Rambally Blocks Ltd v The Comptroller of Customs & Excise

• Jurisdiction: St Lucia
• Court: High Court (Saint Lucia)
• Judge: Pariagsingh, J
• Judgment Date: 31 January 2025
• Judgment citation (vLex): [2025] ECSC J0131-1
• Docket Number: [1] Claim Number: SLUHCV2024/0202 formerly SLUHCV2014/0100 Appeal Number: SLUHCVAP2017/0019 Claim Number: SLUHCV2016/0187 [3] Claim Number: SLUHCV2024/0204 formerly SLUHCV2014/0513 Appeal Number: SLUHCVAP2018/0001

Between

Rambally Blocks Limited

Claimant

and

The Comptroller of Customs & Excise

Defendant

Heard Together with:

Between:

Econo Parts Limited

Claimant

and

The Comptroller of Customs & Excise

Defendant

Consolidated with:

Between:

Mr. Parts Limited

Claimant

and

The Comptroller Of Customs & Excise

Defendant

Heard Together with:

Between:

China Town Inc.

Claimant

and

The Comptroller of Customs & Excise

Defendant

Before

the Honourable Mr. Justice Alvin S. Pariagsingh

[1] Claim Number: SLUHCV2024/0202 formerly SLUHCV2014/0100

[2] Claim Number: SLUHCV2024/0203 formerly SLUHCV2014/0309

Appeal Number: SLUHCVAP2017/0019

Claim Number: SLUHCV2016/0187

[3] Claim Number: SLUHCV2024/0204 formerly SLUHCV2014/0513

Appeal Number: SLUHCVAP2018/0001

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CIVIL DIVISION

Appearances:

Mr. Vandyke Jude and Mr. Mervyn Steele for all the Claimants/Applicants

Mrs. Antonia Charlemagne for the Defendants in SLUHCV2024/0202 and SLUHCV2024/0203 Seryozha Cenac for the Defendant in SLUHCV2024/0204

Claimants' assessment of costs and vindicatory damages

INTRODUCTION:

Pariagsingh, J

1 — Before the Court are three applications for the Claimants' assessment of costs and vindicatory damages pursuant to separate orders set out below. In furtherance of the overriding objective, and particularly the allocation of the Court's resources, all three assessments of costs arising out of the similar matters were heard together as they were docketed to this Court. I have also chosen to deliver one judgment, for those same reasons. The cases will also be referred to by the Claimant's names, for brevity. Additionally, all of the Claimants will be collectively referred to as the “Claimants”.

THE ORDERS:

2 Rambally Blocks Limited: — On 31 January 2018, Cenac – Phulgence J made the order that: “Costs to the Claimant to be assessed costs in accordance with CPR 65.12 if not agreed by the parties within 21 days of the date of judgment”.

3 Econo Parts Ltd and Mr. Parts (consolidated matters) — In SLUHCVAP2017/0019, an appeal from the decision of Smith J, SC (dated 10 May 2017), the Court of Appeal on 30 July 2019 ordered that:

• 1. The appeal is allowed.

• 2. Nominal damages in the sum of $20,000.00 together with vindicatory damages in the sum of $75,000.00 awarded to the appellant.

• 3. The appellants are entitled to their costs in court below, such costs to be assessed if not agreed within 21 days, and on appeal, to two-thirds of the assessed costs in the court below.”

4 China Town Inc.: In SLUHCVAP2018/0001, an appeal from the decision of Belle J (dated 28 November 2017), the Court of Appeal on 8 December 2020 ordered as follows:

• 1. The appeal is dismissed.

• 2. The case is remitted to the High Court to assess the quantum of vindicatory damages.

• 3. The costs of the appeal to be paid by the appellant at the rate of two-thirds of the amount assessed for the proceedings in the lower court.

5 Pursuant to these orders, this judgment will first deal with the assessments of costs of the three matters, and then the assessment of vindicatory damages in China Town Inc.

THE APPLICABLE REGIME AND BASIS OF ASSESSMENT FOR COSTS:

6 In their submissions, the Claimants argued that costs should be assessed on an indemnity basis, failing which, the global approach as set out in Home Office v Lownds 1, should be adopted.

7 These are administrative claims, and the applicable costs regime is assessed costs. Costs are usually assessed on the standard basis and are recoverable only if they are both reasonable and proportionate to the matters in issue. The burden of proof lies with the receiving party to demonstrate this, and any doubt regarding the reasonableness or proportionality of the costs is resolved in favour of the paying

party. This default approach ensures fairness and prevents excessive penalties for the paying party

8 In contrast, costs assessed on the indemnity basis are more generous. Under this regime, costs are recoverable if they are reasonable, without the requirement of proportionality. The burden shifts to the paying party to show that the costs claimed are unreasonable, with any doubts resolved in favour of the receiving party. Indemnity costs are typically awarded in cases of misconduct, unreasonable behaviour, or other exceptional circumstances warranting fuller compensation for the receiving party.

9 The primary distinction between the two bases lies in the role of proportionality and how doubts are resolved. On the standard basis, proportionality is a key requirement, and doubts favour the paying party. On the indemnity basis, proportionality does not apply, and doubts favour the receiving party. These differences allow the court to tailor costs awards to suit the conduct and context of the case.

10 Indemnity costs are recognised in common law and codified in procedural rules in jurisdictions such as England and Wales. Although not explicitly addressed in the Civil Procedure Rules (Revised Edition) 2023 or its predecessor, the Civil Procedure Rules 2000 (as amended), indemnity costs under common law reflect the principle that a party should not bear undue costs caused by another party's unreasonable or improper conduct. This aligns with common law's broader goals of fairness and justice, deterring misconduct while compensating those unfairly burdened with expense.

11 The Claimants submitted that no authority in this jurisdiction permits the court to consider assessing costs on an indemnity basis. This assertion is incorrect. In The Attorney General of Saint Christopher & Nevis & Anor v Queensway Trustees Ltd 2, Gordon JA addressed the issue. At paragraph 12, he noted:

“Having found (at paragraph 8 above) that indemnity costs or any grammatical derivative of that phrase are not referred to in CPR, an ineluctable corollary is that the term cannot be a term of art. Thus, the only interpretation of the term ‘indemnity’ as qualifying ‘costs’ must be its ordinary everyday meaning, but subject to any guidance, constraint, or direction contained in the law. Rule 1.1 and 1.2 of CPR are of vital significance in this regard and are reproduced for ease of reference…”

12 A key issue in Queensway was that the order for indemnity costs was not appealed. At paragraph 15, Gordon JA observed:

“Had the appellants approached this litigation in any other than the cavalier and dismissive way that it has, it is quite likely that this appeal might have been unnecessary… Costs of the appeal are awarded to the respondent.”

13 It is clear that the court's discretion on costs operates at two stages. The first stage determines liability for costs (e.g., whether assessed or prescribed costs are awarded). The second stage involves assessing or quantifying the costs to be paid. If the Claimant sought indemnity costs, this request should have been considered by the judge when determining liability for costs, not at the quantification stage.

14 In Rampersad v Ramlal 3, the trial judge ordered the Defendants to pay assessed costs instead of prescribed costs after hearing the evidence. The Board upheld this decision, emphasising that it is the trial judge, fully acquainted with the case, who is best placed to decide on liability for costs. The taxing officer's role is limited to quantifying costs, not revisiting the basis for the order even if the taxing officer is the same judicial officer who made the order for costs. In the absence of a challenge to the order for costs by way of appeal, a request for indemnity costs cannot be entertained at the stage of quantification, if that basis of assessment does not form part of the order for costs.

15 In the present case, if the Claimants wanted indemnity costs, such an application should have been made to the trial judge before the order for costs was finalised. Revisiting the order at this stage to include indemnity costs would be inappropriate and, if disputed, should have been the subject of an appeal.

16 Further, the authorities cited by the Claimant— Digicel (St. Lucia) Ltd v Cable & Wireless & Ors 4, Three Rivers DC v Bank of England 5, Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnson 6, and Kiam v MGN Ltd (No. 2) 7—are not relevant at the quantification stage. These cases address liability for costs and the court's considerations in awarding indemnity costs but do not support the proposition that a taxing court can alter an existing costs order.

17 Accordingly, I decline to assess costs on an indemnity basis in these matters. The Claimants' contention that the Defendant's conduct was unreasonable, including ignoring pre-action attempts at engagement, was a matter to be addressed when the costs order was made, not during assessment. This court's role is confined to quantifying the costs order already made.

18 Consequently, costs in this matter will be assessed on the standard basis. Only items that are both reasonable and proportionate to the matters in issue will be allowed.

THE METHOD OF ASSESSMENT:

19 The approach to the assessment of costs, is stated in Irma Annette Hughes & Anor v Joseph Smith & Anor 8. It is a two-stage approach as explained in Lownds v Home Office 9:

“[31] …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) 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...