Tinee Harvey v Dennika Warren
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams |
| Judgment Date | 20 February 2017 |
| Neutral Citation | BM 2017 CA 2,[2017] CA Bda 1 civ |
| Docket Number | REGISTRAR'S CHAMBERS Civ Appeal No. 13 of 2015 |
| Court | Court of Appeal (Bermuda) |
| Date | 20 February 2017 |
[2017] CA (Bda) 1 civ
The Court of Appeal for Bermuda
REGISTRAR, Shade Subair Williams
REGISTRAR'S CHAMBERS Civ Appeal No. 13 of 2015
Craig Rothwell, Cox Hallett Wilkinson Ltd (CHW) for Appellant/Paying Party
Jai Pachai, Wakefield Quin Ltd (WQ) for Respondent/Entitled Party
Regrettably, this decision is delivered after months of delay attributable to the displacement of the Supreme Court Registry from 113 Front Street on account of mold contamination. (See Supreme Court Circulars 21–25 issued between 18 October 2016 and 17 November 2016). Barring particularly urgent matters, chambers hearings listed before the Registrar in November and December 2016 were adjourned to January 2017.
This case began in the Supreme Court as a civil claim for damages arising out of personal injury. The Plaintiff, Dennika Warren, was successful on the issue of liability and damages were later assessed by the learned Chief Justice, Ian Kawaley, in a hearing held 24–26 November 2014.
At the direction of the Chief Justice, three cases ( Warren v Harvey 311/2008; Thomson v Thomson / Colonial Insurance Co. Ltd 6/2012; and Argus Insurance v Somers Isles Insurance Co. Ltd / Harold Talbot) were heard together.
The issue of the assessment of the appropriate discount rate for future loss was addressed by the Court extensively with the aid of expert evidence heard over the course of 2 days.
The Chief Justice, having to consider whether there should be a new Bermudian law position on discount rates, had regard to the UK and Hong Kong positions.
In respect of this case, the Chief Justice found that the appropriate discount rate should be -1.5% for the future loss of earnings claim which resulted in an award of $135,426.69 in addition to the provisional award under this head of loss for $138,123.09 based on a discount rate of 3%.
The Appellant, Tinee Harvey, appealed the decision of the Chief Justice. The appeal was heard on 16–17 March 2016 before Sir Scott Baker, President/Bell, JA/Riihiluoma, JA (Acting).
By judgment dated 1 April 2016, the Court of Appeal dismissed the Appellant's appeal and ordered costs to follow the event in favour of the Respondent, failing an application for costs within 21 days thereof.
No costs applications followed. Accordingly, the costs award affirmed was made on a nisi basis.
The Rules of the Court of Appeal (RCA) 3/28 provide as follows:
“Where the Court makes any order for the payment of costs by any appellant or by any respondent, such costs may either be ordered to be taxed (in which event the provisions of Order 4 shall apply) or be fixed at the time when judgment is given.”
Order 4/1 reads:
“Where the Court directs taxation of costs as between solicitor and client the Registrar 1 shall tax such costs in accordance with these rules and the scales in the Fourth Schedule.”
The Court of Appeal did not expressly direct for costs to be taxed in this matter. However, no issue arises here between the parties. In any event, the Court of Appeal obviously intended that costs would be taxed by me if not agreed between the parties.
The first point of contention arose in respect of the applicable hourly rates for Mr. Pachai's fees. Mr. Rothwell submitted that the hourly rate defined in the Fourth Schedule of the Rules of the Court of Appeal (“the RCA hourly rate”) should be used in taxing the Respondent's costs. Mr. Pachai, however, argued that the higher guideline hourly rates issued under Practice Direction 18 of 2016 (“the Guideline Rates”) are operative and applicable to the taxation in this case.
RCA 4/7: “All bills of costs incurred in proceedings in the Court and in proceedings in the Supreme Court preparatory or incidental to, or consequential upon, proceedings in the Court shall be taxable according to the scales in the Fourth Schedule…”
The Fourth Schedule sets out the scale of fees payable to Barristers and Attorneys for civil causes and matters: Unless otherwise specified, costs payable to attorneys shall be taxed at the rate of $250 to $350 per hour or any fraction thereof (hereinafter called the “Hourly rate”).
Scale A in the Fourth Schedule lists from (1)-(11) various tasks by Counsel to be charged at either the Hourly rate or for a fixed fee.
The said fixed fees apply to Counsel's attendance at the Registry for filing the notice of appeal/cross-appeal/notice of motion and service thereof. It also applies to Counsel's attendance at the Registry to pay fees for the settling of the record. The preparation of an appeal bond (and filing and service thereof) also carries a fixed fee in Scale A.
Both parties agreed that the Guideline Rates effectively replaced the RCA hourly rate. No challenge was made by either party to suggest that the President of the Court of Appeal lacked sufficient authority to issue new rates under section 9 of the Court of Appeal Act 1964 by way of a Practice Direction. While Mr. Rothwell queried the absence of a formal amendment to the Rules of the Court of Appeal and even commented that this should be done, he did not go so far to ground an objection on the absence of an amendment to the Rules for alignment with the Guideline Rates.
The basis for Mr. Rothwell's objection to the application of the Guideline Rates was based purely on the question of fairness in giving retroactive effect to the Guideline Rates. He drew a distinction between the effect of the Guideline rates on the Supreme Court and Court of Appeal procedures. Mr. Rothwell argued that the Registrar already possessed discretionary powers in the Supreme Court prior to the introduction of the Guideline Rates. This means that litigants would have already known to expect that the rates employable by the Registrar were variable on account of such discretionary powers. By way of contrast, Mr. Rothwell submitted that the hourly RCA hourly rate, being a fixed rate with no allowance for the discretionary exercise of the Registrar's powers, offered litigants the comfort of certainty on what the neighborhood of costs consequences would be if they were to be burdened by a Costs order against their favour.
The issue for determination by me is thus whether the Circular applies to an assessment of fees incurred prior to 5 July 2016.
Commenting briefly on the RCA hourly rate, I share my observation and opinion that the RCA hourly rate was obviously antiquated and starved for review.
The RCA hourly rate allowed for only a $100 difference to distinguish the varying rates between all Counsel and their levels of experience/expertise in the various areas of practice.
Further, the ceiling of the RCA hourly rate paralleled the former and outdated guideline rates of the lower Court. (See the rates applicable to Counsel of 1–3 years post-qualified experience under the Supreme Court Practice Direction No. 11 issued by the then Chief Justice, Richard Ground, in 2006).
On 5 July 2016 the new Guideline Rates for the scale of fees payable to barristers and attorneys in respect of appeals in civil and commercial cases were issued by the President of the Court of Appeal under Circular 18 of 2016:
By section 9(1)(i)-(j) of the Court of Appeal Act 1964, the President of the Court of Appeal hereby issues the below guideline rates for the scale of fees payable to barristers and attorneys in respect of appeals in civil and commercial cases.
1–3 years post qualification experience — $350 – $450 per hour
4–9 years post qualification experience — $400 – $550 per hour
10+years post qualification experience — $550 per hour and upwards
On the ‘fairness’ point, Mr. Rothwell argued that when a party decides whether or not to pursue an appeal, it is reasonable for the probable cost consequences in the event of defeat to be considered and factored into that decision. On Counsel's argument, the Respondent could not have anticipated that a new Circular would be issued and that the costs envisaged would likely increase.
Mr. Rothwell directed me, inter alia, to Halsbury extracts of Benion Statutory Interpretation 2 which concerned the retrospectivity of enactments:
“ Dislike of ex post fact law is enshrined in the United States Constitution 3 and in the constitutions of many American states, which forbid it. The true principle is that lex prospicit non respicit (law books look forward not back) 4. Retrospective legislation is ‘contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. 5 The basis of the true principle against retrospectivity ‘is no more than simple fairness, which ought to be the basis of every legal rule…”
Mr. Rothwell also referred me to Robert Mai v Bermuda Cablevision Limited No. 458 of 1986. In that action, the issue for determination was whether the taxation of costs was to be made under the Supreme Court Rules 1985 (1985 Rules) or the Supreme Court Rules 1965 (1965 Rules).
The Rules of the Supreme Court 1985 applied forthwith to all proceedings when they came into force on 4 January 1988, save specified exceptions. The proceedings in Mai v Cablevision commenced prior to the operative date for the 1985 Rules.
The exception under consideration in Mai v Cablevision was in Order 1 Rule 2(5) which provided that the Rules did not apply to any proceedings in any cause or matter which was...
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