Paulette Major v Xtra Valu Food Stores Ltd

• Jurisdiction: Bahamas
• Judge: Winder, CJ
• Judgment Date: 21 October 2024
• Docket Number: 2020/CLE/gen/00667
• Court: Supreme Court (Bahamas)

Between

Paulette Major

Plaintiff

and

Xtra Valu Food Stores Ltd.

Defendant

Before:

The Honourable Chief Justice Sir Ian R. Winder

2020/CLE/gen/00667

IN THE SUPREME COURT

Common Law and Equity Division

Appearances:

Sydney Campbell and Cyril Ebong for the Plaintiff

Audley Hanna Jr. with Oluwafolakemi Swain for the Defendant

DECISION ON COSTS

Winder, CJ

1 This is my decision on costs arising from my judgment dated 14 May 2024 in favor of the Defendant. 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 I indicated at para [15] that the Defendant shall have its reasonable costs which I indicated 1 would fix. I subsequently invited the parties to give submissions as to the appropriate sum to be awarded.

3 Submissions were received on behalf of the Plaintiff on 25 June 2024 and from the Defendant on 19 July 2024. The Defendant has argued for costs in the amount of $73,895.52.

4 In her submissions, the Plaintiff has urged me to make an order that costs ought to be minimal on the basis of her financial challenges and that the Defendant's insurance is more capable of paying costs. The Plaintiff has provided no legal basis for her submissions and regrettably, I am unable to accede to those submissions. The Plaintiff has initiated this litigation and put to the Defendant to the expense of defending it. Having found that it is the successful party, the Defendant ought to have its costs unless there are exceptional circumstances to make a different order. I am satisfied that there are no exceptional circumstances in this case.

5 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 costs from or up to a stage of the proceedings so specified; or (b) to a gross sum so specified in lieu of taxed costs.

6 The discretion to fix costs must be exercised judicially in the circumstances of the case.

7 1‘he 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.

8 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. (1) 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...