Ernest Davis v General Legal Council

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 12 June 2015
• Neutral Citation: JM 2015 CA 61
• Docket Number: CIVIL APPEAL NO 68/2012
• Court: Court of Appeal (Jamaica)
• Date: 12 June 2015

[2015] JMCA Civ 33

JAMAICA

IN THE COURT OF APPEAL

CIVIL APPEAL NO 68/2012

Between

Ernest Davis

Appellant

and

The General Legal Council

Respondent

Paul Beswick and Kayode Smith instructed by Ballantyne Beswick and Company for the appellant

Mrs Alexis Robinson instructed by Myers Fletcher and Gordon for the respondent

CIVIL PROCEDURE - Costs - Taxation - Discontent with Registrar's taxation - Discontent appealed - Whether decision wrongly exercised - Appeal dismissed - Court of Appeal Rules 2002, Rule 1.18(3) - Civil Procedure Rules 2002, Rules 65.26-65-29.

IN CHAMBERS

Brooks JA

1 Mr Ernest Davis, an attorney-at-law, was on 2 May 2014, successful in his appeal against a decision of the Disciplinary Committee of the General Legal Council (GLC). He was, at that time, awarded costs of the appeal. On 8 December 2014, the learned registrar of this court taxed Mr Davis' bill of costs in the sum of $1,877,386.60. Mr Davis is unhappy with the decision because the bill of costs, as originally laid, had claimed much more. The main points of the discontent with the learned registrar's decision are firstly, the reduction in the time allowed for various tasks performed by Mr Davis' attorneys-at-law, secondly, the reduction in counsel's brief fees and, thirdly, the denial of the principle that the time allotted for tasks performed should be rounded up to increments of an hour. Mr Davis has appealed from the learned registrar's decision.

2 His appeal has come before a single judge of the court. The jurisdiction of the single judge to hear the appeal, and the method of approach to such appeals shall be dealt with first. Thereafter, the Registrar's decision and the grounds of appeal shall be set out and assessed.

The jurisdiction of the single judge and the method of assessing an appeal from the decision of the registrar

3 The Court of Appeal Rules (CAR) do not deal extensively with the issue of costs. Rule 1.18 stipulates that the relevant provisions in Parts 64 and 65 of the Civil Procedure Rules (CPR) apply to the award and quantification of costs in this court ‘subject to any necessary modifications and in particular to the amendments set out in’ rule 1.18.

4 One of the necessary modifications made by rule 1.18 is that the term ‘registrar’, as used in Parts 64 and 65 of the CPR, means, for the purposes of the CAR, ‘the Registrar of the Court of Appeal’ (rule 1.18(3)). Taxations and the mechanics of assessing costs of appeals are therefore to be done by the registrar of this court.

5 Appeals from the decisions of the registrar are considered in rules 65.26 through 65.29 of the CPR. Rule 65.27 states the authority of a judge of this court to hear those appeals. With the necessary modifications, pursuant to rule 1.18 of the CAR, to make rule 65.27 relevant to this court, it would read thus:

• ‘(1) An appeal against a decision of [the] registrar on taxation is to a judge of the court [of appeal].

• (2) The [President of the Court of Appeal] may from time to time nominate a judge of the court [of appeal] to hear appeals against taxation.’

6 Rule 65.29 of the CPR sets out the powers of the judge on an appeal from the decision of the registrar. It provides that the appeal is by way of a re-hearing. The rehearing is limited, however, to the matters that are raised by the appellant. The rule states:

‘On an appeal from a registrar the judge will –

• (a) re-hear the proceedings which gave rise to the decision appealed against so far as is necessary to deal with the items specified in the appeal notice; and

• (b) make any order or give any directions as he or she considers appropriate.’

All the provisions of Part 65 dealing with the quantification of costs are, therefore, at the disposal of the judge, on an appeal from the decision of the registrar. The main principle that guides the quantification of costs is what is reasonable and appears fair to both the party paying and the party receiving such costs (rule 65.17(1)).

7 There are very few cases decided in these courts in respect of the application of rule 65.29. There is guidance to be had, however, from some of the cases from England and Wales. The principle to be extracted from those cases is that the judge, who hears the appeal, will not interfere with the decision of the registrar unless the registrar ‘has acted on a wrong principle or taken into account irrelevant matters or failed to exercise his [or her] discretion’ (Halsbury's Laws of England 4 ^th Ed (Reissue) Vol 3(1) paragraph 427).

8 Among the cases relied upon by the learned editors in support of that statement, is Gorfin v Odhams Press Ltd [1958] 1 All ER 578. The terms used by the learned editors are very similar to those used by Parker LJ, at page 579 of the report in Gorfin. He said:

‘…Although the terms of RSC, Ord 65, r 27(41), are very wide, and, in effect, treat the matter before the judge in chambers as a re-hearing, I think that it is now clear in practice and on authority that the court will only interfere with the exercise of the master's discretion if it is clear that the master has gone wrong in principle. It is for this reason that matters of quantum only, where no principle is involved, are rarely, if ever, interfered with ….. ’

9 It is to be noted that the principle enunciated by the learned judge of appeal recognises that the proceedings before the judge, on appeal from the taxing master's decision, is by way of re-hearing. Rule 65.27, at that time, however, spoke to a review by a judge of a taxing master's certificate. The rules continued to speak of a review up to the time of the advent of the Civil Procedure Rules in that jurisdiction in 1998.

10 The advent of the Civil Procedure Rules in that jurisdiction brought about an adjustment of the procedure. When those rules were first promulgated, rule 47.26 allowed for a two-tiered approach to appeals in respect of assessment of costs, with different standards for each tier. The difference in the approaches were outlined by Jackson J in Hornsby and Others v Clark Kenneth Leventhal (a firm) and Others [2000] 4 All ER 567 at page 570:

‘…The appeal by the first and second appellants against the detailed assessment of their costs was brought in 1999. That appeal is governed by CPR Pt 47. CPR 47.26 provides:

“(1) On an appeal from an authorised officer the court will — (a) re-hear the proceedings which gave rise to the decision appealed against; and (b) make any order and give such directions as it considers appropriate.

(2) On an appeal from a costs judge or district judge, if the court is satisfied that the appeal should be allowed, it may make any order and give such directions as it considers appropriate .

(3) If on an appeal the court exercises the power to appoint assessors conferred — (a) by section 70 of the Supreme Court Act 1981; or (b) by section 63 of the County Courts Act 1984, it must appoint at least two assessors.

(4) One assessor must be a district judge or costs judge and one must be a practising barrister or solicitor.”

This rule makes it clear that there is a difference between an appeal from an authorised officer to a costs judge, and an appeal from a costs judge to a High Court judge. An appeal from an authorised officer to a costs judge is a complete rehearing. An appeal from a costs judge to a High Court judge is not .’ (Emphasis supplied)

11 The English rules have since been amended. The current rule is rule 47.23. It only speaks to appeals from the decision of an authorised court officer. It states:

‘On an appeal from an authorised court officer the court will-

• (a) re-hear the proceedings which gave rise to the decision appealed against; and

• (b) make any order and give such directions as it considers appropriate.’

That rule is very similar in effect to rule 65.29 of our CPR.

12 In our jurisdiction, the matter was addressed, not surprisingly, in a judgment by Sykes J, the most prolific writer of judgments in the Supreme Court in recent times. In Allen and Another v Spence and Others [2013] JMSC Civ 28, the learned judge echoed the sentiments of Parker LJ in Gorfin, although he did not cite that case. Sykes J referred to three English cases decided since the advent of the Civil Procedure Rules in that jurisdiction, namely Mealing-McLeod v The Common Professional Examination Board [2000] All ER (D) 436; [2000] 2 Costs LR 223; All England Official Transcripts (1997 – 2008) (delivered March 30, 2000), Orwin v British Coal Corporation and Others [2003] EWHC 757 (Ch) and Kris Motor Spares Ltd v Fox Williams LLP [2010] EWHC 1008 (QB); [2010] 4 Costs LR 620. The principle to be derived from those cases was succinctly stated by Simon J at paragraph [55] of Kris Motor Spares. There the learned judge said:

‘There is a well-established principle that this court will not permit appeals on questions which are ultimately matters of judgment for the Costs Judge.’

It is to be noted that all the cases cited by Sykes J involved an appeal from a costs judge, where a re-hearing is not stipulated, and not from an authorised court officer, where a re-hearing is stipulated. The distinction must be borne in mind in this context.

13 Sykes J did not address that difference in the rules, but he adopted the principle set out in Kris Motor Spares. He explained his stance in the context of this jurisdiction at paragraph [2] of his judgment:

‘What are the guiding principles in appeals in these kinds of cases? In the view of this court, it is important to recall that the assessment of costs is not capable of exactness. It is largely a matter of judgment on the part of the taxing officer, who in this case, has far more experience than perhaps many if not most of the judges of this court. This is what she does daily. Thus, the principle is that unless it can be shown that she made an...