Garibdass et Al v Singh et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Lucky, J. |
| Judgment Date | 07 May 1996 |
| Neutral Citation | TT 1996 HC 103 |
| Docket Number | No. S 2263 of 1988 |
| Court | High Court (Trinidad and Tobago) |
| Date | 07 May 1996 |
High Court
Lucky, J.
No. S 2263 of 1988
Mrs. L.Maharaj instructed by Ms. A. Bissessar for the plaintiffs
Mrs. D.Peake instructed by Ms. H.Sinanan for the defendants
Practice and procedure - Taxation of costs — Review before a Judge in Chambers and two Accessors of a Taxing Officer's taxation and subsequent review of a bill of costs filed previously — Court found that there had been no error in the application of the general principles of the Assistant Registrar and the Plaintiffs had not discharged their burden on the Review to prove that their objection ought to be sustained — Court further held that Assistant Registrar was fully cognisant of the matters which she considered under the Rules and apparently not only understood her powers, but properly exercised them in the circumstances of instant case.
This is a review before a Judge in Chambers and two (2) Assessors of a Taxing Officer's taxation and subsequent review of a bill of costs filed on April 4, 1991.,
Attorney for the plaintiff has made several submissions to this tribunal based on the objections filed in respect of specific items and an omnibus objection to the bill. The common issue for determination in all these objections can be stated shortly as follows:– What are the principles to be applied by a Taxing Officer on a taxation of a bill of costs?
Attorney for the plaintiff sought to convince this tribunal that taxation does of conform to any particular guidelines or standards in Trinidad and that if the Taxing Master acted on any basis in this particular matter, it was the wrong basis and therefore the certificate of the Taxing Master should be set aside and an assessment be embarked upon by the assessors appointed herein.
What therefore are the principles to be applied on the taxation of a bill of costs?
The Orders and Rules of the Supreme Court of Judicature of Trinidad and Tobago 1975 (hereinafter referred to as “the local rules”) provide an answer. Order 62 of the said rules deals specifically with costs and was amended in 1980 to deal with aspects of rules 29, 30, 30A and Appendix II. These amendments, although not relevant to the issues herein are nevertheless important in a comparative analysis of the English rules on which the local rules are based. The local rules “have a general reference to the ‘White Book’ of 1973 and the learning there found”. See page (i) of the Preface to the local rules.
Order 62, Appendix 1, Part X, paragraph 1 (2) stipulates specific factors which must be considered by the Taxing Officer in assessing ‘Discretionary Costs’ and states that the Taxing Officer must have regard to “all relevant circumstances”. The specific factors are as follows:–
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a. the complexity of the item or of the cause or matter in which it arises and the difficulty or novelty of the questions involved;
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b. the skill, specialised knowledge and responsibility required of, and the time and labour expended by, the solicitor or counsel;
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c. the number and importance of the documents (however brief) prepared or perused;
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d. the place and circumstances in which the business involved is transacted;
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e. the importance of the cause or matter to the client;
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f. where money or property is involved, its amount or value;
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g. any other fees or allowances payable to the solicitor or counsel in respect of other items in the same cause or matter, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.
Order 62 also sets out the powers of the Taxing Officer. Rule 14 provides that:
“A taxing officer may in the discharge of his functions with respect to the taxation of costs –
a. take an account of any dealings in money made in connection with the payment of the costs being taxed, if the court so directs;
b. require any party represented jointly with any other party in any proceedings before him to be separately represented;
c. examine any witness in those proceedings;
d. direct the production of any document which may be relevant in connection with those proceedings.”
Few cases arise in practice which require the operation of sub-rules (a), (b) and (c) of rule 14. However, sub-rule (d) is more often used especially in cases where, in the experience of the Taxing Officer, the amount claimed for an item seems exorbitant or unreasonable on consideration of the claim.
These two aspects of order 62 provide some of the principles upon which a Taxing Master is to be guided in assessing costs to be allowed on a taxation of bill of costs. Rules 28, 29 and 31 go further, in that they set out the bases of taxation e.g. party and party basis, (which is applicable in this case) and state in a general manner what costs the Taxing Master is to allow in the particular type of case. The case of Headley v. Arneaud Civil Appeal No. 43/71 is of considerable assistance because the approach adopted therein sets out a scheme which can be followed in a matter such as this. See specifically pages 13, 14 and 15.
Having read the reasons of the learned assistant registrar who taxed and reviewed the bill of costs herein I am of the opinion that the omnibus objection of the plaintiffs' attorney is without foundation. That objection is that the learned assistant registrar misdirected herself in coming to her decision in failing to apply to the particular circumstances of this case, order 62 rule 28 (2) and appendix 1 part X paragraph 1 (2). The reasons of the registrar make it quite clear that the principles outlined above and referred to by attorney for the plaintiff were applied by the Taxing Master. There could therefore have been no misdirection on the part of the registrar. Nor is there any suggestion by attorney that the registrar considered extraneous or other irrelevant matter.
The second set of “omnibus” objections shall be dealt with under the appropriate items objected to and discussed below.
The taxation of this bill proceeded on the party and party basis. In such a case rule 28 (2) requires that the Taxing Master must allow “all such costs as were necessary or proper for the attainment of justice or for enforcing or defending, the rights of the party whose costs are being taxed”. In order to determine whether the Taxing Master applied the principles set out in order 62 for a taxation on a party and party basis, the meaning of “necessary or proper ….” must be examined.
In the case of Re Mercury Model Aircraft Supplies Limited [1956] 2 All E.R. 885, Roxburgh J referred to a previous decision on the point that ‘proper’ may include costs not strictly ‘necessary’. See Ex p. South Dublin Rural Council, Gibson v. Bennett [1920] 1 I.R.75. These words are therefore not to be used interchangeably. So that if the Taxing Master decides that it was not necessary to incur an item of costs, he must then determine if it was proper to incur the costs.
On the face of it, there is nothing to suggest from the bill itself or from the seasons of the Taxing Master that any of the items claimed by the defendants was unnecessary or not proper for the attainment of justice or for enforcing or defending the rights of the defendants.
Mrs. Maharaj has submitted that the Taxing Master should have asked and is duty bound to satisfy herself by examining the papers and vouchers of the defendant in order to determine how much work was done and whether the amount claimed for the said work is justified. In support of her submission Mrs. Maharaj cited English cases as authority. These cases are discussed under the heading items 142 and 143 However it must be noted at this stage that the English cases must be examined very carefully as their decisions are not based on exactly the same rules which obtain in Trinidad at present. The local rules are based on the 1973 English Practice but since then the English position has been amended considerably.
Attorney for the plaintiffs in her submissions regarding all items except items 148 and 185 stated that the learned assistant registrar misdirected herself in coming to her decision in (a) failing to apply the principle of the “hypothetical counsel” in determining the proper figure to allow for counsel's fees. Reference was made to the case of Simpsons Motor Sales (London) Ltd. v. Hendon Borough Council [1964] 3 All E.R. 833, which held that a proper measure of counsel's fees in that case “was to estimate what fee an hypothetical counsel, capable of conducting the case effectively but unable or unwilling to insist on the high fees sometimes demanded by counsel of pre-eminent reputation would be content to take on the brief'. Pennycuick J. was quick to point out however that although he applied the test of the “hypothetical counsel” in the instant case, the rule itself uses the words “necessary or proper for the attainment of justice or for enforcing the rights of the party whose costs are being taxed”, and that the same measure may not always be applicable in the infinite variety of cases which can arise.
In the instant case the learned assistant registrar did not, in my opinion, use the “hypothetical counsel” test. The registrar stated in her reasons that “she found it difficult to imagine any skilful practitioner who would have undertaken this matter as instructing or advocate attorney and would be willing to receive less in terms of fees that were awarded in this party and party taxation”. The learned assistant registrar is very experienced in matters of taxation and being seised of the nature of the matter did not apply this test. This test is not mandatory and according to the learned Pennycuick J. “… there is in the nature of things no precise standard of measurement”. Further, in dealing with the particular items of counsel's fees below, the reasons of...
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