Bierman and Bierman's Concrete Products Ltd v Minister of the Environment
| Jurisdiction | Bermuda |
| Judgment Date | 02 April 2002 |
| Date | 02 April 2002 |
| Docket Number | Civil Appeal No. 21 of 1993 |
| Court | Court of Appeal (Bermuda) |
The Court of Appeal for Bermuda
Sir James Astwood, P.
Clough, J.A.
Nazareth, J.A.
Civil Appeal No. 21 of 1993
and
Minister of the Environment v Barnes 1994 Civil Appeal No. 16
Rules of the Supreme Court, O. 58, r. 1; O. 62, r. 21
Rules of the Court of Appeal, O. 1, r. 15; O. 2, r. 31; O. 4, r. 1
Taxation for costs — Delay — Jurisdiction of judge to interfere with registrar's decision — Jurisdiction of Court of Appeal to entertain appeal — Statutory interpretation
Clough, J.A.
This is the judgment of the court
1. The appellants, Herbert Michael Bierman and Bierman's Contrete Products Ltd. (BCPL) (to whom we refer together as1 ‘Biermans’) seek to appeal against the decision of Meerabux P.J. contained in his judgment dated the 22nd November 2001 expressed to order that (1) the decision of the Acting Registrar (‘the registrar’) made in favour of Biermans on the 18th September 2001 at a hearing for the taxation of Biermans' costs, as successful appellants against the Minister of Environment be set aside; and (2) that Bierman's application for taxation be dismissed.
2. The appeal raises a number of procedural and jurisdictional issues and further issues concerning the consequences of delay on the part of Biermans in applying for taxation of their costs. The jurisdictional issues concern:
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(i) The identification of the appropriate rules governing a taxation by the registrar (upon whom is conferred the dual capacity of registrar of the Supreme Court and of the Court of Appeal) of the costs of a party to whom the Court of Appeal has awarded costs of an appeal to the Court of Appeal and the costs of the Supreme Court proceedings giving rise to the appeal;
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(ii) The jurisdiction, if any, of the judge (a Supreme Court judge upon whom is conferred the powers of a single Justice of Appeal) to interfere with the registrar's decision having regard to the procedure by which the Minister purported to bring the matter before him; and
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(iii) The jurisdiction, if any, of the Court of Appeal to entertain Biermans' present appeal against the judge's decision.
3. The procedural background leading up to this appeal is lengthy and at times confused.
4. In Bermuda the jurisdiction of the Supreme Court established under the Supreme Court Act 1905 corresponds with the jurisdiction of the High Court in England and Wales. The procedure of the Supreme Court is governed by the Rules of the Supreme Court 1985 (the 1985 Rules) made under section 62 of that Act. The 1985 Rules are based on the English Rules of the Supreme Court (the English Rules) as in force in 1979 with appropriate modifications and omissions. Whereas the English rules regulate the procedure of both the High Court and the Court of Appeal, the 1985 Rules do not apply to the Bermuda Court of Appeal which was established under the Court of Appeal Act 1964 (the 1964 Act). The procedure of the Court of Appeal is governed by the Rules of the Court of Appeal for Bermuda (the Court of Appeal Rules) made in 1965 under section 9 of the 1964 Act. Section 28 of that Act provides that the registrar of the Supreme Court shall be the registrar of the Court of Appeal.
5. Order 58 rule 1 of the 1985 Rules provides a right of appeal to a judge in chambers from any judgment, order or decision of the registrar. Order 62 governs costs in the Supreme Court in respect of which rule 12 confers power of taxation on the registrar. Rule 32(1) applies the scale of costs in the Schedule to Order 62 to the taxation of all costs incurred in relation to contentious business. Rule 21 provides:
‘21. (1) A party entitled to require any costs to be taxed must begin proceedings for the taxation of those costs by producing at the Registry his bill of costs and a copy thereof.’ (There is no paragraph {2}).
This provision is taken from Order 62 rule 21(1) of the English Rules and does not incorporate the requirement of rule 21(3) that proceedings for taxation of costs must begin within 3 months after perfection of the relevant judgment, direction or order.
6. Order 62 rule 7(5) of the 1985 Rules provides:
‘(5) Where a party entitled to costs fails to procure or fails to proceed with taxation, the Registrar, in order to prevent any other parties being prejudiced by that failure, may allow the party so entitled a nominal or other sum for costs or may certify the failure and the costs of the other parties.’
This provision reproduces Order 62 rule 7(5) of the English Rules. Order 62 rule 16(1) of the 1985 Rules provides:
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‘16. (1) The Registrar may—
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(a) extend the period within which a party is required by or under this Order to begin proceedings for taxation or to do anything in or in connection with proceedings before the Registrar,
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(b) where no period is specified by or under this Order or by the Court for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done.’
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Rule 25 provides:
‘25. (1) In any bill of costs the professional charges and the disbursements must be entered in separate columns and every column must be cast before the bill is left for taxation.
(2) Before a bill of costs is left for taxation it must be indorsed with the name or firm and business address of the attorney whose bill it is.
Rule 35 provides:
‘35. (1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowance in whole or in part of any item by the Registrar, or with the amount allowed by him in respect of any item, may apply to the judge for an order to review the taxation as to that item or part of an item.
(2) An application under this rule for review of the Registrar's decision may be made at any time within fourteen days after the Registrar's decision:
Provided that no application under this rule for review of a decision in respect of any item may be made until after the signing of the Registrar's certificate dealing finally with that item.
(3) An application under this rule shall be made by summons and shall specify the nature and grounds of the objection and the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which is objected to and shall, except where the judge thinks fit to adjourn into court, be heard in chambers.
(4) On the hearing of an application under this rule, the judge may receive further evidence and may exercise all such powers and discretion as are vested in the Registrar on an original taxation, including the power to award costs of and incidental to the proceedings before him.
(5) On an application under this rule the judge may make such order as the circumstances require, and in particular may order the Registrar's certificate to be amended or, except where the dispute as to the item under review is as to amount only, order the item to be remitted to the Registrar for taxation.
(6) An application under this rule for review of the Registrar's decision in respect of any item shall not prejudice the power of the Registrar under rule 17 to issue an interim certificate in respect of items his decision as to which is not objected to.’
7. Section 3(3) of the 1964 Act provides that a judge of the Supreme Court may exercise any of the powers of a single Justice of Appeal. Sections 12(1) and 14 of the 1964 Act, respectively provide:
‘12. (1) Subject to subsections (2) and (3) and any Rules, any person aggrieved by a judgment of the Supreme Court in any civil cause or matter, (including matrimonial causes), whether final or interlocutory, or whether in its original or appellate jurisdiction, may appeal to the Court of Appeal; and any such appeal is hereinafter referred to as a ‘civil appeal’.
(2) No appeal shall lie to the Court of appeal—
(a) against the decision in respect of any interlocutory matter; or
(b) against an order for costs,
except with leave of the Supreme Court or of the Court of Appeal. [Subsection (3) relates to matrimonial causes].
14. To the extent prescribed by Rules the powers of the Court of Appeal to hear and determine any interlocutory matter may be exercised by any Justice of Appeal in the same manner as they may be exercised by the Court of Appeal and subject to the same provisions:
Provided that every order made by a Justice of Appeal in pursuance of this section may, on application by the aggrieved party and subject to any Rules, be discharged or varied by the Court of Appeal.’
8. Order 1 rule 2 defines ‘the Court’ as meaning the Court of Appeal for Bermuda and ‘Judge’ as meaning the President or a Justice of Appeal, Order 1 rule 15 confers on the registrar ‘the same jurisdiction, powers and duties as the Masters of the Supreme Court ……. Registrars and the like officers of the Supreme Court of Judicature ….., in addition to such other jurisdiction, powers and duties as are given him by these Rules or such further powers and duties as the President may direct.’
Order 1 rule 18 provides:
‘18. Any person aggrieved by anything done or ordered to be done by the Registrar other than anything ordered or done by the direction of the President, may apply to a Judge to have the act, order or ruling complained of set aside or varied and the Judge may give such directions or make such order thereon as he thinks fit. Such application shall be made by notice of motion supported by affidavits setting out the complaint and the relief sought.’
Order 2 rule 31 provides that where ‘the costs of an appeal’ are allowed they may be either ordered to be taxed under Order 4 or fixed at the time when judgment is given. Order 2...
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Re Application for Information About a Trust [SC (Bda)]
...appeal. 9 R1 referred me to the decision of the full Court in Bierman and Bierman's Concrete Products Ltd v Minister of the Environment [2002] Bda LR 22 a paras 46–50. The case confirms that the powers of the single Judge are confined to interlocutory matters and that the Rules cannot overr......