Michael Wilson and Partners, Ltd v Sinclair
| Jurisdiction | Bahamas |
| Judge | Conteh, J.A.,John, J.A.,Allen, P. |
| Judgment Date | 17 July 2012 |
| Neutral Citation | BS 2012 CA 55 |
| Docket Number | Civil Appeal 40 of 2007 |
| Court | Court of Appeal (Bahamas) |
| Date | 17 July 2012 |
Court of Appeal
Allen, P.; John, J.A.; Conteh, J.A.
Civil Appeal 40 of 2007
Mr. Brian Simms QC, with Ms. Sophia Rolle, counsel for applicant
Ms. Courtney Pearce, counsel for respondent
Costs - Taxation — Extension of time to proceed with Bill of Costs.
The issue raised in these proceedings is, in my view, a rather narrow one; should the applicant be allowed time, in the circumstances of this case, to proceed to taxation of its bill of costs?
I am not unmindful of the fact that, though I have distilled the issue involved in this appeal as a rather narrow one, the hearing of this matter before the full court occupied some three days. The fact remains, however, that at bottom, the case before us was really about whether the applicant should be allowed, in the circumstances of the case out of which the bill of costs is said to arise, to proceed to tax its costs, outside of the time provided for in the Rules of this court.
I think it is important to remember that costs are always a significant factor in litigation. They can be described as the veritable price of litigation, whether in bringing a claim or defending against one.
A successful party to litigation, whether as a victorious claimant or a vindicated defendant, should not therefore ordinarily be denied his costs. It is not always, however, that a successful party, whether as a plaintiff/claimant or defendant, is able to recover or recoup his costs in bringing or defending an action. In particular, there may sometimes be extreme consequences for the dilatory submission of a party's Bill of Costs. A recent Decision of the court delivered on 7th May, 2012, to which I shall refer later, bears this out.
In the instant case, the applicant seeks to persuade the court that in all the circumstance of this case, it should be allowed an extension of time to proceed to taxation of its costs which were awarded by this court in its judgment of 23rd April, 2008, allowing its appeal against the refusal of the Supreme Court (S. Isaacs, J.) to discharge a notice and service of concurrent writ against it out of the jurisdiction.
The respondent was plaintiff in the Supreme Court whose notice and service of writ out of the jurisdiction on the applicant was upheld by that court. Before this court, he has stood pat on the position that leave should not be granted, given the time that has elapsed since the judgment of this court (differently constituted) on 23rdI April, 2008, allowing the applicant's appeal against the Ruling of the Supreme Court.
In his opposition to the application, the respondent has taken the position that that in any event, it was agreed between the parties that proceedings on the applicant's costs should be stayed only until after the respondent's application for conditional leave to the Privy Council against this court's judgment of 23rd April, 2008. Therefore, it is argued for the respondent, no extension of time should be granted to the applicant to proceed on to the taxation of its costs awarded it since 2008.
THE RELEVANT PROVISION ON TIME TO BEGIN PROCEEDINGS FOR TAXATION OF COSTS
The pertinent provisions for the commencement of proceedings for the purposes of taxation of costs are stated in Rule 35 r. (2) of the court's rules as follows:
“35. (1) Where the costs of an appeal are allowed, costs may either be –
(a) fixed by the court at the time when judgment is given;
(b) agreed upon by the parties at the time when judgment is given; or
(c) ordered to be taxed.
(2) A Party Entitled To Have Costs Taxed As Ordered By The Court Shall Begin Proceedings For The Taxation Of Those Costs By Filing Within Three Months After The Judgment, Direction Or Order Was Pronounced Or Made –
(A) A Detailed And Accurate Account Of The Bill Of Costs As Shown In Form 10 Of Appendix A;
(B) A Statement Of The Parties
(C) An Affidavit Verifying Any Claim By Or On His Behalf For Disbursements; And
(D) Legible Copies Of All Receipts And Invoices Necessary To Support Such Claims For Disbursements Or Other Sums Paid,
And In The Event A Party Fails To File Within The Specified Time Any Of The Documents Referred To In Paragraphs (A) — (D), The Registrar May Disallow Such Item Or Items Due To The Failure To Submit A Particular Document” (Emphasis Added)
Sub-rule (24) of R.35 also provides as follows:
“(24) The taxing officer may –
(a) extend the period within which a party is required by or under this rule to begin proceedings for taxation or to do anything in or in connection with proceedings before the taxing officer;
(b) where no period is specified by or under this rule or by the court for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.”
The application however, is made directly to this court. I should say that in the light of the clear provisions of sub-rule (24) the application for an extension time should have properly been made to the Registrar as the taxing office in the first instance. But presumably because the proceedings for the taxation of the applicant's costs are now outside the three months specified in sub-rule (2), as will be shown shortly, and it is doubtful whether the Registrar has powers in the circumstance to extend time for those purposes when the stipulated time has expired, the application as amended, is now made instead, directly to the court by amended Notice of Motion filed on 28th March, 2012, with an attached Bill of Costs filed on 3rd November, 2011, accompanying the applicant's original Notice of Taxation filed on 4th November, 2011.
THE POWERS OF THE COURT WITH REGARD TO EXTENSION OF TIME
Rule 9 of the court's rules provides in terms as follows:
- (1) The court may, on such terms as it thinks just, by order – (a) extend the period prescribed by these Rules for the doing of anything to which these Rules apply; (b) extend the period specified in any judgment, order or direction of the court, or of the court below, for the doing of anything to which the judgment, order or direction relates; or (c) direct a departure from these Rules in any other way where this is required in the interests of justice. (2) The power of the court, under the provisions of paragraph (1), to extend any period so prescribed or specified, is exercisable notwithstanding the expiration of the period so prescribed or specified.
BRIEF HISTORY OF LITIGATION BETWEEN THE PARTIES GIVING RISE TO THE COSTS WHICH ARE THE SUBJECT OF INSTANT APPLICATION
It is unarguable that the litigation between the parties has been ongoing for some time.
On 20th October, 2006, the respondent was given leave by the Supreme Court to issue a Concurrent Writ of Summons and to serve notice of the same out of the jurisdiction pursuant Order 11 rule 1 (1) (i) of the Rules of the Supreme Court on the applicant and two other defendants.
By summons filed on 12th December, 2006, the applicant applied for an Order setting aside service of the notice and the concurrent writ.
As already noted S. Isaacs J. on 29th June, 2007, dismissed the applicant's application and awarded costs to the respondent to be taxed if not agreed.
Against that dismissal the applicant appealed to this court. And, as already noted, this court allowed the appeal in its judgment dated 23rd April, 2008 and awarded costs, to be taxed, if not agreed, in favour of the applicant.
The respondent was dissatisfied with that judgment and sought to appeal to the Privy Council first, by applying for conditional leave from this court and ultimately obtaining final leave.
However, on the issue of taxation of the costs awarded by this court to the applicant and in the face of the respondent's application for leave to appeal to the Privy Council, there was an intriguing exchange of letters between the attorneys for both parties on the issue of taxation of those costs.
I say “intriguing” because each side has sought before us to put its own interpretation on the purport, meaning and effect of the letters exchanged between them, or strictly speaking, between their respective legal advisers.
On the evidence of “an agreement” between the parties to hold back on going forward to taxation of the costs, the most that can be said is that any such “agreement” there might be talks expressly about “until after conditional leave.” It would be difficult to invest this with the meaning that it was understood and agreed by the parties that there should be no action on taxation of costs until after the final determination of the appeal to the Privy Council by the respondent.
But the question may legitimately be asked: if conditional leave was granted and later, final leave, as happened in the instant case, why then proceed to taxation when the outcome of the appeal itself would still then be uncertain at the taxation stage?
The rules of the court are silent on when to begin proceedings for taxation when an appeal is in train against the very judgment in which costs have been awarded. There are also no Practice Directions on the issue in this jurisdiction. But the judgment together with its order for costs may well be overturned on appeal. But the provisions for taxation of costs do not anticipate appeals and their outcomes.
However, on 8th June, 2011, the Privy Council finally ruled on the respondent's appeal to it as follows:
“Having considered an application to dismiss the appeal against the judgment of the Court of Appeal of the Commonwealth of The Bahamas dated 23rd April, 2009 (sic) in the matter between Thomas Ian Sinclair applicant And Michael Wilson & Partners respondent and having heard submissions from both parties, we have agreed to report to Your Majesty as our opinion that the appeal should...
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