Dwayne Woods v John Pinder

JurisdictionBahamas
CourtCourt of Appeal
JudgeKristina Wallace Whitfield
Judgment Date23 May 2022
Neutral CitationBS 2022 CA 075
Docket NumberSCCivApp. No. 126 of 2020
Between
Dwayne Woods (as President)
First Appellant
Jeremiah Storr (as Vice President)
Second Appellant
Anishka Ferguson-Bowe (as Secretary-General)
Third Appellant
Neko Albury (as Assistant Secretary-General)
Fourth Appellant
Christine Rolle (as Treasurer)
Fifth Appellant
Michael Hanna (as Assistant Treasurer)
Sixth Appellant
Dwight Moss (as Trustee)
Seventh Appellant
Advado Malcom (as Trustee)
Eighth Appellant
Kosygen Forbes (as Trustee)
Ninth Appellant
and
John Pinder (as Registrar of Trade Unions)
First Respondent
Attorney-General of the Bahamas
Second Respondent
Before:

Deputy Registrar (Acting) Kristina Wallace Whitfield

SCCivApp. No. 126 of 2020

IN THE COURT OF APPEAL

Taxation — Costs awarded to the Attorney-General — Costs awarded to the Crown — Rule 35 of the Court ofAppeal Rules

By judgment dated 31 May 2021 the Court awarded costs to the respondents to be taxed if not agreed. The appellants, the paying party, objected to the taxation of the Bill of Costs on the basis that the Attorney-General could not recover a sum in excess of what was paid to it on behalf of its clients. The respondents, the receiving party, asserted its right to recover its costs.

Held: Attorney-General's Bill of Costs to be taxed in the “same manner as if they were instructing independent Attorneys or a law firm.”

Where costs are awarded to the Crown, the Taxing Master is required to consider the items contained in the Bill of Costs having regard to what is reasonable and fair in the circumstances, regardless of the nature of the engagement. The Taxing Master is required to have regard to Rule 35(12) of the Court of Appeal Rules in determining whether any of the claims by the receiving party are reasonable or excessive.

Bimini Blue Coalition Ltd. v Perry Christie, Prime Minister of the Commonwealth of The Bahamas (in his capacity as the Minister Responsible for Crown Lands) and others [2014] 2 BHS J. No. 34 applied

Eastwood (Deceased), Re, Lloyds Bank Ltd v Eastwood and Others [1974] Costs LR (Core) 50 considered

Glen Alexander Colebrooke and anor. v The National Insurance Board SCCivApp. No. 127 of 2008 distinguished

Gundry v Sainsbury [1910] 1 KB 645 distinguished

Johann Swart et. al. v Apollon Metaxides and anor. SCCivApp. No. 78 of 2012 applied

Ping Europe Ltd. v Competition and Markets Authority [2019] Costs LR 571 considered

Re Arora [2013] UKUT 0362 (LC) considered

Sidewalk Properties Ltd. v Twinn and Others [2016] 2 Costs LR 253 considered

APPEARANCES:

Ms. Krystian Butler, Counsel for the Appellants

Mrs. Kayla Green-Smith with Mr. Nevado Frazer, Counsel for the Respondents

REASONS FOR DECISION
1

On 31 May 2021 the Court dismissed the appellants' appeal and awarded costs to the respondents to be taxed if not agreed. In accordance with the costs order the respondents filed their Notice of Taxation, Statement of Parties and Bill of Costs on 27 July 2021.

2

On 20 April 2022, the date set for the hearing of the taxation, counsel for the appellants (the paying party) objected to my taxing the Bill of Costs on the basis that the respondents (the receiving party) had not provided any evidence as to what was contracted to be paid as between them and their clients. She argued that the costs were to be taxed on a party and party basis and as such the receiving party could not recover any more than what had been paid to them by their client. Therefore, she argued, having not lodged any evidence of the costs paid to them, I should not allow the receiving party to recover any of its costs. In support of this position Ms. Butler relied on the Rules of the Supreme Court ( RSC) Order 59 Rule 19 (5)(b) and the case of Glen Alexander Colebrooke and anor. v The National Insurance Board SCCivApp. No. 127 of 2008.

3

Mrs. Green-Smith had not been given advance notice of Ms. Butler's objection and requested an opportunity to review the case in order to properly respond.

4

Written submissions on the objection were requested and I adjourned the matter to 18 May 2022.

5

On the adjourned date, no written submissions had been provided. Ms. Butler explained that she was under the impression she was only to provide the case of Glen Alexander Colebrooketo Mrs. Green-Smith for her review. Mrs. Green Smith advised that she had received and read the case and was prepared to respond orally to Ms. Butler's objection.

6

Mrs. Green-Smith relied on paragraph 8 of the case of Bimini Blue Coalition Ltd. v Perry Christie, Prime Minister of the Commonwealth of The Bahamas (in his capacity as the Minister Responsible for Crown Lands) and others [2014] 2 BHS J. No. 34 as evidence of the Crown's entitlement to its costs. That paragraph provides as follows:

“Crown's Entitlement to Costs

8 Section 15 of the Crown Proceedings Act is pellucid and provides that in civil proceedings the Crown can be awarded costs. The section states:

‘In any civil proceedings [or arbitration] to which the Crown is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between subjects, and the court or arbitrator shall have power to make an order for the payment of costs by or to the Crown accordingly.’

Judicial Review proceedings are civil proceedings. In light of the section, the appellant's assertions that the Government is not entitled to its costs in the matter fails.”

7

Mrs. Green-Smith further submitted that the Court of Appeal Rules, specifically, Rule 35, set out how this Court is to address the issue of costs and that the RSC, which Ms. Butler was relying on, does not apply in Court of Appeal taxations. She also submitted that the receiving party had complied with all the rules and requirements of Rule 35, save for the provision of an affidavit of disbursements. This, she submitted, was not fatal as the only disbursements in the Bill of Costs related to photocopies and Rule 35(6) outlines how the Taxing Master is to treat with photocopies.

8

In essence, the submission of Mrs. Green-Smith was that the objection by Ms. Butler cannot be sustained as the argument is misguided. She further submitted that it was within my discretion as Taxing Master to allow and disallow items, as necessary.

9

In reply, Ms. Butler, properly, conceded that the RSC do not apply in Court of Appeal taxations. In the case of Johann Swart et. al. v Apollon Metaxides and anor. SCCivApp. No. 78 of 2012 (delivered on 26 July 2021) Barnett, P noted that “The Rules of the Supreme Court and in particular Order 31A have no relevance and play no part in taxation proceedings in the Court of Appeal.”

10

Ms. Butler, nevertheless, submitted that she was maintaining her submission on the preliminary point and sought to clarify her argument thereon. She submitted that her position is not that the Attorney-General is not entitled to recover its costs, but rather that it could not recover a sum in excess of what was paid to it. She relies on paragraphs 2 —4 of the judgment of Blackman, JA in the case of Glen Alexander Colebrooke in support of her argument. Those paragraphs provide:

“2. I remind Taxing Officers that costs inter partes are awarded as an indemnity to the party incurring them and a successful party cannot therefore recover a sum in excess of his liability to his own lawyer.

3. This principle was established in Gundry v. Sainsbury [1910] 1 KB 645. The facts of Gundry are that a solicitor acted for a client in a county court action having agreed verbally with the client that the client would not pay any costs. The client recovered damages in the action, but was awarded no costs on the ground that...

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