Office of the Premier of Montserrat v Bertrand Burke and Jennifer Burke Trading as Jenny Tours

• Jurisdiction: Montserrat
• Judge: ‘Morley J’
• Judgment Date: 29 November 2021
• Neutral Citation: MS 2021 HC 19
• Docket Number: CASE MNIHCV2021/0011
• Court: High Court (Montserrat)

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

CASE MNIHCV2021/0011

Between

Office of the Premier of Montserrat

Claimant

and

Bertrand Burke and Jennifer Burke Trading as Jenny Tours

Defendants

APPEARANCES

Ms Renee Morgan for the Claimant.

Mr David Dorsett for the Defendants.

RULING

On costs on discontinuance

‘Morley J’

1 Application is made by Counsel Dorsett for the Defendants Bertrand and Jennifer Burke to receive costs of $17637.38ec following discontinuance filed by Counsel Morgan on 22.11.21. The claim was for $304441.74ec for monies allegedly unaccounted to the Government of Montserrat (GOM) between January 2018 and March 2020 while the Burkes 1 ran the ferry between Montserrat and Antigua, said to amount to breach of contract, following a special investigation in October 2020 by the internal audit unit of the Montserrat Ministry of Finance. The costs are prescribed, calculated mechanistically against the value of the claim and are not put

as the sum by which the Burkes are out of pocket for paying fees to Counsel Dorsett. The purpose of this ruling is to decide what if any costs Counsel Dorsett can justly claim

2 The claimant in this file MNIHCV 2021/0011 has been given the nomenclature ‘Office of the Premier’.

• a. The reason seems because the ferry contract signed on 27.06.19 with the defendants was expressed to be with the ‘Government of Montserrat’, whose agent was Daphne Cassell signing as a member of the ‘Office of the Premier’, noting government departments expressed as ministers or ministries have in the past been claimants, thinking the office akin to a ministry.

• b. Counsel Dorsett filed argument an entity expressed as an ‘office’ cannot be a legal person and sought strike out.

• c. After consideration, though Counsel Morgan submits the legality of the entity arguable, and in addition could seek amendment to add the Attorney General as a claimant to the existing action, nevertheless to avoid interlocutory appeal causing delay on a technical point, she has refiled the action on 01.10.21 as claim MNIHCV 2021/0025 where the claimant is without complication nor possible complaint, and as more traditional simply the ‘Attorney General’ (AG).

• d. As the action has merely changed file-number and claimant-name, so that the discontinuance of file 11/21 is just to save unnecessary technical argument in the Court of Appeal, or elsewhere, being not remotely substantive, nor going to the merits of the action, which remains as claim 25/21 identical in nature and detail, Counsel Morgan argues the costs claim inappropriate, being an attempt to garner an unjustifiable ‘windfall’ from an overly strict application of the civil procedure rules CPR 2000, recalling at all times the overriding objective is to deal with cases justly.

3 Turning to the history of proceedings:

• a. On 10.06.21, Counsel Morgan sought permission to serve claim 11/21 outside the jurisdiction of Montserrat, namely in Antigua, and by email, which was granted in court on 25.06.21.

• b. On 23.09.21, not filing a defence, Counsel Dorsett filed for strike out (or summary judgment), with supporting submissions seeking the $17637.38ec costs, calculated under rule 65. 5 CPR 2000 as 45% of prescribed costs on a claim valued at $304441.74ec, which on the same date led to Counsel Morgan filing amendment of the claim to add the AG.

• c. On 01.10.21, during discussion in court, Counsel Morgan argued claim 11/21 valid, even if not amended, while Counsel Dorsett argued it cannot be amended if strike out has been filed and further pressed the claimant was not a legal entity. It was very clear substantial delay would follow, whatever happened, by reason of appeal, by either party. Moreover, Counsel Dorsett further wanted to argue that if file 11/21 was discontinued, it would be abusive of the court's process to resurrect the claim under a fresh file-number with the AG as claimant. And of course he wanted the costs. In sum, arguably for want of using the wrong words to articulate the claimant in claim 11/21, Counsel Dorsett suggested he was entitled to a seeming windfall and the claim could never be pursued. Later in the day, Counsel Morgan then filed claim 25/21, which now sat parallel to claim 11/21.

• d. On 02.11.21, Counsel Dorsett again pressed his argument, complaining Counsel Morgan had not discontinued claim 11/21 before knowing if costs would be awarded, as if seeking a Goodyear direction in criminal proceedings. The proceedings were adjourned for submissions, which were filed by Counsel Morgan on 16.11.21 and countered immediately the same day 16.11.21 by Counsel Dorsett.

• e. Discontinuance of claim 11/21 was filed on 22.11.21.

• f. Argument was heard orally during 2.25hrs on 23.11.21, with this ruling set for today 29.11.21.

The legal framework

4 As to the legal framework, costs on discontinuance appear governed by rules 1, 37 and 64 of the CPR2000, which read, as relevant:

• 1.1

  • (1) The overriding objective of these Rules is to enable the court to deal with cases justly.

  • (2) Dealing justly with the case includes –

    • (a) ensuring, so far as is practicable, that the parties are on an equal footing;

    • (b) saving expense;

    • (c) dealing with cases in ways which are proportionate to the –

      • (i) amount of money involved;

      • (ii) importance of the case;

      • (iii) complexity of the issues; and

      • (iv) financial position of each party;

    • (d) ensuring that it is dealt with expeditiously; and

    • (e) allotting to it an appropriate share of the court's resources, while

    taking into account the need to allot resources to other cases.

• 1.2

  The court must seek to give effect to the overriding objective when it –

  • (a) exercises any discretion given to it by the Rules; or

  • (b) interprets any rule.

• 1.3

  It is the duty of the parties to help the court to further the overriding objective.

37.1

• (1) The Rules in this Part set out the procedure by which a claimant may discontinue all or any part of a claim.

• (2) A claimant who –

  • (a) claims more than one remedy; and

  • (b) subsequently abandons a claim to one or more remedies but continues with the claim for the other remedies;

  is not treated as discontinuing part of a claim for the purposes of this Part.

37.6 (1) Unless the –

a claimant who discontinues is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served.

• (a) parties agree; or

• (b) court orders otherwise;

64.6

• (1) Where the court, including the Court of Appeal, decides to make an order about the costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party.

• (2) The court may however order a successful party to pay all or part of the costs of an unsuccessful party or may make no order as to costs.

• (3) This rule gives the court power in particular to order a person to pay –

  • (a) costs from or up to a certain date only;

  • (b) costs relating only to a certain distinct part of the proceedings; or

  • (c) only a specified proportion of another person's costs.

• (4) The court may not make an order under paragraph 3(a) or 3(b) unless it is satisfied that an order under paragraph 3(c) would not be more practicable.

• (5) In deciding who should be liable to pay costs the court must have regard to all the circumstances.

• (6) In particular it must have regard to –

  • (a) the conduct of the parties both before and during the proceedings;

  • (b) the manner in which a party has pursued –

    • (i) a particular allegation;

    • (ii) a particular issue; or

    • (iii) the case;

  • (c) whether a party has succeeded on particular issues, even if the party has not been successful in the whole of the proceedings;

  • (d) whether it was reasonable for a party to –

    • (i) pursue a particular allegation; and/or

    • (ii) raise a particular issue; and

  • (e) whether the claimant gave reasonable notice of intention to issue a claim.

5 The rules make clear costs lie in the discretion of the court, under rules 37.1(b) and 64.6(2), with there being a rebuttable presumption a claimant is ‘liable for the costs’ for discontinuance under rule 37.6(1), further supported as a ‘general rule’ under rule 64.6(1). It follows to depart from the general rule will be unusual, requiring reasoned justification, to be framed in the context of the overriding objective in rule 1.

6 Considering the overriding objective, Counsel Morgan's reason for discontinuance was to avoid procedural delay on a technical point, submitting it is a technical point to write the claimant wrong. Bertrand Burke is 79. It is not unreasonable to contemplate, sadly, he may pass before judgment, if delayed, leading to further complication.

• a. This court is of the view counsel should always consider ways to avoid interminable delay, particularly created by interlocutory appeal, which can be many in a single case, possibly up to the Privy Council, stretching it out years, at vast expense, leading to a snail's pace over sometimes more than a decade before finally getting to the trial issue, causing uncertainty and the oppression of mind unending litigation can instil. Regionally delay is a frequent tactic. Within...