Reynolds v Attorney-General of Bermuda (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 19 August 2022
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2020 No 265

Between:

Joseph Reynolds

Plaintiff

and

Attonrey-General of Bermuda (as The Relevant Entity Under The Crown Proceedings Act 1966)

Defendant

[2022] Bda LR 81

Civil Jurisdiction 2020 No 265

In The Supreme Court of Bermuda

Costs — Reasons to depart from the usual rule — Undisclosed Calderbank offer — Payment on account

The following cases were referred to in the judgment:

Binns v Burrows [2012] Bda LR 3

In re Elgindata (No 2) [1992] 1 WLR 1207

Seepersad v Persad [2004] UKPC 19

Conceicao v Silva Cleaning [2020] JRC 229

Ivanishvili and ors v Credit Suisse Life (Bermuda) Ltd (consequential applications) [2022] Bda LR 71

Parkes v Martin [2009] EWCA Civ 883

Western Neptune v Philadelphia Express [2009] EWHC 1522

Capita (Banstead 2011) Ltd v RFIB Group Ltd [2017] EWCA Civ 1032

Abbott v Long [2011] EWCA Civ 874

Mr B Adamson for the Plaintiff

Ms L Williamson for the Defendant

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] Bda LR 3 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...