Joseph Reynolds v Attorney-General of Bermuda

• Jurisdiction: Bermuda
• Judge: Mussenden J
• Judgment Date: 19 August 2022
• Year: 2022
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2020: No. 265

Between:

Joseph Reynolds

Plaintiff

and

Attorney-General of Bermuda

(as the Relevant Entity Under the Crown Proceedings Act 1966)

Defendant

[2022] SC (Bda) 61 Civ

CIVIL JURISDICTION 2020: No. 265

In The Supreme Court of Bermuda

Usual rule that costs follow the event, Reasons to depart from usual rule, Undisclosed Calderbank offer, Payment on account

Appearances:

Ben Adamson, Conyers Dill & Pearman, for Plaintiff

Laura Williamson, Kennedys, for Defendant

RULING (COSTS)

RULING of Mussenden J

Introduction

1 This matter comes before me on an application by the Plaintiff for costs of the liability trial.

2 On 26 May 2022 I issued a judgment in respect of the trial of this matter. In summary, I made the following findings:

• a. That the BPS failed to comply with the statutory obligations set out in the OSHA.

• b. That PC Joell made an error of judgment in his response to the actions of PC Reynolds.

• c. That PC Reynolds contributed to the cause of the accident in a significant way. Accordingly, an award to PC Reynolds should be reduced by 60% to reflect his responsibility for his own loss and injury.

• d. That PC Reynolds is not entitled to compensation under the WCA.

The Law on Costs

3 In Binns v Burrows [2012] SC (Bda) 3 Civ at [6], Kawaley J (as he then was) set out the general principles with regard to the award of costs as follows:

“…unless the Court or the parties have identified discrete issues for determination at the trial of a Bermudian action, the Court's duty in awarding costs will generally be to:

• i. determine which party has in common sense or “real life” terms succeeded;

• ii. award the successful party its/his costs; and

• iii. consider whether those costs should be proportionately reduced because e.g. they were unreasonably incurred or there is some other compelling reason to depart from the usual rule that costs follow the event.”

4 Kawaley J noted that Bermuda does not apply an issue based approach but follows the approach laid down in In re Elgindata Ltd. (No. 2) [1992] 1 WLR 1207.

Submissions by the Plaintiff

5 Mr. Adamson submitted that the Plaintiff was the winner in common sense terms. Although he did not win everything, he succeeded in obtaining a ruling on liability and will ultimately be awarded non-nominal monetary compensation. Thus, the Court should find that Mr. Reynolds was the overall winner in common sense terms.

6 Mr. Adamson submitted that the next step is to consider whether any deductions should be made. He anticipated that the Defendant would argue that no order for costs should be made on the basis that a Calderbank offer dated 24 January 2022 was made shortly before trial to settle the issue of liability on a percentage basis. The offer was below what the Plaintiff obtained at trial, thus he beat that part of the Calderbank offer. The Defendant also made a global financial offer which has not been disclosed to the Court. Again, Mr. Adamson anticipated that the Defendant would urge the Court to defer the issues of costs until the final outcome is known. However, Mr. Adamson argued that such a submission would be wrong and unjust as: (i) it would be impossible for the Plaintiff to continue with the litigation, given the disparity in resources; (ii) the English Court of Appeal has held that this is not the appropriate thing to do, not least given the injustice this can cause; and in any event, the vast majority of costs were incurred prior to the date of the offer and the logic of the Calderbank principle applies to costs after an offer is made, not before.

7 Mr. Adamson submitted that the Court has a discretion to make a reduction in the costs payable if the Plaintiff lost on issues which occupied a material amount of hearing time. He referred to Binns v Burrows where Kawaley J cited Seepersad v Persad [2004] UKPC 19:

“The general rule which should be observed unless there is sufficient reason to the contrary is that costs will follow the event. Where the party who has been successful overall has failed on one or more issues, particularly where consideration of those issues has occupied a material amount of time or otherwise led to the incurring of significant expense, the court may in its discretion order a reduction in the award of costs to him, either by a separate assessment of costs attributable to that issue or, as is now preferred, making a percentage reduction in the award of costs: see, eg, In re Elgindata (No. 2) [1992] 1 WLR 1207.”

8 Mr. Adamson argued that no reduction was warranted as the Plaintiff succeeded on the first issue of the liability of the BPS due to failure to supervise even if he did not succeed on the second issue of the liability of BPS due to PC Joell's actions. He argued that there was no waste in time in addressing the claim in respect of the actions of PC Joell as the exercise had to be analysed as a part of the Plaintiff proving his case. Further, all the issues had to be considered in respect of contributory negligence. He noted that very little time was spent on the Workers Compensation Act. He relied on the case of Conceicao v Silva Cleaning [2020] JRC 229 where the issue was whether there had been a breach of duty and whether the employee was partly to blame and was contributorily negligent. The Court found a deduction was not warranted as the employee was successful in establishing breach of duty and, whilst he was not successful on every aspect of breach, the sub-issues were simply aspects of proving a breach and did not add materially to the length or cost of the trial. In any event, if the Court was minded to order a reduction then Mr. Adamson argued it should be in the range of 10 – 25% in all the circumstances.

9 Mr. Adamson submitted that if the Defendant wished to protect itself, it should have made a more generous Calderbank offer, the one made being pitched too low, thus the Defendant should abide by the consequences. He cited Conceicao v Silva Cleaning which supported this argument.

10 Mr. Adamson submitted that the Defendant should be ordered to make a payment on account as the Plaintiff is not wealthy, is self-funded, and is unfit to work as a result of his injuries. Without a payment on account, he will be in...