Supreme Court
Action No. 44 of 1984
6th July, 1984
Rajasingham, J

Mr. D. B. Courtenay, for the Plaintiffs.
Mrs. Lois Young-Barrow, for the Defendant.

Civil Practice and Procedure - Registrar allowing costs applied for by Defendant's counsel in the absence of the Plaintiff's counsel - Whether costs allowed were reasonable - What constitutes reasonable costs - Order LXVI Rule 8 of the Supreme Court Rules.

J U D G M E N T

This is an appeal from a taxation of costs by the Registrar.

The Plaintiffs in this case sought an interlocutory injunction on the Defendant restraining the Defendant from exercising his rights or demanding or receiving payment under a guarantee given by the Development Finance Corporation for the purchase price of the Citrus Co. of Belize. On ex-parte application a temporary injunction was granted. The application for injunction was heard inter partes on the 6th March, 1984 and the 8th March, 1984. The application was disallowed with costs. The Defendant filed a bill of costs and the Registrar gave notice of it to the Counsel for the Plaintiffs. The matter was set for hearing on 26th April, 1984, but Plaintiffs' Counsel did not appear. The Registrar heard Counsel for the Defendants and awarded the whole sum applied for as costs. Counsel for Defendants stated to the Registrar that she spent two days, namely the 1st and 5th March, 1984, at the Chambers of Plaintiffs' Counsel going through Registers in order to verify the allegations made by Plaintiffs. She subsequently stated that she only spent half a day on this and on the 5th March. She stated that the rest of the 5th was spent in completing preparation of legal argument. She had spent Friday 2nd March and Saturday 3rd March in preparing legal arguments for the hearing on the 6th March, 1984. She also had to prepare rather voluminous Affidavits and utilized the 29th of February and parts of the 2nd and 5th March, 1984, to do this. The hearing of the application took about one and half days in Chambers. In her final submission before the Registrar, Counsel stated that "because of the amount of money involved" she charged $800.00 a day for her work outside Court. The bill of costs asks for $800.00 a day for two days outside Court, $800.00 a day for preparation of Affidavits, $1,500.00 for preparing legal argument, $3,600.00 for three days spent in Court and $600.00 for consultation with the client. Sundry ,other charges, do not appear to be unreasonable. The second full day in Court, namely the 27th of March, 1984, when in Action No. 75 of 1984 and not 44 of 1984.

The first ground of appeal taken by Counsel for the Plaintiffs was the failure of the Defendant's Counsel to enter a formal judgment before proceeding to tax costs. Order 42 Rule 1 states that the minute of every judgment made by the Registrar shall have the full force and effect of a judgment. The proviso to that Rule states that the Court may order a formal order to be drawn up on the application of either party. No application for such an order was made by either party. The proviso clearly suggests that a formal order is not a sine qua non to this application. The Registrar's minute had, however, omitted to record the granting of costs. The record of the order made by me was made and read out in Court and contains, inter alia, an order granting costs to the Defendant. The Registrar shall make the necessary amendment to his minute of the order. There is, however, no doubt in my mind that a formal order need not be filed, unless ordered by Court, before a bill of costs can be taxed in any matter.

I go on to the question of whether the costs taxed by the Registrar are reasonable as they are required to be under Order LXVI. The Supreme Court (Amendment) Rules, 1982, replaced Rule 8 of Order LXVI of the Supreme Court Rules and Appendix N to those Rules. The new Rule 8 Paragraph B states that, unless the Court otherwise directs, the Registrar may allow such reasonable amount in respect of professional fees as the Registrar determines. It goes on to say that, in the exercise of this power, the Registrar shall have regard to the nature of the cause or matter, its novelty and complexity and the interest, money or value of the property involved, and the length of the trial. Having done so, he is then permitted to allow "such sum as represents reasonable remuneration" for the work done and the expense and time involved in:-

" (c) taking instructions from his client and interviewing witnesses;

(d) preparing the Writ of Summons or other originating process and any necessary documents;

(e) necessary consultations and interlocutory proceedings;

(f) attendances -

(i) at the Registry for filing documents;

(ii) before the Court, a Judge or the Registrar; or

(iii) on the other party.
in connection with any proceedings

(g) the prosecution or defence of the suit and the obtaining of judgment if any; and

(h) the execution of any judgment obtained.

The wording of this Rule is so wide that it appears to vest an unlimited discretion in the Registrar and casts on the Registrar the onerous responsibility of examining every item in minute detail so that he may not omit any ground upon which it may be increased or reduced. It cannot ,in any circumstances, be read to mean that he is called upon to allow any charges that may be charges that could be agreed upon between Counsel and client. He must necessarily exercise the utmost care in allowing costs against a party. I have searched the Rules of the Supreme Court in the United Kingdom and can find nothing comparable to this Rule. The nearest those Rules come to this Rule is to set similar guidelines for the exercise of his discretion by the taxing officer in awarding costs, where the costs are allowable on a discretionary scale set by the Rules themselves. The Registrar does not have such a scale to guide him in Belize; nor for that matter does the Court.

I must, therefore, seek to arrive at guidelines before I can decide whether the costs allowed in this case are proper.

The first criterion applicable is one of reasonableness. In deciding what is reasonable one should take into account the costs normally awarded in Court by the Court itself, the cost to Government in obtaining the services in Court of Law Officers of the Crown, the cost to the Legal Aid Association in providing the services of Counsel and last, but not least, the cost of litigation to a member of the general public today. I, myself, have not been called upon to make any order for costs, in a fixed sum that was not agreed upon by Counsel, except where a Counsel or a party has failed to appear without proper cause; in such cases I have awarded $100.00 as cost, to the opposing party, for that day. I have, applying the various salary scale now being paid to a Government Law Officer and to the Director of Legal Aid, arrived at a figure of between $50.00 and $75.00 a day as being the cost to Government of such services. While fees charged at the unofficial Bar are far in excess of this, the Court must bear in mind that those fees are matters for agreement between Counsel and client with the client being free, if he thinks them exorbitant, to seek other Counsel; the costs now sought to be recovered are costs against an opposing party which that party will be ordered by Court to pay. The Legal Profession Ordinance permits Counsel to agree on a percentage of monies recovered; it is inconceivable that the Court could make itself a party to such an agreement by automatically declaring that that was reasonable. There is, however, no denying the fact that costs cannot be limited to the remuneration of poorly paid Government Law Officers. The principle applicable to taxation is very lucidly set out in Smith v. Buller (1875)(L.R. 19Eq. 475) as follows:-

"It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount as costs. The costs chargeable under a taxation between parties are all that are necessary to enable the adverse party to conduct the litigation and no more. Any charges merely for conducting litigation more conveniently may be called luxuries, and must be paid by the party incurring them."

The criteria is necessity and anything incurred in excess of that must be borne by the party incurring them. It is clearly not intended that the unsuccessful party must, in every case, bear the costs actually incurred.

I would, therefore, consider that a scale $100.00 to $500.00 would be reasonable fees for an appearance in Court and half that sum, a reasonable fee for whole days actually spent in research or preparation for the trial; this would include time spent on preparation of pleadings or Affidavits. I must add that this estimate is not binding on the Registrar, and is only an estimate of what I myself would consider reasonable.

The second criterion for taxing costs is the nature, complexity and novelty of the cause or matter and the interest, money or value of the property involved. This criterion should be applied in deciding on the point on the scale of $100.00 to $500.00 at which the costs are to be allowed. I will not seek to deal with the various types of matters and their varying degrees of complexity or novelty, except to say once more that this is an aspect that the Registrar will have to carefully assess. He must also try to ascertain the value of the property or interest involved in the Action with some accuracy and cannot for that reason, merely accept what may be stated in submissions before him. In the present case, for example, although the injunction was to stop the Defendant proceeding with his action against the Development Finance Corporation, it was only to stop him until the present case was heard and determined. If it had succeeded it would have, in the words of Counsel "held up (the hearing) for a considerable length of time". What then is the value of this application for an injunction? It cannot be the value of the claim against the Development Finance Corporation. It can only be the value of the delay in fact achieved by the application, about three months. It is difficult to put a value on this delay because if the Defendant in this Action ultimately succeeded in his claim against the Development Finance Corporation he would be entitled to interest for the period for which payment was delayed. Since that would have been legal interest, the value of the application would be the current rate of interest in the public sector less the rate of legal interest. What was the interest of the Defendant that was being delayed? It was his right to receive payment, in terms of a guarantee, of a sum of 1.9 million dollars. How complex was the cause or matter in issue? The inquiry involved the search of share registers and share certificates and share transfers in order that the Defendant could successfully resist the application of the Plaintiffs'. How complex was the law involved and the facts in the Affidavits that had to be filed? The law involved was not complex, but the Affidavits were a recital of complicated share transactions. What then of the fact that these tangled share transactions were the result of bad book-keeping by the Defendant's Company?

I have, I am afraid, gone into this in some detail to illustrate how difficult is the task now set for the Registrar. I have also done so in an attempt to assist him in his task by setting out the guidelines I followed in making my assessment in this case.

Bearing in mind the interest of the Defendant in resisting this application, the rather moderate value of the application and the fact that the Action itself is still to be heard, the complexities involved in drafting the Affidavits and the lack of complexity in the law applicable, I am of opinion that on the scale of $100.00 to $500.00 for appearances and half of that for work outside Court, the following costs would be reasonable in this Action:-

I would allow the sum of $600.00 for consultations as costs actually incurred in consulting with a client resident abroad and I allow the Defendants claim for $20.00 and $80.00 for filing Affidavit and for sundry disbursements respectively. The Defendant is allowed a total of $2,550.00. Since the Plaintiffs have succeeded in their appeal they would have been entitled to the costs of this hearing; but I do not, however, feel justified in making that order because the Plaintiffs' failed to attend the hearing before the Registrar and may have thus missed an opportunity to avoid an appeal. I think the just order in these circumstances would be to set off the costs of the hearing before the Registrar against the costs of this appeal, and make no order as to costs of both. Each party will bear his own costs of both hearings.

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