Binns and Others v Burrows

• Jurisdiction: Bermuda
• Judgment Date: 12 January 2012
• Date: 12 January 2012
• Docket Number: Civil Jurisdiction 2010 No. 149
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2010 No. 149

BETWEEN:

Eldon Binns, Tyrone Sampson, Compass Holdings Limited

Plaintiffs

and

Kyril Burrows (also trading as Human Nature)

Defendant

Mr J Garrood for the Plaintiffs

Mr R Horseman for the Defendant

The following cases were referred to in the judgment:

National Westminster Bank plc v KotonouUNK[2007] EWCA Civ 223

Actavis v Merck & Co[207] EWHC 1625

Seepersad v Persad (Trinidad & Tobago)UNK[2004] UKPC 19

Abstract:

Costs - Concession made at late stage of proceedings - Proportionate reduction

RULING ON COSTS of Kawaley J

Introductory

1. The Judgment of this Court dated December 15, 2011 concluded as follows:

"26. The Company/Third Plaintiff is entitled to judgment for the following amounts:

(a)$171,755.72 to be paid out of funds held in trust by Conyers Dill & Pearman Limited less the sum of $34,000 payable to the Defendant in respect of taxed costs, as agreed at the beginning of the trial;

(b)$4250 in respect of an overpayment in respect of "At Task" software, as agreed at the beginning of the trial.

27. I will hear counsel as to costs. Although it is difficult to see why the Plaintiffs should not be awarded the costs of the action, including preparing for trial, it seems necessary to consider what order is just as regards the costs of the trial as the time spent on the Plaintiffs' contested claims which failed was possibly 80% of the total trial time, compared with only 20% for the Defendant's unsuccessful Counterclaim."

2. The Defendant's counsel requested the Court not to award the Plaintiffs and/or the Company its costs. It was submitted that if an issues-based approach to costs was adopted, the Defendant had succeeded on all claims which were truly contested except for his Counterclaim. It would be inequitable for the Plaintiffs to recover any costs having regard to the way in which the claims had been commenced and pursued. The Plaintiff's counsel submitted that an issues-based approach was not appropriate in our procedural framework or in the circumstances of the present case in any event.

Principles applicable to Costs

3. The primary governing rules are contained in Order 62 which provides so far as is relevant as follows:

"62/3 General principles

3 (1) This rule shall have effect subject only to the following provisions of this Order.

(2) No party to any proceedings shall be entitled to recover any of the costs of those proceedings from any other party to those proceedings except under an order of the Court.

(3)If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.

4. Mr Garrood correctly submitted that these principles are far narrower than the CPR 44.3 position, which rule expressly (in a procedural framework in which lists of issues are drawn up) empowers the Court to have regard to whether or not a party has succeeded on particular issues. This distinction is illustrated by the case to which he referred, National Westminster Bank plc v KotonouUNK[2007] EWCA Civ 223. Chadwick LJ observed in that case:

"20.So the judge came to the conclusion that the right approach was to make an order based on the separate issues in the case: an order which he described as a split costs order or an issue-based order. That course was plainly open to him in an appropriate case; as appears from CPR44.3(6) paragraph (f):

'(6) The orders which the court may make under this rule [rule 44.3] include an order that a party must pay -

(f) costs relating only to a distinct part of the proceedings.'"

5. As I remarked in the course of argument at the costs hearing, my own previous decision to adopt an issues-based approach to costs was rebuffed by the Court of Appeal, albeit (on further analysis) in the context of assessing the costs of an action which had been settled save as to costs. In First Atlantic Commerce Ltd v Bank of Bermuda Ltd.BDLR[2009] Bda LR 18, Evans JA opined as follows:

"64. In...