Raziel Ofer v George Thomas and Others

• Jurisdiction: Jamaica
• Judge: Mangatal J
• Judgment Date: 19 December 2012
• Neutral Citation: [2012] JMSC Civ 184
• Docket Number: CLAIM NO. 2011 HCV 08015
• Court: Supreme Court (Jamaica)
• Date: 19 December 2012

Between

Raziel Ofer

Claimant

and

George Thomas

1st Defendant

and

George Thomas & Co

2nd Defendant

and

Cecil Anthony Bird

3rd Defendant

and

Ron Staneckey

4th Defendant

and

David Leibovitz

5th Defendant

and

John B. Chuck

6th Defendant

and

The Villas-Negril Limited

7th Defendant

and

Frolic Resort Limited

8th Defendant

[2012] JMSC Civ. 184

CLAIM NO. 2011 HCV 08015

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

PRACTICE & PROCEDURE-COSTS-WHETHER TO BE TAXED IMMEDIATELY — WHETHER SPECIAL COSTS CERTIFICATE TO BE GRANTED

IN CHAMBERS

Mangatal J

1 By way of a Notice of Application filed April 17 ^th , 2012, the Claimant had sought

the further extension of a freezing order. The application was heard inter-partes over thirteen (13) days. On the 31 ^st of July 2012, I dismissed the Claimant's Notice of Application with costs to the 1 ^st , 2 ^nd , 3 ^rd and 6 ^th - 8 ^th Defendants to be taxed if not agreed. After Judgement was handed down, the Defendants sought the Court's permission to have the costs taxed forthwith. I invited Counsel on both sides to provide written submissions on the issue. Counsel for the Claimant and the Defendants made detailed written submissions on whether the Costs should be taxed immediately which I now address.

2 Since the submissions were presented, there have been certain changes. Firstly, on the 14 ^th day of November 2012, on the application of the firm of Hart, Muirhead Fatta who had represented Mr. Ofer during the hearing, an order was made allowing them to remove their names from the record as appearing for the Claimant. Also the firm of Rattray, Patterson, Rattray filed a Notice of Change of Attorneys and now represents the 6 ^th , 7 ^th & 8 ^th Defendants.

FIRST DEFENDANT SUBMISSION

3 On behalf of the First Defendant, Mrs. Gibson-Henlin submitted that this matter presents special circumstances which would justify the Court ordering that costs be taxed immediately. While accepting that this was not an application for security of costs or for enforcing the undertaking as to damages, the First Defendant urged the Court to consider certain factors peculiar to the Claimant which would support the view that immediate taxation of the costs awarded was necessary. At paragraph 14 of the First Defendant's submission, it was pointed out that the Claimant resides outside the jurisdiction and apart from the disputed property in question; there are no other assets within the jurisdiction to secure costs. There has also not been any order for security for costs. This, the First Defendant submitted can have implications for the payment of the Costs already incurred and impact how costs to be incurred are to be treated. It was also argued that there is evidence that the Claimant cannot be personally reached for enforcement of any costs orders. It was therefore submitted that the true test of this proposition would be in the Defendant's ability to attempt to recover such costs that had already been incurred. Relying on the dicta of Brooks J (as he then was) in the Supreme Court decision ofMichael Distant and Anor. v Nicroja Limited and Anor., Claim No. 2010 HCV 1276 delivered 8 March 2011, the First Defendant argued that these factors discussed above lend a degree of uncertainty to the Defendant's ability to recoup his costs.

4 At Paragraph 19 of the First Defendant's submission, it was argued that misconduct is a factor that the Court takes into account in determining whether to grant cost orders as also the manner in which the Claimant or a party conducts the litigation. It was the First Defendant's submission that the Claimant had misconducted himself not only in the averments on the ex parte application, but also in the oppressive manner in which it policed the orders being granted. These circumstances the First Defendant submitted justifies that the order for Costs be taxed immediately.

6 ^th -8 ^th DEFENDANTS SUBMISSION

5 Mrs. Foster-Pusey, then Counsel for the 6 ^th - 8 ^th Defendants, noted that pursuant to Rule 65.15 of the Civil Procedure Rules (‘CPR') the Court has a discretion as to whether to order that costs be taxed immediately. It was also observed that there were no specific considerations outlined for the court to take into account in determining the manner in which this discretion should be exercised. However, it was their submission that the case at bar presents special circumstances which would persuade the Court to exercise its discretion favourably.

6 Counsel for these Defendants looked at the length of time over which the hearing of the application was conducted and the extensive preparation and time involved. The Defendants argued that extensive costs would have been incurred in responding to the application. Reliance was also placed on the decision ofBrooks J in the case of Michael Distant and Anor. v Nicroja Limited and Anor . in urging this Court to take into account the costs that were incurred in the application as a basis on which to order the immediate taxation of costs. It was also submitted that in light of the complexity of the claim, economic practicalities demand that the 6 ^th - 8 ^th Defendants be compensated now for the costs of the freezing application, as against awaiting the determination of the claim which may well take years to be concluded with the incurring of further legal costs.

7 It was argued by Counsel that since the Court found that there was no good arguable case against the 6 ^th - 8 ^th Defendants, the Application by the Claimant was therefore inappropriate and unwarranted and caused the Defendants in question to endure great pressure mentally and financially in responding to the Application.

8 The 6 ^th - 8 ^th Defendants also relied on the fact that the Claimant resided overseas and his inability to come to Jamaica because of his immigration status as a basis on which the Court should grant the order being sought. The Defendants argued that the Claimant gave an undertaking to the Court in applying for the freezing order and like the First Defendant, felt that it was appropriate to test the Claimant's will to indemnify the 6 ^th - 8 ^th Defendants for the expenses incurred in the course of this unwarranted application as against requiring them to await the determination of the claim.

CLAIMANT'S SUBMISSION

9 After looking at the rationale for Rule 65.15, Mr. Manning and Mr. Daley, then appearing for the Claimant, submitted that the Defendants had not presented any special circumstances for the Court to depart from the general rule of having costs taxed at the conclusion of proceedings. The Claimant attacked the Defendant's argument that the length of time of the hearing of the application justifies the Court's departure. In response, the Claimant submitted that immediacy of taxation does not arise from a long hearing per se and the Defendants have not cited any authority to the contrary. Further the Claimant pointed out several reasons which accounted for the protracted period of the application. These include, the number of parties involved in the application, the differences in the schedules of counsel and the Court as well as the fact that certain preliminary applications and issues had to be addressed.

10 The Claimant also sought to discredit the Defendants' argument that the Court ought to consider the amount of costs incurred when exercising its discretion. The Claimant commented on the reliance of the Defendants on the Judgement of Brooks J which alluded to this particular issue and submitted that the Defendants were ignoring the fact that Brooks J mentioned the significant costs there only in making the point...