Lijyasu M Kandekore v Cok Sodality Co-Operative Credit Union Ltd, Deidre Daley and Donnovon Ward

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 21 September 2017
• Neutral Citation: JM 2017 CA 57
• Docket Number: APPLICATION NO 199/2016
• Court: Court of Appeal (Jamaica)
• Date: 21 September 2017

Between

Lijyasu M Kandekore

Appellant

and

Cok Sodality Co-Operative Credit Union Limited

1 ^st Respondent

and

Deidre Daley

2 ^nd Respondent

and

Donnovon Ward

3 ^rd Respondent

[2017] JMCA App 20

Brooks, J.A.

APPLICATION NO 199/2016

IN THE COURT OF APPEAL

Civil appeal - Default costs certificate — Whether the registrar erred in her refusal to set aside default costs certificate — Procedure for contesting registrar's refusal — Whether registrar's decision should be made the subject of an appeal to a single judge — Basis upon which the appellant may appeal — Jurisdiction of a single judge to exercise power under CPR 65.22(3) — CPR Part 62, 65 — Ramazan and another v. Owners of Motor Vessel (CFS Pamplona) [2012] JMCA Civ App 37 — R v. Horsman [1998] QB 5310 — Stewart v. Ross (Unreported) Court of Appeal of Jamaica Motion No. 15/1997 — Edwards v. Garel (1994) 31 JLR 217 — Clarke v. Bank of Nova Scotia Jamaica Ltd [2013] JMCA App 9.

Appellant in person

Miss Coleasia Edmondson instructed by Henlin Gibson Henlin for the respondents

IN CHAMBERS

Brooks JA

1 This is an appeal by Mr Lijyasu Kandekore from a refusal by the registrar of this court to set aside a default costs certificate. The certificate was issued by the registrar against Mr Kandekore on 21 October 2016. It was in favour of COK Sodality Co-operative Credit Union Limited (COK). COK was entitled to costs by virtue of an order made when this court dismissed two appeals by Mr Kandekore. The appeals had been consolidated.

2 COK filed its bill of costs in pursuance of this court's order. The default costs certificate was issued because Mr Kandekore failed to file and serve points of dispute within the time specified by rule 65.20(3) of the Civil Procedure Rules (CPR). He applied to the registrar of this court to set aside the certificate. On 27 March 2017, the learned registrar refused the application and communicated her decision to Mr Kandekore. On 7 April 2017, Mr Kandekore filed his notice of appeal from the registrar's decision. His appeal has been placed before a single judge of this court.

3 The essence of Mr Kandekore's complaint is that the learned registrar erred in her refusal, because she failed to recognize that he did make an effort to file his points of dispute in a timely manner. He contended that errors in the heading of the notices to serve points of dispute, with which he was served, caused him to file his points of dispute in the Supreme Court, rather than in this court.

4 His appeal has been resisted by COK. The issues raised concern the proper procedure for contesting the refusal by the learned registrar and whether it may be considered by a single judge of this court.

Background

5 The record shows that three versions of a bill of costs were filed in this case in this court in June 2016. A fourth bill of costs, in respect of a related matter in the Supreme Court, was filed in that court during the same period of time.

6 Of the three bills of costs filed in this court, the first two were filed on 21 June 2016. The heading on those erroneously indicated that the bill of costs related to a case in the Supreme Court of Judicature. The second purported to amend the first. The nature of the amendment is immaterial. The third bill, which was filed on 23 June 2016, indicated that it was a “Further Amended Defendants' Bill of Costs”. It corrected the error in the heading on the first two, and stated that the bill of costs related to proceedings in this court. All three were served on Mr Kandekore. The notice to serve points of dispute, which was served on him on 23 June 2016, stated that it related to proceedings in this court.

7 The bill of costs and notice to file points of dispute that were filed in the Supreme Court were also served on Mr Kandekore on 21 and 23 June 2016 respectively. There is no issue of error in respect of those documents.

8 Mr Kandekore filed his document containing his points of dispute on 5 July 2016. Although the document was headed, “In the Court of Appeal”, he filed it in the Supreme Court, rather than in this court. His error may have been due to inattention at the time of filing, but there is no indication that he filed separate points of dispute which were properly intended for the proceedings in that court. He served the document on COK's attorneys-at-law on 6 July 2016.

9 Apparently, COK's attorneys-at-law did not immediately notice that the points of dispute, headed “In the Court of Appeal”, had been filed in the wrong court. They filed a notice of taxation in this court on the basis that the issues joined by the further amended bill of costs and the points of dispute would have been resolved on taxation before the registrar of this court.

10 Sometime later, they noticed that the points of dispute had been filed in the wrong court. They then withdrew the notice of taxation and explained in the notice of withdrawal that the points of dispute had been filed in the wrong court.

11 Mr Kandekore, although served on 20 July 2016 with that notice of withdrawal, failed to correct his error. He did not file fresh points of dispute in this court. In the absence of points of dispute, the registrar issued the default costs certificate on 21 October 2016.

12 In early November 2016, Mr Kandekore sought to correct the situation. On 2 November 2016, he filed points of dispute in the Supreme Court and on 3 November 2016, he filed points of dispute in this court. The latter were, however, filed too late, as the certificate had already been issued.

13 The former went on to be considered, for the purposes of taxation, by the registrar of the Supreme Court on 2 February 2017. That registrar then had before her two documents headed up “Points of Dispute”, one filed on 5 July 2016 and the other filed on 2 November 2016, but only the later one referred to proceedings in that court. The taxation proceedings before that registrar are immaterial for these purposes.

14 When Mr Kandekore filed his points of dispute in this court, he also filed, at the same time, an application to set aside the default costs certificate. His application was supported by an affidavit sworn to by him. It is to be noted that the bases he advanced for his points of dispute merely stated:

• “1. [COK's] bill of costs does not comply with [the] relevant law;

• 2. [Mr Kandekore] disputes each and every item in [COK's] bill of costs and [he] says that [COK's] bill of costs does not comply with the relevant court orders and the amounts claimed have no legal basis.”

The decision of the registrar

15 His application to set aside the default costs certificate was refused by the registrar of this court. The learned registrar's reasons for refusing Mr Kandekore's application were communicated to the parties by way of a letter dated 27 March 2017. Her reasons may be summarised as follows:

• (1) This was not a case where COK was not entitled to the certificate. Mr Kandekore was therefore not entitled as of right to have the certificate set aside.

• (2) Mr Kandekore's inattention to detail and failure to seek clarification of what he viewed as a confusing situation did not favour him.

• (3) Although his application had been made promptly there was no good reason provided for the default. (In essence, a repeat of (2) above).

• (4) The points of dispute failed to clearly articulate the nature of the dispute. Rule 65.20(2) of the CPR, requiring particularity in respect of each item disputed, had not been complied with.

The appeal

16 Mr Kandekore did not agree with the learned registrar's decision. In his opposition to that decision, Mr Kandekore filed a document intituled, “Appeal Notice (Costs)”, purporting to be an appeal from the decision. Mr Kandekore's appeal notice stated that he was appealing “against the decision of the Registrar on taxation on the 27 ^th March, 2017”.

17 In his appeal notice, Mr Kandekore set out his grounds for contesting the learned registrar's views. Among the grounds set out by Mr Kandekore was his insistence that his notice of points of dispute did not flout rule 65.20(2) of the CPR. He asserted that the terms of the notice meant that each and every item of the bill of costs was being disputed.

18 The registry did not give his “Appeal Notice” a separate numerical designation. The appeal was given the same number as his original application that was decided by the learned registrar. The correct approach will be considered below.

19 Before analysing Mr Kandekore' complaints, it is first necessary to consider whether the proper procedure for advancing the complaint is by way of an appeal from the decision of the registrar, or by way of a renewal of his application to set aside the certificate. It will also be necessary to decide whether a single judge has any jurisdiction to consider either of such approaches. Unfortunately, although submissions were made by both sides in respect of the merits of Mr Kandekore's appeal, it appears that the merits should not be considered by a single judge.

The correct response to the registrar's decision

20 In deciding on what is the correct response to the registrar's decision, it is first necessary to examine the relevant rules concerning default costs certificates and how they may be set aside. As the issues involve costs, it is to be noted that rule 1.18(1) of the Court of Appeal Rules (CAR) stipulates that parts 64 and 65 of the CPR “apply to the award and quantification of costs of an appeal” in this court, “subject to any necessary modifications”. It is by that route that reference may be made, and analysis conducted, in respect of the rules in part 65.

21 Mr Kandekore's appeal notice was said to have been filed pursuant to rule 65.28(1) of the CPR. Rule 65.28, however, deals with appeals from the decision of the registrar on a taxation. The registrar conducts a taxation by assessing...