Loretta Nathan v Leslie Stubbs

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 21 October 2024
• Docket Number: 2018/CLE/gen/00091
• Court: Supreme Court (Bahamas)

Between

Loretta Nathan

and

Philip Nathan

Plaintiffs

and

Leslie Stubbs

and

Leverne Palacious

Defendants

Before:

The Hon. Chief Justice Sir Ian R. Winder

2018/CLE/gen/00091

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Gavin Cassar for the Plaintiffs

Defendants pro se

DECISION ON COSTS

Winder, CJ

1 This is my decision on costs arising from my judgment dated 20 July 2023 in favor of the Plaintiffs' claim. It is to be noted that this trial commenced prior to the Supreme Court Civil Procedure Rules, 2022 coming into effect and, therefore, these proceedings are proceedings to which those rules of court do not apply.

2 In my judgment 1 indicated at para [20] that the Plaintiffs shall have their reasonable costs which I indicated I would fix. I invited the parties to give submissions as to the appropriate sum to be awarded.

3 Submissions were received on behalf of the Plaintiffs however nothing was received from the Defendants.

4 The award of costs are in the discretion of the Court and, in accordance with Order 59, rule 9 of the Rules of the Supreme Court, such discretion extends to the fixing of costs. According to Order 59, rule 9:

9. (1) Subject to this Order, where by or under these Rules or any order or direction of the Court costs are to be paid to any person, that person shall be entitled to his taxed costs.

…

(4) The Court in awarding costs to any person may direct that, instead of taxed costs, that person shall be entitled — (a) to a proportion specified in the direction of the taxed costs or to the taxed cosis from or up to a stage of the proceedings so specified; or (b) to a gross sum so specified in lieu of taxed costs.

5 The discretion to fix costs must be exercised judicially in the circumstances of the case. The Plaintiffs submitted an estimate of the costs in the amount of $48,625. No written representations on quantum were received from the Defendants who were afforded a reasonable time within which to submit such representations. The failure to take up the opportunity to make representations does not relieve me of the need to execute my stated intention of fixing the costs of this action.

6 The task undertaken by the Court when it exercises its discretion under the Rules of the Supreme Court to order a gross sum in lieu of taxed costs is not the same as in a taxation within the province of the Registrar. The assessment is not an item-by-item assessment. Rather, it is a broad determination of what is fair and reasonable based on the submissions of counsel and the judge's own knowledge and experience and familiarity with the matter.

7 In William Downie v Blue Planet Limited SCCivApp & CAIS No. 188 of 2019 (5 March 2020). Sir Michael Barnett P had occasion to consider in some detail the jurisdiction of the Court to fix costs under the Rules of the Supreme Court. He said at paras [23] to [30]:

23 It is settled law that the court has a wide discretion as to costs. Section 30 of the Supreme Court Act provides:

30. (I) Subject to this or any other Act and to rules of court, the costs of and incidental to all proceedings in the Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge and the Court or judge shall have full power to determine by whom and to what extent the costs are to be paid.

24 Order 59 Rule 2 of The Rules of The Supreme Court provides:

(2) The costs of and incidental to proceedings in the Supreme...