Patrick Woolcock and The Bungaloo Hotel v David Geoffrey Sykes and Audrey Louise Sykes
| Jurisdiction | Jamaica |
| Judge | Phillips JA |
| Judgment Date | 07 April 2017 |
| Neutral Citation | JM 2017 CA 44 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 137/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 07 April 2017 |
[2017] JMCA App 17
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice Edwards JA (AG)
SUPREME COURT CIVIL APPEAL NO 137/2009
APPLICATION NO 126/2016
and
and
Raphael Codlin and Miss Annishka Biggs instructed by Raphael Codlin & Co for the applicants
David Geoffrey Sykes and Mrs Audrey Louise Sykes in person
Civil Appeal - Trespass — Variation of Cost order — Whether the court had jurisdiction to vary order — Rule 1.7(7) of the Court of Appeal Rules — CPR 64.6 — Digiorder Jamaica Ltd v. Atkinson [2015] JMCA Civ 40 — Hatton v. Harris [1892] AC 547 — American Jewllery Company Ltd and others v. Commercial Corporation Jamaica Ltd and others [2014] JMCA App 16.
On 13 September 2016, the applicants in this matter filed an amended application for court orders seeking the following relief:
“1. Variation of the Costs Order made herein on the 19 th of December 2014 so as to read: Half Costs to the [applicant] here and Half Costs to the Respondent in the court below, to be agreed or taxed.
OR ALTERNATIVELY
2. Variation of the Costs Order made herein on the 19 th of December 2014 so as to read: Half Costs to the [applicant] to be agreed or taxed.
OR ALTERNATIVELY
3. Variation of the Costs Order made herein on the 19 th of December 2014 so as to read[:] Half Costs to the Respondent here and below, to be agreed or taxed.
OR ALTERNATIVELY
4. Variation of its Costs Order made herein on the 19 th of December 2014 to read [:] each party bear its own costs of Appeal.
OR ALTERNATIVELY
5. Variation of its order made herein on the 19 th of December 2014 in such manner as this Honourable Court sees fit.
AND
6. Such further or other order and/or relief as this Honourable Court sees fit.”
The applicant relied on the following grounds:
“1. Pursuant to Rule 1.7(7) of the Court of Appeal Rules.
2. Pursuant to Part 64.6 of the Civil procedure rules which applies to this [matter] by virtue of Part 1.18 of the Court of Appeal Rules which speaks to the general principle that the successful party should recover his cost.
3. Pursuant to the court's established practice of awarding Costs to the successful party in keeping with the general principle.
4. In 2009, judgment was handed down in this matter in the Supreme Court wherein the order was made that the Applicant pay the Respondents herein, the sum of Ten Million dollars ($10,000,000.00) for trespass and Three Million Five Hundred Thousand Dollars ($3,500,000.00) in respect of public nuisance with costs to the Respondent herein.
5. The matter was appealed and this Honourable Court, in its judgment on the 19 th of December 2014, cut the overall awards down from Thirteen Million Five Hundred Thousand to One million dollars for trespass only.
6. The [applicant] was therefore successful in getting the award for trespass reduced by over 90% and in having the award for public nuisance completely set aside. However the said judgment went on to order that half costs of the appeal should go to the Respondents to be taxed if not agreed.
7. The taxation hearings in the Court of Appeal have not yet started but the Respondents are seeking to claim the sum of $2,305,073.61 as the Court of Appeal costs based on their filed Bill of Cost[s] and by virtue of the Order of this Honourable Court, the [applicant] would be liable to pay half of whatever costs is taxed.
8. The costs ordered against the [applicant] in the Supreme Court have been taxed at Four Million Six Hundred and Ninety Six Thousand Nine Hundred and Eighty Three Dollars and Twenty Two cents ($4,696,983.22).
9. The judgment debt based on the judgment of this Honourable Court is $1 million dollars but in view of the costs taxed in the Supreme Court and the costs that are likely to be taxed in this Honourable Court, the [applicant] is at jeopardy of paying more than five times the judgment debt.
10. The costs are therefore significantly disproportionate to the judgment debt.
11. The [applicant] has had to pay his own legal fees in getting the judgment debt reduced from $13.5 million dollars to $1 million dollars and it is unconscionable for him to have to pay the full legal fees of the Respondent in the Supreme Court and half the legal fees taxed in the Court of Appeal.
12. To award the Respondent the full costs in the Court below would be to award him costs for all his causes of action, despite the fact that they were not all successful.
13. The Applicant herein is asking this Honourable Court to do justice by revisiting the issue as to Costs as ordered by the Court of Appeal in view of the circumstances and to vary the order in a manner that deals with the case justly.”
In the court below Cole-Smith J made the following orders at page 20 of her written judgment:
“Having found that there was Trespass on the [respondents] land by the construction of the bar and public nuisance I give judgment for the [respondents] on the [applicants'] Ancillary claim. I find on a balance of probabilities that the [respondents] have established their right to:
(1) Damages for Trespass and Public Nuisance.
(2) An Order that the [applicants] remove the open air bathrooms and any other structure constructed by the [applicants] which currently encroaches on the [respondents'] land.
I therefore award damages to the [respondents] as follows:
Trespass
$10,000000
Public Nuisance
3,500000
$13.5M
Ordered that the [applicants] remove the open air bathrooms and any other structure constructed by the [applicants] which currently encroaches on the [respondents'] land within ninety (90) days from the date hereof.
Costs to the [respondents'] on the claim and on the [applicants'] Ancillary claim if not agreed to be taxed.”
On 19 December 2014, this court made the orders set out below:
“a. The appeal is allowed in part. The order for damages for trespass and public nuisance is set aside and the following order is substituted:
The [respondents] are awarded general damages for trespass in the sum of $1,000,000.00.
b. Save as above, the appeal is dismissed and the judgement of Cole-Smith J and the orders made by her on 23 September 2009 are affirmed c. Half costs of the appeal to the respondents to be agreed or taxed.”
In support of the instant application, the applicants filed an affidavit on 7 July 2017, sworn to by Mr Patrick Woolcock, to vary this court's order, which essentially deposed to the grounds set out in the application. His complaint was that the applicants had been successful in having the judgment of the said trial judge set aside in relation to the amount that he had been found to pay and with regard to the sum payable for damages in respect of trespass, that had been reduced from $10,000,000.00 to $1,000,000.00. Additionally the court had found that there was no public nuisance and had set aside the order for the applicants to pay $3,500,000.00. However, he complained that the order for costs in the court below had not been disturbed and had recently been taxed in the amount of $4,696,983.22. The taxation process was about to commence in the Court of Appeal and the respondents were claiming $2,305,073.61. Once those costs were taxed the order of this court would require that the applicants pay one-half of those costs. He was concerned with this result as he considered that he had been successful in the Court of Appeal having reduced the damages payable by the applicants substantially, indeed by $12,500,000.00.
The 1 st applicant further deponed that the respondents would suffer no prejudice if the application was granted as the order for taxation had only been finalized by the registrar on 14 June 2016, and so they would only have become entitled to that amount since then. Further, and in any event, the prejudice that would be suffered by the applicants would far outweigh any prejudice to the respondents as the amount payable for costs is in excess of the judgment debt. The applicant confirmed that the judgment debt had been paid. He also indicated that the decision to pursue the appeal was a justifiable one, as the applicants had been successful in reducing the overall amount payable by them.
He had also, he indicated, successfully challenged in the court below the imposition of permanent mandatory injunctions and only one prohibitory injunction which had been granted by the learned trial judge remained.
He therefore pleaded the he was “appealing to this Honourable Court to do justice in this case in view of all the circumstances”.
In response to this application the respondents fired their own salvo. They filed an application for court orders on 27 February 2017, wherein they sought a myriad of reliefs. In the main they complained that the applicants had failed to comply with the orders of the court below, which had been confirmed by this court, specifically with regard to removing the encroachment on their property which grounded the claim for, and the order made in respect of damages for trespass. There were other acts of trespass that the respondents claimed the applicants were still engaged in, and they were therefore asking the court to order the removal of the offending open-air shower cubicles and other debris placed on their property, and in the event of the continued failure to comply with the earlier orders of the courts, and any orders that this court should make, that the applicants be committed to prison for a specified period. The respondents relied on the following grounds in support of their application:
“1. To enable the Respondents to get...
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