Tynes v Barr et Al

• Jurisdiction: Bahamas
• Judge: Sawyer, C.J.
• Judgment Date: 11 July 2001
• Court: Supreme Court (Bahamas)
• Docket Number: 1029 of 1989
• Date: 11 July 2001

Supreme Court

Sawyer, C.J.

1029 of 1989

Tynes

and

Barr et al

Appearances:

Mr. Frederick R. M. Smith for the plaintiff.

Mr. M. Hamilton for the defendants.

Costs - Assessment — plaintiff filed notice of motion seeking determination of interest and if so, in what amount ought to be paid on a judgment debt, order that defendants make an interim payment against payment of said judgment debt pending appeal and order for review of amounts awarded by Deputy Registrar upon taxation of plaintiff's bill of costs — Defendants sought review of taxation — Applications followed on action by plaintiff seeking damages for unlawful arrest, false imprisonment, assault and battery and denial of constitutional rights — Whether plaintiff had existing right to have interest awarded on damages eventually assessed by the court — Sec. 28, Civil Procedure Act, Cap. 66 considered — Finding that Deputy Registrar should have accepted objections in respect of junior counsel's time spent traveling, appearance at the taxation and airfare — No figure to be allowed for brief fees until a bill or receipt adduced — Quantum of costs awarded on some claims reduced — Matter remitted to Registrar to be dealt with in accord with decision of court.

Sawyer, C.J.

1 There are before me in order of filing, firstly, a summons to review taxation filed December 14 1995 on behalf of the defendants in respect of Items, 18, 42, 79, 118, 168, 225, 162, 240, 242 and 243 and, secondly, a notice of motion by the plaintiff filed April 17 1996 seeking -

• “1. The determination of whether interest, and if so, in what amount, ought to be paid on the judgment debt herein for the period from July 19, 1989 up to and including March 27, 1994;

• “2. For an order that the defendants make an interim payment in an amount to be directed by the court against payment of the said judgment debt pending the hearing of the appeal herein by the defendant to the Court of Appeal against the judgment of this Court delivered on March 28t”, 1994: and

• 3. For review of the amounts awarded by the Deputy Registrar upon the taxation of the plaintiff's Bill of Costs and detailed in the defendant's summons to Review Taxation filed herein on December 14, 1995, or, alternatively, that the matter of the review be adjourned to Chambers.”

2 Both applications arise following an action by the plaintiff seeking damages (including exemplary damages) for his unlawful arrest, false imprisonment, assault and battery, denial of a constitutional right, and malicious prosecution.

3 In the main action, the judge at first instance awarded damages totalling $255,405.20. That sum included $25,000 for loss of business by the plaintiff during the 10 days of the trial and $40,000 for breach of the plaintiff's constitutional rights. However, the defendants' appeal to the Court of Appeal was successful and that figure has been reduced by that Court to $190,405.20 as the sums of $25,000 for loss of business by the plaintiff while attending the trial arid $40,000 for breach of the plaintiff's constitutional rights were set aside.

4 Because the evidence in the trial had to be taken by hand as no stenographers were available for the civil courts during that period, and the file was misplaced for some time, the preparation of the record for the appeal was delayed. In addition, while the appeal was pending, I did not consider it advisable to review the taxation in this case since if, for example, the Court of Appeal had ruled that exemplary damages were not to be paid in the case, this may have had an impact on my decision of the review. I say that because the usual practice is not to tax a bill of costs when an appeal is pending until that appeal has been heard and disposed of.

5 While the file was returned to me following the Court of Appeal's decision, unfortunately, it was not a complete file. I had previously obtained a photocopy of some of my notes and it is that photocopy and the documents (which do not appear to be all that were adduced) on the file which I now have on which I base my decision.

6 At the hearing of the motion, I refused the plaintiffs application for an order for interim payment because in my judgment, the plaintiff's action was not a case of a claim for personal injuries in the sense in which that phrase is used in the Rules (despite the successful claim for assault and battery since no injury resulted to the plaintiff) so that the provisions of Order 29, rule 10 of the Rules of the Supreme Court 1978 (“the 1978 Rules”) did not apply.

7 Counsel for the plaintiff also had applied at that hearing for an order for payment out of court of the sum which had been paid into court on behalf of the defendants before the trial under Order 22, rule 5 of the 1978 Rules. Counsel for the defendants submitted that the court could not order payment out under that rule at that stage since the exercise of the power under rule 5 was predicated on rule 3 of that Order. Order 22, rule 5 of the 1978 Rules read:

• “5. If any money paid into court in an action is NOT ACCEPTED IN ACCORDANCE WITH RULE 3, the money remaining in court shall not be paid out except in pursuance of an order of the Court which may be made at any time before, at or after the trial or hearing of the action; and where such an order is made before the trial or hearing the money shall not be paid out Except in satisfaction of the cause or causes of action in respect of which it was paid in.” (Emphasis mine).

8 I think that the only way in which this court could order payment out under that rule is if the payment was to be received by the plaintiff in satisfaction of his claims. As the plaintiff's counsel was not seeking payment out in satisfaction of his client's claims, in my judgment the court could not make the order sought by plaintiff's counsel. That application therefore could not succeed.

9 With regard to the plaintiff's request that the court determine whether interest was payable on the judgment from 19 July, 1989 to 27 March, 1994 and in what amount, Mr. Hamilton submitted that under the law at the time of the incident, interest was not payable before judgment and that the Civil Procedure (Award of Interest) Act, 1992 (No. 8 of 1992) (“the 1992 Act”) should not be given retrospective effect.

10 The 1992 Act was assented to on 7 April, 1992 and came into operation on the 1st August, 1992, by virtue of the appointed day notice published as Statutory Instrument No. 64 of 1992.

11 Under section 2 of the 1992 Act, “every judgment debt” other than one upon which interest is payable as of right, whether by virtue of an agreement or otherwise, may be made subject to a rate of interest as prescribed by the Rules Committee. Under that section, interest on a judgment obtained in the Supreme Court runs from the time of entering it up until it is satisfied.

12 Clearly, there was no “judgment debt” as mentioned in section 2 of the 1992 Act in this case until March 1994 and so that section does not assist the plaintiff in this application.

13 Section 3 of the 1992 Act gives a court trying a case for the recovery of damages, among other things, a judicial discretion, to make an order that interest at such rate as the court thinks fit on the whole or part of the damages for the whole or part of the period between the date when the cause of action arose and the date of the judgment. Mr. Smith, for the plaintiff invited the court to exercise its discretion under that section in the plaintiffs favour bearing in mind all the circumstances of the case.

14 Section 18 of the Interpretation and General Clauses Act (Ch.2) of the 1987 Edition of the Statute Laws of The Bahamas, provides that “Every written law shall be published in the Gazette; and come into operation … on the expiration of the day next preceding such other day” where the written law or some other written law so requires. That provision, it seems to me, suggests that there is a presumption that laws enacted by Parliament are not to have retrospective operation unless they contain express provision to that effect, or, by necessary and distinct implication - West v. Gwynne [1911] 2 Ch. 1 for, as has been said on more than one occasion in the past -

15 “Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective, if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to events already” - see e.g., Yew Bon Tew v. Kenderaan Bas Mara [1982] 3 All E.R. 833 at p. 836 per Lord Brightman and Allen v. Gold Reefs of W. Africa [1900] 1 Ch. 656, 673, per Lindley, L.J. and Craies on Statute Law, Seventh Edition, p. 387 et seq.

16 If the award of interest on judgments is a mere procedural matter, then there may be nothing inherently wrong with a court construing the provisions of section 3 of the 1992 Act retrospectively - see e.g. Attorney-General v. Vernazza [1960] A.C. 965, Yew Bon Tew v. Kenderaan Bas Mara cited above, and the Commission of Inquiry v. F Nigel Bowe (1984) (unreported) per Georges, C.J..

17 Mr. Hamilton pointed out that if the court were to construe the 1992 Act as affecting the plaintiffs claim before that statute became law, that would be unfair to the defendants since at the time of the accrual of the plaintiff's cause of action up to and including the filing of the action, there was no provision in the law for a court to impose interest on damages before damages were in fact assessed.

18 At the date of the accrual of the plaintiff's cause of action (19 July, 1989) the statute law governing the issue of interest on debt or other sum...