Hollis and Johnson v Scrymgeour

• Jurisdiction: Bermuda
• Judgment Date: 05 June 2008
• Date: 05 June 2008
• Docket Number: Civil Appeal 2006 No. 25
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Bell, J

Civil Appeal 2006 No. 25

BETWEEN:

Wendell Malcolm Hollis and Joseph C.H. Johnson

Appellants

and

Alexander Scrymgeour

Respondent

Mr J Milligan-Whyte for the Respondent

Mr A Martin for the Appellants

The following case was referred to in the judgment:

Ridehalgh v HorsefieldELR [1994] Ch 205

Costs — Wasted costs order — Jurisdictions — Procedure

JUDGMENT of Bell, J

Introduction

1. This matter came before me by way of appeals from orders of the Registrar of the Court of Appeal, pursuant to Order 1 rule 18 of the Rules of the Court of Appeal for Bermuda (‘the Rules’). In hearing the appeals, I was therefore exercising the powers of a single Justice of Appeal pursuant to section 3(3) of the Court of Appeal Act 1964 (‘the Act’).

2. There were two appeals, made by notice of motion dated 13 and 23 April 2008, arising from matters which were canvassed before the Registrar on 9 and 16 April 2008. On 2 June, I dealt with the two decisions which were the subject of appeals from the Registrar, but reserved in relation to an application made by Mr. Martin on behalf of the appellants (‘the Trustees’) for a wasted costs order against Mr. Milligan-Whyte in relation to work done by his firm reviewing the bill of costs which had been filed on behalf of the respondent (‘Alexander’) in respect of the costs of the trial. That application had been argued before the Registrar, but she had referred the matter to the judge hearing the appeals, of which notice had by then been given.

3. The Registrar had refused to tax either the bill of costs lodged for taxation on behalf of Alexander in relation to the costs of the trial or that in relation to the costs of the appeal. In relation to the costs of the trial, the Registrar took the view that there was no order made either by the Supreme Court judge (Riihiluoma A.J.) or by the Court of Appeal, granting Alexander his costs of the trial. She therefore took the view that the slip rule (on which Mr. Milligan-Whyte had relied) had no application, and that in any event the bill was lodged late and was consequently in breach of Order 62 rule 29(1) of the Rules of the Supreme Court 1985 (‘RSC’). I agreed, and dismissed that appeal. In relation to the appeal concerning the Registrar's refusal to tax the bill in respect of the Court of Appeal costs, I allowed the appeal on the basis that Order 62 rule 29 RSC had no application to the taxation of the bill of costs in relation to the appeal, pursuant to the costs order of the Court of Appeal. I therefore directed that that bill should be dealt with by the Registrar in accordance with the Rules.

The Different Jurisdictions

4. Before proceeding to consider the application for a wasted costs order, I should clarify the different jurisdictions which come into play in relation to the different matters which were argued before me. The appeal in relation to the costs in the Court of Appeal clearly fell to be dealt with under the Rules. In relation to the appeal in respect of the costs of trial, this was covered in both notices of motion, and it seems to me that the application based on the slip rule was an appeal from the Registrar when she was acting in her capacity as Registrar of the Court of Appeal. In relation to the position under Order 62 rule 29 RSC, the Registrar was clearly acting in relation to the taxation of a Supreme Court bill of costs in her capacity as Registrar of the Supreme Court. Similarly the application for a wasted costs order seems to me to fall under the jurisdiction of the Registrar as Registrar of the Supreme Court, being an application under Order 62 rule 11 RSC, and having been referred by the Registrar to me as a judge of the Supreme Court under the terms of Order 32 rule 12 RSC.

The Wasted Costs Application

5. There is, as Mr. Milligan-Whyte submitted, a great deal of history to this matter, and for this reason it is necessary to consider the terms of the orders made both in the Supreme Court and the Court of Appeal in relation to costs. At the Supreme Court level, the matter was dealt with Riihiluoma A.J. in a ruling dated 17 April 2007. Having referred to the fact that Alexander, as plaintiff, had prevailed at trial, Riihiluoma A. J. commented that in the normal course costs would follow the event. However, he carried on to consider the application of Order 62 rule 6 RSC. He then took the view that the Trustees, as defendants at trial, had not acted unreasonably and made an order that they were entitled to their costs of the proceedings at trial out of the fund held by them in their respective capacities as executor and trustee. Riihiluoma A.J. made no order giving Alexander his costs of the trial. As I understand it there was no appeal from the fact that Riihiluoma A.J did not award Alexander his costs of the trial. If Alexander and those acting for him believed that Riihiluoma A.J. should have made an order for costs in Alexander's favour, it was up to them to seek leave to cross appeal on the issue of costs.

6. In the Court of Appeal, the matter of costs was dealt with at the end of the judgment in these terms:

‘In the circumstances, the appeal is dismissed and the decision of the Trial Judge affirmed. Costs of Appeal to be the respondent('s) to be taxed if not agreed. Costs to be paid by the Executors of John's estate.’

7. Obviously, the Court of Appeal judgment dealt only with the costs of the appeal, and not those of the trial. Mr. Milligan-Whyte sought to argue before me that the words ‘Costs to be paid by the Executors of John's Estate’ somehow extend the reference to ‘Costs of Appeal’ to include the costs of trial. There can be no justification for such an interpretation. The words mean what they say. Since Riihiluoma A.J. had not awarded Alexander the costs of the trial, the position following delivery of the Court of Appeal's judgment on 15 June 2007 was therefore that there was no order granting Alexander his costs of the trial. So the words ‘Costs to be paid by the Executors of John's Estate’ can only refer to the costs of the appeal.

8. The bill of costs for the trial was predicated upon the basis that Alexander had in fact been awarded the costs of trial. The bill itself was dated 18 February 2008, was signed by Mr. Milligan-Whyte, and began with the words:

‘The following table sets out the Bill of Costs of the Plaintiff in the action who was ordered his costs of the action to be paid by the Executors of John Scrymgeour's estate by order of the Court of Appeal dated June 15, 2007.’

The complaint on behalf of the Trustees is not just that this was not the effect of the Court of Appeal's order, but that Mr. Milligan-Whyte in lodging the bill was well aware of this. In this regard Mr. Martin referred to the efforts that Mr. Milligan-Whyte had made since the delivery of the Court of...