Phyllis Rampersad and another v Deo Ramlal and 3 others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kitchin,Lord Briggs,Lord Hamblen,Lord Leggatt,Lord Burrows |
| Judgment Date | 08 December 2022 |
| Neutral Citation | [2022] UKPC 50 |
| Docket Number | Privy Council Appeal No 0090 of 2021 |
| Court | Privy Council |
[2022] UKPC 50
Lord Briggs
Lord Kitchin
Lord Hamblen
Lord Leggatt
Lord Burrows
Privy Council Appeal No 0090 of 2021
Privy Council
Michaelmas Term
From the Court of Appeal of Trinidad and Tobago
Appellants
Anand Ramlogan SC
Ben Jones
(Instructed by Ganesh Saroop (Trinidad))
Respondents
Zelica Haynes-Soo Hon
Kerri-Ann Oliverie
(Instructed by Al-Rawi, Haynes-Soo Hon & Co (Trinidad)) Appellants:
(1) Phyllis Rampersad
(2) Bhim Rampersad
Respondents:
(1) Deo Ramlal
(2) Rosina Ramlal
(3) Lochan Dipsingh
(4) Kumar Birbal
Heard on 10 October 2022
Lord Kitchin ( with whom Lord Briggs, Lord Hamblen, Lord Leggatt, and Lord Burrows agree):
This appeal concerns the general rules governing the award of costs after a trial in the Republic of Trinidad and Tobago; the rules which apply to any party seeking to appeal against any costs order with which it does not agree; and the jurisdiction of an appeal court to allow an appeal against a final costs order which the trial judge has made.
The appeal arises in the context of a dispute in which allegations of the most serious kind were made by the appellants, Phyllis Rampersad and her husband, Bhim Rampersad, against the respondents. These allegations, including allegations of fraudulent misrepresentation and forgery, were all rejected by the judge, Dean-Armorer J, after a full trial. The judge then made an order that the claim be dismissed and the appellants should pay the respondents their costs of the action, such costs to be assessed by the Registrar of the Supreme Court of Trinidad and Tobago.
The appellants appealed to the Court of Appeal against the judge's order. Ultimately, they did not pursue their appeal against that part of the order which dismissed their claim but they did pursue their appeal against the judge's order for costs. The Court of Appeal dismissed that appeal, holding it to be an abuse of process, and they did so for reasons the Board will explain.
This further appeal, pursued with the permission of the Court of Appeal, gives rise to issues concerning the power of the court to award costs to be assessed and the approach to be adopted by the court if it is considering making such an order; and the jurisdiction of an appeal court, in this case the Court of Appeal, to entertain an appeal against a costs order for which no ground of appeal had been spelled out and for which no express permission had been given.
The Board will elaborate the background to this appeal and the grounds upon which it is now pursued in a moment. First, however, the Board must outline the legal framework in which orders for costs of civil proceedings are made and the basis upon which an appeal against a costs order may be pursued.
There is now in Trinidad and Tobago what has been described as a suite of costs regimes which are embodied in the Civil Proceedings Rules 1998 (“the CPR”) and which are designed to make costs in civil litigation more predictable and reduce the risk of litigants incurring costs which are unreasonable and disproportionate.
The starting point is entirely conventional. Rule 66.6 provides that if the court, including the Court of Appeal, decides to make an order about the costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party. But the court may make a different order and, as rule 66.6(2) makes clear, may even, in an appropriate case, order a successful party to pay all or part of the costs of the unsuccessful party. In deciding who should be liable to pay costs, the court must have regard to all the circumstances and in particular must have regard to the matters set out in rule 66.6(5) which include the conduct of the parties, whether a party has succeeded on particular issues even if he has not been successful overall, whether it was reasonable for a party to raise or pursue a particular issue and the manner in which the party has pursued the whole or any aspect of his case.
As will be seen, the appellants make no complaint now about the judge's decision to make a costs order against them. Their complaint concerns the form of that order and, in particular, the order that they should pay the respondents' assessed costs. They contend that such an order is unusual and that they should have been given an opportunity to address the judge about whether it was fair or appropriate. They also contend that they should have been given an opportunity to make their submissions before she made her order. Consideration of these arguments requires an understanding of the provisions of Part 67 of the CPR and the ways in which any costs awarded by the court are to be quantified under the various costs regimes which may now be applied.
Rule 67.3 provides that costs of proceedings under the CPR are to be quantified in one of the following ways. First, where rule 67.4 applies, that is to say in proceedings subject to a fixed costs regime, costs are to be quantified in accordance with the provisions of that rule (“fixed costs”). In all other cases, where the court orders a party to pay the costs of another party, the costs are to be quantified in accordance with the prescribed costs regime set out in rule 67.5 (“prescribed costs”); or in accordance with a budget approved by the court (“budgeted costs”); or, where neither prescribed nor budgeted costs are applicable, by assessment in accordance with rules 67.1 and 67.12 (“assessed costs”).
Rule 67.5 provides that if, as here, a party is entitled to the costs of proceedings and rule 67.4 (which is concerned with fixed costs) does not apply, the general rule is that the receiving party is entitled to prescribed costs determined in accordance with rule 67.5 and Appendix B. Under rule 67.5, it is also the general rule that the amount of costs to be paid is to be calculated by applying the percentages specified in Appendix B to the value of the claim. Further, in determining the value of a claim such as this, which is not for a monetary sum and for which no value has been agreed or stipulated by the court, it is to be treated, subject to rule 67.6 (which permits an application to be made to the court), as a claim for $50,000. It is the appellants' case that the application of the specified percentages in this case would have resulted in a costs liability of $14,000, comprising 30% of $30,000 and 25% of the balance of $20,000.
The advantage of a regime for prescribed costs is plain. Where it is applicable, the parties know where they are in terms of the opportunity to recover costs if they are successful, and their potential liability if they fail. They also know that they will not become embroiled in what may prove to be lengthy and expensive assessment proceedings. But, depending on the circumstances, such a regime may provide an inadequate recovery of costs, and for this reason it may be just and appropriate in some circumstances to apply a different and more generous regime.
Accordingly, the next way in which costs may be quantified is in accordance with a budget approved by the court under rule 67.8. If any party seeks to invoke this jurisdiction, it should make an application to the court for that purpose and should do so at the first (or at least at an early) case management conference. No such application was made in this case, however.
Further, in cases which are not subject to a fixed costs regime, where no application has been made for the approval of a budget, and where the regime for prescribed costs would normally be applicable, the court may nevertheless award a party its costs to be assessed. Rules 67.11 and 67.12 provide a regime for the assessment of costs incurred in connection with applications and for the assessment of costs generally. It is not necessary at this stage to expand on the principles to be applied in carrying out an assessment save to say that where, as here, no order has been made for the assessment of costs on an indemnity basis, costs will be assessed on the standard basis. Further, where the court assesses costs on the standard basis, it will not allow costs which have been unreasonably incurred or are unreasonable in amount, and it will only allow costs which are proportionate to the matters in issue. The court will resolve in favour of the paying party any doubt which it may have as to whether the costs were reasonably incurred or were reasonable and proportionate in amount.
The Supreme Court of Judicature Act of Trinidad and Tobago provides, in section 38(1), that subject as provided in the Act or other written law, the Court of Appeal has jurisdiction to hear and determine appeals from any judgment or order of the High Court in all civil proceedings. Section 38(2) provides that no appeal shall lie except by leave of the judge making the order or of the Court of Appeal from an order as to costs.
The general procedure to be followed when a party requires leave to appeal is set out in rule 64.2. It provides, so far as relevant:
“64.2 (1) Where an appeal may be made only with the leave of the judge making the order or the court a party wishing to appeal must apply for leave within 14 days of the order against which leave to appeal is sought.
(2) The application for leave to appeal must set out concisely the grounds of the appeal.”
These are important provisions and two general points may be made about them. First, so far as an application for permission to appeal is required, the application ought in the first instance to be made to the judge who made the order. That will give the judge an opportunity to decide whether to grant or refuse permission to appeal and to give reasons for that decision. It is in general not...
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