Wetherill v Pinder
| Jurisdiction | Antigua and Barbuda |
| Judge | Tabor, M |
| Judgment Date | 15 February 2013 |
| Neutral Citation | AG 2013 HC 7 |
| Docket Number | ANUHCV 581 of 2011 |
| Court | High Court (Antigua) |
| Date | 15 February 2013 |
High Court
Tabor, M. (Ag.)
ANUHCV 581 of 2011
Ms. C. Debra Burnette for the claimant
Dr. David Dorsette for the defendant
Civil practice and procedure — Costs — Prescribed costs — Budgeted costs.
Tabor, M (Ag.): This is an application by the claimant filed on 15 December, 2011 for an order that the Court in the exercise of its Case Management powers given under rule 65.8 of the Civil Procedure Rules ( CPR) 2000 set a costs budget for the matter.
The grounds for the application are as follows:
-
(1) The claimant does not wish to rely on prescribed costs in these proceedings as she is concerned that the same will be disproportionate to actual costs incurred and to be incurred.
-
(2) A cost budget will ensure that the claimant recovers all costs incurred in these proceedings.
As required by rule 65.8(4) of the CPR, the application is accompanied by (a) a statement of the amount the claimant wishes to be set as the costs budget, (b) a statement showing how the budget has been calculated and (c) the written consent of the claimant in accordance with rule 65.9.
The claimant filed submissions on 21 June, 2012 in support of the application for budgeted costs, while the defendant filed submissions on 11 July, 2012 in opposition to the budgeted costs application. The claimant's submissions in reply were filed on 16 July, 2012.
Counsel for the claimant contends that in making provision for a party to obtain a costs budget under the Rules, it was the intention of the rule makers to promote the overriding objective of the Rules by an “equality of arms” as well as to provide that party for adequate costs in the proceedings.
Counsel further contends that in the Practitioners' text Cook on Costs 2007, which is based on the English Civil Procedure Rules, a Judge or Master at Case Management is required to direct the parties to file an estimate of the costs of the proceedings, which is a precursor to the Court setting a Costs Budget.
The calculation of the budgeted costs for disbursements and fees amounted to $96,434.05. With respect to the quantum, counsel contends that in examining the costs budget, none of the itemized costs incurred can be considered unreasonable in any instance for the estimate of time and money involved in the preparation of the matter for trial.
Counsel for the defendant opposes the application for budgeted costs on grounds that the claimant is seeking to recover all her costs incurred or to be incurred in these proceedings, and as such appears to be seeking a recovery of costs on an indemnity basis. In that regard, counsel has submitted that the CPR 2000 makes no provision for the recovery of costs on an indemnity basis and cites as authority the case of The Attorney General of St. Christopher and Nevis v. Queensway Trustees Limited (SKNHCVAP 2005/0005).
Counsel noted that the principles of proportionality and reasonableness underlie the modern CPR regime, and that under this regime costs are not awarded on the basis of indemnifying a party for all his costs. In support of this contention, counsel referred to the Privy Council case of Joseph W. Horsford v. Lester Bird and others [2006] UKPC 55, where Lord Hope of Craighead stated that:
“Where the courts of England and Wales are asked to assess the amount of costs they will not allow costs which have been unreasonably incurred or are unreasonable in amount. Civil Procedure Rules 1998, rule 44.4(1). Where costs are to be assessed on the standard basis they will only allow costs which are proportionate to the matters in issue, and they will resolve any doubt which they may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party: CPR, r 44.4(2). The concept of proportionality which the CPR has adopted is new. But otherwise the principles which they set out have been established for a very long time: see the former Rules of the Supreme Court, Ord 62, r 12(1); L v. L (Legal Aid Taxation) [1996] 1 FLR 873, 884, per Aldous LJ; Wraith v. Sheffield Forgemasters Ltd [1998] 1 WLR 132, 140, per Kennedy LJ. A costs judge is expected to apply the same principles when taxing an award of costs on the standard basis in proceedings before the Board. It has to be borne in mind, in judging what was reasonable and proportionate in this case, that the basis of the award was not that the appellant was to be indemnified for all his costs. The respondent was to be required to pay only such of the appellant's costs as ere reasonably incurred for the conduct of the hearing before the Board and were proportionate”.
With respect to budgeted costs, counsel submitted that this is an exercise in the assessment of costs prior to the costs being incurred, while with a regular assessment of costs the court looks at costs after they have been incurred. While the latter is true, the former is not entirely the case since with budgeted costs many cost items and disbursements are incurred in advance of any assessment. In fact in an application for budgeted costs, the party requesting the application must indicate in the statement showing how the budget was calculated a breakdown of the costs that have been incurred to date as well as anticipated future costs and the manner of calculation.
Counsel further submitted that a number of items in the budgeted costs relating to an application for interim payment should be disallowed. This position is buttressed by the fact that the Court of Appeal had set aside the order for an interim payment. Counsel also cited the English Court of Appeal case of Lahey v. Pirelli Tires Ltd [2007] EWCA Civ 91 where Dyson LJ stated that where a court “decides that a party was unreasonable to raise and pursue an issue, the costs judge is entitled to disallow the costs relating to that issue on the grounds that they were unreasonably incurred”.
Counsel also identified a number of items included in the costs budget that he considered to be unreasonable. Some of these items are nine (9) hours for the preparation of the budgeted costs application, three (3) hours for the preparation of an application for an expert witness, ninety-six (96) hours for the purposes of complying with the case management order and six (6) hours for the preparation of the trial bundle. The calling of eight (8) witnesses is also perceived by Counsel to be disproportionate to the needs of the case.
On the question of proportionality of costs, counsel cited Lownds v. Home Office [2000] EWCA Civ 365, [2000] 1 WLR 2450 as the locus classicus where Lord Woolf stated:
“In assessing costs judges should have no difficulty in deciding whether, in order to conduct the litigation successfully, it was necessary to incur each item of costs. When an item of costs is necessarily incurred then a reasonable amount for the item should normally be allowed. Any item that was not necessary should be disallowed. …… 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 considerations which CPR r 44.5(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 reasonably incurred and the cost for that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court will want to be satisfied that the work in relation to each item was necessary and, if necessary, that the cost of the item is reasonable”.
It should be noted that the English CPR 44.5(3) corresponds to our CPR 2000 r 65.2(3). Counsel has submitted that the budgeted sum of $96,434.05 is disproportionate to the claim and in accordance with Lownds the court is required to examine...
To continue reading
Request your trial