Allen Walsh and Hans Taal v Horizon Bank International Ltd (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 15 May 2008
• Docket Number: Commercial Jurisdiction 2004 No. 257
• Date: 15 May 2008
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Commercial Jurisdiction 2004 No. 257

BETWEEN:

Allen Walsh and Hans Taal

Interpleader Plaintiffs

and

Horizon Bank International Limited (In Liquidation)

First Defendant

Mr N Hargun and Mr C Luthi for the Plaintiff's

Mr J Woloniecki and Ms S Subair for the Defendant

The following case was referred to in the judgment:

Beoco Ltd v Alfa Laval Co LtdELR [1995] QB 137

Costs — Indemnity basis — Application against liquidator personally — Whether exceptional circumstances

RULING ON COSTS of Kawaley, J

1. The Plaintiffs seek (a) the costs of the action (consequent upon my March 31, 2008 Judgment), (b) on an indemnity and (c) against the Defendant's liquidator personally. In addition, they seek the costs of that portion of the January 2008 discovery applications which was resolved, by concession, in their favour.

2. The Plaintiffs” discovery Summons dated January 16, 2008 was dismissed for the reasons set out in my Ruling dated January 28, 2008. The Defendant's January 3, 2008 Summons was granted in terms of paragraph 2, with no order being made in terms of paragraph 1 which was disposed of by way of a concession on Mr. Woloniecki's part. Since the costs attributable exclusively to the subject matter of the concession are de minimis, the most commercially sensible order to make is to award the costs of the applications disposed of on January 28, 2008 to the Defendant in any event.

3. As far as the costs of the present action are concerned (excluding the costs of the original interpleader action), the Plaintiffs are awarded their costs on a standard basis, to be taxed if not agreed. The suggestion that the costs generally should be awarded on an indemnity basis on the grounds of either (a) the nature of the claims, or (b) the unreasonable way in which the defence has been conducted, is rejected in the exercise of my discretion. While the application for leave to plead a new defence of illegality supported by fresh expert evidence, made at trial, looked at in isolation probably warranted costs on an indemnity basis, I have very narrowly come down in favour of adopting an holistic approach to the basis on which costs should be taxed, if not agreed.

4. Mr. Hargun accepted that exceptional circumstances were required to justify an award of costs against the Defendant's sole permanent liquidator, Mr. Marcus Wide, personally. In my judgment, there is no material before this Court which would warrant...