Baron Gabriel Van Der Elst v [1] LPA International Inc., [2] Lane Pettigrew Associates (St. Lucia) Ltd, [3] Jon Lane Pettigrew
| Jurisdiction | St Lucia |
| Judge | Pariagsingh, M. (Ag) |
| Judgment Date | 26 November 2021 |
| Neutral Citation | LC 2021 HC 029 |
| Docket Number | CLAIM No: SLUHCV2008/0158 |
| Court | High Court (Saint Lucia) |
Saint Lucia
CLAIM No: SLUHCV2008/0158
THE EASTERN CARIBBEAN SUPREME COURT
Ms. Diana Thomas for the Claimant; and
Mr. Deale Lee for the Defendants
Claimant's assessment of costs
Before the Court is the Claimant's assessment of costs pursuant to the Order of Belle J made on July 26, 2012. The Claimant in this application to assess costs has made reference to a decision of June 26, 2012. I have searched the Court's file and I have found no decision of that day.
The Claimant's application references the decision of Belle J on two applications filed on behalf of the First and Second Defendants on October 20, 2010. I have only been able to find a decision of Belle J on the Second Defendant's application for a stay of proceedings.
On this application Belle J ordered the Second Defendant to pay the Claimant's costs pursuant to Part 65CPR. It is on the basis of this order I now proceed to assess the costs payable on the Second Defendant's application for a stay filed on October 20, 2010.
The application from which the entitlement to costs arose was filed on October 20, 2010 on behalf of the Second Defendant seeking a stay of this claim against pursuant to Section 7 of the Arbitration Act, Chapter 2.06.
The thrust of the application was the interpretation of Clause 8 of a Construction Management Agreement entered into between the parties. The central issue was; whether this clause constituted an arbitration agreement.
The application was supported by the affidavit of Jon Lane Pettigrew. This affidavit comprised of 4 pages and contains 10 paragraphs with 3 exhibits.
On January 18, 2011 the matter came up before Belle J. At that hearing Ms. Leandra Verneuil appeared for the Claimant. Mr. Dexter Theodore and Ms. Patricia Augustin appeared for the Defendants. The matter was adjourned to April 12, 2011.
On April 08, 2011 an affidavit in opposition to the application was filed by the Claimant. This affidavit comprised 4 pages and 17 paragraphs.
The application was heard on April 12 and 13, 2011 by Belle J and decision was reserved. Appearing at the hearing was Mr. Hilford Deterville QC leading Ms. Diana Thomas for the Claimant. Mr. Sydney Bennett QC leading Ms. Patricia Augustin appeared for the Defendants.
In resisting the application, the Claimant filed submissions on April 12, 2011 and supplemental submissions on April 26, 2011.
On July 21, 2011 written submissions were filed by the Defendants. Noteworthy is that these submissions did not only deal with the Second Defendant's application. It also addressed a similar application made on behalf of the First Defendant, also filed on October 20, 2010. These submissions comprised of 68 paragraphs and spanned 10 pages.
On July 26, 2012, Belle J delivered his decision on the Second Defendant's application. In his decision the learned judge held inter alia that the Claimant was not able to discharge the burden of proving that having two disputes heard in court while another is heard by an arbitrator would result in conflicting decisions. This was one of the main grounds advanced by the Claimant in opposition to the application.
The learned judge also agreed with the Claimant on its argument regarding when the proceedings were properly instituted, that the delay was not too long and the effect of a stay would be prejudicial.
The Claimant was not successful on all the grounds advanced in opposition to the application but nevertheless was successful in opposing the application.
There are three methods to quantifying costs, budgeted costs, prescribed costs and assessed costs. Rule 65.11 CPR (assessed costs) applies where budgeted costs or prescribed costs do not apply. There has been no application for budgeted costs. Prescribed costs exclude the making or opposing of any application except at a case management conference or pre-trail review (Rule 65.7 (2)(d) CPR). Prescribed costs therefore do not apply to the instant application.
Assessed costs applies to procedural applications which are not made at the case management conference or pre-trial review, as the instant application (Rule 65.11 (1) CPR). The Second Defendant in its written submissions contends that the costs payable is prescribed costs based on the value of the claim and invited the Court to consider this, I disagree. Prescribed costs and assessed costs are two entirely different regimes of quantification of costs based on different factors. The applicable method of quantification in the instant application is assessed costs.
Assessed costs can either be on the standard basis (Attorney /Attorney basis) or on the indemnity basis (Attorney /Client basis). The starting point is to determine the basis of the assessed costs to be used. In assessing costs on the standard basis, the Court allows costs which are proportionate to the matters in issue. Any doubt regarding whether an item was reasonably incurred and proportionate under this basis is resolved in favour of the paying party. Conversely, the test of proportionality is not appliable in assessing costs on the indemnity basis. On the indemnity basis (attorney/client basis) any doubt which arises in respect of whether costs were reasonably incurred are resolved in favour of the receiving party.
In the instant application, the order does not provide for costs on the indemnity basis. Further the application does not raise issues as between Attorney/Client. As such, the standard basis is applicable.
One of the pillars of the overring objective is proportionality. Proportionality is considered with reference to Part 1 Rule 1.1 (2) (c) of the Civil Proceedings Rules 2000 as amended which states:
“(c) dealing with the cases in ways which are proportionate to the –
(i) the amount of money involved;
(ii) the importance of the case;
(iii) the complexity of the issues; and
(iv) the financial position of each party”
In the case of Home Office v Lownds [2002] 4 All ER 775 CA the approach to the proportionality when assessing costs was stated as a two-stage approach. It was stated that:
“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 Part 44.5(3) (Same as Rule 65. 2 (3) of the ECSC CPR) states are relevant. If the costs as a whole are not disproportionate according to the test then all that is normally required is that each item should have been reasonably incurred and the costs 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, the cost of the item was reasonable.”
The sum to be considered in the first stage is the sum claimed before VAT as stated in Giambrone v JMC Holidays [2003] 2 Costs LR 189.
Once the Court is of the view that the sum claimed as a whole is not proportionate, then every item then must be considered under the headings of necessity and reasonableness, the item-by-item approach. Even if the Court considers that the sum claimed is proportionate, the Court can still examine items on the basis of necessity and reasonableness. The rationale behind this approach is proportionality being the guiding principle.
The other consideration outside of the necessary and reasonable consideration is whether the Claimant would be entitled to a fee on brief and if so, in what sum.
In The Attorney General of Trinidad and Tobago v Haleema Mohammed, Civil Appeal No. S-218/2018, the Court of Appeal of Trinidad and Tobago considered whether Counsel is entitled to a fee on brief if the matter was did not go to trial. In the joint judgment of the Court delivered by Jamadar JA (as he then was) and Pemberton JA the Court held at paragraph 11 that:
“We therefore find that Counsel for Haleema was entitled to claim on brief fee for pre-trail work and for attendance at the inter parties hearing, the application to deem the matter urgent for hearing in the vacation and for the hearing on the representative proceedings. What is necessary is that a proper determination of that fee be employed by the Assistant Registrar using the standard set out by Hobhouse J”
Whilst not binding in this jurisdiction, I agree with the decision and reasoning in Haleema. The Claimant is entitled to a fee on brief on the Second Defendant's application.
In Loveday v Renton [1992] 3 ALL ER 184 at page 191f it is stated :
“…. in allowing fees the taxing officer should have regard to the other fees and allowances payable to counsel in respect of other items in the same case when the work done in relation to those items has reduced the work which would have otherwise been necessary in...
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