Rochamel Construction Ltd Appellant v National Insurance Corporation Respondent [ECSC]

• Jurisdiction: St Lucia
• Court: Court of Appeal (Saint Lucia)
• Judge: BYRON, C.J.,Chief Justice,Justice of Appeal,Sir Dennis Byron,Albert Redhead,Brian Alleyne, SC
• Judgment Date: 24 November 2003
• Judgment citation (vLex): [2003] ECSC J1124-2
• Docket Number: CIVIL APPEAL NO.10 OF 2003
• Date: 24 November 2003

[2003] ECSC J1124-2

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Albert Redhead Justice of Appeal

The Hon. Mr. Brian Alleyne, SC Justice of Appeal

CIVIL APPEAL NO.10 OF 2003

Between:

Rochamel Construction Limited

Appellant

and

National Insurance Corporation

Respondent

Appearances:

Mr. Kenneth Monplaisir, QC for the Appellant

Mrs. A. Cadie St. Rose-Bruney for the Respondent

BYRON, C.J.

1 Rochamel Construction Limited [RCL] has appealed against the orders that it will be responsible for the costs of Mr. Lillywhite which the Court fixed at $75,000.00, and that it will be jointly liable with Mr. French for the costs of National Insurance Corporation [The Corporation] fixed at $150,000.00. The Corporation cross-appealed for an order to set off any costs awarded against The Corporation by the costs awarded in its favour.

Background

2 On 10^th July 2001 The Corporation commenced proceedings to recover amounts due by RCL under the National Insurance Act 2000. The claim was made jointly and severally against RCL as the employer and principal debtor and French and Lillywhite as directors of the company. On 30^th October 2001 The Corporation entered judgment against all three in default of defence for $1,520,199.07and interest and costs which were not quantified

3 On 9^th November 2001 a document headed "defence" was filed by Monplaisir and Co acting as attorney for the three defendants in which French and Lillywhite denied that were directors at the material times, French alleged that he used due diligence to prevent the non-payment of the social security contributions and RCL admitted liability to the entire claim.

4 On 19^th December 2001 Monplaisir and Company filed an application to set aside judgment insofar as it related to French and Lillywhite and for ancillary orders including leave to defend. The application was granted.

5 At a case management conference held on 18^th February 2002, it was ordered that the trial was to proceed only on the defence of due diligence.

6 The matter came on for hearing on 13^th, 14^th February 2003. No evidence was adduced against Lillywhite and accordingly the case against him was dismissed. The learned trial Judge ordered that French was a manager within the meaning of section 80 of the Act, and was jointly liable with The Corporation for the unpaid contributions. He made the extra ordinary costs order without giving any indication of the provisions of the rules which were being applied, or the reasons which informed it. It is necessary therefore to look at the rules of Court relating to costs.

Cost Orders

7 There are four types of cost orders that the rules envisage.

• [a] On determining certain types of applications the Court is required to makeAssessed costs orders as provided by CPR part 65. 11 and 12

• [b] In certain matters concluded before a defence is filed a party is entitled toFixed costs as provided by CPR 65.4

• [c] Generally in other cases the Court must orderPrescribed costs as provided by CPR 65.5

• [d] A party who wishes the costs to be based on a different basis may apply for aBudgeted costs order in accordance with CPR part 65.8.

The General Rule and discretion

8 CPR part 64 .6 prescribes that where the Court decides to make an order about the costs of any proceedings, the general rule is that, it must order the unsuccessful party to pay the costs of the successful party. The Court is, however, given very wide discretionary powers to vary the application of the general rule. These include the power to order a successful party to pay all or part of the costs of an unsuccessful party or make no order as to costs or to pay only certain portions of another person's cost. In exercising these discretions as to costs the Court is required to have regard to all the circumstances. Particular consideration must be given to the conduct of the parties both before and during the proceedings and the manner in which a party has pursued the case in general and particular issues within the case. Thus the order can be affected by whether a party has succeeded on particular issues, even if the party has not been successful in the whole of the proceedings. The Court is also required to consider whether it was reasonable for a party to pursue a particular allegation or raise a particular issue and whether the claimant gave reasonable notice of intention to pursue a claim. The Court also has power to order costs against a person who is not a party, but only on giving prior notice and an opportunity to be heard.

The Overriding Objective and Costs

9 These discretions are aimed at assisting the Court to further the overriding objective of dealing with cases justly. Dealing justly with cases includes ensuring that the parties are on an equal footing, that expense is saved, that cases are dealt with proportionately to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party, that the matter is dealt with expeditiously and fairly and that an appropriate share of the Court's resources is allotted to it while taking into account the need to allot resources to other cases. The parties are required to assist the Court to further this objective.

10 This gives rise to a number of concepts some of which are relevant to the award of costs in this case. Claimants should be discouraged from bringing proceedings or making allegations which are spurious, in the sense that they are unsupported by evidence. A person should not be forced to waste expense to defend a claim that is not being prosecuted. Defendants should be encouraged to admit, at an early stage of the proceedings, allegations or claims which they cannot rebut. The Court should actively manage the case to give effect to the overriding objective. In this case the case management process effectively identified the only justiciable issue and in accordance with CPR 26.1(2)(e) directed a separate trial on that issue. That order gave effect to the...