Junos v Minister of Tourism & Transport (Review of Taxation of Costs)

• Jurisdiction: Bermuda
• Judgment Date: 11 October 2012
• Date: 11 October 2012
• Docket Number: Civil Jurisdiction 2008 No 259
• Court: Supreme Court (Bermuda)

[2012] Bda LR 67

In The Supreme Court of Bermuda

Civil Jurisdiction 2008 No 259

In the matter of an Application for Judicial Review

In the matter of the Public Service (delegation of Powers) Regulations 2001

Between:

Leyoni Junos

Applicant

and

The Minister of Tourism & Transport

Respondent

The Applicant in Person

Ms M Goodwin for the Respondent

The following cases were referred to in the judgment:

Mealing-Mcleod v The Common Professional Examination Board [2000] EWHC 9007

Moulder v Cox Hallett WilkinsonBDLR [2012] Bda LR 1

Re Elcome Trust (Taxation of Costs)BDLR [2010] Bda LR 3

R (on the application of Wulfson) v Legal Services CommissionUNK [2002] EWCA Civ 250

Finn-Hendrickson v Minister for EducationBDLR [2008] Bda LR 4

Costs — Litigant in person

JUDGMENT of Kawaley CJ (Review of Registrar's Taxation of Costs)

Introductory

1. On April 25, 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 16, 20091 (the Applicant appealed my refusal to order her reinstatement). The Appeal Court made no order as to the costs of the appeal.

2. On July 15, 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 14, 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 22, 2011. On September 22, 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 20, 2011 and reserved the issue of the Crown's costs until then.

3. On October 20, 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 1, 2011, directed the Applicant to file an Amended Bill of costs by October 28, 2011 and awarded the Respondent the costs of attendance at the September 22 and October 20 hearings. On November 1, 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.

4. 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 1, 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 1, 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 1, 2011, it appears that an Amended Bill of Costs showing the amounts taxed off was not filed by the Applicant until April 11, 2011. The result in monetary terms may be summarised as follows:

• i. Claimed: $48,385.00;

• ii. Taxed off: $29,943.75;

• iii. Added on: $260.00;

• vi. Allowed: $18,701.25.

5. On May 11, 2012, the Applicant issued a Summons seeing a Review of the Taxation. Directions were ordered by me on June 20, 2012 and the matter was first substantively heard on July 31, 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 31, 20122. The review hearing was reconvened for October 2, 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 8, 2012 when the review hearing concluded.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

Applicable legal principles to taxation of litigant in person costs under Order 62 rule 18

11. 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 1, 2011 “Decision”, after reciting the relevant rule, she stated:

‘As...