Clico Life Insurance Company Suriname S.v v Clico (Bahamas) Ltd

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 20 July 2023
• Docket Number: 2018/COM/com/00056
• Court: Supreme Court (Bahamas)

IN THE MATTER OF the Companies Act 1992

BETWEEN

Clico Life Insurance Company Suriname S.V

Plaintiff

and

Clico (Bahamas) Limited

Defendant

Before Hon. Chief Justice Sir Ian R. Winder

2018/COM/com/00056

2009/COM/com/00019

COMMONWEALTH OF THE BAHAMAS

IN THE SUPREME COURT

COMMERCIAL DIVISION

Appearances:

Damian Gomez KC with Moreno Hamilton for the Plaintiff

Stephen Smith KC with Marco Turnquest for the Defendant

DECISION

Winder, CJ

1 On 24 April 2023 when I gave my decision in this action I invited the parties to provide written submissions on the appropriate order as to costs. Submissions were received from both parties. The plaintiff submits that it ought to be granted the costs principally on the basis of what they claim was the improper conduct of the official liquidator. The defendant submits that it is entitled to its costs of the action and that such costs ought to be certified, fit for two counsel.

2 Sterling Asset Management Ltd. v Sunset Equities Ltd. SCCivApp 152/2021, provides helpful guidance on the Court's approach to the determination of costs. Sir Michael Barnett P., writing for the Court of Appeal, stated as follows:

5. The general principle is that whilst costs are in the discretion of the court, that discretion must be judicially exercised. The jurisprudence in this matter can be found in the judgment of Buckley, LJ in Scherer and another v Counting Instruments Ltd and another [1986] 2 All ER 529:

“…we derive the following propositions. (1) The normal rule is that costs follow the event. That party who turns out to have unjustifiably either brought another party before the Court or given another party cause to have recourse to the Court to obtain his rights is required to recompense that other party in costs. But, (2) the judge has under s 50 of the 1925 Act an unlimited discretion to make what order as to costs he considers that the justice of the case requires. (3) Consequently, a successful party has a reasonable expectation of obtaining an order for his costs to be paid by the opposing party but has no right to such an order, for it depends on the exercise of the Court's discretion. (4) This discretion is not one to be exercised arbitrarily: it must be exercised judicially, that is to say in accordance with established principles and in relation to the facts of the case. (5) The discretion cannot be well exercised unless there are relevant grounds for its exercise, for its exercise...