Watlington v Thomas (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 20 March 2025
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2022 No 143

Between:

James Alexander Fortescue Watlington

Plaintiff

and

Shawn Thomas

Defendant

[2025] Bda LR 32

Civil Jurisdiction 2022 No 143

In The Supreme Court of Bermuda

Application for indemnity costs — Whether conduct of the Defendant fell below an acceptable standard

The following cases were referred to in the judgment:

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

St Johns's Trust Co (PVT) Ltd v Medlands (PTC) and Ors (Costs)[2022] Bda LR 102

BS&R Group Ltd v Westport Architecture (Indemnity Costs)[2024] Bda LR 44

Esure Services Ltd v Quarcoo[2009] EWCA Civ 595

Mr P Harshaw for the Plaintiff

Mr M Daniels for the Defendant

RULING ofMussenden CJ

Introduction

1. This matter commenced by way of a Specially Indorsed Writ of Summons issued 16 May 2022. The Statement of Claim set out that by a Promissory Note dated 1 September 2013 the Defendant borrowed from the Plaintiff the principal sum of $50,000, which along with interest, had not been repaid in full by the Maturity date of 31 August 2016. The Plaintiff accepted that the Defendant had made some payments and thus he claimed the principal sum of $40,437.62 and accrued interest in the sum of $9,260.15 at the date of the Writ along with continuing interest and costs.

Background

2. On 27 June 2022 judgment in default of a defence (“Default Judgment”) was granted for the principal sum of $40,437.62, accrued interest in the sum of $9,260.15 and continuing interest.

3. The Defendant made two applications to be determined by the Court:

• (a) By a summons dated 26 October 2022, the Defendant sought an order that the Judgment dated 27 June 2022 be set aside and that the Provisional Order dated 24 August 2022 be set aside. It should be noted that on 24 August 2022 the Plaintiff's costs were taxed pursuant to the Default Judgment and that an order was made on a nisi basis, which order became absolute on 14 September 2022 (the “Provisional Order”).

• (b) By a summons dated 17 March 2023, the Defendant sought an order that the sum of $49,959.78 awarded in default dated 27 June 2022 be varied to $32,730 and that the Provisional Order dated 24 August 2022 be varied in accordance with the Default Judgment.

4. On 25 October 2023, I determined both applications and I issued a written Ruling that same day.

5. The Defendant withdrew the summons to set aside the Judgment. I granted costs to the Plaintiff on a standard basis.

6. In respect of the application to vary the judgment sum, I did allow the variation of the judgment sum to $38,147.33. However, I adjourned the hearing on costs stating at paragraph 10:

“I have considered the evidence of Mr Thomas and the nature of how this litigation has been conducted. Mr Thomas' allegations are serious as well as his exhibiting the details of a private and confidential complaint. In any event, he has resiled from the original defences or assertions and has accepted the legitimacy of the Promissory Note and thus made payments. In my view, his conduct as respect the original denials and the allegations of dishonesty in this matter has fallen below an acceptable standard which could be met in costs. Therefore, I will hear the party on costs of the application to vary the judgment, to be listed in a Chambers hearing on a date to be agreed by counsel (a 30-minute time slot at noon).”

7. In any event, it was not possible to set the matter for a hearing. I then resolved to determine the matters on written submissions.

Law on Costs

8. The Rules of the Supreme Court (“RSC”) Order 62 rule 3...