Peniston (East Bank Consultants) v Ferigo (Ruling on Stay)

• Jurisdiction: Bermuda
• Judgment Date: 13 March 2017
• Docket Number: Civil Jurisdiction 2016 No 435
• Date: 13 March 2017
• Court: Supreme Court (Bermuda)

[2017] Bda LR 24

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 435

Between:

Livio and Cidalia Ferigo

Defendants/Applicants

and

James Al Penistion (Trading as East Bank Consultants)

Plaintiff/Respondent

Mr S White for the Applicants

Respondent in person

The following cases were referred to in the judgment:

Re Celestial NutrifoodsBDLR [2017] Bda LR 11

M'Cabe v Governor and Company of the Bank of IrelandELR (1889) 14 App Cas 413

Sinclair v British TelecommunicationsUNK [2000] 2 All ER 461

Stevens v School of Oriental and African Studies [2001] The Times 2 February

Application to stay second action pending payment of costs ordered in earlier action which was struck out — Inherent jurisdiction of the Court — Principles governing exercise of jurisdiction to grant a stay

RULING of Kawaley CJ

Introductory

1. The Specially Endorsed Writ of Summons in this matter was issued on November 24, 2016 seeking essentially the same relief (compensation for services rendered under a construction contract the benefit of which had been assigned to the Plaintiff) as was sought by the present Plaintiff against the first of the two Defendants to the present action in Civil Jurisdiction 2015: No.377 (‘the First Action’). The First Action was struck-out on October 31, 2016: East Bank Consultants v Livio FerigoBDLR[2016] Bda LR 100 and costs were awarded to the Defendant. Those costs were taxed and allowed on February 8, 2017 in the amount of $14,713.

2. The Defendants in this case apply by Summons dated March 1, 2017 for:

‘(a) an order staying the Specially Endorsed Writ pending payment of the costs taxed but as yet unpaid by the Plaintiff in Case No. 377 of 2015 and/or (b) such further or other relief as may be appropriate’.

3. This Court has never seemingly before considered the principles applicable to staying proceedings on the grounds that costs in earlier related proceedings remain unpaid. The Plaintiff did not have the temerity to challenge the authorities which supported the proposition that such stay should ordinarily be granted head on. Instead he centrally and evocatively contended that ‘the door of justice should not be slammed in the face of a litigant seeking to drink from the fountain of justice’.

4. The factual underpinning for the assertion that a stay would be inherently technical and unjust was the assertion, not supported by the evidence before the Court in this action, that the Defendants had admitted the debt as demonstrated by evidence filed in the...