Steadly Moulton v Wadmar Construction Ltd
| Jurisdiction | Jamaica |
| Judge | F Williams JA,P Williams JA,Foster-Pusey JA |
| Judgment Date | 18 March 2022 |
| Neutral Citation | JM 2022 CA 32 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 89/2015 |
| Court | Court of Appeal (Jamaica) |
| Year | 2022 |
and
and
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(Representative of the Estate of Ainsworth Boreland, Deceased, Intestate)
[2022] JMCA Civ 10
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
THE HON Mrs Justice Foster-Pusey JA
SUPREME COURT CIVIL APPEAL NO 89/2015
IN THE COURT OF APPEAL
Written submissions filed by Elizabeth L Salmon for 1 st and 2 nd respondents
Written submission filed by Geraldine R Bradford for the 3 rd respondent
I have read the draft judgment of P Williams JA and agree with her reasoning and conclusion. There is nothing that I wish to add.
The background to this ruling on costs is set out in the decision of this court handed on 5 July 2021 with neutral citation [2021] JMCA Civ 33.
In summary, a tragic motor vehicle accident, occurred in the early morning of 1 May 2010, along the White River main road in the parish of Saint James. Mr Steadly Moulton (‘the 1 st appellant’) and Miss Doreen Harrison (‘the 2 nd appellant’) were passengers in one of the motor vehicles, a Toyota Corolla motor vehicle that was driven by Mr Ainsworth Boreland. Both appellants and Mr Boreland were injured and Mr Boreland succumbed to his injuries. The second vehicle involved in the accident was driven by Mr Rajiv Knight (‘the 2 nd respondent’) and was owned by Wadmar Construction Limited (‘the 1 st respondent’). The Administrator General of Jamaica (‘the 3 rd respondent’) was appointed administrator ad litem for Mr Boreland's estate, he having died intestate, for the purposes of the claim.
In their claim, the appellants had alleged that the accident had been caused by the negligence of the 2 nd respondent and/or Mr Boreland. The 3 rd respondent in its defence and ancillary claim asserted that the accident was caused by the negligence of the 2 nd respondent. The 1 st and 2 nd respondents countered that the collision was caused solely or materially contributed to by the negligence of Mr Boreland.
On 5 July 2015, E Brown J (‘the learned trial judge’) gave judgment in favour of the appellants against the 3 rd respondent. He, in effect, agreed with one of their assertions that the accident was caused by the negligence of Mr Boreland. It was noted from the transcript of the trial that the 3 rd respondent did not participate in it.
On appeal to this court, we concluded that there was no basis upon which to interfere with any of the learned trial judge's findings of fact and it had not been demonstrated that the learned trial judge misunderstood or misapplied the law relevant to his determination of liability. However, recognising that we had not heard from the parties on the issue of costs, an order was made affording the parties an opportunity to make written submissions on the issue.
On 5 July 2021, we, therefore, made the following orders:
“1. The appeal and counter-notice of appeal against the decision of E Brown J delivered on 2 July 2015 are dismissed.
2. The parties are to make submissions on the costs of the appeal and the counter-notice of the appeal within 21 days of the date of this order.”
In keeping with the directions on order no 2, submissions were filed by the respondents on 26 July 2021. To date, we have received none on behalf of the appellants.
The 1 st and 2 nd respondents commenced their submissions relative to the award of costs, by referring to the provisions of rule 1.18(1) of the Court of Appeal which state that the provisions of Parts 64 and 65 of the Civil Procedure Rules (CPR) apply to the award and quantification of costs of an appeal subject to any necessary modifications. Counsel noted rule 64.6(1) of the CPR, which provides that if the court decides to make an order about costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party. Nevertheless, she contended that, having regard to the nature and the outcome of this matter, there was no dispute as to who is the successful party, and there was no behaviour that would lead the court to vary from the general rule. Reference was made to Bardi Limited v McDonald Millingen [2021] JMCA Civ 25 and VRL Operations Limited v National Water Commission and Others [2014] JMSC Civ 84.
We were invited to consider Part 64.6(3) of the CPR, which provides that, in arriving at its decision as to who pay costs, this court must have regard to all the circumstances. It was noted that rule 64.6(4) provides guidance as to the relevant circumstances, which could be considered, and it was contended that rules 64.6(b), (d) and (e) were of particular significance. It was urged that no aspect of the appeal or the counter-notice of appeal was upheld by this court, and, further, the reasonableness of the appellants and the 3 rd respondent appealing findings of fact, given the position of appellate courts, should be considered.
It was further pointed out that rule 64.6(5)(b) of the CPR empowers the court to make a summary assessment of what is fair and reasonable, although it was recognised that the court, generally, preferred for the quantification of costs to be treated with at taxation before the Registrar (pursuant to rule 65.7(1)(b) of the CPR).
It was ultimately submitted that the court ought to:
“a) exercise its discretion and order a special [costs] certificate for three counsel for the hearing of the Appeal to the 1 st and 2 nd Respondents;
b) exercise its discretion and summarily award costs; and
c) award costs to the 1 st and 2 nd Respondents in the sum of $3,500,000.00 to be paid by the 1 st and 2 nd Appellant and the 3 rd Respondent.”
The 3 rd...
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