Hasten Charlton v The Lyford Cay Members Club Ltd
| Jurisdiction | Bahamas |
| Judge | Winder, CJ |
| Judgment Date | 31 August 2023 |
| Docket Number | 2019/COM/lab/00062 |
| Court | Supreme Court (Bahamas) |
Before Hon. Chief Justice Sir Ian R. Winder
2019/COM/lab/00062
COMMONWEALTH OF THE BAHAMAS
IN THE SUPREME COURT
Commercial Division
Obie Ferguson Jr. KC with Alva Stuart-Coakley for the Plaintiff
Ferron Bethel KC with Viola Major for the Defendant
On 17 August 2022, I dismissed the Plaintiff's claim for wrongful dismissal and unfair dismissal but found that the Plaintiff was entitled to accrued vacation pay in the amount $1,001.60. In that judgment, I indicated that I would hear the parties as to the appropriate order or costs by written submissions within 14 days. Each party lodged written submissions, which I have considered and which I summarize below, and this is my decision on costs.
The Plaintiff submitted that, as a general rule, costs follow the event. As judgment was in favour of the Plaintiff and the Plaintiff specifically pleaded vacation pay as due and owing, the Plaintiff submitted he is entitled to the costs associated with and incidental to the action. The Plaintiff submitted that the Defendant should pay two-thirds of the costs associated with the matter with interest at 6.25% from the filing of the Writ of Summons on 12 September 2019 until payment.
The Defendant submitted that the starting point is that costs are in the discretion of the Court. However, while costs usually follow the event, there are circumstances which may lead a court to make some other order. The Defendant cited Douglas Ngumi v The Hon. Carl Bethel and others [2022] 2 BHS J. No. 2 and Re Elgindata (No 2) [1992] 1 WLR 1207 in support of this submission.
The Defendant submitted that the Plaintiff received nothing more than he was originally offered and did not obtain what he asked for from the Court. The Defendant contended, citing Garvey v Cable Beach Resorts Limited (d/b/a Sheraton Nassau Beach Resort) [2014] 3 BHS J. No. 36 as illustrative, that there is an analogy between the present case and Calderbank offers and payments into court, where costs principles generally indicate that a party who does not receive an award higher than the offer made or the payment in ought only to receive their reasonable costs up to the date they should have accepted the offer or payment in.
The Defendant submitted that, in the present case, the Plaintiff's case for wrongful dismissal failed, the Plaintiff's case for unfair dismissal failed, the Plaintiff did not succeed on his breach of contract claim (strictly construed) and the Plaintiff was awarded $1,001.60 in connection with his accrued vacation pay, which was incorporated into the cheque the Defendant offered the Plaintiff upon his termination but which the Plaintiff refused. As the Defendant unnecessarily suffered time and expense in defending an action which ought not to have been brought, the Defendant should be awarded its reasonable costs in connection with the action.
As the Defendant correctly submitted, costs are in the discretion of the Court. That discretion must be exercised judicially, i.e., in accordance with established principles and in relation to the facts of the case. The starting point is the general rule that costs follow the event and, therefore, the successful party ought to be paid their costs. That general rule falls to be applied unless there are cogent reasons to depart from it.
Order 59, rule 3(2) of the Rules of the Supreme Court, 1978 which then applied to this dispute, provides:
If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.
In Douglas Ngumi v The Hon. Carl Bethel and others [2022] 2 BHS J. No. 12, Sir Michael Barnett P, (as he then was) delivering the decision of the Court of Appeal on the costs of that appeal, considered the principles relevant to the award of costs in the Court of Appeal where the principles do not materially differ from the principles applied by this Court under the Rules of the Supreme Court, 1978. Barnett P said at paragraphs 12 and 13:
12. The general principle is that whilst costs are in the discretion of the court, that discretion must be judicially exercised.
13. In Scherer and another v Counting Instruments Ltd and another [1986] 2 All ER 529 Buckley, LJ said:
“…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 without grounds cannot be a proper exercise of the judge's function. (6) The grounds must be connected with the case. This may extend to any matter relating to the litigation and the parties' conduct in it, and also to the circumstances leading to the litigation, but no further. (7) If no such ground exists for departing from the normal rule, or if, although such grounds exist, the judge is known to have acted not on any such ground but on some extraneous ground, there has effectively been no exercise of the discretion. (8) If a party invokes the jurisdiction of the Court to grant him some discretionary relief and establishes the basic grounds therefor but the relief sought is denied in the exercise of discretion, as in Dutton v Spink & Beeching (Sales) Ltd and Ottway v Jones, the opposing party may properly be ordered to pay his costs. But where the party who invokes the Court's jurisdiction wholly fails to establish one or more of the ingredients necessary to entitle him to the relief claimed, whether discretionary or not, it is difficult to envisage a ground on which the opposing party could properly be ordered to pay his costs. Indeed, in Ottway v Jones [1955] 2 All ER 585 at 591, [1955] 1 WLR 706 at 715 Parker LJ said that such an order would be judicially impossible, and Evershed MR said that such an order would not be a proper judicial exercise of the discretion, although later he expressed himself in more qualified language (see [1955] 2 All ER 585 at 587, 588-589, [1955] 1 WLR 706 at 708, 711)…”
In Re Elgindata (No 2) [1992] 1 WLR 1207, the petitioners, shareholders in Elgindata Ltd, obtained an order that another shareholder in the...
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