Tyson Strachan v Anthony Simon

• Jurisdiction: Bahamas
• Judge: Madam Senior Justice Deborah Fraser
• Judgment Date: 01 March 2024
• Docket Number: 2021/CLE/gen/No.00863
• Court: Supreme Court (Bahamas)

BETWEEN

Tyson Strachan

Claimant

and

Anthony Simon

First Defendant

and

Yorkshire Holdings Ltd

Second Defendant

and

Firstcaribbean International Bank (Bahamas) Limited

Third Defendant

and

McKay Culmer & Associates

Fourth Defendant

Before:

Her Ladyship The Honourable Madam Senior Justice Deborah Fraser

2021/CLE/gen/No.00863

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Costs in Interlocutory Applications — Civil Procedure Rules, 2022 — Part 71 — Court's Discretion as to an award of Costs — Success in part — Appropriate Order as to Costs

Appearances:

Mrs. Yvette Rahming and Ms. Gabriel Rahming for the Claimant

Mr. Sidney Cambridge Jr. for the First and Second Defendants

Mr. Ferron J.M. Bethell K.C. and Ms. Camille A. Cleare for the Third Defendant

Mr. Norwood Rolle for the Fourth Defendant

DECISION ON COSTS

Re: Ruling on Interim Relief dated 11 October 2023

1 This is my decision on the issue of costs emanating from my ruling dated 11 October 2023 (“ Interim Relief Ruling”).

BACKGROUND

2 I rely on the background facts as outlined in my Interim Reliefs Ruling and thus will not repeat them here. I will only highlight aspects that are salient to this costs ruling.

3 On 26 July 2023, the Claimant brought an application pursuant to Part 17 of the Civil Procedure Rules, 2022 (“ CPR”) requesting the following reliefs:

• (1) An injunction to restrain the 1 ^s Defendant, the 2 ^nd Defendant and the 3rd Defendant whether by themselves or by their employees, servants or agents or otherwise howsoever from entering or crossing or otherwise dealing with the Property;

• (2) Possession by the Claimant;

• (3) A Declaration that the Claimant is the owner;

• (4) A Declaration that the 1 ^s Defendant, the 2 ^nd Defendant and the 3 ^rd Defendant whether by themselves or by their employees, servants, or agents, be restrained from building upon selling or entering into any agreement disposing of or otherwise dealing with the Property;

• (5) That the Property be appraised;

• (6) An equitable lien over the premises to secure the appraised market value of the Property;

• (7) The Defendant pay to the Claimant the sum equivalent to that quotes as the market value of the Property;

• (8) That the Claimant, upon receipt of the requisite funds from the Defendants, transfer title to the 1 ^st and or 3rd Defendants;

• (9) The Defendants bear all costs associated with the satisfaction of the outstanding Mortgage; or the 1 ^st Defendant be ordered to vacate the Property upon reasonable notice from the Claimant;

• (10) Mesne profits from 16 March 202 until possession delivered up or transfer of the Property to the 1s Defendant or 3rd Defendant

• (11) Damages

• (12) Civil Procedure (Award of Interest) Act 1992 at such rate and for such period as the Court considers appropriate; and

• (13) Costs.

4 In my Interim Relief Ruling, I granted the Claimant, Mr. Strachan, one of the reliefs he sought — being an interim injunction. Thus, he was only successful in obtaining one of the myriad of interim reliefs sought under part 17 of the CPR.

5 In paragraph 99 of the Interim Reliefs Ruling, I directed the parties to provide the Court with written submissions on the appropriate order as to costs, which all parties have done.

ISSUE

6 The Court must determine the appropriate order as to costs.

DISCUSSION AND ANALYSIS

7 Having read and considered the submissions of counsel, I will now outline the relevant law and apply it to the case. I also acknowledge in Mr. Strachan's submissions that he attempted to settle the matter prior to bringing this application. I, however, am unaware of the scope, reasonableness, or the terms of the settlement offer.

8 Rule 71.6 of the CPR provides:

“ (1) Where the Court decides to make an order about the costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party.

(2) The Court may, however, make no order as to costs or, in an exceptional case, order a successful party to pay all or part of the costs of an unsuccessful party.”

9 There are several factors the Court must bear in mind when awarding costs. Such factors are outlined under Rule 71.10 of the CPR. Rule 71.10 (1), (2) and (3) states:

“ (1) In deciding what order, if any, to make about costs, the Court must have regard to all the circumstances, including —

(a) the conduct of all the parties ;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful ;

(c) any payment into court or admissible offer to settle made by a party which is drawn to the Court's attention and which is not an offer to which costs consequences under Part 35 and 36 apply .

(2) For the purposes of paragraph (1)(a), the conduct of the parties includes

—

(a) conduct before, as well as during, the proceedings;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim ; and

(e) unreasonable conduct of any kind by any party in relation to the inclusion or exclusion of documents or authorities in any bundle and whether a joint bundle or otherwise.

(3) The Court may make an order that a party must pay —

(a) a proportion of another party's costs;

(b) a stated amount in respect of another party's costs;

(c) costs from or until a certain date only;

(d) costs incurred before proceedings have begun;

(e) costs relating to particular steps taken in the proceedings;

(f) costs relating only to a distinct issue in or part of the proceedings; and

(g) interest on costs from or until a certain date, including a date before judgment (emphasis added).”

10 Further factors that the Court must bear in mind can be found at Rule 71.11 of the CPR, which reads:

“ 71.11 Factors to be taken into account in deciding the amount of costs.

(1) The Court is to have regard to all the circumstances in deciding whether

costs were —

(a) proportionately and reasonably incurred; or

(b) were proportionate and reasonable in amount.

(2) In particular, the Court must give effect to any orders which have already been made.

(3) The Court must also have regard to —

(a) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;

(b) the amount or value of any money or property involved;

(c) the importance of the matter to all the parties;

(d) the particular complexity of the matter or the difficulty or novelty of the questions raised;

(e) the skill, effort, specialised knowledge and responsibility involved;

(f) the time spent on the case;

(g) the place where and the circumstances in which work or any part of it was done…”

11 In the UK Court of Appeal decision of Scherer and another v Counting Instruments Ltd and another [1986] 2 All ER 529, Buckley LJ opined:

“ we derive the following propositions. ((1) The normal rule is that costs follow the event. That party who turns out to have unjustifiably either brought another party before the court, or given another party cause to have recourse to the court to obtain his rights is required to recompense that other party in costs; but (2) the judge has under Section 50 of the Judicature Act an unlimited discretion to make what order as to costs he considers that the justice of the case requires. (3) Consequently a successful party has a reasonable expectation of obtaining an order for his costs to be paid by the opposing party but has no right to such an order, for it depends upon the exercise of the court's discretion. (4) This discretion is not one to be exercised arbitrarily; it must be exercised judicially, that is to say, in accordance with established principles and in relation to the facts of the case. (5) The discretion cannot be well exercised unless there are relevant grounds for its exercise, for its exercise without grounds cannot be a proper exercise of the judge's function. (6) The grounds must be connected with the case. This may extend to any matter relating to the litigation and the parties' conduct in it, and also to the circumstances leading to the litigation, but no further. (7) If no such ground exists for departing from the normal rule, or if, although such grounds exist, the judge is known to have acted not on any such ground but on some extraneous ground, there has effectively been no exercise of the discretion. (8) If a party invokes the jurisdiction of the court to grant him some discretionary relief and establishes the basic grounds therefore but the relief sought is denied in the exercise of discretion, as in Dutton v. Spink and Otway v. Jones, the opposing party may properly be ordered to pay his costs. But where the party who invokes the court's jurisdiction wholly fails to establish one or more of the ingredients necessary to entitle him to the relief claimed, whether discretionary or not, it is difficult to envisage a ground on which the opposing party could properly be ordered to pay his costs. Indeed in Otway v. Jones at page 715, Lord Justice Parker said that such an...