Junos v Minister of Tourism and Transport
| Jurisdiction | Bermuda |
| Judge | Kawaley, C.J. |
| Judgment Date | 11 October 2012 |
| Court | Supreme Court (Bermuda) |
| Docket Number | 259 of 2008 |
| Date | 11 October 2012 |
Supreme Court
Kawaley, C.J.
259 of 2008
The applicant in person.
Ms. Maryellen Goodwin, Attorney-General's Chambers, for the respondent.
Costs - Taxation — Review of Registrar's taxation — Order 62, Rule 18, Rules of the Supreme Court.
On April 25th, 2009, the applicant was granted a declaration that the termination of her employment as a temporary public officer was in breach of her public law rights and awarded the costs of her application. The Judgment ran to over 38 pages. This decision was upheld by the Court of Appeal on November 16th, 2009 ( Junos v. Minister of Tourism and Transport [2009] Bda LR 26; Junos v. Minister of Tourism and Transport [2009] Bda LR 57.) (the applicant appealed my refusal to order her reinstatement). The Appeal Court made no order as to the costs of the appeal.
On July 15th, 2011, the applicant filed a Bill of Costs. As it was disputed by the respondent, a contested taxation hearing took place with Ms. Goodwin (who did not appear in the substantive proceedings) representing the respondent throughout. The first effective hearing was on September 14th, 2011. The taxation continued the following day when attention seemingly focussed on the legal principles applicable to taxing litigant in person costs and was adjourned part-heard to September 22nd, 2011. On September 22nd, 2011, the applicant indicated she had sought legal representation but her attorney was not present. She also sought leave to amend her Bill of Costs. It appears that the Registrar adjourned the taxation hearing until October 20th, 2011 and reserved the issue of the Crown's costs until then.
On October 20th, 2011, Mr. Hodgson appeared with the applicant and indicated that her amended Bill of Costs was not yet ready and that consideration needed to be given to an offer in respect of costs. The Registrar adjourned the taxation for final determination on November 1st, 2011, directed the applicant to file an Amended Bill of costs by October 28th, 2011 and awarded the respondent the costs of attendance at the September 22nd and October 20th hearings. On November 1st, 2011, Mr. Hodgson again appeared with the applicant and the taxation process continued. The Registrar again directed the applicant to serve an Amended Bill of Costs on the respondent, further directing that the Crown's costs should be deducted and granted liberty to apply.
Although the record is somewhat unclear as to whether the usual order had been made with respect to the costs of the amendment (i.e. whether the reference to the Crown's costs which appears in the Learned Registrar's notes for November 1st, 2011 encompasses such costs), the applicant conceded before me at the final hearing of the review application that such order had been made. At the November 1st, 2011 hearing, the Registrar handed down a written Ruling explaining the legal approach she was taking in respect of the novel taxation. Although the Amended Bill was signed and taxed as of November 1st, 2011, it appears that an Amended Bill of Costs showing the amounts taxed off was not filed by the applicant until April 11th, 2011. The result in monetary terms may be summarised as follows:
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(a) Claimed: $48,385.00;
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(b) Taxed off: $29,943.75;
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(c) Added on: $260.00;
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(d) Allowed: $18,701.25.
On May 11th, 2012, the applicant issued a Summons seeing a Review of the Taxation. Directions were ordered by me on June 20th, 2012 and the matter was first substantively heard on July 31st, 2012 when both parties addressed the law (and the Court decided to deal with the correct legal approach first) and judgment was reserved. I ruled on the legal submissions on August 31st, 2012 ( Leyoni Junos v. Minister of Tourism [2012] SC (Bda) 46 Civ (31st August, 2012).). The review hearing was reconvened for October 2nd, 2012 when Ms. Goodwin addressed the Court on the merits of the taxation for just over half the morning and the applicant addressed the Court for the remainder of the day. The hearing was not completed and the applicant addressed the Court for just under a full day on October 8th, 2012 when the review hearing concluded.
It seemed obvious throughout the hearing that the applicant was more concerned about establishing justice for litigants in person generally through clarifying the law and practice applicable to taxing the costs of litigants in person than she was about achieving commercial justice in her own case. I say this in part because she appeared far more familiar with the case law which she relied upon than she did with the raw financial practicalities of her application. What was in controversy was approximately $30,000 (ignoring any deductions for costs awarded to the Crown by the Registrar); it was easy to imagine that the respondent's costs before the Registrar and this Court in relation to the taxation were likely a significant proportion of that amount. Had the Court not curtailed the matters upon which the applicant addressed the Court to financially significant items, the review hearing might easily have lasted a full working week.
However, the applicant also openly admitted that she was collaborating with other litigants in person who have publically expressed grievances about the way their cases are handled by the Courts; she based her critique of the taxation in the present case to some extent on the apparently different approach adopted in relation to the taxation of other litigant in person costs. While at times taxing the patience of the Court, the applicant's dogged approach to the present application (combined with her recitation of persuasive authorities which were not strictly on point) compelled the Court to appreciate that a distinctive case management approach is required to civil cases involving litigants in person to ensure that their fair trial rights are adequately met.
The majority of cases are conducted by lawyers with routine opportunities for procedural short-cuts to be taken based on tacitly shared common professional knowledge in an atmosphere dominated by the mutual trust which professional conduct rules engender. The collegial ties which bind lawyers to each and to the legally-trained judge do not exist between the litigant in person and an opposing lawyer nor indeed the Court. The presiding judge must strive to avoid falling between two stools, the one designed to support the efficient and expeditious conduct of civil litigation and the other designed to support the litigant in person's sense that their case is being fairly heard.
An important aspect of the Overriding Objective, however difficult it may in practice be to achieve, is to ensure that the parties are as far as possible on level terms. Because of the twin dangers of underestimating the strength of a litigant in person's case and undermining the litigant's confidence that their case (irrespective of its merits) is being fairly heard, the Court is will be bound in such cases to allow the unrepresented party more time than would be afforded to counsel. If their case is unmeritorious, the other party will be compensated in costs. If the litigant in person's case succeeds but consumes more time than would ordinarily be considered reasonable, the paying party will ordinarily be compensated by the fact that costs will be payable at the far lower litigant in person rate.
It is against this background that the present review of the Registrar's taxation of the applicant's costs (and any consequent application for costs in relation to the present review) must be determined.
The Learned Registrar ruled that the applicant was a litigant person who had suffered no pecuniary loss whose costs were to be taxed under Order 62 rule 18(3) based on a maximum hourly rate of $50.00. In paragraph 4 of her November 1st, 2011 ‘Decision’, after reciting the relevant rule, she stated:
“As such, when the Bill of Costs is reviewed by a successful litigant in person, it must be viewed in that light of reasonableness as well as would this kind of work have been done by an attorney on the litigant's behalf.”
In paragraph 14 of her Ruling, in the course of considering the largest single discretionary item claimed, she asked the following question, quoting the words of Order 62 rule 18(1): “Are these 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…’?”
In my August 31st Ruling, I effectively confirmed this approach although the applicant complained (perhaps with some justification) not in sufficiently clear terms. Accordingly, I will attempt to summarise with some refinements the applicable legal principles set out in my August 31st, 2012 Ruling. The starting point is to set out again the relevant rule:
“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...
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