St John's Trust Company (PVT) Ltd v Medlands (PTC) Ltd
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Gloster JA,Simmons JA |
| Judgment Date | 02 November 2022 |
| Neutral Citation | [2022] CA Bda 18 Civ |
| Court | Court of Appeal (Bermuda) |
| Docket Number | Case No: Civ/2020/8 |
BM 2022 CA 17
Neutral Citation Number: [2022] CA (Bda) 18 Civ
THE ACTING PRESIDENT, Sir Anthony Smellie
JUSTICE OF APPEAL Dame Elizabeth Gloster
and
JUSTICE OF APPEAL Charles-Etta Simmons (Ag)
Case No: Civ/2020/8
IN THE COURT OF APPEAL (CIVIL DIVISION)
ORIGINAL CIVIL JURISDICTION
THE HON. MRS. JUSTICE SUBAIR WILLIAMS
CASE NUMBER 2018: No. 376
Sessions House
Hamilton, Bermuda HM 12
Edward Cumming KC, instructed by Mark Diel and Katie Tornari of Marshall Diel & Myers for the Appellant
Robert Ham KC instructed by David Kessaram of CHW Ltd for the First Respondent.
Shakira Dill-Francois, Deputy Solicitor General and Lauren Sadler-Best, Crown Counsel for the Second Respondent.
Keith Robinson of Conyers Olsen (Bermuda) Limited for the Fourth and Seventh Respondents
Steven James White and Sam Riihiluoma of Appleby (Bermuda) Limited for the Fifth Respondent
John Machell KC, instructed by Lewis Preston of Kennedy Chudleigh for the Sixth Respondent.
David Brownbill KC, instructed by Paul Harshaw of Canterbury Law Limited, for the Intervening Respondent.
Francis Tregear KC, instructed by Sarah-Jane Hurrion of Hurrion and Associates Ltd, for the Ninth Respondent.
Hearing dates: (On the papers)
Following our judgment handed down on 22 December 2021 (“the Judgment”), by formal order dated 2 February 2022, we dismissed the appeal of the Appellant (“SJTC”) against the orders of Subair Williams J. dated 1 November 2019 and 19 December 2019 (“the Orders”). We also ordered that the First Respondent (“Medlands”) be discharged as trustee of the Brockman Trust to which these proceedings relate and replaced as trustee by BCT Limited (“BCT”), on such terms as Subair Williams J directed upon hearing from such of the First to Third, Sixth and Ninth Respondents and BCT, as wished to appear and make representations to her in that regard.
In light of the conclusions reached in the Judgment, we also directed that no other party to this appeal had standing to appear or present evidence or submissions before Subair Williams J, in relation to the matter of Medlands' discharge or BCT's appointment.
By paragraph 74 of the Judgment we directed that submissions on the costs of the appeal be filed within 14 days of delivery of the Judgment but that deadline was subsequently extended to 14 March 2022, to allow for written submissions and those in reply from all parties, to be filed.
The submissions having been received, this is our judgment on costs, regrettably but unavoidably delayed until now.
While the other respondents were also successful, the main antagonists on the issue of costs became SJTC and Mr Tamine on the one hand, with Medlands, the Sixth Respondent and Trust Protector, Mr Lang, and the Ninth Respondent, Mrs Brockman, on the other. Their respective submissions have had to be considered and are set out in some detail in this judgment.
As successful parties on the appeal, Medlands, Mr Lang and Mrs Brockman argue that SJTC and Mr Tamine as the unsuccessful parties — the latter, due to his intervention in the appeal and this Court's finding in the Judgment that the appeal was brought “ at (his) directions or behest” — should be liable for all the Respondents' costs. Moreover, they further contend that, having regard to the complete lack of merit of SJTC and Mr Tamine's arguments (as also found by the Judgment), and the manner of their conduct of the appeal, SJTC and Mr Tamine should be held jointly and severally liable and ordered to pay the successful parties' costs on the indemnity basis. They further contend that, having regard specifically to the email sent by the Court to the parties on 22 January 2021 presaging the futility of the appeal 1, at the very least SJTC and Mr Tamine (alternatively SJTC alone) should pay the Respondents' costs of the appeal to be taxed (in default of agreement)
on the standard basis up to 22 January 2021 and on the indemnity basis thereafter. The successful parties also seek an order for payment on account of costs pending final taxationAs an unsuccessful party, SJTC does not deny its liability for costs which would ordinarily follow the outcome of the appeal. Instead, counsel on SJTC's behalf submitted that the extent to which it should be ordered to pay the costs of the Respondents should be limited, particularly in light of the way in which, according to SJTC, “ the appeal was transformed following Mrs Brockman's decision to seek, initially by separate proceedings commenced in the Supreme Court on 3 December 2021 in Cause 2020: No. 476 (the “New Proceedings”), an order replacing Medlands with BCT as trustee of the Brockman Trust”. SJTC submits that, as a consequence of this development, described by it as “ a very late change of position”, there were essentially two different phases of the appeal and that each should be addressed separately when considering the appropriate order in respect of costs.
The first phase is said to have run from the date when SJTC first filed its notice of appeal on 24 September 2020 seeking the vindication of its putative position as trustee until 11 January 2021 when, says SJTC, just 14 days before the hearing of the appeal, it was first indicated that the appointment of BCT in place of Medlands would be sought by Mrs Brockman on the hearing of the appeal. For this phase SJTC contends, for reasons to be examined below, that it would be unreasonable for it to have to bear the costs of the other parties.
The second phase is said to have been the period which followed after 11 January 2021 until the conclusion of the appeal hearing on 2 February 2022. In relation to this period, its appeal having been dismissed, SJTC accepts that it must bear, not all the costs of the successful parties but “ a proportion of the reasonable costs (to be taxed if not agreed) incurred in respect of the period following 11 January 2021 by (i) the Respondents who successfully argued for the dismissal of the appeal (namely Mrs Brockman, Mr Lang and Medlands), and (ii) the other Respondents who adopted a neutral stance but appeared on the appeal to assist the court (subject to whether their costs were proportionate and reasonable in amount).”
For his part, Mr Tamine's primary response is to resist any adverse order for costs. His first contention is that as a non-party initially to the appeal, he was given leave by Simmons JA (Acting) to intervene because allegations “ of the utmost seriousness” had been made against him and it was only appropriate for him to be able to set out his position to the Court in respect of those allegations. If the other parties to the appeal had wished to disagree with him being afforded that opportunity to participate, then the appropriate route would have been to seek to appeal the order of Simmons JA (Acting), not to argue that he should be condemned in costs for having participated pursuant to that order. He maintains that at most any costs order made against him in respect of Medlands', Mr Lang's or Mrs Brockman's costs, should be restricted to (a) no more than 10% of the costs incurred by those parties; and (b) for the same reasons of a late change of tact by Mrs Brockman as argued on behalf of SJTC, restricted to costs incurred after 11 January 2021, prior to which there should be no order as to costs.
At all events, says Mr Tamine, as he did not bring this appeal but only sought to intervene having been permitted by Simmons JA (Acting) to do so, such participation cannot on any view be regarded to have been so outside the norm as to warrant an adverse costs order on the indemnity basis.
The factual context for the examination of the competing arguments on costs is of course, set out fully in the Judgment. A brief summary of the background leading to the Administration Proceedings before Subair Williams J and the making of the Orders will therefore suffice for present purposes.
The parting of ways between Mr Tamine, who ultimately controlled SJTC through his ownership and control of its sole-shareholder Cabarita Limited and Mr James Gilbert, at one time SJTC's sole director, had led to a bitter contest of their disputes before the Supreme Court.
In Cause 2019: No. 447, the action was between, arrayed on one side, SJTC itself, Mr Tamine, Mr Glen Ferguson and Mr James Watlington (the latter two having been appointed as directors of SJTC by Mr Tamine) and on the other side, Medlands (which is owned and controlled by Mr James Gilbert) and Mr Gilbert himself (“ the Corporate Proceedings”).
In the Corporate Proceedings, the dispute was over control of SJTC and its disputed role then as Trustee of the Brockman Trust 2 and so ultimately over control of the Brockman Trust itself.
However, the dispute in the Corporate Proceedings became significant in the appeal, only in so far as it involved the question of the authority of Mr Gilbert to have acted on behalf of SJTC by instituting the Administration Proceedings which came before Subair Williams J and which led to the making of the Orders. As mentioned above, the Orders resulted, among other important outcomes, in the removal of SJTC as trustee of the Brockman Trust and its replacement by Medlands.
On the appeal, both SJTC and Mr Tamine unsuccessfully contended that a specific consequence of a judgment rendered in the Corporate Proceedings in relation to the Administration Proceedings was that SJTC was not properly a party to those proceedings as Mr...
To continue reading
Request your trial
-
Detective Sergeant David Bhagwan v Stephen Corbishley
...principles applicable in England and Wales. See St John's Trust Company (Pvt) Limited v Medlands (Ptc) Limited and Others, [2022] CA (Bda) 18 Civ, ruling on costs delivered on 2 November 35 There, it was explained that Phoenix Global Fund Ltd v Citigroup Fund Ltd v Citigroup Fund Services (......