Rodney Ramazan and Another v Owners of MV CFS Pamplona

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 20 December 2012
• Neutral Citation: JM 2012 CA 120
• Docket Number: APPLICATION NO 176/2012 SUPREME COURT CIVIL APPEAL NO 12/2011
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2012

[2012] JMCA Civ App 37

JAMAICA

IN THE COURT OF APPEAL

APPLICATION NO 176/2012

SUPREME COURT CIVIL APPEAL NO 12/2011

Between:

Rodney Ramazan

1st Applicant

Ocean Faith N.V.

2nd Applicant

and

Owners of Motor Vessel (CFS Pamplona)

Respondents

Written submissions filed by Nigel Jones & Co for the applicants

Written submissions filed by DunnCox for the respondents

COSTS - Bill of costs - Whether failure of applicants to file points of dispute within prescribed time empowered the court to issue a default costs certificate - Application to set aside default costs certificate - Whether there was clear articulated dispute about the appropriate amount of costs

(Considered on paper pursuant to rule 2.10(3) of the Court of Appeal Rules 2002)

IN CHAMBERS

Brooks JA

1 The applicants, Rodney Ramazan and Ocean Faith N.V., had a judgment, in their favour, overturned by this court. Consequently, the respondents, Owners of the Motor Vessel (CFS Pamplona), filed and served a bill of costs claiming the sum of $1,651,293.74 in respect of their legal fees and expenses incurred in connection with the appeal. The applicants failed to file their points of dispute in respect of the bill of costs within the prescribed time and, as a result, the registrar of this court issued a default costs certificate in the sum mentioned above.

2 The applicants now seek to set aside the default costs certificate and ask that their points of dispute document, which was filed late, be permitted to stand. Their application is based on their assertions that:

• (1) it was a clerical error which caused the late filing;

• (2) the points of dispute were filed only one day after the default costs certificate was issued;

• (3) there is a clearly articulated dispute about the appropriate amount of costs; and

• (4) the respondent had filed the bill of costs over four months late and so would not be prejudiced if the bill were to be set for taxation.

3 The respondents resist the application on the basis that no good reason has been given for the application to be granted. They submit that in order for the court to set aside a default costs certificate, the applicants must disclose a good reason for the failure to file and serve the points of dispute within the prescribed time. The respondents assert that the clerical error of misplacing the bill of costs, as the applicants have asserted occurred, does not constitute a good reason. Consequently, the application should be dismissed.

4 There is no dispute that the default costs certificate was properly issued by the registrar. The only question is whether the applicants have demonstrated that they are entitled to an opportunity to contest the bill of costs at a taxation hearing.

The law

5 The law in relation to bill of costs, as it is to be applied in this court, is guided by parts 64 and 65 (with some exceptions) of the Civil Procedure Rules 2002 (CPR). Rule 1.18(1) of the Court of Appeal Rules (‘the CAR’) stipulates the application. It states:

‘(1) The provisions of CPR Parts 64 and 65 apply to the award and quantification of costs of an appeal subject to any necessary modifications and in particular to the amendments set out in this rule.’

6 The relevant rule in the CPR is 65.22, which deals with setting aside default costs certificates. It states:

‘65.22 (1) The paying party may apply to set aside the default costs certificate .

(2) The registrar must set aside a default costs certificate if the receiving party was not entitled to it.’ (Emphasis supplied)

For the purposes of this judgment the applicants are the paying party and the respondents are the receiving party.

7 The respondents have cited authorities, emanating from England, in support of their submission that the court does have the power to set aside a regularly issued default costs certificate. Those decisions, namely Chitolie v The Commissioners of Customs and Excise [2002] EWCA Civ 1580 and Dr Adu Aezick Seray-Wurie v The Mayor and Burgess of the London Borough of Hackney [2002] EWCA Civ 909, turn on a differently worded rule, which the English CPR uses. The relevant portion of that rule ( CPR 47.12) states:

• ‘(1) The court must set aside a default costs certificate if the receiving party was not entitled to it.

• (2) In any other case , the court may set aside or vary a default cost certificate if it appears to the court that there is some good reason why the detailed assessment proceedings should continue .’ (Emphasis supplied)

The cases may only provide assistance if rule 65.22 is interpreted to have a similar effect to that of its English counterpart.

8 Despite the difference in the wording of the respective rules, it seems to me that rule 65.22(1) does contemplate an application being made to the court in circumstances such as in the instant case. This court, although a creature of statute, must be able to exercise control over its process. That control would extend, I find, to:

• (1) extending the time for filing points of dispute; and

• (2) setting aside a default costs certificate that has been issued in circumstances where it would be unjust to allow the bill of costs to remain uncontested.

Rule 1.7 of the CAR gives guidance in this regard. Paragraph (2)(b) of that rule allows the court to extend the time limited for compliance with any rule. It states that the court may:

‘(b) extend or shorten the time for compliance with any rule, practice direction, order or direction of the court even if the application for an extension is made after the time for compliance has passed;’

Rule 1.7(7) allows the court to vary or revoke an order which it has made. It states:

‘The power of the court to make an order includes a power to vary or revoke that order.’

9 An application to set aside the default costs certificate would not be by way of an appeal from the decision of the registrar and would, therefore, it appears, be considered a procedural application. In such a case, I find that it may be dealt with by a single judge of the court, by virtue of the power to make orders in procedural applications (rule 2.11(1)(e)).

10 Rule 65.22 does not stipulate any restriction on the paying party seeking to set aside the default costs certificate. The paragraph is broad in its application. Paragraph 65.22(2) stipulates a mandate for the registrar but, in my view, does not otherwise prevent the registrar from setting aside a certificate. It does not say that the registrar must set aside in a certain case, ‘but not otherwise’. I am fortified in this view by the fact that by rule 65.20 (4) the registrar may permit a paying party who does not file points of dispute in time, to participate in the taxation proceedings. Such proceedings could only be a taxation hearing that follows from points of dispute being in place. I accept, however, that the rule could have been made clearer. I also note that a request has previously been made for the rules committee to address the matter (see Charela Inn Ltd v United Church Corporation and Others 2004 HCV 02594 (delivered 8 July 2011)).

11 I therefore find that the registrar has...