The Attorney General of St. Christopher and Nevis et Al v Queensway Trustee Ltd

• Jurisdiction: Saint Kitts and Nevis
• Judge: Gordon, J.A.
• Judgment Date: 03 December 2007
• Neutral Citation: KN 2007 CA 5
• Docket Number: Civil Appeal No. 15 of 2005
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 03 December 2007

Court of Appeal

Gordon, J.A.; Barrow, J.A.; Rawlins, J.A.

Civil Appeal No. 15 of 2005

The Attorney General of St. Christopher and Nevis et al

and

Queensway Trustee Limited

Appearances:

The Hon Delano Bart with Mrs. C. Hinkson Ohoula for the appellant.

Mr. Nicholas Padfield Q.C. with Ms E. Harper for the respondent.

Costs - Indemnity costs — Unsatisfactory exercise of discretion — Assessment of costs remitted to the High Court.

The Financial Intelligence Unit (FIU) issued a Production Order addressed to Daniel Brantley and Associates requiring the law firm to produce authenticated copies of records relating to The Cardinal Trust and Queensway Trustees Ltd. No explanation was offered as to the basis on which the Order was issued. The Queensway Trustees were granted leave to apply for judicial review of the FIU's decision to issue the Order. The order granting leave stated that costs of the application was to be on an indemnity basis. The matter however came up for hearing on 25th April, 2002 and the trial judge quashed the Order. Costs were awarded on an indemnity basis in favour of the Claimants. The assessment of costs took place in March 2005 and total costs of US$493,236.42 were awarded against the appellants. The appellants appealed against these orders. In respect of both orders for costs on an indemnity basis the time for appealing had long passed and there was no application for leave to appeal out of time.

Held

The appeal challenging the assessment is allowed and the assessment of costs be remitted to the High Court and awarding the costs of the appeal to the respondent:

• (1) The appellants' contention that as the Court had no jurisdiction to award costs on an indemnity basis that the issue remained alive for all time and could be attacked regardless of the passage of time was entirely without merit. Litigation would have no end and litigants no certainty.

• (2) There is no explicit provision in the Civil Procedure Rules 2000 (CPR) for costs to be assessed on an indemnity basis. The CPR contains provisions relating to fixed costs, prescribed costs and assessed costs. One of the reasons for retaining the provisions relating to assessed costs was to preserve the Court's inherent jurisdiction to so regulate its own procedure as to protect a litigant from being put upon by an over-bearing or oppressive opponent, or for the Court to sanction its finding that the conduct of the litigation was deserving of moral condemnation.

• (3) Where a discretion is to be exercised by the Court it must be exercised on the basis of the law. In making an assessment of costs, regard must be had to the overriding objective. The learned trial judge failed to articulate his reasons for awarding indemnity costs so that it is unclear whether the discretion was properly exercised in accordance with law and in keeping with the overriding objective.

Glyne Investments Ltd. v Hill Samuel Life Assurance Ltd. June 17, 1997 (unreported) considered and applied.

Gordon, J.A.

1 This is the judgment of the court. A very brief factual background to this appeal is that by letter dated August 4, 2000 the United States Department of Justice sought the assistance of the St. Kitts and Nevis government to provide information relevant to the prosecution of one Michael Brennan. The assistance was sought pursuant to the Treaty between Saint Kitts and Nevis and the United States of America on Mutual Legal Assistance in Criminal Matters entered into in February 2000. A Production Order was issued by the Financial Intelligence Unit (hereafter FIU) addressed to Daniel Brantley and Associates (hereafter the law firm) requiring the law firm to produce authenticated copies of records relating to The Cardinal Trust and Queensway Trustees Limited.

2 In spite of a number of letters from the law firm to the Director of the FIU, seeking to find out the basis on which the Production Order was issued, no explanation was offered. On January 16, 2002 the trustees were granted leave to apply for judicial review of the FIU's decision to issue the Production Order. That order stated that “Costs of this application be indemnity costs”

3 The Production Order was withdrawn on the 24 ^th April 2002. There is a disagreement of recollection between the parties as to whether the respondents gave an undertaking not to pursue the issue of the judicial review in return for the withdrawal or not. Be that as it may, the issue of the judicial review was heard on 25 ^th April 2002 and the learned trial judge quashed the Production Order. Paragraphs 3 and 4 of the order of the trial judge read as follows:

• “3. Costs occasioned by the Production Order, in relation to the filing of the Fixed Date Claim Form herein, of the evidence filed in support thereof and of the application to quash to be the Claimant's cost on an indemnity basis, such costs to be assessed on a date to be fixed in November 2002 if not assessed [sic]

• “4. Certificate for two counsel”

4 It would appear that the hearing for the assessment of costs took place on March 18, 2005, before the same trial judge who made the order referred to at paragraph 3 above. The trial judge made the following order:

“In the circumstances pursuant to an order dated December 12, 2000, and no challenge having been made, the Applicant [Respondent herein] is granted cost of US$189,484.20. Pursuant to Order dated April 25, 2002, cost is assessed at US$303,752.22. This figure represents both Bills of Cost on the indemnity basis. Total cost awarded is US$493,236.42 or EC$1,340,074.03. The Government of St. Kitts and Nevis is to pay the said costs to Queensway Trustees Limited. No order as to cost of this application.”

5 In the Agreed Reasons for Decision as filed by the parties, the learned judge commenced in this way:

“There were two orders for costs made on an indemnity basis. There was no appeal against these orders. On a quantum hearing, the respondent cannot challenge the court's jurisdiction order [sic] costs on an indemnity basis. There is no jurisdiction for the court to set aside its own order for cost on a quantum hearing. The respondents could have appealed the orders and this was not done. In any event, the court has the power to award cost on an indemnity basis.”

6 The appellants, being dissatisfied with the order of the trial judge, sought and obtained leave to appeal and filed its notice of appeal on April 4, 2006. Ground 1 of the grounds of appeal reads as follows: “The learned trial judge misdirected himself that he had jurisdiction to assess indemnity costs when no such authority can be derived from the Civil Procedure Rules 2000…” In respect of both orders for costs on an indemnity basis the time for appealing had long since passed and there was, in any event, no application for leave to appeal out of time.

7 In oral argument learned counsel for the appellants put forward the somewhat startling submission that as the court had no jurisdiction to award costs on an indemnity basis,...