in accordance with CPR 65.12. The respondent takes the opposite view. The respondent s;ubmits that this is not a proper case for the award of any costs to the applicant. Counsel for the respondent argues that if the court looks at the respondent's conduct throughout these proceedings it would be apparent that the responCent acted appropriately by bringing and maintaining the claim. In particular counsel observes that before filing the claim, the respondent "did all in her power to ascertain ownership of the vehicles involved in the accident..." The information received from tl're Inland Revenue Department advised that the applicant was the owner of the vehicle. The infornration showing transfer of the vehicle is dated after the accident. When the respondent received the applicant's defence, it averred a denial of ownership of the vehicle and exhibited a hand - rvritten note signed by the third defendant and the applicant's son stating that the vehicle was sold to the third defendant There was no r:vidence that the applicant's son was acting in a representative capacity. Additionally, the applicant exhibited to his defence the instruction to his insurance company dated February 26,2008 advising them to cancel the policy of Insurance. The respondent argues that nonr: of the exhibits explained matters anclwere all in fact self serving, t5l The respondent's position is tl"at the Motor Vehicle Insurance (Third Party) Act sets out the definition of owner of a vehicle. Ihe Act goes on to prescribe the manner in which the registration of such ownership was to be trarsferred to a purchaser of a vehicle. -[he statutory steps were not adhered to by the applicant and the third defendant. As such there was nothing that the respondent could have done to satisfv herself that anvone else but the applicant was the owner of the said vehicle. Had the applicant done all the law required of him to do, the action would not have been brought against him. lt would, therefore, be improper to order cosls to be paid by her to the applicant. This reasoning was evidently scotched by the learned judge on the application to dismiss the claim against the applicant. Nonetheless the respondent repearts these arguments on the application for costs to demonstrate that she acted reasonably in all the circumstances and that no one could fault her for bringing this action. ln her view she utilised the correct approach in bringing this action and as such she should not be faced with a costs order if it turns that she was wrong, The court has a discretion not lo award costs even where a party is successful and as such no costs should be awarded to the applicant even though he was successful on his application to be removed from the claim. I disagree with the respondent. The judge before whom the application to strike out was heard t6l dealt with the issue of costs ancl made a specific ruling in respect thereof. He specifically ordered that costs were to be assessed by the master if not agreed by the p;arties, This, in my view, is a clear award of costs. The only matter remaining would be its quantification. lf the sum is not agreed by the parties then I am to asses;s the same. Mitchell J.A in Andriy Malitskiy and lgor Filipenko v Oledo Petroleum Ltdl was confronted with the same arguments by the respondents on an assessment of costs following the dismissal of an appeal. On dismissal, his Lordship ordered costs to be assessed by himself if not agreed by the parties. There was no agreement on costs. At the hearing of the assessment, the respondents argued that the applicants should not be awarded costs for a number of reasons. The learned justice of appeal rulr:d that it was open to the respondents to argue before the court hearing the appeal that there should be no order as to costs. They did not do so and they could not re-argue the issue on the asserssment hearing. lt seems to me that the same reasoning applies here and even more forcefully l, judge of the high court has ruled on the issue of costs when:by he has ordered the master to make an assessment of the sum to be paid if not agreed. There is no authority in this court to order that costs should not be awarded. lf I am wrong and the authority does exist for me to do what the resprrndent requests, I would still t7l find that based on the facts of tlris case, costs should be awarded to the applicant, In that regard ' zot:/ooo6 at paragraph 9 the applicant responds to the rer;pondent's charge recited above and submits that the respondent did not act properly in this clairn. Rather, the respondent forfeited a number of opportunities to either refrain from filing proceedings against the applicant or to withdraw the proceedings once they had been thus filed In this context the applicant counters that in a pre-action letter he disclosed to the respondent that the vehicle had been sold by the time of the accident and that the insurance policy was cancelled concomitantly Further, the applicant submits that the respondent was met with the pleadings of the third defendant who specifically staterd that he had purchased the vehicle from the applicant before the date of the accident. A further opportunity to withdraw the claim against the applicant was again ignored by the respondent when she was confronted with the applicant's application to strike out the claim Faced with all these facts, the respondent clearly did not act with reasonableness in persisting in her action. She has therefore failed to demonstrate that these are circumstances in which the court should not award costs to the applicant who is the successful party on his application. The general rule is that the successful party is entitled to his or her co:;ts (CPR 64.6(2). In deciding IB] who is liable to pay costs the court will consider all the circumstances of the case and will have regard, in partrcular, to the matters set out in CPR 64.6 (5)which states the following - ln particular it must have regard to - (a) the conduct of the pafties bofh before and during the proceedings; (b) the manner in which a pafty has pursued - (i) a particular allegation; (ii) a particular issue: or (iii)the case, (c) whether a party har; succeeded on parlicular issues. even if the pafty has not been successfu/ in the whole of the proceedtngs, (d) whether it was reasonable for a pafty to - (i) pursue a particular al'tegation; and/or (ii) raise a pafticular lssue; and (e) whether the claimant (lave reasonable notice of rntention fo issue a claim tel cpR 64,6(5) therefore dictates that whether it was reasonable for a party to pursue a parttcular allegation or issue is only one of the matters that the court is enjoined to consider when determining which party is liable to pay costs, But even if this issue vras the sole consideration in this case, I would be inclined to find against the respondent As Cunrberbatch J correctly pointed out, the registration of the applir;ant with the Inland Revenue Departrnent as owner of the vehicle was ,,only prima f acie proof of ownership". This certification was stoutly refuted by the evidence that the vehicle was sold by the time of the accident, that the applicant hrad signed a transfer with the Inland Revenue Department anrj that he had applied for the cancellal:ion of the insurance policy. I cannot agree with the respondent that she acted reasonably in the ferce of all this evidence which became available to her when the defence was filed. She took the view that the evidence exhibited to the defence was self serving and should be tested at trial. Even if it was felt that the applicanl: had fabricated a receipt and signed a transfer form after the accldent, I cannot see how ther respondent could have persiste,d in this disposition in the face of ther evrdence that the insurancer policy was cancelled by the trme of the accident That the respondent may have taken the posturer that something was awry wrth the applicant s evidence should not redound to her benefit if it turns; out that she was wrong. I am confirmed in my opinion t.hat the respondent is incorrect to assert that she acted reasonably t10l in these proceedings when ore considers the defence of the third defendant. His unequivocerl defence that he purchased the vehicle on February 23,2008 (3) days prior to the accident shoultl have put to rest the debate rarsed by the respondent about the verracity of the sale transaction asserted by the applicant in his defence and exposed on the receipt attached to hrs defence' I cannot see how much clearer rnatters needed to be once the third defendant accepted that he had rndeed ourchased the vehicle prior to the accident. The respondent states in her submissions that she was cognisant of the terms; of the third defendant s assertion of ownership very late in the day, her reply to the applicant's defence was filed before the third defendant filed his defence stating that he had purchased the vehicle and was in fact its rightful owner at the date of the accident' But what was done after receipt of the third defendant's defence? The respondent did not withdraw the action against the applicant in the face of an explicit assertion of owrership by the third defendarrt' Instead she persisted and vigorously defended the application to strike out the claim against tl're applicant. lfind therefore thert the basis on which the respondert has asked the court not to exercise the discretion to award costs to a successful party has not beren made out. The applicant is entitled to his costs which are t0 be quantified in the manner setout in CPR 652. ASSESSMENT OF COSTS TO THE API]LICANT [1 1] The respondent has not said much regarding the basis on which the court may quantify costs to be awarded to the applicant As stated above, the respondent's position is that the applicant should not be awarded any costs. For the reasons stated above, I disagree with the respondent In regards to the assessment of costs, the applicant argues that costs should be assessed as 112l prescribed costs where the valua of the claim is assessed and an awetrd made based on the stage of the proceedrngs. I would assume that counsel refers to CPR 611.5. The applicant proposes alternatively that the court proceeds pursuant to CPR 65,12(4) to assess costs based on the bill set out in the application. I do not f nd the submissions made by the applicant particularly helpful. For one thing, CpR 65.7 (2) (d) expressly excludes an award for prescriberd costs in respect of the "fhe making or opposing of any application except at a case fiafilQafftotlt conference or pre-trial review." lt is evident that the application to strike out was not made at a case managemenl conference or pre-trial. CpR 6t'7(2)(d) suggests that the court making the award would have tc look at the other provisions on costs to determine the costs to be awarded in those circumstances. It seems to me that the assessrnent must proceed pursuantto CPR 65.11 or 65.'12 which carry ther t13l appellation "assessed cosfs". The process of deciding which one of those rules applies has been elsewhere described as, among other things, vexing: or besettingq. The task of assessing costs; under these two rules should be infinitely more straightforward. The objects of the provisions ar€r readrly apparent. Where costs clo not fall to be awarded as fixed or prescribed costs or where there: is no costs budget, CpR 65.'11 and 65.12 are enacted to offer guidance on how costs are to btl 2 See Bvron CJ (as he then was) in Rochamr:l Construction Limited v National Insurance Corporation Civ App' 2OO3/OO10 (Saint Lucia) for a useful discourse in the exercise of the discretion to arn'ard costs and an examination of the factors for the court's consideration 3 Wallbank J in United Company Rusal Plc, Uninted Company Rusal Investment Management LLC v Corbierre Holdings Ltd and Raleigh Investments Inc Claim No. NEHCV 20Ltlo03o o Lanns M. (as she then was) in Elfrida Hughes v clive Hodge Claim No. AXAHCV 2008/0035 assessed and awarded. For my part, lwould think that the process ntay prove less arduous and time consuming if the assessment of costs was guided by one rule, lt lot of time and expense is consumed in arguing about which rule applies even before getting to how much should be awarded as costs. I accept that it may pose immense difficulty to delineate all thr: circumstances to which an assessment of costs should apply under a single rule but the guiding principles and the procedure can be enacted. As matters stand, assessments of costs are not that straightforward. A plethora of cases have

[14]provided guidelines on how the court ought to assess costs pursuant to CPR 65.1'l and 65.125. I find the principles enunciated by Barrow J.A in the case of Norgulf Holdings Ltd and Incomeborts Ltd v Michael Wilson & Partners Ltd0 to be particularly helpful to this process, His Lordship explained CPR 65.'11 irr this manner - "A good stafting point for appreciating this rule is not to be misied by its heading. The rule clearly applies to more tltan just procedural applications because paragraph (1) of the rule says fhaf "on determininq any application" other than at a case management conference, pre-trial review or at the trral, the court must: decide whether tc, award cosfs of fhaf apptication and which pevty should pay them;assess the amount of such costs; and direct when they are to be paicl. These are decisions the courl must make for applications generally, and not just fc,r procedural applications..." "The rule applies to all applications except for two categories ctf applications. One category consisfs of those applications that are made at a case management conference, pre-trial review and trial. There are specific rules that apply to such apSilications and hence they are excluded. The other category of applications to whiclt rule 65.11 does not apply conslsts of the specific applications /isted - to amend, to extend tim'z and to obtain relief from sanctions - and appltcations that could have been made at case management or pre-trial t See for instance Norgulf Holdings Ltd and Incomeborts Ltd v Michael Wilson & Parl.ners Ltd BVICVAPP Ltd and Raleigh Investments Inc. Claim No. lrlEHCV 20LLlOO3O,IPOC International Grcwth Fund Limited v LV Nos. 20 of 2003 and 1of 2004; Elfrida review (and which woula'therefore have fallen rnto the first category). Rule 65,11 does not appty to the second category of applications because of the need to exclude such apptications from the general rule that cosfs are awarded to the party who succeeds on hls application." The object of CPR65.11, his Lordship opined -

[15]is to esfab/is h a norm thitt the couft hearrng an apptication "must" decide the lssues of cosfs, lnclud tng who is to pay, how much and when. Notably, ii makes the amount of cosfs to be awardei a matter ror the discretion of the courl Ru/e 65. 11 stafes the principles by which the courl must guide itself in exercising that discretion and assessing costs. The rule specifles the documentetion that the party seeking costs musf provide' And, finally' lf caps the amount of cosfs that normally may be awarded on the determination of an application ln respect of CPR 65.12, Barrovr, J.A offered this elucidation -

[16]Rute 65.12 complements and overlaps rule 65.11 but it is much broader in scope. Rule 65.12 appties fo a// ?ssr?ssrrg/.lts of cosls, not just cosfs of an application. The rule opens by stating in paragraph (1)that this rule appties where costs lailfo be assessed ln relation to any iattei,r or procegdings, or parl thereof , other than o p'rocedural application Ihese two words, "matter" and ':proceedlngs", hoth terms of aft, together extend the rule to virlualty every proceeding that could come bef ore the court . . .-fhe effect of paragraph (1) , in stating tnat inis rule apflres to any matter or proceedtngs or part thereof , ts to apply this: rute tlo proceedings Qltnoralr.,, not just applications, But the rule does cover applications: grnuruily, which are necessarily pafts of proceedings, sav€r for procedural applications, *nirn are specificalty, excepted. Put another way, by excluding only procedural applications this rule ii6fudes all other applications The amplitude of its operation havingt 5ejen estabtished in paragraph (1), the rule proceeds in lfs other paragraphs to set out thet procedure to be followed for an assessment to be carried out. That is what rule 65.12 doe:; '- it tays down the procedure for assessm ent. This is in contrast with the provisions of rule> 65.11, which lay down the principles to guide the court in ntttking an assessment of cosft; on determining aPPlications, Thus, paragraph (2) of rule 65.12 extends to proceedings gerlerally the proposition relating to applications that appears in rule 65,11(1)(b), which was that on determining an appl'icationthecourlmustassess theamountof costs, Paragraph(2) of rule65'12state:; that if the assessm ent relates to paft of courl proceedings it must be carried out by tht:. judge, master or regislrar hearing the proceedings, ln other words, if the assessment 'relites to paft of courl proceedings it must be carried out "at the hearing" (see rukt 65.12(3)) By identifying the range of iudicial officers who would be 'hearing thrt proce'edings'- paragriph- (2) atso Confirms that this rule applies to the whole range c'f that can ccme before a courl. The rule applies trt proceedings that are heard by the registrar, which are minor apptications: to proceedings that are heard by the master' which are almost att appiications that a judge could hear in chambers; and to proceedlngs that are heard by judges whtch are "any" proceedings, whether in chambers or open courl, including trials paragraphs (3), (4) and (5) of rule 65.12 provide the procedure for obtaining an assessment of costs when the assessment does nof fall to be carried out at the hearing of proceedings. These paragraphs provide that an application must be made for an assessmenf to be done, to whom the application must be made, the documentation to be fited and the way in which the master or registrar must proceed. /f is only when the assessmenf I not carried out "at the hearing of any proceedings" (r. 65'12 (3)) that the proce1ure contained in these paragraphs becomes applicablet. /f the assessment of cosfs is carried out at the hearing of an application then, as :;een earlier, the procedure contained in rule 63.ll(5) ana n appties. /f fhe assessment of costs is carried out at the hearing of the claim, thet is, at the trial, then the assessment lhe courl must make is of the cosfs of the claim. Pur:;uant to rule 65.3 the cosls of proceedings will be fixed costs or prescribed cosls or budgeted cosfs or, if none of the foregoing is applicable, cosfs assessed in accordance' with rules 65.11 and 65'12' wallbank J in united company Rusal Plc, United company Rusal Investment Management l17l LLC v Corbierre Holdings Ltd and Raleigh Investments Inc7, after recrting most of the principal authorities on assessment of costs pursuant to CPR 65.1'1 and 6ti.'12, offered the insight that whether a matter is procedural for the purposes of the 65.'12(1) may be gleaned from its results, that is to say, the application is; procedural if it did not decide the substantive issue in the claim. Applying that reasoning to this assessment, it is evident that the application in this case was nol orocedural since the substantir,e claim between the applicant and the respondent was disposed upon the hearing of the appliciation. ln that sense, CPR 65.'12 may apply to this instance CPFI 65.'l 1 may also apply since that rule covers all application except those heard at caset management, pre-trial or trial This application was not heard at any of those types of proceedings. There is a further distinction that would narrow the rule under which this assessment would ensue. CpR 65.,12 also operates where, as Barrow J.A correctly pointed outa the assessment does not fall to be carried out at the hearing of the proceedingse Cumberbatch J heard the application but did not assess costs. An order for costs was made with the assessment thereof to be carried out by the master, cpR 65.12 (3) to (6) therefore springs into operation. The application for assessment n cpR 6s.rz(:) was properly made pursuant to CpR 05.12(3) ancl it must be heard in keeping with that rule CPR 65 12 (3) to (6) state - (3) tf the assessment dres nof fatt to be carried out at the hearing of any proceedings then the person entiled fo the costs must apply to a master or the registrar for directions as tcr how the assessmenf ls to be carried out' (4) The application mu,st be accompanied by a brll or other clocument showing the sum in which the coutl is beingt asked to assess lhe cosfs and how such sum was calculated' (5) On hearing any such application the master or registrar must either - /a) assess lhe costs if lhere is sufficient material available to '1o so; or h) fix a date, time and place for the assessment to take place (6) The master or regi::trar may direct that the pafty against'whom the billis assessed pay lhe cosfs of the pafty whose billis being assessed and, if so, musf assess such cosfs an'C add them to fhe cosfs ordered to be paid tlgl TheapplicanthassuppliedabllsettingouthiscoststodateinaccorCancewithCPR65'12(4) The bill enumerates the following - 1. Letter before action to counsel for the claimant - 10/6/08 $350'00 2. Letter to Licensing officer, Inland Revenue - 13/10/08 $100 00 3. Solicitor's/Attcrney's fees for defending claim $3150'00 4 Filing acknowledgment of service $5'00 5 Filing defenc. $U OO 6. Filing applicat on to strike out with affidavit $6'00 7 PhotocoPies $18'oo B. Solicitor's/Attorney fee for filing & arguing application to strike out wrth submissions $ 2500 00 Total $6134'00 tl el ln assessing the costs to be allowed, much assistance is garnered from the words of Mitchell J.A in Andriy Malitskiy and lgor Filipenko v Oledo Petroleum Ltd quoting from the English authority of Lownds v Home Officelo , his Lordship stated the following - Foltowing the guidetines in Loyynds v Home Office, I apply a lwo stage approach in assesslng these cosfs. f:irst I shaltassess whether, on a global approach,lhe cosfs claimed are proporlionate, having regard to any relevant considerations identified in the Civit Procedure Rules 2000. tf I conclude that the costs claimed are not, overall, disproporlionate, I shatt .satisfy mysetf that each item was reasonabll incurred and the cost of that item was reasoneble. ln performing this exercise / must resolve any doubt as to whether any item was re,asonably incurred, or was reasonable in amount, in favour of the paying paftY, the aPPellents The applicant would have offererd greater assistance to this exercise if the hourly rate of counsel

[20]was stated in the bill supplied. That omission notwithstanding, my eva uation of the bill provided by the applicant is that it is disproprrtionate in light of what transpired in this case. The applicant was removed as a defendant even before the first case management conference. The greatest burden came for preparing and proser;uting his application to be removed from the proceedings. The applicant's estimate puts the claim to be in the range of $83,000.00. While the costs in a claim of small value may be substantial, the issues for the defendant were not convoluted or complex. This was a simole case of whether he was the owner of a vehicle that caLrsed the respondent to suffer losses for which she claims danrages, His Lordship Mitchell J A did not say what approach should be adopted if I find the bill t21) disproportronate. Lord Woolf had this to say on the matterll - "lf ... the cosls as a wL,ole appear disproportionate then the court willwant fo be safisfiecf that the work in relatrop to each ttem was necessary and, if necessary, that the cosf of ther item is reasonable. lf , L,ecause of tack of planning or due to ctther causes, the global costt; are disproporlionatety high, then the requrrement that fhe cosls should be propotlionattt means that no more sf;ould be payable than would have been payable if the litigatton harl been conducted in a proporlionate manner. fhls is turn mettns that reasonable costs tvll/ to lzooz] EWCA civ 365 tt lbid only be recovered for the ttems which were necess ary rf the litigation had been conducted in a propotltonate marlner,"

[22]Lord Woolf cautioned that a "r;ens ible standard of necessity has to be adopted'i The standard of necessity is one "Which takes fully intc account the need to make allowances for the different judgments which those responslb/e for litigation can sensibly come to as to what is required, The danger of setting too high a standard with the benefit of hind,sight has to be avoided. White the threshold required to meet necessify is higher than that of reasonab/eness, lf rs sti// a standard that a competent practitioner should be able to achi,zve without undue difficultv"l2 I23l I must assess each item to ascertain whether they were necessary and if each item in turn i:; necessary, then the sum claimerd for the item must be reasonable in all the circumstances. The bitl provided for assessment itemises costs whrch I find were all necessary. However, the sum claimed for solicitor's fees for defendingl the claim and the fee for preparing and arguing the application t' strike out the claim seem unreasonable in light of what transpirerd in this case. A fair ancl reasonable assessment, in my view, would award the sum of $2000.00 for solicitor,s fees for defending the claim and the rsum of $1500.00 as cost for preparing for and prosecuting ther application to strike out the claim. This would amount to assessment of costs in the sum oi $3984.00 t?4t L- 'l The sum assessed on the bill of costs is $3984 00 To achieve a fair and reasonable award to the applicant, I will adjust this sum to $4000 00. This was a fairly uncomp icated assessment. Applying the discretion granted to me by CPR 65.'12(6), I award the applicart the costs of this exercise assessed in the sum of $500 00. The applicant is therefore awarded assessed costs of $4500.00 which includes the costs of this assessment. I thank counsel for their assistance. \-'

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATESi IN THE HIGH COURT OF JUSTICE (crvrL) GRENADA Claim Number: GDAHCV2008/0478 Between : GINELLE JEROME AND Claimant ERROL FELIX ORAL NARINE ALEX BAIN (By his guardian ad litem, GRACE BAIN) Defendants Before: Raulston Glasgow Master Appearances: Celia Edwards Q C along with Deloni Edwards for the Claimant/Respondent Skeeta Chitan for the 1st Defendant Alban John along with Thandiwye Lyle for the 2no DefendanVApplicant Cathisha Williams for the 3,0 Defendant 2014: October 31; December 15; 2015: January 29 I\SSESSMENT OF COSTS t2l APPLICATION tll GLASGOW, M [AG,]; On June ?.0,2014, his Lordship Cumberbatch i ruled that the action against the second defendant (hereinalter the applicant) should be struck out for failing to disclose a reasonable ground for bringing the action and that the continuaticn of the claim against the applicant is likely to obstruct ther just disposal of the proceedings. In terms of costs, his Lordship ruled that the costs are to be dr:termined by the master if not agreecl by the parties. The parties have not arrived at any consensus on costs and as such the application has been made for me to assess the costs to be awarded. RELEVANT FACTS On February 23,2008, the appli,:antsold his car to the third named dr:fendant. Two days later, he attended the Inland Revenue Department, Licensing Division to execute a transfer of the registration of the vehicle from his name to that of the third named defendant. The applicant requested that the third defendant attend the licensing department at the same time to effect the transfer but he did not appear. On February 26,2008, the applicant surrendered his policy of insurance to the insurers of the vehicle. The oolicv of insurance was cancelled with effect from that date. On the very day when the applicant surrendered the insurance policy (February 26, 2008) and after he had signed a transfer of registration at the licensing division of the Inland Revenue, the claimant (hereinafter the respondent) was injured in an accident involving the said vehicle. A claim was filed against the applicant and the third defendant for the injuries and losses suffered by the respondent. On November 6, 2008 the applicant applied to strike out the claim as aforesaid. His Lordship Cumberbatch J found that the prima facie evidence of ownership by reason of registration was refuted by the evidence of the third defendant whereby he admitted in his defence that he had in fact purchased the vehicle from the applicant and had taken ownersl’ip of the same on February 23,2008, (3) days before the acr:ident. His Lordship found that on the day of the accident the third Lvl t4l defendant held the vehicle as owner Accordingly, since the applioant had been divested of ownership of the vehicle, there was no basis for joining him as a defendant on the claim. The claim against him was struck out. He wishes the court to assess the cosl:s as ordered by the judge. Curiously, the claimant disagree:; that the applicant should be allowed his costs for the reasons set out herein below. ARGUMENTS ON COSTS The applicant’s position is that l-re is entitled to costs either granted irr accordance with CPR 65.5 (prescribed costs) or costs as as;sessed in accordance with CPR 65.12. The respondent takes the opposite view. The respondent s;ubmits that this is not a proper case for the award of any costs to the applicant. Counsel for the respondent argues that if the court looks at the respondent’s conduct throughout these proceedings it would be apparent that the responCent acted appropriately by bringing and maintaining the claim. In particular counsel observes that before filing the claim, the respondent “did all in her power to ascertain ownership of the vehicles involved in the accident…” The information received from tl’re Inland Revenue Department advised that the applicant was the owner of the vehicle. The infornration showing transfer of the vehicle is dated after the accident. When the respondent received the applicant’s defence, it averred a denial of ownership of the vehicle and exhibited a hand – rvritten note signed by the third defendant and the applicant’s son stating that the vehicle was sold to the third defendant There was no r:vidence that the applicant’s son was acting in a representative capacity. Additionally, the applicant exhibited to his defence the instruction to his insurance company dated February 26,2008 advising them to cancel the policy of Insurance. The respondent argues that nonr: of the exhibits explained matters anclwere all in fact self serving, The respondent’s position is tl”at the Motor Vehicle Insurance (Third Party) Act sets out the definition of owner of a vehicle. Ihe Act goes on to prescribe the manner in which the registration of such ownership was to be trarsferred to a purchaser of a vehicle. -[he statutory steps were not adhered to by the applicant and the third defendant. As such there was nothing that the respondent could have done to satisfv herself that anvone else but the applicant was the owner of the said t5l t6l vehicle. Had the applicant done all the law required of him to do, the action would not have been brought against him. lt would, therefore, be improper to order cosls to be paid by her to the applicant. This reasoning was evidently scotched by the learned judge on the application to dismiss the claim against the applicant. Nonetheless the respondent repearts these arguments on the application for costs to demonstrate that she acted reasonably in all the circumstances and that no one could fault her for bringing this action. ln her view she utilised the correct approach in bringing this action and as such she should not be faced with a costs order if it turns that she was wrong, The court has a discretion not lo award costs even where a party is successful and as such no costs should be awarded to the applicant even though he was successful on his application to be removed from the claim. I disagree with the respondent. The judge before whom the application to strike out was heard dealt with the issue of costs ancl made a specific ruling in respect thereof. He specifically ordered that costs were to be assessed by the master if not agreed by the p;arties, This, in my view, is a clear award of costs. The only matter remaining would be its quantification. lf the sum is not agreed by the parties then I am to asses;s the same. Mitchell J.A in Andriy Malitskiy and lgor Filipenko v Oledo Petroleum Ltdl was confronted with the same arguments by the respondents on an assessment of costs following the dismissal of an appeal. On dismissal, his Lordship ordered costs to be assessed by himself if not agreed by the parties. There was no agreement on costs. At the hearing of the assessment, the respondents argued that the applicants should not be awarded costs for a number of reasons. The learned justice of appeal rulr:d that it was open to the respondents to argue before the court hearing the appeal that there should be no order as to costs. They did not do so and they could not re-argue the issue on the asserssment hearing. lt seems to me that the same reasoning applies here and even more forcefully l, judge of the high court has ruled on the issue of costs when:by he has ordered the master to make an assessment of the sum to be paid if not agreed. There is no authority in this court to order that costs should not be awarded. lf I am wrong and the authority does exist for me to do what the resprrndent requests, I would still find that based on the facts of tlris case, costs should be awarded to the applicant, In that regard t7l ‘ zot:/ooo6 at paragraph 9 IB] the applicant responds to the rer;pondent’s charge recited above and submits that the respondent did not act properly in this clairn. Rather, the respondent forfeited a number of opportunities to either refrain from filing proceedings against the applicant or to withdraw the proceedings once they had been thus filed In this context the applicant counters that in a pre-action letter he disclosed to the respondent that the vehicle had been sold by the time of the accident and that the insurance policy was cancelled concomitantly Further, the applicant submits that the respondent was met with the pleadings of the third defendant who specifically staterd that he had purchased the vehicle from the applicant before the date of the accident. A further opportunity to withdraw the claim against the applicant was again ignored by the respondent when she was confronted with the applicant’s application to strike out the claim Faced with all these facts, the respondent clearly did not act with reasonableness in persisting in her action. She has therefore failed to demonstrate that these are circumstances in which the court should not award costs to the applicant who is the successful party on his application. The general rule is that the successful party is entitled to his or her co:;ts (CPR 64.6(2). In deciding who is liable to pay costs the court will consider all the circumstances of the case and will have regard, in partrcular, to the matters set out in CPR 64.6 (5)which states the following – ln particular it must have regard to – (a) the conduct of the pafties bofh before and during the proceedings; (b) the manner in which a pafty has pursued – (i) a particular allegation; (ii) a particular issue: or (iii)the case, (c) whether a party har; succeeded on parlicular issues. even if the pafty has not been successfu/ in the whole of the proceedtngs, (d) whether it was reasonable for a pafty to – (i) pursue a particular al’tegation; and/or (ii) raise a pafticular lssue; and (e) whether the claimant (lave reasonable notice of rntention fo issue a claim tel cpR 64,6(5) therefore dictates that whether it was reasonable for a party to pursue a parttcular allegation or issue is only one of the matters that the court is enjoined to consider when determining which party is liable to pay costs, But even if this issue vras the sole consideration in this case, I would be inclined to find against the respondent As Cunrberbatch J correctly pointed out, the registration of the applir;ant with the Inland Revenue Departrnent as owner of the vehicle was ,,only prima f acie proof of ownership”. This certification was stoutly refuted by the evidence that the vehicle was sold by the time of the accident, that the applicant hrad signed a transfer with the Inland Revenue Department anrj that he had applied for the cancellal:ion of the insurance policy. I cannot agree with the respondent that she acted reasonably in the ferce of all this evidence which became available to her when the defence was filed. She took the view that the evidence exhibited to the defence was self serving and should be tested at trial. Even if it was felt that the applicanl: had fabricated a receipt and signed a transfer form after the accldent, I cannot see how ther respondent could have persiste,d in this disposition in the face of ther evrdence that the insurancer policy was cancelled by the trme of the accident That the respondent may have taken the posturer that something was awry wrth the applicant s evidence should not redound to her benefit if it turns; out that she was wrong. I am confirmed in my opinion t.hat the respondent is incorrect to assert that she acted reasonably in these proceedings when ore considers the defence of the third defendant. His unequivocerl defence that he purchased the vehicle on February 23,2008 (3) days prior to the accident shoultl have put to rest the debate rarsed by the respondent about the verracity of the sale transaction asserted by the applicant in his defence and exposed on the receipt attached to hrs defence’ I cannot see how much clearer rnatters needed to be once the third defendant accepted that he had rndeed ourchased the vehicle prior to the accident. The respondent states in her submissions that she was cognisant of the terms; of the third defendant s assertion of ownership very late in the day, her reply to the applicant’s defence was filed before the third defendant filed his defence stating that he had purchased the vehicle and was in fact its rightful owner at the date of the accident’ But what was done after receipt of the third defendant’s defence? The respondent did not withdraw the action against the applicant in the face of an explicit assertion of owrership by the third defendarrt’ Instead she persisted and vigorously defended the application to strike out the claim against tl’re applicant. lfind therefore thert the basis on which the respondert has asked the court not to t10l 112l exercise the discretion to award costs to a successful party has not beren made out. The applicant is entitled to his costs which are t0 be quantified in the manner setout in CPR 652. ASSESSMENT OF COSTS TO THE API]LICANT [1 1] The respondent has not said much regarding the basis on which the court may quantify costs to be awarded to the applicant As stated above, the respondent’s position is that the applicant should not be awarded any costs. For the reasons stated above, I disagree with the respondent t13l In regards to the assessment of costs, the applicant argues that costs should be assessed as prescribed costs where the valua of the claim is assessed and an awetrd made based on the stage of the proceedrngs. I would assume that counsel refers to CPR 611.5. The applicant proposes alternatively that the court proceeds pursuant to CPR 65,12(4) to assess costs based on the bill set out in the application. I do not f nd the submissions made by the applicant particularly helpful. For one thing, CpR 65.7 (2) (d) expressly excludes an award for prescriberd costs in respect of the “fhe making or opposing of any application except at a case fiafilQafftotlt conference or pre-trial review.” lt is evident that the application to strike out was not made at a case managemenl conference or pre-trial. CpR 6t’7(2)(d) suggests that the court making the award would have tc look at the other provisions on costs to determine the costs to be awarded in those circumstances. It seems to me that the assessrnent must proceed pursuantto CPR 65.11 or 65.’12 which carry ther appellation “assessed cosfs”. The process of deciding which one of those rules applies has been elsewhere described as, among other things, vexing: or besettingq. The task of assessing costs; under these two rules should be infinitely more straightforward. The objects of the provisions ar€r readrly apparent. Where costs clo not fall to be awarded as fixed or prescribed costs or where there: is no costs budget, CpR 65.’11 and 65.12 are enacted to offer guidance on how costs are to btl 2 See Bvron CJ (as he then was) in Rochamr:l Construction Limited v National Insurance Corporation Civ App’ 2OO3/OO10 (Saint Lucia) for a useful discourse in the exercise of the discretion to arn’ard costs and an examination of the factors for the court’s consideration 3 Wallbank J in United Company Rusal Plc, Uninted Company Rusal Investment Management LLC v Corbierre Holdings Ltd and Raleigh Investments Inc Claim No. NEHCV 20Ltlo03o o Lanns M. (as she then was) in Elfrida Hughes v clive Hodge Claim No. AXAHCV 2008/0035

[14]assessed and awarded. For my part, lwould think that the process ntay prove less arduous and time consuming if the assessment of costs was guided by one rule, lt lot of time and expense is consumed in arguing about which rule applies even before getting to how much should be awarded as costs. I accept that it may pose immense difficulty to delineate all thr: circumstances to which an assessment of costs should apply under a single rule but the guiding principles and the procedure can be enacted. As matters stand, assessments of costs are not that straightforward. A plethora of cases have provided guidelines on how the court ought to assess costs pursuant to CPR 65.1’l and 65.125. I find the principles enunciated by Barrow J.A in the case of Norgulf Holdings Ltd and Incomeborts Ltd v Michael Wilson & Partners Ltd0 to be particularly helpful to this process, His Lordship explained CPR 65.’11 irr this manner – “A good stafting point for appreciating this rule is not to be misied by its heading. The rule clearly applies to more tltan just procedural applications because paragraph (1) of the rule says fhaf “on determininq any application” other than at a case management conference, pre-trial review or at the trral, the court must: decide whether tc, award cosfs of fhaf apptication and which pevty should pay them;assess the amount of such costs; and direct when they are to be paicl. These are decisions the courl must make for applications generally, and not just fc,r procedural applications…” “The rule applies to all applications except for two categories ctf applications. One category consisfs of those applications that are made at a case management conference, pre-trial review and trial. There are specific rules that apply to such apSilications and hence they are excluded. The other category of applications to whiclt rule 65.11 does not apply conslsts of the specific applications /isted – to amend, to extend tim’z and to obtain relief from sanctions – and appltcations that could have been made at case management or pre-trial t See for instance Norgulf Holdings Ltd and Incomeborts Ltd v Michael Wilson & Parl.ners Ltd BVICVAPP 2007 /OOO8; United Company Rusal Plc, United Company Rusal Investment Managenrent LLC v Corbierre Holdings Ltd and Raleigh Investments Inc. Claim No. lrlEHCV 20LLlOO3O,IPOC International Grcwth Fund Limited v LV Finance Group Limited & Ors High Court BVIHCV2O03/0140/CivilAppeal Nos. 20 of 2003 and 1of 2004; Elfrida AIetha Hughes v Clive Hodge Claim No. AXAHCV 2008/0035 ” rbid

[15]review (and which woula’therefore have fallen rnto the first category). Rule 65,11 does not appty to the second category of applications because of the need to exclude such apptications from the general rule that cosfs are awarded to the party who succeeds on hls application.” The object of CPR65.11, his Lordship opined – is to esfab/is h a norm thitt the couft hearrng an apptication "must" decide the lssues of cosfs, lnclud tng who is to pay, how much and when. Notably, ii makes the amount of cosfs to be awardei a matter ror the discretion of the courl Ru/e 65. 11 stafes the principles by which the courl must guide itself in exercising that discretion and assessing costs. The rule specifles the documentetion that the party seeking costs musf provide' And, finally' lf caps the amount of cosfs that normally may be awarded on the determination of an application ln respect of CPR 65.12, Barrovr, J.A offered this elucidation –

[16]Rute 65.12 complements and overlaps rule 65.11 but it is much broader in scope. Rule

[20]t21) to lzooz] EWCA civ 365 tt lbid

[22]only be recovered for the ttems which were necess ary rf the litigation had been conducted in a propotltonate marlner,” Lord Woolf cautioned that a "r;ens ible standard of necessity has to be adopted’i The standard of necessity is one "Which takes fully intc account the need to make allowances for the different judgments which those responslb/e for litigation can sensibly come to as to what is required, The danger of setting too high a standard with the benefit of hind,sight has to be avoided. White the threshold required to meet necessify is higher than that of reasonab/eness, lf rs sti// a standard that a competent practitioner should be able to achi,zve without undue difficultv”l2 I must assess each item to ascertain whether they were necessary and if each item in turn i:; necessary, then the sum claimerd for the item must be reasonable in all the circumstances. The bitl provided for assessment itemises costs whrch I find were all necessary. However, the sum claimed for solicitor’s fees for defendingl the claim and the fee for preparing and arguing the application t' strike out the claim seem unreasonable in light of what transpirerd in this case. A fair ancl reasonable assessment, in my view, would award the sum of $2000.00 for solicitor,s fees for defending the claim and the rsum of $1500.00 as cost for preparing for and prosecuting ther application to strike out the claim. This would amount to assessment of costs in the sum oi $3984.00 The sum assessed on the bill of costs is $3984 00 To achieve a fair and reasonable award to the applicant, I will adjust this sum to $4000 00. This was a fairly uncomp icated assessment. Applying the discretion granted to me by CPR 65.’12(6), I award the applicart the costs of this exercise assessed in the sum of $500 00. The applicant is therefore awarded assessed costs of $4500.00 which includes the costs of this assessment. I thank counsel for their assistance. I23l t?4t L- ‘l -‘ t’Supra, note 10 at paragraph 37

65.12 appties fo a// ?ssr?ssrrg/.lts of cosls, not just cosfs of an application. The rule opens by stating in paragraph (1)that this rule appties where costs lailfo be assessed ln relation to any iattei,r or procegdings, or parl thereof , other than o p’rocedural application Ihese two words, “matter” and ‘:proceedlngs”, hoth terms of aft, together extend the rule to virlualty every proceeding that could come bef ore the court . . .-fhe effect of paragraph (1) , in stating tnat inis rule apflres to any matter or proceedtngs or part thereof , ts to apply this: rute tlo proceedings Qltnoralr.,, not just applications, But the rule does cover applications: grnuruily, which are necessarily pafts of proceedings, sav€r for procedural applications, *nirn are specificalty, excepted. Put another way, by excluding only procedural applications this rule ii6fudes all other applications The amplitude of its operation havingt 5ejen estabtished in paragraph (1), the rule proceeds in lfs other paragraphs to set out thet procedure to be followed for an assessment to be carried out. That is what rule 65.12 doe:; ‘- it tays down the procedure for assessm ent. This is in contrast with the provisions of rule>

65.11, which lay down the principles to guide the court in ntttking an assessment of cosft; on determining aPPlications, Thus, paragraph (2) of rule 65.12 extends to proceedings gerlerally the proposition relating to applications that appears in rule 65,11(1)(b), which was that on determining an appl’icationthecourlmustassess theamountof costs, Paragraph(2) of rule65’12state:; that if the assessm ent relates to paft of courl proceedings it must be carried out by tht:. judge, master or regislrar hearing the proceedings, ln other words, if the assessment ‘relites to paft of courl proceedings it must be carried out “at the hearing” (see rukt

65.12(3)) By identifying the range of iudicial officers who would be ‘hearing thrt proce’edings’- paragriph- (2) atso Confirms that this rule applies to the whole range c’f ‘proceedings that can ccme before a courl. The rule applies trt proceedings that are heard l17l by the registrar, which are minor apptications: to proceedings that are heard by the master’ which are almost att appiications that a judge could hear in chambers; and to proceedlngs that are heard by judges whtch are “any” proceedings, whether in chambers or open courl, including trials paragraphs (3), (4) and (5) of rule 65.12 provide the procedure for obtaining an assessment of costs when the assessment does nof fall to be carried out at the hearing of proceedings. These paragraphs provide that an application must be made for an assessmenf to be done, to whom the application must be made, the documentation to be fited and the way in which the master or registrar must proceed. /f is only when the assessmenf I not carried out “at the hearing of any proceedings” (r. 65’12 (3)) that the proce1ure contained in these paragraphs becomes applicablet. /f the assessment of cosfs is carried out at the hearing of an application then, as :;een earlier, the procedure contained in rule 63.ll(5) ana n appties. /f fhe assessment of costs is carried out at the hearing of the claim, thet is, at the trial, then the assessment lhe courl must make is of the cosfs of the claim. Pur:;uant to rule 65.3 the cosls of proceedings will be fixed costs or prescribed cosls or budgeted cosfs or, if none of the foregoing is applicable, cosfs assessed in accordance’ with rules 65.11 and 65’12’ wallbank J in united company Rusal Plc, United company Rusal Investment Management LLC v Corbierre Holdings Ltd and Raleigh Investments Inc7, after recrting most of the principal authorities on assessment of costs pursuant to CPR 65.1’1 and 6ti.’12, offered the insight that whether a matter is procedural for the purposes of the 65.’12(1) may be gleaned from its results, that is to say, the application is; procedural if it did not decide the substantive issue in the claim. Applying that reasoning to this assessment, it is evident that the application in this case was nol orocedural since the substantir,e claim between the applicant and the respondent was disposed upon the hearing of the appliciation. ln that sense, CPR 65.’12 may apply to this instance CPFI

65.’l 1 may also apply since that rule covers all application except those heard at caset management, pre-trial or trial This application was not heard at any of those types of proceedings. There is a further distinction that would narrow the rule under which this assessment would ensue. CpR 65.,12 also operates where, as Barrow J.A correctly pointed outa the assessment does not fall to be carried out at the hearing of the proceedingse Cumberbatch J heard the application but did not assess costs. An order for costs was made with the assessment thereof to be carried out by the master, cpR 65.12 (3) to (6) therefore springs into operation. The application for assessment t Supra, note 5. See also Mathurin M (as she then was) in IPOC International Growtlr Fund Limited v LV Finance Group Limited & Ors. 8 Supra, note 5 n cpR 6s.rz(:) was properly made pursuant to CpR 05.12(3) ancl it must be heard in keeping with that rule CPR 65 12 (3) to (6) state – (3) tf the assessment dres nof fatt to be carried out at the hearing of any proceedings then the person entiled fo the costs must apply to a master or the registrar for directions as tcr how the assessmenf ls to be carried out’ (4) The application mu,st be accompanied by a brll or other clocument showing the sum in which the coutl is beingt asked to assess lhe cosfs and how such sum was calculated’ (5) On hearing any such application the master or registrar must either – /a) assess lhe costs if lhere is sufficient material available to ‘1o so; or h) fix a date, time and place for the assessment to take place (6) The master or regi::trar may direct that the pafty against’whom the billis assessed pay lhe cosfs of the pafty whose billis being assessed and, if so, musf assess such cosfs an’C add them to fhe cosfs ordered to be paid tlgl TheapplicanthassuppliedabllsettingouthiscoststodateinaccorCancewithCPR65’12(4) The bill enumerates the following –

1.Letter before action to counsel for the claimant – 10/6/08 $350’00

2.Letter to Licensing officer, Inland Revenue – 13/10/08 $100 00

3.Solicitor’s/Attcrney’s fees for defending claim $3150’00 4 Filing acknowledgment of service $5’00 5 Filing defenc. $U OO

6.Filing applicat on to strike out with affidavit $6’00 7 PhotocoPies $18’oo B. Solicitor’s/Attorney fee for filing & arguing application to strike out wrth submissions $ 2500 00 Total $6134’00 tl el ln assessing the costs to be allowed, much assistance is garnered from the words of Mitchell J.A in Andriy Malitskiy and lgor Filipenko v Oledo Petroleum Ltd quoting from the English authority of Lownds v Home Officelo , his Lordship stated the following – Foltowing the guidetines in Loyynds v Home Office, I apply a lwo stage approach in assesslng these cosfs. f:irst I shaltassess whether, on a global approach,lhe cosfs claimed are proporlionate, having regard to any relevant considerations identified in the Civit Procedure Rules 2000. tf I conclude that the costs claimed are not, overall, disproporlionate, I shatt .satisfy mysetf that each item was reasonabll incurred and the cost of that item was reasoneble. ln performing this exercise / must resolve any doubt as to whether any item was re,asonably incurred, or was reasonable in amount, in favour of the paying paftY, the aPPellents The applicant would have offererd greater assistance to this exercise if the hourly rate of counsel was stated in the bill supplied. That omission notwithstanding, my eva uation of the bill provided by the applicant is that it is disproprrtionate in light of what transpired in this case. The applicant was removed as a defendant even before the first case management conference. The greatest burden came for preparing and proser;uting his application to be removed from the proceedings. The applicant’s estimate puts the claim to be in the range of $83,000.00. While the costs in a claim of small value may be substantial, the issues for the defendant were not convoluted or complex. This was a simole case of whether he was the owner of a vehicle that caLrsed the respondent to suffer losses for which she claims danrages, His Lordship Mitchell J A did not say what approach should be adopted if I find the bill disproportronate. Lord Woolf had this to say on the matterll – “lf … the cosls as a wL,ole appear disproportionate then the court willwant fo be safisfiecf that the work in relatrop to each ttem was necessary and, if necessary, that the cosf of ther item is reasonable. lf , L,ecause of tack of planning or due to ctther causes, the global costt; are disproporlionatety high, then the requrrement that fhe cosls should be propotlionattt means that no more sf;ould be payable than would have been payable if the litigatton harl been conducted in a proporlionate manner. fhls is turn mettns that reasonable costs tvll/