1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 FINANCIAL SERVICES DIVISION 3 FSD 104 OF 2011 (AJEF) 4 5 6 IN THE MATTER of the Estate of John Samuel Hinds (Deceased) and the Estate 7 of Esther Rosalind Hinds (Deceased) 8 9 AND IN THE MATTER of the Grand Court Rules Order 85 10 11 BETWEEN: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Coram: Hearing Date: Appearances: PHILLIP BRADLEY HINDS Plaintiff and (1) CLIVE MONTRIVELLE HINDS, ADMINISTRATOR OF THE ESTATE OF ESTHER ROSALIND HINDS (2) CLIVE MONTRIVELLE HINDS (3) JOHN LEVERETTE HINDS III (4) THOMAS ANTHONY HINDS (5) SHARON HINDS (6) NORAHS KCOTSOB LIMITED Mr. Justice Angus Foster 4th November 2014 Defendants For the Plaintiff: Mr. Peter McMaster, QC and Mr. Rupeli Coe of Appleby For the 1st Defendant: Mr. Tom Lowe, QC instructed by Mr. George Giglioli of Giglioli and Company For the 2nd, 3rd and 4th Defendants: Ms. Clare Stanley instructed by Mr. Robeli Jones of Tayler Jones For the 5th and 6th Defendants: Mr. Kenneth FatTow, QC of HSM Chambers Ruling On Costs -FSD 104/2011 - Phillip B Hinds v CJlve Hinds et 01: Foster J Page 1 0/16 1 RULING ON FORM OF ORDER TO BE MADE ON 2 JUDGMENT DATED 9TH JULY 2014 AND ON COSTS OF THE 3 PROCEEDINGS 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40
Introduction 1.1 This Ruling conce111S the appropriate form of order to be made on the judgment dated 9th July 2014 ("the Judgment") following the trial of this matter and also the appropriate award( s) to be made in respect of the costs of the proceedings. I shall use the same designations, abbreviations and references as in the Judgment FOlm of Order 2.1 2.2 Although the Judgment refused all the relief which Phillip sought as plaintiff and dismissed all his claims, it was nonetheless submitted on his behalf that the declarations which he sought in his originating summons dated 1 i h June 2011 (as amended on 1 i h December 2012) insofar as relating to 4 of the 7 parcels in issue (namely parcels 15B/81, 15CI172, 15CI175 and 15E/222), should be granted in the order to be made on the Judgment. This was contended on the basis that in the Judgment I reached the view that these parcels of land, which had been transfen'ed by Sir Vassel from Bradley's estate to Esther, were assets of John Samuel and were transferred to Esther in her capacity as Administratrix of his estate and not transferred to her beneficially (Judgment para. 6.28). However, that argument was only one of the issues in the case and Phillip's contention in this respect seemed to me to ignore the fact that the Judgment concluded not only that Phillip's claims were both misconceived (Judgment paras. 8.5, 8.1 0 and 8.12) and barred by limitation (Judgment para. 12.21) but perhaps more significantly, this submission also ignored the fact that the Judgment concluded, after a lengthy analysis of Phillip's knowledge, that he had acquiesced in the matters of which he complained and that it would be unjust and inequitable in the circumstances to pelmit him to assert the rights which he sought to enforce by his claims (Judgment para 15.24). Furthelmore, it Ruling On Costs -FSD 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J Page 2 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40
2.3 3.1 failed to appreciate that the Judgment concluded too that it would be unconscionable to permit Phillip to assert the relief which he claimed due to laches (Judgment para. 19.3). The relief being referred to clearly included all the relief claimed by Phillip in his originating summons (as amended), including the declarations concemed. In my opinion the Judgment makes it quite clear that the court had concluded that the claims which Phillip brought should be refused in their entirety and that the court had declined to grant any ofthe relief which he sought (Judgment para. 20). When I pointed out these conclusions in the Judgment to leading counsel for Phillip during the course of the hearing he did not persist in this submission regarding the fonn of order. Accordingly, I now direct that the order to be made on the Judgment should provide that the court, having tried the plaintiff's claims made in his originating summons (as amended on 17th December 2012), declines to grant any of those claims and they are accordingly dismissed in their entirety. It is uncontroversial that the award of costs is in the discretion of the court. However, the overriding objective is that the successful party in proceedings should recover his reasonable costs from the losing party unless the cOUli orders otherwise (see GCR 0.62, 1'.4 (2)). It is furthermore expressly provided that if the court sees fit to make an order for costs it should order the costs to follow the event unless it considers that in the patiicular circumstances some other order should be made in relation to the whole or any pati of the costs (see sub-para. (5) of the same rule). In the latter connection it is also specifically provided that the court may make an order that a party must pay a proportion or a stated amount of another party's costs or the costs relating only to a distinct part of the proceedings (see 1'.4 (7)). 3.2 Notwithstanding the oven'iding objective and the express provision that costs should follow the event, leading counsel for Philip rather valiantly attempted to argue that Phillip had Ruling On Costs -FSD 1.04/2011 - Phillip B Hinds v Clive HInds et 01: Foster) Page 3 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24; 2$ 26; 27 28 29 30 31 32 33 34 35 36 37 38 39 3.3 succeeded in relation to four of the parcels of land and "on major issues" concerning the devolution of assets from his father to his mother as administratrix, and should therefore have all of his costs against all of the defending parties (except Sharon and the Company, against whom he conceded he had lost). I found this a surprising and misconceived submission in light of the clear conclusions in the Judgment. Phillip did not succeed in his claims to any of the parcels concerned; his claims were dismissed entirely and there is, in my opinion, no basis for his contention otherwise. It was also submitted on behalf of Phillip as an alternative that he should not anyway be ordered to pay the entire costs of the proceedings because, it was said, Clive as administrator and the defendants had made arguments which were either subsequently abandoned or which were unsuccessful and which, it was contended, took up "a very large propOliion" of Phillip's and of the court's time. As pointed out above, GCR 0.62, r. 4 (7) provides that the cOUli may make an order for a party to pay a propOliion of the costs or the costs relating only to a distinct part of the proceedings. I was referred in this connection to the judgment in Elgindata Ltd (No.2) [1993] 1 All ER 232 in the English Court of Appeal in which in setting out the principles on which costs were to be awarded it is summarized in the headnote inter alia that: "(iii) that the general rule did not cease to apply simply because the successfitl party raised issues or made allegations that failed, but that he could be deprived of his costs in whole or in part where he had caused a significant increase in the length of the proceedings, and (iv) that where the successfitl party raised issues or made allegations improperly improperly or unreasonably the court could not only deprive him of his costs but could also order him to pay the whole or part of the unsuccessfitl party's costs The fourth principle implied, moreover, that a successfid party who neither improperly nor unreasonably raised issues or made allegations which failed ought not to be ordered to pay any part of the unsuccessfitl party's costs ..... " Ruling On Costs -FSD 104/2011 -Phillip 8 Hinds v Clive Hinds et 01: Foster J Page 4 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 3.4 That summary of those principles was cited with approval by Chief Justice Smellie in A.B. Jnr. and Another v. MB. and Others [2013] 14 June, unreported It was argued on behalf of Phillip that since he had succeeded in his submission that the parcels deriving ii'om Bradley's estate were assets of John Samuel and transfel1'ed to Esther as administratrix of his estate and, it was said, the arguments of leading counsel for Clive as administrator and of counsel for the defendants to the contrary were unjustified and unreasonable. It was contended that this issue had taken up a significant pati of and had added significantly to the length and cost of the proceedings. It was argued that the costs incUl1'ed in connection with this issue should therefore be awarded to Phillip. 3.5 While it is correct that that particular issue was a significant one, I did not find Phillip's contention in relation to it persuasive. In the overall context of the proceedings that issue was only one of several significant issues, some of which, patiicularly the issues of acquiescence and laches which involved lengthy cross- examination and submissions, took up considerably more time and were in my view more significant in the end of the day. I do not consider that the issue on which Phillip relies took up an undue or dispropOliionate amount of time having regard to the proceedings as a whole. FUlihermore, in my view, the position taken and the submissions made on behalf of Clive as administrator and the defendants in relation to this issue were not at all unjustified or unreasonable in the circumstances nor was the outcome of the debate on this issue a forgone conclusion. It was made clear in the Judgment that the final conclusion thereon was only reached with considerable hesitation and only on balance considering the known circumstances (Judgment para. 6.28). It was also made clear that detelmination of this issue had been made considerably more difficult and unsatisfactory in the absence of the evidence ofthe two principal witnesses, Sir Vassel and Esther, which was directly due to Phillip's own inappropriate and unjustified delay in commencing these proceedings (Judgment for example paras 6.2 et seq and para 17.1 0). In the circumstances I do not consider it appropriate in the circumstances of this case and do not propose to segregate out Ruling On Costs -FSD 104/2011 - PhillIp B HInds v C/lve Hinds et 01: Foster J Page 5 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 3.6 the costs of this particular issue or this part of the proceedings from the overall costs. Leading counsel for Phillip also pointed out that the defendants had amended their points of defence in September 2013 to plead that parcel 15B/81 had been purchased by John Samuel and Esther using money belonging to the defendants and that during the trial John III had admitted this allegation was a speculation and this claim was not pursued thereafter. He argued that the defendants should be penalized in costs in respect of the time wasted in respect of this amendment, which he contended was unjustified and inappropriate. However, I accept the submission of counsel for the defendants that the amendment was based on reasonable inference in the circumstances. There was evidence that John Samuel and Esther had access to money held on behalf of the defendants and that they had used some of such money to meet some of the cost of building the Cayman House (parcel 7CIl). It was not umeasonable, in my view, to infer that they had also used some of such money to purchase the shares of parcel 15B/81 which they acquired. This is also another example of the difficulty in establishing all of the facts as a result of the unavailability of Esther's evidence due to Phillip having waited until after his mother's death to commence these proceedings. Furthermore, in my opmlOn, this amendment and its consequences had minimal impact on the length of the proceedings. 3.7 Leading counsel for Phillip also argued that similar considerations applied to the late amendment oftheir re-amended defence by the defendants during the trial, which I had allowed notwithstanding his opposition (Judgment para. 2.6). He contended that the defendants' application to so amend had taken time in respect of which they should be penalized in costs. However, Phillip's opposition to the defendants' application was unsuccessful and, in my opinion, the proposed amendment was not unforeseeable, nor was the time spent during the trial dealing with the application significant in relation to the length of the proceedings overall. Ruling On Costs-FSD 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J Page 6 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38
3.8 In all the circumstances I do not consider this to be a case where it is appropriate to segregate out any particular issues in or any part of the proceedings as far as costs are concemed. It is not, in my view, a case to which the exceptions referred to in the Elgindata case to the usualmle that costs should follow the event should be applied and I decline, in the exercise of my discretion, to award any proportion of the costs of the proceedings to Phillip as the unsuccessful party on that basis. The costs of Clive as administrator 4.1 4.2 It was also argued on behalf of Phillip that Clive as administrator as a tmstee, should have adopted a neutral role in the proceedings and simply agreed to abide by the directions and decisions of the court. It was submitted that it was inappropriate for him as such tmstee to take an adverse position in relation to Phillip's claims and that it was in breach of his duties to play the significant role in the litigation which he did. He should have left Phillip's claims to be defended by the defendants, as they were. It was contended that in such circumstances Clive as administrator should not be awarded his costs of the proceedings against Phillip, such costs having been incurred in breach of his duty as administrator. In support of this proposition I was referred to the passage at page 1225 of the report of the well-known case, Alsop Wilkinson v Nemy [1996] lWLR 1220: 'In a case where the dispute is between rival claimants to a beneficial interest in the subject matter of the trust, rather the duty of the trustee is to remain neutral and (in the absence of any court direction to the contrmy and substantially as happened in Me/'ly's case [1898J 1 C. 306) offer to submit to the cOllrt's directions, leaving it to the rivals to fight their battles. If this stance is adopted, in respect of the costs necessarily and properly incurred, e.g. in serving a defence agreeing to submit to the court's direction and in making discovelY, the trustees will be entitled to an indemnity and lien". Ruling On Costs -FSD 104/2011 - Phillip B Hinds v Clive Hinds et al: Foster J Page 70/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 34 35 36 37 38 39 40 41 42 4.3 However, I consider it important, in the circumstances of the present case, to note that that was said in the context of an argument as to whether the tlUstee was entitled to an indemnity for its costs oflitigation out of the tlUst estate. In that context the judge continued: "If the trustees do actively defend the trust and succeed in challenging a claim by the settlor to set aside for undue influence, they may be entitled to their costs out of the trust, for they have preserved the interests of the beneficiaries under the trust .... But if they fail, then in particular in the case of hostile litigation, although in an exceptional case the court may consider that the trustees should have their costs [see Bullock v Lloyds Bank Ltd. [1955} 1 Ch. 317) ordinarily the trustee lI'illnot be entitled to any indemnity, for they have incurred expenditure and liabilities in an unsuccessjiil effort to prefer one class of beneficiaries e.g. the express beneficiaries specified in the trllst instrument, over another e.g. the trustees in bankruptcy or creditors, and so have acted unreasonably and otherwise than for the benefit of the trust estate. " It seems to me that these comments are not themselves supportive of the submission of leading counsel for Phillip in the circumstances of the present case. In the first place this was not an application by Clive as administrator for an indemnity for his costs out of the estate of which he is the tlUstee. His leading counsel made that clear. Clive's present application as administrator was simply for his costs, as a successful litigant, against the losing party, Phillip. In these proceedings the tlUstee has actively defended the tlUSt against claims by a third party and has succeeded. It is not a case where a tlUstee who has participated in litigation unsuccessfully is seeking an indemnity for his costs nonetheless from the tlUSt estate. I am not satisfied that it is an appropriate analysis in the present circumstances that Clive as administrator has incuned his costs in breach of his duty as a tlUstee. This was hostile litigation by a person who was a third party. Phillip's claim was made, not in his capacity as a beneficiary of Esther's estate but as a beneficiary of John Samuel's estate. It was a proprietary claim to the assets in Esther's estate, which he claimed were absolutely his. The fact that he is a 25% beneficiary of Esther's estate is, for this purpose, in my view, coincidental and irrelevant. If Phillip had succeeded Ruling On Costs -F$D 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J PageS 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 4.4 4.5 4.6 in his claims then he would have taken the assets concemed out of Esther's estate. Clive as administrator was not preferring any beneficiaty or beneficiaries of the estate of which he was trustee against any other beneficiaty or beneficiaries of that estate; he was not acting in breach of his duty. In my view in the rather unusual circumstances of this case, Clive as administrator was obliged to seek to protect the assets of the trust (Esther' s estate) which, in the event, he did successfully at no cost to the trust estate. In the circumstances here I do not see why, as a successful patty in the litigation, he should not have his costs paid by the unsuccessful patty in the litigation, Phillip. It was pointed out by leading counsel for Clive as administrator that at the pre-trial review on 14th Januaty 2014 Phillip's leading counsel expressly submitted that it was for Clive as administrator to take an active role in relation to Phillip's claims. Consistent with this there was no objection on behalf of Phillip at the trial or any other stage of the proceedings to the pali which Clive as administrator was playing in the proceedings nor, until Clive as administrator sought an order for his costs against Phillip, was there any suggestion that it was inappropriate for him to do so. In fact it was clear from an early stage that there was considerable co-operation between Clive as administrator on the one hand and the defendants on the other hand with a view to minimizing any duplication of costs. In the patticular and unusual circumstances ofthis case I consider that Clive as administrator should have his costs of successfully defending Esther's estate from Phillip's claims paid by Phillip and I so order. I have therefore concluded that the overriding objective should be complied with in this case and the usual rule followed; the costs of the proceedings shall follow the event. That event, is in my view, clearly established by the Judgment, namely the refusal of all of the relief which Phillip sought and the dismissal of the entirety of his claims. Accordingly I order that all of the defending patties, namely Clive as administrator, the defendants and Sharon and the Company shall have their costs of the action paid by the unsuccessful paliy, Phillip. Ruling On Costs -FSO 104/2011 - Phillip B Hinds v Clive Hinds et 01: Foster J Page90f 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 5 Indemnity Costs 5.1 5.2 Clive as administrator, the defendants and Sharon and the Company all sought an order that their costs of the action should be taxed on the indemnity basis. GCR O. 62, r. 4 (11) provides that the court may make an order for costs to taxed on the indemnity basis only if it is satisfied that the paying party has conducted the proceedings or the pmi of the proceedings to which the costs order relates "improperly, unreasonably or negligently" . Chief Justice Smellie recently considered the meaning and application of this mle in Ahmad Hamad Algosaibi and Brothers Company v. Saad Investments Company Limited & Others
2 CILR 344 ["the Algosaibi v. Saad case"]. With due respect, I do not think it is necessary for present purposes to quote verbatim everything the Chief Justice said but in summary, by reference to various earlier cases, he made it clear that the provisions of mle 4 (11) constitute an exception to the nOlmal mle and that there must be something in the conduct of the action or the circumstances of the case which takes it out of the norm in a way which justifies an order for indemnity costs. He said that: "such an order should be made only in exceptional circumstances where it is shown that the losing party has behaved improperly, unreasonably or negligently, for instance by pursuing a spurious claim - one that may be described as plainly 'speculative, weak, opportunistic or thin' " [see para 5]. He also confirmed that it follows from the terms of the mle that the fact that a claim has been unsuccessful will not by itself necessarily be persuasive and he made it clear that the courts have declined to lay down general guidance on the principles which should lead to an award of costs on the indemnity basis. However, the Chief Justice also relied on the comments in the English case Simms v Law Society [2006] 2 Costs L.R. 245 that the cases do show that costs will normally be awarded on the standard basis unless there is something in a party's conduct of the case which deserves a mark of disapproval but it is not just to Ruling On Costs -FSO 104/2011 - Phillip B Hinds v Clive Hinds et 01; Foster J Page 100/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 5.3 penalize a pmiy for litigating a case which he has lost; that is not itself a sufficient reason for awarding costs on the indemnity basis. He also approved the comments of Simon Brown LJ. in Kiam v.MGN (No.2) [2002] 2 All E.R. 242 where he said that conduct which, although falling shOli of deserving moral condemnation, may still justify an order for indemnity costs if it was unreasonable to a high degree. The Chief Justice also referred to several other English cases (including Excelsior Comm. & Indus. Holdings Ltd v. Salisbwy Hammel' etc [2002] c.P. Rep. 67; Reid Minty v. Taylor [2002] 1 w'L.R. 2800 and Three Rivers D. C. v. Bank of England [2006] 5 Costs L.R. 714) and expressed the view that there is a commonality of approach to the question of an award of indemnity costs between this jurisdiction and England. These English cases were also refel1'ed to me and I have reviewed them but in light of the comments of the Chief Justice made on consideration of them, which I have summarized above, I have not quoted from them directly myself. 5.4 I was also referred in paliicular to the judgment in Sagicor General Insurance etc and Another v. Crawford Adjusters etc and Others [2008] CILR 482. In that case Henderson J concluded that the plaintiffs' abandonment of their claims of fraud and conspiracy on the eve of the trial indicated that they had had no evidence capable of establishing those claims fi'om the stmi and he awarded the defendants their costs against the plaintiffs on the indemnity basis. It was also accepted by the cOUli that on a taxation of costs on the indemnity basis there was no limitation, as there is on a taxation on the standard basis, on recovery of the 5.5 costs of a foreign lawyer prior to his admission as a Cayman Islands attorney, subject of course to the test of reasonableness, the onus being on the paying pmty to establish unreasonableness I was also refel1'ed to the judgment of Gloster J. (as she then was) in Euroption Strategic Fund Limited v. Skandinaviska Enskilda Banken AB [2012] EWHC 749 (Comm) in the English Commercial COUli, which I found to be a pmiicularly helpful summary of the principles to be applied when choosing between the two bases for taxation of costs, standard or indemnity. I Ruling On Costs -F$D 104/2011 - Phillip B Hinds v Clive Hinds et 01: Foster) Page 11 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 should say that there seemed to me anyway to be no significant disagreement about these principles between counsel for the patties in the present case; the difference really being one of emphasis having regard to the patticular circumstances of the case. As Gloster J said (para 11) "The principles are well known and have been exhaustively rehearsed in the relevant authorities" She then continued with what she described as a headline summary as follows:
First, on either basis, the receiving party is only entitled to recover costs which it has actually incurred, and, fi/rther, is only entitled to receive costs which were reasonably incurred and were reasonable in amount. Second, the standard basis is the normal basis of assessment: see Reed Minty v Taylor
1 WLR 2800 at [28]; Excelsior Commercial & Industrial Holdings Ltd v SalisblllY Hammer Aspden & Johnson [2002] EWCA (Civ) 879 at [19]. This means that there has to be something in the conduct of the action, or about the circumstances of the case in question, which takes it out of the norm in a way which justifies an order for indemnity costs: see Excelsior (supra) and Noorani v Calver [2009] EWHC 592 (QB) at [9], per Coulson J. Third, cases vm)1 vel)' considerably, and the Court of Appeal has declined to lay down guidelines on the subject: see Excelsior (supra) at [32]. It is obvious ji'O/n a reading of the authorities that each case is highly fact-dependent.
Fourth, to demonstrate that a case has gone outside the norm of behaviour, it is not necessmy to show that the paying party's conduct lacked moral probity or deserved lIloral condemnation in order to attract recove})' of costs on an indemnity basis: see Balmoral Group Ltd v Borealis (UK) Ltd [2006J EWHC 2531 (Coml/1) at [1], where Christopher Clarke J said: " The basic rule is that a successfitl party is entitled to his costs on the standard basis. The factors to be taken into accollnt in deciding whether to order costs on the latter basis have been helpfitlly summarised by Tomlinson, J., in Three Rivers District COllncil The Governor and Company of the Bank of England [2006J EWGC 816 (Comm). The discretion is a wide one to be determined in tile Ii g h t of a II the circllmstances of the case. To award costs Ruling On Costs -FSD 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J Page 12 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 6 against an unsuccessjiil party on an indemnity scale is a departure from the norm. There must, therefore, be something - whether it be the conduct of the claimant or the circumstances of the case - which takes the case outside the norm. It is not necessary that the claimant should be gUilty of dishonesty or //Ioral blame. Unreasonableness in the conduct of the proceedings and the raising of particular allegations, or in the manner of raising them may slif}ice. So may the pursuit of a speculative claim involving a high risk of failure or the making of allegations of dishonesty that turn out to be misconceived, or the conduct of an extensive publicity caJllpaign designed to drive the other party to settlement. The making of a grossly exaggerated claim may also be a ground for indemnity costs. "
However, as Mr. Shivji emphasised, by reference to paragraph 8 of the decision in Noorani (supra), conduct Illllst be unreasonable "to a high degree" to attract indemnity costs. "Unreasonable" in this context does not mean merely wrong or misguided in hindsight: see per Simon Brown LJ (as he then was) in Kiam v MGN Limited (No 2) [2002J 1 WLR 2810. In each case, it is a fact dependent question as to whether or not the paying party's conduct has been unreasonable to a high degree. The judge also added at paragraph 17: 17 In my judgment, for the purposes of the exercise of my discretion, it is necess([J}' to stand back and look at the nature of Euroption's claim as a whole, rather than conduct a micro-analysis of particular aspects of particular claims. The Present Case 6.1 In my opinion, having regard to all the circumstances, this is indeed an exceptional case which wan'ants exceptional treatment and a departure fi'om the usual rule. There has been extraordinary misconduct by the plaintiff, Phillip, in various respects which the cOUli, after lengthy consideration and analysis, has concluded rendered it unfair, inequitable and Ruling On Costs -FSD 104/2011 - Phllflp B Hinds v Clive Hinds et 01: Foster J Page 13 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 6.2 6.3 unconscionable to pennit him to seek to make the claims which he has. In the first place the court has concluded following trial that the claims which Phillip made were anyway wrong in principle and misconceived (see e.g Judgment paras. 8.5, 8.10 and 8.12). The court has also concluded that the claims are barred by limitation (see Judgment para. 12.21). While in the abstract it is perhaps arguable whether these conclusions in themselves amount to negligent conduct of the action on the part of Phillip, in the overall circumstances of an untmthful, unreasonable and unjustified persistent pursuit of the proceedings, such as is the case here, I am inclined to the view that they do. Although the words of GCR 0.62, 1'.(11) are to be read disjunctively, they must be considered in the context of the whole circumstances of the particular case. It is clear that Phillip, through his attorneys, was forewarned more than once in cOlTespondence, by the pleadings and in patiiculars that it was contended that his claims were wrong in principle and misconceived and also balTed by limitation. FUlihermore, it is also clear that despite encouragement by the court itself, Phillip declined to agree to compromise the proceedings on any reasonable or realistic basis. Rather than agree to share the parcels of land in issue equally with his three half-brothers, as he must now do, or to accept a reasonable compromise offer which would have given him rather more than that, he persisted on the basis of his claims with minimal concession and notwithstanding the difficulties with his claims which had been pointed out. More significant, however, in the context of improper and unreasonable conduct in particular, is the fact that Phillip was not tmthful, full or frank (see e.g. Judgment para. 9.1). The central issue in the case was the extent, nature and timing of Phillip's knowledge of the facts on which his claims were founded. He was compelled in cross-examination to make significant and relevant admissions about this. If he had disclosed this knowledge in his witness statements, or even before, which he could and should have done, it would have had a significant impact on the case and, it is possible that it Ruling On Costs -FSD 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J Page 14 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 31 32 33 34 35 36 37 38 39 40 7 6.4 6.5 would not have been pursued at all (see generally Judgment para. 14). Those admissions, once made in cross-examination during the trial, in my view, called into question whether Phillip should properly and reasonably have persisted in continuing with his claims as he did. Quite apati from that, such admissions and the overall surrounding circumstances as found by the cOUli made it quite clear, that notwithstanding his knowledge, Phillip deliberately stood by for many years until after his mother's death before commencing these proceedings (see e.g. Judgment paras. 14.6, 14.17, 14.18 and 14.19). He acquiesced in what was happening in relation to the entitlement which he claimed in these proceedings (see e.g. Judgment paras. 15.2 and 15.4). The effect of Phillip's delay was to create significant difficulties for the cOUli at trial and resulted in prejudice and unfairness to the defending patiies. The cOUli was significantly hampered by the fact that Phillip waited until after the death of Esther to commence these proceedings. Her evidence would have been crucial in respect of many, if not most, of the issues in the case. This resulted in prejudice, unfairness and possibly a denial of justice (see Judgment para. 17.11). This is also an exceptional case in light of the length of the delay in commencing the proceedings. Laches is not a usual or common finding but in the circumstances of this particular case the court has found that there was extraordinary delay which was inexcusable (see Judgment paras. 19.1 and 19.2). That cannot constitute conduct which is either proper or reasonable. Conclusions 7.1 I have applied the principles explained in the authorities to the patiicular circumstances of this case and have concluded that this is an exceptional case in which the court should mark its disapproval of the losing patiy's conduct by an award of indemnity costs. The authorities make it clear that it is not necessary in this context to establish conduct by the losing Ruling On Costs -FSD 104/2011- Phillip B Hinds v Clive Hinds et 01: Foster J Page 15 0/16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 7.2 7.3 palty deserving of moral condenmation. However, in the present case it seems to me that moral condemnation is appropriate. The cOUlt has concluded in its judgment that in all the circumstances not only would it have been unreasonable, unfair and unjust to the defending patties to allow Phillip to assert the relief which he claimed but that it would also have been unconscionable to permit him to do so. I have also taken into account that Phillip's persistent and unreasonable actions have clearly damaged and probably destroyed the previously happy family relationship between him and his half-brothers. I take into account also the fact that in the circumstances it would also be unreasonable, unfair, unjust and, indeed, unconscionable that the defending parties should be significantly out of pocket as a result of having to defend this case, no doubt at very considerable expense. In all the circumstances as fully set out in the Judgment I am satisfied that this is an appropriate case for the losing party, Phillip, to pay the defending parties their costs of the action on an indenmity basis and I so order. For the avoidance of any doubt such costs shall include the costs of and incidental to this application and hearing. 25 Dated 5th day of December 2014 26 27 28 29 30 The Hon. Mr. J tiee Angus Foster 31 JUDGE OF THE GRAND COURT Ruling On Costs -FSD 104/2011 - PhJlllp B Hinds v Clive Hinds et 01: Foster} Page 16 0/16