Dayne Smith v William Hylton
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Williams JA,Edwards JA |
| Judgment Date | 13 May 2016 |
| Neutral Citation | [2016] JMCA App 10 |
| Docket Number | APPLICATION NO 179/2014 |
| Court | Court of Appeal (Jamaica) |
| Date | 13 May 2016 |
[2016] JMCA App 10
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Brooks JA
The Hon Mr Justice F Williams JA
The Hon Miss Justice Edwards JA (AG)
APPLICATION NO 179/2014
and
Richard Reitzin and Miss Petra Phillips instructed by Reitzin and Hernandez for the applicant
M Maurice Manning instructed by Ms Sherry-Ann McGregor of Nunes, Scholefield, DeLeon and Co for the respondents
This is an application for the stay of execution of an order for costs, which was made by this court. The applicant, Mr Dayne Smith, was injured in a motor vehicle crash on 25 March 2011. He was the driver of one of the two vehicles involved in the crash, whilst the respondents, Mr William Hylton and his wife Mrs Annmarie Hylton, were the owner and driver respectively, of the other vehicle. Mr Smith sued Mr and Mrs Hylton in order to recover damages for his loss and damage.
Mrs Hylton eventually admitted liability and judgment on admission with damages to be assessed was entered against her. Mr Hylton denied liability. He asserted that Mrs Hylton was not his servant or agent when she drove his vehicle. Mrs Hylton's admission and the resultant order for judgment were made at a case management conference. At that time, a date was set for the hearing of the assessment of damages, but unfortunately, no orders were then made in respect of the trial of the claim against Mr Hylton.
When the assessment of damages came on for hearing before C Brown J (Ag), as she then was, the learned judge, after considering the matter, decided that the “[a]ssessment of damages against [Mrs Hylton] cannot proceed before the trial against [Mr Hylton]”, and that it should “be heard at the same time as the trial between [Mr Smith] and [Mr Hylton]” (see paragraphs [12] and [14] of her reasons for judgment). She also ordered that a case management conference should be held in advance of that trial.
Mr Smith was aggrieved by that order. He applied, unsuccessfully, to this court for permission to appeal against it, C Brown J (Ag) having previously refused him permission to appeal. In addition to refusing him permission to appeal, this court ordered that he should pay the costs of the application.
Since that time the claim has proceeded in the Supreme Court. A trial date has been set for sometime in 2017. In this court, the Hyltons have been pursuing securing the fruits of the costs order made in their favour. Mr Smith's present application before this court is for the latter process to be permanently halted.
Mr Smith's application took a surprising turn when the hearing commenced before this court. Mr Reitzin, bravely appearing on behalf of Mr Smith, despite physically challenging personal circumstances, submitted that this court had no jurisdiction to make the order for costs that it did. Learned counsel also argued that if the court did not agree with that position, it should nonetheless stay the execution of the bill of costs and, in any event, the execution of any order on taxation of that bill. His arguments on each point, and the response by Mr Manning, appearing for the Hyltons, shall be separately assessed below.
Mr Reitzin sought to make it clear that there was a distinction between costs in respect of an appeal and costs in respect of an application for permission to appeal. Whereas, he submitted, there was ample evidence of authority for awarding costs in respect of the former, and applications related to appeals in existence, there was no rule, authorising an order for costs in the case of an application for permission to appeal.
Learned counsel pointed to rule 1.18 of the Court of Appeal Rules (CAR). He submitted that the rule incorporated parts 64 and 65 of the Civil Procedure Rules (CPR), with appropriate amendments, Into the CAR. Rule 1.18, he said, in incorporating parts 64 and 65, did not refer to applications for permission to appeal, but rather to appeals. There was, similarly, he argued, no reference to such applications in either part 64 or part 65, which are the parts of the CPR dealing with costs.
Mr Reitzin then turned his attention to the Judicature (Appellate Jurisdiction) Act (the Act). He submitted that, whereas the Act does give the court the power to make orders for costs, that power is to be exercised in the context of the rules. It is therefore to the rules that one must look for guidance. Applying the canons for construction of statutory instruments, in such cases, learned counsel submitted, it should be held that the draftsman intended that the court ought not to be able to make orders for costs in respect of applications for permission to appeal.
Learned counsel accepted that this court, both before and since the inception of the CAR, had made orders for costs consequent on ruling on applications for permission to appeal. If, however, the practice is wrong, he argued, it ought to be recognised as such and brought to an end.
Mr Manning, for the Hyltons, adopted a different approach to the legislation. He argued that section 30(3) of the Act provided that the court did have the discretion to make orders for costs in every aspect of its jurisdiction.
Learned counsel submitted that rules 64. 3 and 64. 4 of the CPR reinforce that point. Mr Manning submitted that even if the rules omitted to grant the authority, the Act did authorise the awarding of costs in any proceedings before the court, including applications for permission to appeal.
Mr Manning further argued that it was far too late in the day for Mr Smith to raise this point. He submitted that this court had made the order for costs over a year ago. Counsel for the parties would, at the time of the making of the order, have been entitled to make submissions concerning the appropriateness of the order, either as to jurisdiction or to quantum. None was, however, made.
Rules 64. 3 and 64.4, to which Mr Manning referred, are, at first blush, of general application. They state as follows:
“Orders about costs
64.3 The court's powers to make orders about costs include power to make orders requiring any person to pay the costs of another person arising out of or related to all or any part of any proceedings.
Costs where there is an appeal
64.4 The court hearing an appeal may make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.”
Mr Reitzin argued that neither of these rules had any application unless they were imported by rule 1.18, which, he submitted, they were not.
In considering these submissions, it may be noted that applications for permission to appeal in civil proceedings are not to be heard by a single judge as was contemplated by the rule 1.8 of the CAR, but are to be heard by the court. This was the ruling in John McKay v Attorney General [2011] JMCA App 26. It was held in that case that despite the CAR purporting to grant the power to a single judge of this court to consider and grant applications for permission to appeal, the Act allowed only the court to exercise that authority.
It would have been gleaned from the review of the submissions that the question in this aspect of the case is: “where there has been a contested application for permission to appeal, how is the issue of costs to be resolved?” On Mr Reitzin's submissions, there would be no order for costs, as the court would not have had the jurisdiction to award costs. Mr Manning would have the court follow the general rule that the unsuccessful party should pay the costs of the successful party.
Although interesting, Mr Reitzin's submissions must fail. The first reason for the failure is the cumulative effect of three main factors. Firstly and most importantly, section 30(3) of the Act does not restrict to appeals, the matters in which the court may grant orders for costs. Specifically for these purposes, applications made prior to the institution of an appeal, particularly applications for permission to appeal, are not excluded by the section. It states as follows:
“Subject to subsections ( 1) and (2), the provisions of any other enactment and to rules of court, the costs of and incidental to all civil proceedings in the Court shall be in the discretion of the Court.” (Emphasis supplied)
Subsections ( 1) and (2) of section 30 do not affect the present issue. It is unnecessary to quote them. It then has to be determined if any other enactment or rule of court restricts the authority given to the court, by section 30(3). This brings to focus the second aspect of the first reason for disagreeing with Mr Reitzin.
The second factor, as does the third to follow, draws its potency from the first. Its thrust is that no provision restricts the authority given by section 30 to award costs in applications for permission to appeal. No other enactment or rule of court which has been brought to our attention, except the CAR, and its incorporation of the CPR, seems to specifically address the issue of the award of costs by this court. A review of the CAR shows that it does not restrict the authority granted by section 30(3) to make orders in respect of applications for permission to appeal.
The broad authority, given by section 30(3), to grant costs in civil proceedings is not limited by rule 1.18. Even if it were accepted, despite the provisions of rules 64. 3 and 64. 4 of the CPR, that rule 1.18 only incorporates the provisions of the CPR in cases of appeals, as opposed to applications for permission to appeal, the result would be that there is no restriction to the court's authority, as granted by section 30(3), to grant costs in the case of applications for permission to appeal. What rule 1.18 provides, is that where appeals are concerned, the provisions of parts ...
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