Bierman v Minister of the Environment 1998 Civil Jur. No. 263

• Jurisdiction: Bermuda
• Court: Supreme Court (Bermuda)
• Judgment Date: 22 November 2001
• Docket Number: Civil Jurisdiction 1998: No. 263
• Date: 22 November 2001

In the Supreme Court of Bermuda

In the Supreme Court of Bermuda

In the Court of Appeal for Bermuda

In the Supreme Court of Bermuda

Meerabux, J

Civil Jurisdiction 1998: No. 263

Chancery Jurisdiction 1988: No. 263 (as consolidated with 1992: No. 177)

Civil Appeal No. 21 of 1993

Civil Appeal No. 27 of 1993

BETWEEN:

Herbert Michael Paul Bierman

First Plaintiff

-and-

Bierman's Concrete Products Ltd.

Second Plaintiff

-and-

The Minister of Environment

Defendant

BETWEEN:

Herbert Michael Paul Bierman

First Plaintiff

-and-

Bierman's Concrete Products Ltd.

Second Plaintiff

-and-

The Minister of Environment

Defendant

Herbert Michael Paul Bierman

First Appellant

-and-

Bierman's Concrete Products Ltd.

Second Appellant

-and-

The Minister of Environment

Respondent

BETWEEN:

The Minister of Environment

Appellant

-and-

Herbert Michael Paul Bierman

First Respondent

-and-

Bierman's Concrete Products Ltd.

Second Respondent

Mr. P. Holder for the Appellant.

Mr. M. Diel for the Respondents.

Chapman v ChapmanWLR [1985] 1 WLR 599

Pauls Agriculture v SmithUNK [1993] 3 All ER 122

Tonielo v Top Deck Ski Ltd [1998] Times 7 December

Southwark London BC v Nejad [1999] Times 28 January

Rules of the Court of Appeal O. 4, r. 1, r. 3

Appeal against order for costs — Whether court was correct court — Extension of time

JUDGMENT

PRELIMINARY

At the outset I must state that no record was prepared for the hearing of this matter. Nonetheless, since counsel for the parties have appeared before the Court I have decided to determine the issues presented before me.

This is an appeal and/or a reference to a Judge of the Court of Appeal by the Minister of the Environment, the Appellant, appealing the decision of the Acting Registrar of the Court of Appeal for Bermuda. The grounds of appeal are:

• ‘(1) That the learned Registrar erred in law, misdirected herself and failed to apply the applicable law more particularly the Ruling of this Honourable Court made by the Honourable Richard Ground sitting as a Pusine Judge in the case of the Ministry of the Environment v. Barnes & Barnes (Civil Appeal No. 16 of 1994) dated the 5^th day of March 1998;

• (2) That the learned Registrar erred in law, misdirected herself and failed to apply the applicable law more particularly by applying Order 62 of the Rules of the Supreme Court instead of the Rules of the Court of Appeal for Bermuda which came into operation on the 2^nd day of August 1965;

• (3) That the learned Registrar erred in law, and misdirected herself and failed to apply the applicable law more particularly she did not hear the parties as to the detailed items of the Bill of Costs submitted herein; and

• (4) And such other grounds as may be enlarged and submitted to this Honourable Court.’

The Appellant seeks—

• ‘(i) an Order allowing this Appeal and setting aside the said Decision of the learned Registrar as to the payment of costs by the Appellant; and

• (ii) together with such further or other relief as this Honourable Court may consider to be just in all the circumstances and events which have happened.’

FACTUAL BACKGROUND

The Court of Appeal made an order on costs dated 2 December 1994 concerning Civil Appeal No. 27 of 1993. Georges J. A. delivering his ruling on costs said at 278:

‘The issue of costs in relation to this appeal is reserved but the trial judge's order that Biermans and Mr. Bierman are to have their costs below is affirmed.’

At 279, 280 Georges J.A. concluded:

‘At the close of the argument on behalf of the appellant we accordingly dismissed the appeal on the preliminary point without calling on the respondent to that appeal to reply. The applicants (Bierman's and Mr. Bierman) will pay the costs of the respondent here and the court below.

This is the judgment also of the President who agrees with it and nothing to add.’

Sir Alan Huggins J.A., the other member of the Court of Appeal, did not rule on costs. Obviously the ruling on costs was a majority decision of the Court of Appeal.

By further Order of the Court of Appeal dated 2 December 1994 the Court made a final Order on costs. It ordered that ‘80% of Bierman's costs in the main appeal to be paid by the Minister. Costs to be taxed if not agreed in all instances (in Supreme Court and in Court of Appeal)’

On 9 December 1999 I heard an application by summons on appeal by the Appellant seeking the strike out of Mark Ray's affidavit dated 30 September 1999 as being contrary to Order 41 Rule 6 and Order 62 Rule 3 of the Rules of the Supreme Court 1985 (‘the R.S.C. 1985’) and so much of the Bill of Costs as filed in Court to be amended as contrary to Order 62 Rule of the R.S.C. 1985. No taxation of costs was completed.

On 1 May 2000, after considering submissions by counsel, I ruled that the Supreme Court had no jurisdiction to hear the appeal and I dismissed the appeal. I directed that the matter be referred back to the Registrar and to be determined by the Registrar.

Next followed, the Acting Registrar of the Court of Appeal, who is also Acting Registrar of the Supreme Court, hearing the parties on 16 May 2001 and 18 July 2001 in Civil Appeal No. 27 of 1993. The learned Acting Registrar gave her Decision on taxation on 18 September 2001.

The first paragraph of the Decision reads:

‘This taxation matter came before me for a second time on the 18^th July 2001, the first time being on the 29^th September 1999. This taxation emanated from a Court of Appeal decision rendered on the 2^nd December 1994 in action 1993:27.

The actual Bill of Costs was filed in the Registry on the 16^th June 1999 and an Amended Bill of Costs was filed on the 5^th January 2001.’

The learned Acting Registrar concludes thus:

‘In light of all the circumstances and in light of R.S.C. Order 62 Rule 7 (4), I so order that the bill be taxed in the amount of $103,557.00.’

The Appellant now seeks the reversal of the learned Acting Registrar's decision and the dismissal of the application for taxation on the grounds mentioned earlier.

COURT'S JURISDICTION

Mr. Diel at the commencement of this appeal wanted to make sure if Mr. Holder was using the correct procedure for he did not think that the parties were before the correct Court. Mr. Holder contended that the parties were before the correct Court, that the Supreme Court was functus officio and that the Court of Appeal made the last substantive decision on costs. He cited Order 4 Rule 1 of the Rules of the Court of Appeal for Bermuda (‘the Court of Appeal Rules’) and Order 4 Rule 3 thereof. He argued that the Registrar of the Court of Appeal was empowered to refer any dispute arising out of taxation of a bill for the opinion of a Judge and that was where they were. He contended that both parties sought an opinion from this Court as to whether or not sufficient delay which without more prejudiced the Appellant. He submitted that that was the issue before the Court. He argued that the learned Acting Registrar of the Supreme Court was the Acting Registrar of the Court of Appeal who was not acting as Registrar of the Supreme Court under Order 62 of the R.S.C. 1985.

Mr. Diel submitted that Mr. Holder was invoking the Court of Appeal jurisdiction and that the Appellant's reference could only be in relation to the Court of Appeal costs.

I have ruled that I am sitting as a Judge of the Court of Appeal pursuant to section 3 (3) of the Court of Appeal Act 1964 and that I have jurisdiction to hear costs and taxation of a bill which are captured by the Court of Appeal Rules and that there are in this case such costs and taxation captured by the Rules.

COURT OF APPEAL RULES: ORDER 4

I will next deal with Order 3 Rule 28 and Order 4 of the Court of Appeal Rules. I must mention that the expression ‘Registrar’ is defined in Order 1 Rule 2 of the Court of Appeal Rules. The expression ‘Registrar’ means ‘Registrar of the Court of Appeal for Bermuda’. Order 3 Rule 28 and the relevant portions of Order 4 being Rules 1,3,6,7,8,13 and 27 respectively provide as follows:

‘3/28 Costs

• 28 Where the Court makes any order for the payment of costs by any appellant or by any respondent, such costs may either be ordered to be taxed (in which event the provisions of Order 4 shall apply) or be fixed at the time when the judgment is given.’

‘4/1 Solicitor and client costs

• 1 Where the Court directs taxation of costs as between solicitor and client the Registrar shall tax such costs in accordance with these rules and the scales in the Fourth Schedule.’

‘4/3 Reference by consent

• 3 With the consent of both parties the Registrar may refer any matter in dispute arising out of the taxation of a bill, other than a question of quantum only, for the opinion of a Judge.’

‘4/6 Discretion of Registrar

• 6 On every taxation the Registrar shall allow all such costs, charges and expenses as shall appear to him to have...