The Attorney-General v Jonathan Reid

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeMr. Justice Milton A Evans, JA
Judgment Date03 November 2022
Neutral CitationBS 2022 CA 149
Docket NumberSCCivApp. No. 127 of 2019
Between
The Attorney-General
Appellant
and
Jonathan Reid
1 st Respondent
David Valdez-Lopez
2 nd Respondent
Rudolph Kermit King
3 rd Respondent/Applicant
Celebrating Women International
4 th Respondent
Before:

The Honourable Madam Justice Crane- Scott, JA

The Honourable Mr. Justice Evans, JA

The Honourable Sir Brian Moree, JA

SCCivApp. No. 127 of 2019

IN THE COURT OF APPEAL

Application for Extension of Time — Taxation of Costs — Bill of Costs — Court of Appeal Rules Section 9 — Court of Appeal Rules Section 35(2)

On the 19 th July 2021, the Court made an order granting costs to the Applicant. The Applicant filed his Bill of Costs and Notice of Taxation on 21 January 2022. This date was 3 months past prescribed date within which the Applicant had to file for the Taxation of Costs. On the 5 th May 2022, the Applicant filed a Summons seeking an order for an extension of time to file his Bill of Costs. The Summons was supported by an affidavit sworn by one of his attorneys in which she explained that the delay in filing was due to the pressures of having to deal with the various other pressing matters.

Held : Application allowed. The Applicant will pay the costs of this application, such costs to be taxed if not agreed.

The Court is required to balance the three considerations of (1) length of delay; (2) reason for delay and (3) the prejudice resulting if any. It is also important to keep in mind that each case must be determined on its own merit after due consideration of the facts of that particular case.

It is clear that none of the three considerations by themselves is so stark in this case as to be overwhelmingly determinative. There are some cases where the delay is so egregious that there could be no reasonable explanation for that delay and the prejudice to the other party is front and center. There may be cases where the delay is long but there is a good explanation for the same. There may also be cases where the delay is not inordinate but the excuse is not acceptable. In the latter two scenarios the issue of prejudice becomes very important. The question in such cases would turn on how the court views the issue of prejudice incurred if any.

After a full consideration of the issues in this matter the Court is satisfied that this is a case where leave should be granted. The determining factor in this case is that the Court is not satisfied that the Appellant has suffered such prejudice that it would be unjust to grant the extension. This is not to say that this Court approves of the delay, or that it accepts the unacceptable excuse proffered for the same. The Court is reminded of its role in these applications to arrive at the justice of the case and not to penalize parties for their shortcomings.

However, Counsel are reminded that the Court of Appeal Rules are intended to facilitate the orderly and efficient management and disposition of appeals and compliance is expected. While the interests of justice will dictate the outcome of specific cases involving non-compliance with the Rules, it would be imprudent for parties to assume that they can breach the Rules with impunity.

Colebrooke and another v. The National Insurance Board [2012] 2 BHS J. No. 41 applied

Bank for Credit and Foreign Commerce (Overseas) Limited v European Caribbean Resorts Company Limited and John Fowler and Norbert Ginkel No. 510 of 1980 considered

Michael Wilson & Partners, Ltd v. Sinclair [2012] 2 BHS J. No. 58 considered

Pamplin v. Fraser (No. 2) (Q.B.D.) [1984] 1385 mentioned

London Borough of Southwark v. Nejad and Others [1999] 1 Costs L.R. 62 considered

Appearances:

Ms. Deirdre Clarke-Maycock, with Ms. Michelle Dean, Danielle Francis, and Kenrah Newry, Counsel for Appellant

Ms. Monique Gomez, Counsel for 3 rd Respondent/Applicant

RULING
Ruling delivered by The Hon. Mr. Justice Milton A Evans, JA
1

This is an application by Summons filed by the 3 rd Respondent on the 5 th May 2022 seeking an order for an extension of time to file his Bill of Costs to begin proceeding for Taxation of Costs. The application was supported by an Affidavit sworn by Monique V. A Gomez on the 4 th May 2022 and filed on the 5 th May 2022.

2

The order granting costs to the Third Respondent (“ hereinafter the Applicant”) was made by this Court differently constituted on the 19 July, 2021. Section 35 (2) of the Court of Appeal Rules provides that:-

“(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.” [Emphasis added]

3

For the purposes of this application, Section 9 of the Court of Appeal Rules is important. That rule provides -

“9. (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.” [Emphasis Added]

4

It is noteworthy that under rule 9(1)(c) the Court is vested with a wide discretion to extend the period prescribed by these Rules for the doing of anything to which these Rules apply.” The only criterion for the exercise of the discretion is that the Court be satisfied that the departure from the Rules is required in the interests of justice.”

5

A review of the relevant authorities show that the courts have adopted a policy of considering: (1) the period of delay; (2) the reason for the delay; and (3) the prejudice if any which has been caused by the delay. In the case of Colebrooke and another v. The National Insurance Board [2012] 2 BHS J. No. 41 Allen, P observed as follows:-

“15 The case of London Borough of Enfield v. P. [1997] 1 Costs L.R. 73, although recognized as a leading authority with respect to delays in commencing taxation proceedings, is largely based on the UK's rules which provisions are not found in our Court of Appeal Rules. Notwithstanding that, the case sets out what the relevant circumstances are for granting an extension of time within which to begin taxation, and I adopt them here. The circumstances were said to include the duration of the delay; the extent to which it is explained or excusable; the degree of prejudice suffered by any other party and any additional interest.”

The period of the delay.
6

In the present matter, the three (3) months' time began to run from the date of the ruling on costs which was on the 19 th July, 2021, and as such the time within which the Applicant was to begin taxation proceedings expired on 19 th October, 2021. The Applicant filed his Bill of Costs and Notice of Taxation on 21 January 2022, 3 months and 2 days after the expiration date. However, he did not file his application for an extension until about 4 months after he filed his late Bill of Costs thus the total delay is some seven months. The Applicant asserts that the delay was not inordinate whereas the Appellant contends that the delay was in fact inordinate.

The reason for the delay.
7

In her affidavit filed in support of the application Ms. Gomez stated as follows:

“7. On the 1st day of July, A.D. 2021 we appeared before the Court of Appeal on the appeal of Madam Justice Grant- Thompson's on the Constitutional application on behalf of the Appellants as well as an application for a Stay of the order of the Court of Appeal.

8. That because of the various applications there was a delay in the preparation of the Bill of Costs and trying to settle the costs of Lead Counsel the time for filing the Notice of Taxation passed.

9. That the Notice of Taxation was filed on the 21st day of January, A.D.2022 and I am requesting the leave of the Court for an extension of time for the taxation of the costs of the 3rd Respondent.”

8

The Applicant submits that the reasons provided for the delay i.e. having to attend to the hearing before the Court of Appeal relative to the Appellant's application for leave to appeal to the Privy Council and dealing with the hearing of the appeal on the Constitutional appeal involving the parties, were reasonable and justified the delay. The Appellant contends that the Applicant has been delinquent throughout this whole process.

The issue of prejudice.
9

The Applicant contends that the Appellant has suffered no prejudice as a result of the delay and points out that the affidavit filed by the Appellant does not identify any prejudice which they have suffered. The Appellant in their submission contend that there is a presumption of prejudice as even one day is prejudicial. Counsel further argued that the Appellant has the right, like any other party, to not have an amount of unquantified debt hanging over their heads.

DISCUSSION
10

As should be expected the issue as to extension of the time within which to file a Bill of Costs has been dealt with on previous occasions in this jurisdiction. The two leading cases are (1) Colebrooke and another v The National Insurance Board No.127 of 2008; and (2) Bank for Credit and Foreign Commerce (Overseas) Limited v European Caribbean Resorts Company Limited and John Fowler and Norbert Ginkel No. 510 of 1980. Bank for Credit and Foreign Commerce was a decision of Georges CJ in the Supreme Court and Colebrooke was a decision of this court where the leading Judgment was delivered by Allen, P. Applications of this nature are governed by Rule 59 of the Rules of the Supreme Court whereas in this Court Rule 9, as...

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