Global Dynamics Ltd v Intercommercial Bank Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Seepersad, J. |
| Judgment Date | 03 February 2014 |
| Neutral Citation | TT 2014 HC 69 |
| Docket Number | CV 258 of 2013 |
| Court | High Court (Trinidad and Tobago) |
| Date | 03 February 2014 |
High Court
Seepersad, J.
CV 258 of 2013
1. Mr. Douglas Mendes S.C. and Mr. Michael Quamina instructed by Ms. Gopeesingh for the claimant
2. Mrs. Lynette Maharaj S.C. and Mr. Prakash Deonarine instructed by Ms. D. Ramnanan Maharaj for the defendant
Civil practice and procedure - Costs — Whether the application can be made at the Pre-Trial Review stage — Whether the application made pursuant to part 67.6 of the CPR was made too late — language of the rule 67.6(1) permissive rather than mandatory — Factors that must be considered when stipulating the value of the claim — Overriding objective — Security for costs — Court must undertake a balancing exercise — Part 25, 26, 39 and 67 of the Civil Procedure Rules — Costs awarded.
Before the Court for its determination are two applications filed on behalf of the defendant, namely:
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i. An application for security for costs filed on the 19th November, 2013.
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ii. An application filed pursuant to Part 67.6 and Part 67.12 of the Civil Proceedings Rule (1998) as amended (the CPR) filed on the 21st January, 2014.
In the latter application, an order is sought for the costs of the instant claim to be calculated at a rate higher than is provided for under the CPR and in the alternative an order for costs to be assessed under Part 67.12 of the CPR.
The Court proceeded to determine the latter application first as its decision in relation to the applicable quantum of costs would be relevant when determining the security for costs application.
The first issue to be considered is whether the application filed on the 21st January, 2014 can be made at this stage. By order dated 17th September, 2013, this Court fixed the matter for a Pre-Trial Review.
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a. Part 39 of the CPR deals with the Pre Trial Review (PTR) and Part 39.3 provides that the rules relating to a CMC applies to a PTR and in accordance with Part 39.6 the Court must give directions as to the conduct of the trial in order to ensure that there is a fair, expeditious and economic trial of the issues before the Court.
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b. At a PTR the Court is still vested with all its CMC powers as set out at Parts 25 and 26 of the CPR.
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c. Having determined that the instant matter was at a PTR stage when the application was filed on the 21st January, 2014, the Court had to determine whether the application which is made under Part 67.6 of the CPR, had been made too late.
The language used in Part 67.6 (1) creates a permissive rather than mandatory circumstance. In Denisha Mayers v. Andy Derrick & Others CV 2011-03655, Kokaram, J. at paragraph 15 (b) stated:
The rule 67.6 application may be made at a CMC. The language of the rule 67.60) as to when the application is made is permissive. It is not mandatory and does not restrict the making of such an application after a CMC. Barrow, J.A. made that observation in Noel v. First Caribbean International Bank (Barbados) Ltd., Grenada Civil Appeal No. 29 of 2006 …. It presumes however that this determination of the value will take place before a trial.
Denisha Mayers was however, a case in which the judge held that the matter before him was not one in which Part 67.5(2)(b)(iii) applies. It should be noted that Part 67.5(2)(b)(iii) was repealed by the Civil Proceedings Amendment Rules (2011) and a new 67.5(c) was inserted which provides “if the claim is not for a monetary sum, as if it were a claim for $50, 000.00”. The Court dealt with the situation where a sum for the value of the claim had to be stipulated under Part 67.5(2)(b)(ii) of the CPR. The facts before Kokaram, J. were different from those that operate in the instant matter and the learned Judge did not deal with a situation in which a value for a claim had to be determined under Part 67.6(1)(a) of the CPR.
Attorney for the defendant directed the courts attention to the dicta of Barrow, J.A. in Noel v. First Caribbean Grenada Civil Appeal No. 29 of 2006 and proposed that the said judgment stands as an authority for the proposition that an application under Part 67.6 of the CPR can be made after a CMC. Counsel for the claimant submitted that the said authority does not support the position that an application made under Part 67.6 of the CPR can be made other than at a CMC.
The claim before Barrow, J.A. was a claim for a monetary sum and the equivalent to our Part 67.6(1)(a) of the CPR did not apply in the circumstances of that case. The learned Justice of Appeal pointed out at paragraph 18 that it was not necessary for him to consider whether an application under their equivalent to our Part 67.6 of the CPR could be made other than at a CMC.
Barrow, J.A. had to decide whether for the purpose of a future determination of prescribed costs, the court could pursuant to their equivalent of Part 67.5(2)(b)(ii) of our CPR, stipulate a sum as to the value of a claim before a judgment and he expressed the view that the court could do so. The learned judge also noted that there was nothing in the rule that limited the time within which the court could have made such a stipulation. On the issue as to whether or not an application under Part 67.6 of the CPR could be made other than at a CMC, there is in the opinion of this court, no binding authority.
This Court is of the view, that having regard to the permissive wording of Part 67.6(1) of the CPR and the Court's powers at a PTR stage, it is open, subject to the discretion of the court and having regard to the particular circumstances that operate in any given case, for an application under the said Part 67.6 of the CPR to be made at any time prior to the final determination of the issues, whether at trial or by the consent of the parties. The claimant submitted that the said rule does not fall under Parts 25 and 26 of the CPR so as to be incorporated under the courts powers. This Court does not agree with the claimant's contention and instead finds that the Court has far reaching powers under Parts 25 and 26 of the CPR. In our jurisdiction, there exists a system of court controlled and directed litigation. It stands to follow, therefore, that if all CMC powers are incorporated into the PTR, then the PTR is really no different from the CMC in terms of the approach which the court must adopt.
The claimant further submitted that had the rules committee wished to incorporate CMC powers under Part 67.6 into the PTR hearings, then provision for the same would have been incorporated into Part 39. This Court also does not agree with this submission by the claimant. There was no need for the powers under Part 67.6 to be incorporated under Part 39. Part 67.6 specifically speaks to the nature of the application and when it can be made. The making of the application under Part 67.6 cannot be controlled by the Court, but rather is controlled by the parties. However, for the reasons outlined above the Court can exercise its discretion and entertain the application even at a PTR stage. It must also be pointed out that the case management procedure adopted in this matter was somewhat unusual in that the court afforded the parties the opportunity to set timelines for the compliance with directions with the view of having an early trial of the matter. There were in the circumstances no extensive case management hearings.
Part 67.6 of the CPR deals with two situations, one in which the claim has no monetary value and the other where the ‘likely value’ is known, as a party wishes to have the prescribed costs calculated on a higher or lower value provided that the Court is satisfied that costs as calculated in accordance with Part 67.5 of the CPR are likely to be excessive or substantially inadequate under Part 67.6(2) of the CPR, taking into account the nature and circumstances of the particular case.
The provisions of the CPR, are however silent as to the factors that ought to be considered in placing a value on a claim that has no monetary value nor is there outlined the factors that ought to be considered in...
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