William Downie v Blue Planet Ltd
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett |
| Judgment Date | 05 March 2020 |
| Neutral Citation | BS 2020 CA 28 |
| Court | Court of Appeal (Bahamas) |
| Docket Number | SCCivApp & CAIS No. 188 of 2019 |
| Date | 05 March 2020 |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, President
The Honourable Mr. Justice Jon Isaacs JA
The Honourable Mr. Justice Roy Jones, JA
SCCivApp & CAIS No. 188 of 2019
Ms. Metta MacMillan-Hughes and Ms. Chizelle Cargill, Counsel for the Intended Appellant
Mrs. Tara Archer-Glasgow and Mr. Audley Hanna, Counsel for the Intended Respondent
Alexander Williams v. Regina SCCrApp No. 155 of 2016 considered
Chefflick Ltd V JDM Associates et al [1989] 22 Con LR 51 considered
Leary v Leary (1987) 1 WLR 72 considered
McAteer v Devine and others [2016] NICA 46 considered
Palata Investments Lt v Burt & Sinfield Ltd [1985] 1 W.L.R. 109 applied
Taaffe v Judge McMahon [2011] IEHC 408 applied
Wilmott v Barber (1881) 17 Ch.D. 772 considered
Civil Appeal — Application for an extension of time — Costs — Judicial Discretion
In February 2019, a Ruling was issued by Winder J on the intended appellant's Summons filed in May 2017 where the learned judge set aside the Writs of Subpoena issued by the intended respondent in March 2017. The learned judge proposed to fix the costs of the set-aside application and in so doing, invited the parties to provide submissions on the amount of costs to be fixed. The appellant filed his Bill of Costs for the total amount of $335,406.48. In April 2019, the learned judge gave his Ruling fixing the costs awarded to the intended respondent for the gross sum of $40,750. The appellant seeks to appeal this ruling and presents an application to extend the time within which to appeal that decision.
Held: Application for extension of time denied.
This application for an extension of time is based on an appeal from the exercise of the judge's discretion. What the intended appellant was asking the judge to do was to conduct a mini taxation. But the law is clear. The exercise of the judge's discretion in fixing a lump sum should be a broad one and it is not a process similar to that involving taxation. The judge having conducted the hearing is in a better position than any taxing master to assess what are the reasonable costs that the intended respondent as the unsuccessful party should be required to pay to the intended appellant. The judge was clearly of the view that this was a rather simple application that did not require the intended appellant to incur such enormous costs and certainly that the amount sought was unreasonable to require the intended respondent to pay. The court is not obliged to require the intended respondent to pay those charges if considers the charges to be unreasonable. There is no basis to interfere with the exercise of that broad discretion.
Judgment delivered by the Honourable Sir Michael Barnett, President
This is an application for an extension of time within which to appeal a decision by Winder J fixing the costs payable to the intended appellant on a successful application by him to set aside subpoenas issued by the intended respondent against the intended appellant's bankers.
Winder J fixed the sum payable to the intended appellant in the sum of $40,000.00 plus $750.00 for disbursements. The intended appellant is dissatisfied with the sum fixed by the court.
In a Ruling dated 12 February, 2019 Winder J set aside two subpoenas issued on behalf of the intended respondent and directed at RBC Royal Bank (Bahamas) Limited and CIBC First Caribbean Limited. The action below was an action by the intended respondent against the intended appellant.
In that decision which set aside the two subpoenas, Winder J said:
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16 I see no basis why costs ought not follow the event. I accept that the defendant threw the “kitchen sink” at the plaintiff in what really was a simple application. The plaintiff nonetheless responded in kind with affidavits and authorities when it was far more appropriate to have conceded what was, in my view, a clearly unsustainable defence of the subpoenas. This could have been and ought to have been done at a very early stage. In the circumstances therefore, I order that the plaintiff shall pay the defendant's costs. I propose to fix these costs.
No objection was made by either party to the decision ordering the intended respondent to pay the intended appellant's cost nor to the decision of the judge to fix the costs himself as opposed to ordering that the costs be taxed if not agreed.
Following that Ruling, the parties were invited to “provide submission on the amount of the costs, so as to get a fair and reasonable view of the amount of work said to have been done on the [intended appellants] behalf”.
Both parties provided submissions and in the intended appellant's submission he provided a draft bill of costs in the amount of $308,316.50 which the judge described as an “incredible amount”. There is no suggestion that the intended appellant laid over actual bills tendered by his lawyers to him for work done for which he was paid. Perhaps this was because the bills cover work done which did not relate specifically to the applications to set aside the subpoenas.
In a written ruling delivered on 18 April 2019 the judge fixed the intended appellant's cost payable by the intended respondent at $40,000.00 plus $750.00 disbursements.
The intended appellant sought leave to appeal the decision of Winder J on the 2 May 2019, but that application for leave to appeal the order fixing costs at $40,000.00 was not heard and determined until 12 November 2019 when leave to appeal was granted by Winder. As the time for appealing to this court had now expired the intended appellant has sought leave of the court for an extension of time to appeal that decision of Winder J.
The summons for an extension of time was filed on the 25 November 2019.
The relevant considerations in an application for an extension of time are settled.
In Alexander Williams v. Regina SCCrApp No. 155 of 2016, Allen, P wrote at paragraph 11:
“11. The power to grant an extension of time within which to appeal to the Court of Appeal is given by rule 9 of the Court of Appeal Rules 2005. It is settled that in exercising its discretion to extend time, the Court considers four factors: the length of the delay; the reasons for the delay; the prospect of success of the intended appeal; and the prejudice, if any, to the respondent.”
I have considered the length of time and the reasons for the delay. I would not refuse to grant an extension of time based on those factors. The intended appellant required the leave of the court below to appeal the order of the 12 April 2019 and he made that application for leave timeously. Although that application was not pursued with alacrity no application was made by the intended respondent to strike in out for want of prosecution and leave was granted on the 12 November 2019 with no opposition from the intended respondent as stated in paragraph 4 of the second affidavit of Lentheria Culmer sworn in support of the application for an extension of time. The intended appellant made the application to this court for an extension of time 13 days later.
Moreover, I am not satisfied that the intended respondent has been prejudiced in any material way by the delay in appealing the Ruling fixing the costs at $40,000.00. There is no evidence that the sum was in fact paid by the intended respondent and the matter treated by it as closed.
The litigation in the court below is ongoing and the delay in appealing the costs ruling on the issue of the subpoenas did not prevent the litigation from continuing in the normal course of civil litigation.
In the affidavit in opposition to the application to extend time, Nia Rolle, on behalf of the intended respondent said in paragraph 18 of her affidavit:
“18. With respect to paragraph 10 of the Culmer Affidavit, while it is alleged that there has been no prejudice caused to BPGL in this instance this is not the case. Firstly, there is an inherent prejudice in any delay to pursue an appeal. The CAR of itself inherently contemplates that any appeal whether interlocutory or substantive will be pursued with due haste. Secondly, and relatedly, Counsel for BPGL recognizing the accepted need for haste made a number of efforts to spur on Counsel for the Intended Respondent expanding time and costs in this regard. Thirdly, at a certain point, it objectively appeared as though efforts to pursue the appeal had been abandoned which impacted upon the matter in which BPGL could legitimately consider and approach and consider its budget allocations.”
In my view, this prejudice would not have caused me to refuse the application for the extension of time.
The material issue in considering this application for an extension of time is the prospects of the appeal's success if the extension is granted.
In my view the proposed appeal has no realistic prospect of success.
It must be recalled that the decision being challenged is not the decision to fix the costs but rather the amount of the costs fixed by the judge.
As it is a rather short ruling, I set out the decision by Winder J fixing the cost in the amount of $40,000.00 in its entirety.
“1. On 12 February 2019, following my decision to set aside subpoenas duces tecum issued in this action by the Registrar, I indicated my intention to fix the costs arising from the defendant's Summons. I invited the parties to provide submissions on the amount of the costs, so as to get a fair and reasonable view of the amount of work said to have been done on the defendant's behalf.
2. In the past, I have remarked on the unfairness and inadequacies of the present system of determining reasonable amounts of costs in litigation.
For what its worth, I repeat it again, the present system of determining reasonable amounts of costs in...
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