The Nevis Island and Administration v La Copropriete Navire J31 et al

1
SAINT CHRISTOPHER AND NEVIS
IN THE COURT OF APPEAL
CIVIL APPEAL NO.7 OF 2005
BETWEEN:
THE NEVIS ISLAND ADMINISTRATION
Respondent
and
[1] LA COPROPRIETE DU NAVIRE J31
[2] AUXILIARE MARITIME J31 S.A.
[3] SAINT NICHOLAS DE BARRY 1 S.A.S.
[4] SAINT NICOLAS DE BARRY 2 S.A.S.
[5] SAINT NICOLAS DE BARRY 3 S.A.S.
[6] SELNIC S.A.
[7] SAINT NICOLAS DE BARRY IV S.A.
formerly known as Quirats + S.A.
[8] EURIMOB S.A.
Applicants
Before:
Kimberly Cenac-Phulgence Chief Registrar
On written submissions:
Daniel, Brantley & Associates for the Applicants

Browne & Associates for the Respondent

2007: December 20

DECISION ON ASSESSMENT OF COSTS
[1] The applicants have filed two separate applications for assessment of costs which fall to
be decided by the Chief Registrar.
2
[2] On 14th July, 2006, the applicants filed an application for assessment of costs pursuant to
an Order dated 29th December, 2005 in which the respondent’s Notice of Appeal was
struck out as being a nullity. It is to be noted that this application was not accompanied by
a Bill of Costs as required by CPR 65.12 (4). (First Assessment)
[3] On 18th September, 2006, the applicant filed another assessment of costs application, this
time in relation to the judgment of Barrow JA refusing the respondent’s application for an
extension of time to apply for leave to appeal and ordering costs to be assessed if not
agreed.1 (Second Assessment)
[4] The application of 18th September, 2006 was supported by two affidavits of Elizabeth
Harper which consisted of two Bills of Costs in relation to (1) the First Assessment in the
sum of US$23,183.68 and (2) the Second Assessment in the sum of US$69,912.22. The
supplemental affidavit of Elizabeth Harper filed 18th September, 2006 stated at paragraph
5 that:
“…the omission to include the Bill of Costs in the initial affidavit was an oversight
and not meant to be a discourtesy to the Court.”
The Background
[5] It is necessary to outline some background facts which are important to these
assessments.
a. 25 April, 2005 – respondent filed Notice of Appeal.
b. 23 September, 2005 – applicants filed application to strike out Notice of Appeal.
c. 24 October, 2005 – respondent filed application for extension of time to apply for leave
to appeal.
d. 29 December, 2005 – Notice of Appeal struck out and costs awarded to the applicants
to be assessed.
e. 3 April, 2006 – respondent’s application for extension of time refused and costs
awarded to the applicants to be assessed if not agreed.
1 Judgment dated 3rd April, 2006. See also Order dated 3rd March, 2006
3
f. 30 June, 2006 – applicants wrote to the respondent “inviting them to agree and pay
their costs of defending the proceedings in relation to the application for extension of
time in the sum of US$20,000.00.”
g. 14 July and 18th September, 2006 – applicants filed assessment of costs applications
in relation to the First and Second Assessments.
h. 1 June, 2007 – Directions for filing submissions by the applicants and respondent were
given by the Chief Registrar.
i. 24 July, 2007 – respondent filed submissions a week later than due date.
j. 8 August, 2007 – applicants filed submissions in response.
Assessed Costs: applicable principles
[6] CPR 65.2 (1) outlines the basis of quantification of costs. It provides:
“65.2 (1) If the court has a discretion as to the amount of costs to be allowed to a
party, the sum allowed is-
(a) the amount that the court deems to be reasonable were the work to be carried out
by a legal practitioner of reasonable competence;
and
(b) which appears to the court to be fair both to the person paying and the person
receiving such costs.”
[7] CPR 65.2 (3) provides:
“65.2 (3) In deciding what would be reasonable the court must take into account all the
circumstances, including-
(a) any order that has already been made;
(b) the care, speed and economy with which the case was prepared;
(c) the conduct of the parties before as well as during the proceedings;
(d) the degree of responsibility accepted by the legal practitioner;
(e) the importance of the matter to the parties;
(f) the novelty, weight and complexity of the case;
(g) the time reasonably spent on the case; and
(h) in the case of costs charged by a legal practitioner to his or her clienti.
any agreement about what grade of legal practitioner should carry
out the work;
ii. any agreement that may have been made as to the basis of
charging; and
iii. whether the legal practitioner advised the client and took the client’s
instructions before taking any unusual step or one which was
unusually expensive having regard to the nature of the case.”
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[8] In the case of Lownds v Home Office2, Lord Woolf CJ in discussing the approach to be
adopted in assessing costs stated:
“In other words what is required is a two-stage approach. There has to be a global
approach and an item by item approach. The global approach will indicate
whether the total sum claimed is or appears to be disproportionate having
particular regard to the considerations which CPR r. 44.5 (3) (which is similar to
our CPR 65.2 (3))3 states are relevant. If the costs as a whole are not
disproportionate according to that test then all that is normally required is that each
item should have been reasonable. If on the other hand the costs as a whole
appear disproportionate then the court will want to be satisfied that the work done
in relation to each item was necessary and, if necessary, that the cost of the item
is reasonable.”4
Costs on an indemnity basis
[9] The respondent in its submissions stated that the costs claimed by the applicants
appeared to be based on an indemnity basis and that under CPR 2000 costs are to
reasonable. The applicants for their part dispelled this but went into a long discourse to
show that costs can be awarded on an indemnity basis and provided cases in support. As
the Court of Appeal observed in The Attorney General of Saint Christopher and Nevis
et al v Queensway Trustees Limited5, indemnity costs is a basis for assessment that is
specifically provided for in the English Civil Procedure Rules but “a search of our CPR will
reveal that the phrase “indeminity costs” or any grammatical variant thereof does
not exist”.6
[10] There is therefore no need to expound on this issue as it is accepted that what CPR 2000
requires is that costs be reasonable and fair to the legal practitioner and the client and
there is no issue of costs having been ordered to be assessed on the indemnity basis.
2 [2002] 4 All E R 775
3 My insertion
4 [2002] 4 All E R 775 at 782
5 Saint Christopher and Nevis Civil Appeal No. 15 of 2005
6 Supra at paragraph 8
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First Assessment
[11] The applicants’ Bill of Costs claimed the sum of US$23,183.68 in relation to the application
to strike out the Notice of Appeal which was dismissed with costs awarded to the
applicants to be assessed.
[12] Counsel for the respondent in his submissions argued that the costs claimed were
outrageous and extravagant. He further submitted that the case was not a complex one, it
was straightforward and therefore the costs should reflect this. It was his submission that
the time spent by a reasonably competent legal practitioner in the case could not have
exceeded ten (10) hours. Learned Counsel went on to indicate that counsel who
conducted the case for the applicants was not a Queens Counsel although an experienced
practitioner.
[13] The respondent’s final submission was that CPR Part 65.12 strictures are mandatory and
therefore the assessment application of 14th July, 2006 must fail because no Bill of Costs
was attached. The application must be a nullity as it was not accompanied by a Bill of
Costs until two months after the application was filed, that is, 18th September, 2006.
[14] It is to be noted that the respondent did not consider providing the Court with a reduced
figure for its consideration for the award as it totally rejected the Bill of Costs. Obviously,
the respondent cannot be suggesting that no costs should be awarded to the applicants as
this would be to totally ignore the Order of the Court dated 29th December, 2005.
[15] The applicants submitted that the contention of the respondent as regards the failure to
provide the Bill of Costs along with the assessment application is fatal and renders the
application a nullity is unwarranted. The applicants argue that this is so because the
omission was remedied in September, 2006 and caused no prejudice to the respondent
since the application was not considered or decided prior to the filing of the relevant Bill of
Costs. Further, argued the applicants, the respondent did not raise any
objection/opposition on this matter prior to September, 2006 and have only sought to do so
after a whole year.
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[16] In relation to this issue, it is clear from the White Book that the failure to file and serve a
statement of costs in compliance with section 13 of the Costs Practice Direction did not
warrant the wholesale disallowance of costs. The court would take the matter into account
but its reaction should be proportionate.7 The question should be whether there has been
any prejudice to the paying party and how that prejudice should be dealt with.8
[17] I therefore agree with the applicants’ submissions that the failure having been remedied
well before consideration of the application and there having been no objection by the
respondents before now, no prejudice has been suffered by the respondent.
Conduct of the parties
[18] The conduct of the parties is a factor which should be considered when assessing costs.
The applicants in their submissions stated that steps were taken to agree costs with the
respondent by way of letter and the respondent did not respond.
[19] The applicants further contend that the respondent’s conduct is also relevant in light of the
fact that they only filed an application for extension of time to apply for leave to appeal
after the applicants had filed their application to strike out. They contend that they would
not have had to file their application to strike out had the respondent taken effective steps
to prosecute the appeal. Had the respondent acted prudently the nullity point would have
been raised as a preliminary issue on the hearing of the appeal and there would have
been no need for the application to strike out.
[20] From the judgment of Barrow JA delivered April 3rd, 2006, it is clear that the respondent
had an inkling that they needed leave to appeal and that they could have taken steps to
remedy this failure much earlier than they did. Therefore, the respondent by their inaction
caused the expense now associated with the strike out assessment.
7 White Book 2002 Vol. 1 Para 44.5.2, Page 952
8 MacDonald v Taree Holdings Ltd, The Times, December 28, 2000
7
The novelty, weight and complexity of the application and the time
[21] The respondent submitted that the case was not a complex one and that the time spent by
a reasonably competent legal practitioner in the case could not have been more than 10
hours. The applicants did not specifically address this point as relates to the strike out
application. It is clear from the facts that the strike out application was dealt with by
Barrow JA on written submissions and that there was no actual hearing of the parties.
[22] The nature of the application which was before the Court was one for which there is ample
case law and precedent on how the Court treats a Notice of Appeal filed without leave
being obtained where leave is required. In fact, the respondent in their submissions cited
several such cases.
[23] It is therefore reasonable to state that a competent junior attorney having done research of
not more than 2 hours on the Court’s website would have landed himself with a plethora of
authority thus obviating the need for extensive argument to convince the Court on an issue
on which it had ruled on several occasions.
[24] I therefore agree with the respondent that the case was not complex and would not have
required an attorney as experienced as Mr. Michael Fay to argue it. I also accept the
respondent’s submissions that ten (10) hours is a reasonable time to have spent in
preparation for this application.
[25] The respondent in its submissions cited cases which dealt with applications to strike out
Notice(s) of Appeal and made reference to the amount of costs awarded by the Court in
these cases9 and submitted that the Court is bound by these authorities.
[26] The applicants submitted that the cases cited refer to actual costs awards on the face of
the applications and should be distinguished. They claim that had the Court been minded
9 Antigua Civil Appeal No. 33 of 2003-Maria Hughes v The AG of Antigua -$1000.00
Anguilla Civil Appeal No. 6 of 2004-John Paul De Joria et al v Gigi Osco Bingemann et al – $1000.00
BVI Civil Appeal No. 27 of 2006-Lyra Farrington v The Estate of Alec Mathavious et al -$1500.00
8
to be guided by these principles it would have done so at the time the applications were
heard.
[27] Whichever argument one uses, the fact remains that the awards made by the Court on
similar applications as the current one certainly serve as a guide as to what the Court
considers reasonable in all the circumstances of the case. One thing is certain, the Court
did not consider an application to strike out a Notice of Appeal as an extraordinary
application requiring special skill to handle and argue.
Assessment
[28] Applying the principles as set out in Lownds v Home Office10, when one applies the
global approach and takes into account the factors set down in CPR 65.2 (3) and all the
circumstances of the instant appeal, there can be no doubt that a claim for costs in the
sum of US$23,183.68 is unreasonable.
[29] The applicants submit that they spent 27.25 hours in preparation for the application. I
have already indicated that I find that 10 hours is a reasonable time to have spent on a
matter such as this and that such a matter could have been ably argued by the counsel at
Daniel, Brantley & Associates without the need for outside counsel.
Award
[30] Taking all the factors into account, I award the hourly rate of US$240.00 being a
reasonable rate for junior counsel and multiplying this by 10 hours, award the sum of
US$2400.00 as costs to the applicants on this assessment. The departure from the
awards made by the Court on similar applications takes into account the conduct of the
respondent which I think was very relevant and significant in this case. No additional costs
are awarded as costs of the assessment pursuant to CPR Part 65.12 (6) as this award, as
I have already stated, is well over the costs awards made by the Court in similar cases.
10 See paragraph [8] supra
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Second Assessment
[31] The applicants submitted a Bill of Costs in the sum of US$69,912.22 in relation to the
application for an extension of time to apply for leave to appeal.
Applicable Principles
[32] The bases of quantification are as outlined in paragraphs 6 and 7 (supra) and the
approach to be adopted in assessing costs as stated by Lord Woolf in Lownds v Home
Office11.
Submissions
[33] The respondent disputed each and every item of the applicants’ Bill of Costs. They
submitted that the application was done by way of teleconference and was not complex
and involved a straightforward opposition by the applicants to the application. It therefore
did not require more than one Counsel of moderate skill and, further argued the
respondent, the application for extension of time was dealt with on written submissions.
[34] The respondent pointed to claims for costs under items 2 and 3 for the week of October
23, 2005, item 2 for the week of November 20, 2005, item 3 for the week of December 11,
2005 and item 4 for the week of 15 January, 2006 and pointed out from these items that it
would appear that the applicants employed 5 lawyers. The respondent indicated that the
solicitors on record are Daniel, Brantley & Associates and that there was no justification for
the array of lawyers to deal with three simple matters. The respondent also submitted that
the Bill of Costs was replete with e-mail advice of 5 lawyers which expenditure it
considered quite extravagant and should be rejected. There was no supporting evidence
to support these costs. There was nothing before the Court to assist it for the purposes of
assessing whether the tasks were performed, whether on an hourly basis, the number of
hours calculated, or the personnel involved, submitted the respondent. However, the
respondent did not provide any alternative costs figures for consideration.
11 See paragraph [8] supra
10
[35] The applicants for their part submitted that the respondent’s conduct was relevant in that
the time for filing an application for leave to appeal expired on 26th April, 2005 but the
respondent only made an application for extension of time to apply for leave to appeal on
24th October, 2005 despite the fact that the need to apply for leave to appeal was
specifically brought to the attention of the respondent by the applicants’ solicitors on 23rd
May, 2005.
[36] In response to the respondent’s submissions regarding the use of 5 lawyers, the applicants
contended that all the applicants are based in France and are defending related
proceedings in France as well as in Nevis. Consequently, they had no choice but to retain
both usual French counsel and counsel in Nevis to conduct the proceedings and to liaise
with each other on a regular basis to maintain a coordinated approach to litigation.
Therefore, the applicants submitted that the disbursements are justified and reasonable in
amount. The applicants further submitted that at all times the respondent had more than
one solicitor, they say at least 3 lawyers. This the applicants use to justify their retaining 5
lawyers.
[37] However, ‘the fact that the other party has instructed leading counsel or intends to do so
cannot and should not be disregarded as a factor to be taken into account when deciding
the question whether or not it is reasonable to have instructed leading counsel’.12 The fact
that the respondent had 3 lawyers does not in and of itself justify the applicants retaining 5
especially in light of the nature of the application although it may be taken into account in
assessing costs.
[38] In relation to the non-Nevis lawyers submission, I quote Hariprashad-Charles J in the case
of Fincroft Limited v Lamane Trading Corporation13:
“It is clear that a foreign solicitor,…must be treated for the purposes of taxation ,
simply as foreign agents, and the charges incurred by these solicitors are charges
properly taxable as disbursements in the ordinary course. The appropriate head
to claim such fees is under disbursements.”
12 White Book 2002 Vol. 1 para 47.14.7 Page 1016
13 Claim No. BVIHCV2005/0264 at paragraph 30
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Assessment
[39] Applying the principles outlined in Lownds v Home Office14 (the global approach), I find
the sum of US$69,912.22 claimed by the Applicants in relation to the second assessment
to be disproportionate and unreasonable in light of the complexity of the case, the fact that
the Applicants role was to oppose the application, the application was dealt with by way of
teleconference and determined on the written submissions of the parties.
[40] Having determined that the overall figure is not reasonable, I will now look at the individual
items of the Bill of Costs.
-Week of 23 October, 2005 – Item 2 not allowed – very vague.
-Week of 13 November, 2005 – Item 2 not allowed as costs relate merely to
perusal of the skeleton argument and more particularly to searches at the Registry
as to the new claim which does not relate to the application for which costs were
awarded; Item 3 not allowed – not necessary expense as skeleton argument was
already prepared; Item 4 not allowed as it relates to the new claim and not the
application for extension of time.
-Week of 20 November, 2005 – Items 1, 2 and 3 not allowed – these activities not
related to the application for extension of time.
-Week of 28 November, 2005 – Item 1 not allowed – review of exchanges between
ZM and MB last week. This does not indicate what these exchanges were in
relation to.
-Week of 4 December, 2005 – Item 3 not allowed – too vague as it does not
indicate to what this relates.
-Week of 18 December, 2005 – Item 1 allowed only as regards 10 hours to reflect
work done on finalising skeleton submissions in relation to the respondent’s
extension of time application and filing of bundles and sending of scanned copies
of them. Drafting of Acknowledgments of Service and research on matter of fiat
have nothing to do with the extension of time application; Item 2 and 3 not allowed
as these relate to the new High Court claim which was filed by the respondent and
not to the extension of time application.
14 [2002] 4 All E R 775 at 782
12
-Week of 25 December, 2005 – Items 1 and 2 not allowed as they are unrelated to
application for extension of time.
-Week of 1 January, 2006 – Item 1 not allowed as it is unrelated to application for
extension of time; Item 3 not allowed as it is very general.
-Week of 8 January, 2006 – Item 1 not allowed.
-Week of 15 January, 2006 – Item 1 not allowed as it is unrelated to application
for extension of time.
-Week of 22 January, 2006 – Items 1 and 2 not allowed as they relate to the new
High Court claim and not the application to which assessment relates.
-Week of 29 January, 2006 – Items 1, 2 and 3 not allowed as they relate to the
new High Court claim and the application to which assessment relates.
-Week of 5 February, 2006 – Items 1, 2 and 3 not allowed as these costs appear
to relate to the new High Court claim and not the application to which assessment
relates.
-Week of 26 February, 2006 – Item 2 not allowed as it is unrelated to the
application for extension of time to which this assessment relates.
Award
[41] I therefore award costs in the sum of US$29,811.31 in relation to the application for
extension of time to apply for leave to appeal (the second assessment) and application for
assessment of costs in relation thereto.
Kimberly Cenac-Phulgence
Chief Registrar