Gloyd Robinson v The Bermuda Civil Aviation Authority

• Jurisdiction: Bermuda
• Judge: Hargun CJ
• Judgment Date: 22 November 2023
• Court: Supreme Court (Bermuda)
• Year: 2023
• Docket Number: CIVIL JURISDICTION 2022: No. 188

Between:

Gloyd Robinson

Plaintiff

and

The Bermuda Civil Aviation Authority

First Defendant

and

The Minister of Transport

Second Defendant

[2022] SC (Bda) 91 Civ.

Before:

The Honourable Chief Justice Hargun

CIVIL JURISDICTION 2022: No. 188

In The Supreme Court of Bermuda

Appearances:

Mr Vaughan Caines of Forensica Legal for the Plaintiff

Mr Allan Doughty of MJM Limited for the First Defendant

JUDGMENT (Costs)

Application for indemnity costs following a successful strike out application; principles to be applied

Hargun CJ

Introduction

1 By Judgment dated 6 October 2023, this Court held that having regard to the findings that (i) Mr Robinson does not have the legal standing to pursue these proceedings; (ii) any alleged breach of the Bribery Act 2016 does not give Mr Robinson a private law cause of action which he is able to pursue in these proceedings; (iii) the pursuit of the cause of action based upon tortious interference is not sustainable in all the circumstances; (iv) Mr Robinson is unable to sustain a stand-alone cause of action based upon the principle of vicarious liability of an employer for the wrongful acts of the employee; and (v) the commencement of these proceedings was an abuse of process given that the appropriate challenge to the alleged misconduct on the part of Mr Lynch-Wade should have been made by way of an application for judicial review, the claims made by Mr Robinson in the Statement of Claim must be struck out.

2 Following the delivery of the Judgment the Bermuda Civil Aviation Authority (“ BCAA”), the First Defendant, makes this application by written submissions, dated 16 October 2023, that the costs of the BCAA, for all stages of these proceedings, including this application, be awarded against Mr Robinson, the Plaintiff, on an indemnity basis, to be taxed if not agreed. Mr Robinson opposes that application and has filed written submissions, dated 23 October 2023. The Court agreed to determine this application on the papers.

3 The BCAA submits that in this case the following misconduct of Mr Robinson falls “out of the norm”, and should result in an order for indemnity costs, namely: (i) the filing of the writ, whose pleaded causes of action can only be described as unreasonable to a high degree, in that they lack any legal foundation and were doomed to fail from the outset; (ii) the pointless advancement and aggressive pursuit of allegations of dishonesty or impropriety against Mr Tariq Lynch-Wade and the BCCA; (iii) an attempt to turn Mr Robinson's claim into an unprecedented factual enquiry by entering the evidence material that alleged misconduct on the part of Mr Lynch-Wade, that have no bearing on the issue of whether Mr Robinson had pleaded case that was not doomed to fail; (iv) filing a right of action which was found to be an exercise in futility and an abuse of process and that the claim should have been brought to an application seeking leave to issue judicial review proceedings; (v) failing to disclose that the company Mr Robertson reported to act for, Jet Test International Limited (“ JTIL”), had been in liquidation, which begs the question as to whether the Joint Provisional Liquidators of the company were aware that these proceedings had been filed; and (vi) failing to advise the Court, at the outset, that the writ, was filed in Mr Robinson's name, because the Plaintiff was not allowed to list JTIL as a plaintiff to the action.

4 In response, Mr Robinson points out that JTIL was in fact not in liquidation at the time these proceedings were filed and at the date of the hearing seeking to strike out the Statement of Claim. In that regard Mr Robinson has produced a Tomlin Order filed in the Supreme Court of the Commonwealth of The Bahamas dated 24 February 2023 which records the removal of the Joint Provisional Liquidators of JTIL. Mr Robinson contends that whilst he accepts that the Court has struck out the proceedings and the Court has made a number of legal rulings which are against him, the conduct of the proceedings was not so unreasonable so as to take it out of the norm and thereby warrant an order of indemnity costs against him. He accepts that costs should be awarded against him on the standard basis.

5 In Bidzina Ivanishvili v Credit Suisse Life (Bermuda) Limited [2022] SC (Bda) 56 Civ (25 July 2022) this Court held at [76] that the Court of Appeal in Crisson v Marshall Diel & Myres Limited [2021] CA (Bda) 13 Civ (Costs) applied the test for indemnity costs as reflected in the English case law and in particular the judgment of Christopher Clarke J (as he then was) in Balmoral Group Limited v Borelis (UK) Limited [2006] EWHC 2531 (Comm) and the judgment of Gloster J in JP Morgan Chase Bank v Springwell Navigation Corp [2008] EWHC 2848 (Comm). The Court expressed the view that the expressions used to articulate the test for the award of indemnity costs by Ground CJ in DeGroote v Macmillan [1991] Bda LR 27 may not be entirely consistent and going forward it would be preferable for the court to apply the test clearly set out by the Court of Appeal in Crisson. The Court further held that there was no public policy reason why the test for the...