Junos v Minister of Tourism and Transport

• Jurisdiction: Bermuda
• Judge: Kawaley, C.J.
• Judgment Date: 31 August 2012
• Court: Supreme Court (Bermuda)
• Docket Number: 259 of 2008
• Date: 31 August 2012

Supreme Court

Kawaley, C.J.

259 of 2008

Junos

and

Minister of Tourism and Transport

Appearances:

The applicant in person.

Ms. Maryellen Goodwin, Attorney-General's Chambers for the respondent.

Costs - Taxation of costs — Litigants in person — Order 62, Rule 18(3) of Rules of the Supreme Court.

INTRODUCTORY

Kawaley, C.J.

1 The applicant was awarded the costs of a successful judicial review application where the decision in her favour was upheld by the Court of Appeal and by Summons dated May 11th, 2012 seeks a review of the Registrar's taxation of costs which concluded on or about April 25th, 2012.

2 Most of the review hearing concerned a point of law which I decided with the agreement of the parties should be determined before the hearing on the merits or quantum of the taxation resumes. This concerned the interpretation of Order 62 rule 18(2)–(3) of the Rules, sub-paragraphs which have seemingly not been previously considered by this Court.

ORDER 62 RULE 18

3 Order 62 rule 18 provides as follows:

“62/18 Litigants in person

• 18(1) Subject to the provisions of this rule, on any taxation of the costs of a litigant in person there may be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by an attorney on the litigant's behalf together with any payments reasonably made by him for legal advice relating to the conduct of or the issues raised by the proceedings.

• (2) THE AMOUNT ALLOWED IN RESPECT OF ANY ITEM SHALL BE SUCH SUM AS THE REGISTRAR THINKS FIT BUT NOT EXCEEDING, EXCEPT IN THE CASE OF A DISBURSEMENT, TWO-THIRDS OF THE SUM WHICH IN THE OPINION OF THE REGISTRAR WOULD HAVE BEEN ALLOWED IN RESPECT OF THAT ITEM IF THE LITIGANT HAD BEEN REPRESENTED BY AN ATTORNEY.

• (3) WHERE IT APPEARS TO THE REGISTRAR THAT THE LITIGANT HAS NOT SUFFERED ANY PECUNIARY LOSS IN DOING ANY ITEM OF WORK TO WHICH THE COSTS RELATE, HE SHALL BE ALLOWED IN RESPECT OF THE TIME REASONABLY SPENT BY HIM ON THAT ITEM NOT MORE THAN $50.00 PER HOUR.

• (4) A litigant who is allowed costs in respect of attending Court to conduct his case shall not be entitled to a witness allowance in addition.

• (5) Nothing in Order 6, rule 2(1) (b), or in rule 17(3) of, Part III to, this Order shall apply to the costs of a litigant in person.

• (6) For the purposes of this rule a litigant in person does not include a litigant who is a practising attorney.

• (7) This rule shall apply, with the necessary modifications, to the summary assessment of costs by the Court under paragraph 4A of rule 7.” [emphasis added]

LEGAL FINDINGS ON THE INTERPRETATION AND APPLICATION OF ORDER 62 RULE 18(3)

4 Ms. Junos argued that rule 18(2) in conjunction with rule 18(3) applied to her case and that she should be entitled to seek by the way of taxation up to 2/3rds of what a lawyer would recover. Ms. Goodwin countered that in practical terms rules 18(2) and (3) were mutually exclusive in the applicant's case because the applicant was at all material times unemployed and suffered no pecuniary loss; accordingly rule 18(3) applied.

5 The applicant cited cases on the English CPR which did not appear to be decisive as the CPR 48.6(4) wording makes it explicitly clear that the amount awarded under the equivalent or our rule 18(3) is “[s]ubject to paragraph (2)”. Under paragraph (2) in particular, it may well be right “to start with the cap … as to what...