Marilyn Hamilton v Advantage General Insurance Company Ltd
| Jurisdiction | Jamaica |
| Judge | Brooks JA,Phillips JA,McDonald-Bishop JA |
| Judgment Date | 20 December 2019 |
| Neutral Citation | JM 2019 CA 112 |
| Date | 20 December 2019 |
| Docket Number | APPLICATION NO COA2019APP00082 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA App 30
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice Brooks JA
THE HON Mrs Justice McDonald-Bishop JA
APPLICATION NO COA2019APP00082
Ms Terri-Ann Guyah and Ms Gina Chang instructed by Ballantyne, Beswick & Company for the applicant
Conrad George and Andre Sheckleford instructed by Hart Muirhead Fatta for the respondent
Civil practice and procedure - Interlocutory order — Order of seizure and sale pursuant to default costs certificate — Application for setting aside default costs certificate.
The application before us is for permission to appeal the decision of Simmons J given on 29 March 2019. It was filed on behalf of the applicant, Marilyn Hamilton (MH), against orders made by the learned judge that, inter alia, set aside an order for seizure and sale that had been issued against the respondent, Advantage General Insurance Company Limited (AGI).
The procedural background facts to this application are quite extraordinary, and in the main, have been taken from the chronology of relevant events filed by AGI, as this matter continues to sprout several offshoots of myriad hearings before the court. This particular application has its genesis in a bill of costs relating to two applications before the Court of Appeal, namely application nos 143 and 144/2017, filed by MH to strike out AGI's appeal due to non-compliance with the rules and several directions from this court. The court granted AGI some reprieve but ordered costs to MH. MH filed and served her bill of costs on 8 February 2018. As no points of dispute, which ought to have been filed by 8 March 2018, had been filed, MH sought, obtained and served a default costs certificate (the certificate) in the amount of $11,484,070.00 on 12 March 2018.
On 12 March 2018, the attorneys-at-law representing MH, Ballantyne Beswick & Company (BB&Co), wrote a letter to the attorneys-at-law representing AGI, Hart Muirhead Fatta (HMF), informing them that they had, on that day, served the original default costs certificate which they had obtained in the matter that same day. In BB&Co's letter to HMF, BB&Co also reminded them that pursuant to rule 65.12 of the Civil Procedure Rules 2002 (CPR), a party must comply with the order for the payment of costs within 14 days of the date of the certificate, and as a consequence thereof, BB&Co provided their banking details.
AGI filed an application to set aside the default costs certificate on 13 March 2018. In that application, they also sought an extension of time to file points of dispute to the bill of costs filed on 8 February 2018. The grounds relied on were, in essence, that: (i) the application was being made pursuant to rule 2.11 of the Court of Appeal Rules (CAR) and rule 65.22 of the CPR; (ii) there was a serious dispute as to the costs claimed, and so there was a realistic prospect of successfully disputing the bill of costs; (iii) the failure to file the points of dispute was said to be unintentional, and the default in doing so could be readily remedied within a reasonable time; and (iv) MH would not have suffered any prejudice as the date for taxation would not normally have been fixed by then.
The affidavit of Andre Sheckleford in support of the application, sworn to on 13 March 2018, deponed to the matters set out in the grounds of the application. He exhibited the proposed points of dispute. He maintained that the costs had been ordered in respect of an application with no complexity as it related to the non-filing of skeleton submissions. He said that the proposed points of dispute, if accepted, would reduce the amount certified in the default costs certificate from $11,484,070.00 to $475,230.00. The challenge to the costs, he stated, was to the rates claimed by the BB&Co, the hours stated for certain tasks, and the involvement of senior counsel in matters which should not ordinarily have involved senior counsel, such as the preparation of indices to bundles.
On 13 March 2018, the registrar of the Supreme Court signed an order for seizure and sale on the basis of the default costs certificate in the sum of $11,484,070.00 with interest accruing at a rate of $1,887.79 per day. The order stated that it appeared to the satisfaction of the court that the said default costs certificate remained wholly unsatisfied. The bailiff was therefore ordered to “seize and sell such of the goods and chattels of [AGI]” for execution, the proceeds of which could be used in satisfaction of the said certificate.
On 13 March 2018, AGI also filed an application for stay of execution of the default costs certificate until the determination of the hearing to set aside the said certificate. The grounds were similar to the earlier application to set aside the certificate, namely, that there was a realistic prospect of successfully disputing the bill of costs, and that there was a great risk of injustice to AGI in facing a bill of costs, which contained such a “perversely high quantum, given the nature of the application to which the costs relates”.
Mr Sheckleford also swore to an affidavit on 13 March 2018 in support of this application to stay the order for seizure and sale. He stated that the application was filed as it sought emergency relief. He referred to rule 65.12 of the CPR, which states that an applicant is required to comply with an order to pay costs within 14 days of the relevant certificate being issued, and on that basis contended that BB&Co would be empowered to enforce the costs award in 13 days hence. He stated further that the quantum suggested by the proposed points of dispute represented 4% of the significant amount claimed in the default costs certificate and so, with such an exorbitant amount in the bill of costs, the risk of injustice to AGI was high. He therefore prayed for urgent relief.
On 15 March 2018, HMF filed a notice of appeal to a judge of the Supreme Court, in chambers, against the decision of the acting registrar, which was contained in the order for seizure and sale of AGI's goods dated 13 March 2018. AGI challenged the order for seizure and sale on two bases, firstly, that the learned acting registrar had erred in finding that the order could be made on a default costs certificate, which was not pursuant to basic costs, or concomitant with the execution of a money judgment from the court, and secondly, that she had also erred in finding that a default costs certificate may be enforced by coercive means before the expiration of 14 days from the service of the said default costs certificate. AGI sought an order that the order of the acting registrar be reversed.
Mr Sheckleford swore to a further affidavit on 15 March 2018 in support of the applications referred to previously. He attempted to explain why the points of dispute had not been filed in time, which resulted in the issuance of the default costs certificate. He stated that the bill of costs had not come to the attention of HMF until receipt of MH's default costs certificate. He pointed out that AGI had then filed the applications to set aside and to stay the default costs certificate. He complained that despite the applications and the letter sent by BB&Co, which in his view, had intimated that no steps would have been taken by BB&Co for 14 days, they had, nonetheless, proceeded to extract the order for seizure and sale. Consequently, AGI felt constrained to file a notice of appeal of that order, and had done so timeously. He indicated that he was relying on rules 46.4, 65.12 and 65.22 of the CPR to support the applications that had been filed on behalf of AGI.
Mrs Angel Beswick-Reid, an associate at BB&Co, responded to Mr Sheckleford's affidavit, in a supplemental affidavit filed 20 March 2018. She stated that she was relying on section 51 of the Judicature (Supreme Court) Act (JSCA) which states that an order for costs is a money judgment and can be enforced accordingly. She further relied on rules 45.2(a), 64.2(3) 43.1(2) and 43.4 of the CPR to state that MH had utilised the correct procedures to enforce the order for costs. She further stated that the rules do not require that the enforcement of the default costs certificate must wait until 14 days after its issue. She indicated that the prejudice to MH was greater than that to AGI as BB&Co was in possession of an order for seizure and sale, and the bailiff had already been directed to seize AGI's goods. Mrs Beswick-Reid also deponed that MH opposed the stay of execution as the order had not only been delivered to the bailiff, but had already been partially executed, and so there was no realistic prospect of successfully disputing the bill of costs. She also stated that the deputy registrar had already refused to set aside the default costs certificate, holding that it had been validly granted, and that AGI had been advised of this position taken by the deputy registrar.
Mrs Beswick-Reid insisted that there was no possible appeal, as no points of dispute had been filed, and so the only option open to AGI was to have that application renewed before the full Court of Appeal, and the application has been filed in the Court of Appeal. However, she maintained that AGI was unlikely to meet the test for having the default costs certificate set aside. She said that given the history of the litigation, the court, in all the circumstances, should be hesitant to stay the order for seizure and sale, it having been validly obtained. She referred to the recalcitrant manner in which HMF had been conducting this particular litigation between the parties, over a protracted period, in flagrant disobedience of the rules and orders of the court. She urged the court not to give AGI any...
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