C.O. Williams Construction (Antigua) Ltd Appellant v Jennings Building Products Ltd Respondent [ECSC]

JurisdictionCaribbean States
CourtEastern Caribbean Supreme Court
JudgeMitchell JA,Don Mitchell,Justice of Appeal [Ag.]
Judgment Date22 May 2012
Judgment citation (vLex)[2012] ECSC J0522-4
Docket NumberHCVAP 2010/009
[2012] ECSC J0522-4

IN THE COURT OF APPEAL

EASTERN CARIBBEAN SUPREME COURT

Before:

The Hon. Mr. Don Mitchell

Justice of Appeal [Ag.]

HCVAP 2010/009

Between:
C.O. Williams Construction (Antigua) Ltd.
Appellant
and
Jennings Building Products Ltd.
Respondent
Appearances on Paper:

Ms. Gail Christian for the Appellant

Ms. Deniscia Thomas for the Respondent

Civil Appeal – Interlocutory appeal – Costs

The appellant and the respondent each filed a number of interlocutory applications before the trial of this matter. The applications were heard, disposed of and substantive orders were made, but the orders on each occasion were silent as to who, if anyone, should bear the costs of the applications. The respondent later filed an application for costs to be awarded to them. On 17 th December 2009, that application was granted by the trial judge who ordered that costs be awarded to the respondent in the sum of $7,000.00. The appellant appealed.

Held: setting aside the order of 19 th February 2010 that awarded costs to the respondent, that:

  • 1. If a party to litigation does not obtain an order for costs at the time of the making of an interlocutory order by the judge, then the party is not entitled to make a later application for costs in relation to the earlier application. The interlocutory orders made by the learned trial judge were already settled; as such the judge was functus officio when the respondent's application came before him.

  • 2. An order which is silent as to costs means that each party must bear its own costs of the proceedings.

1

Mitchell JA [AG]: This is an appeal against an award of costs which comes up with leave of this court before me for determination as an interlocutory appeal. An appeal against a costs order always requires leave under the provisions of the Eastern Caribbean Supreme Court Act. 1 Interlocutory appeals are generally determined on paper by a single judge of the court pursuant to rule 62.10 of the Civil Procedure Rules 2000 ("CPR").

2

The simple facts are that during the course of the preparation of this case for trial in the High Court, a number of interlocutory applications came to be made, and they were heard and disposed of. There were two of them in particular. The first was an application by the appellant to amend its claim form. This was disposed of on 16 th October 2009 by the judge granting the appellant's application. The second was an application of 16 th November 2009 by the appellant to strike out the defendant's amended defence and counterclaim. This was disposed of on 19 th January 2010 adverse to the appellant. In both applications, substantive orders were made, but the orders on each occasion were silent as to who if anyone should bear the costs of the applications.

3

On 17 th December 2009, the respondent filed an application in the High Court for costs of $10,500.00 to be awarded to it in respect of the two applications previously referred to. On 19 th February 2010, the trial judge heard both counsel and, over the objections of counsel for the appellant, awarded costs to the respondent in the amount of $7,000.00. An appeal followed, the point being a simple one. Is an interlocutory order which contains no mention as to costs capable of being dealt with subsequently on an application for costs? There is a second ground argued, that the award of costs was excessive, but I shall not deal with it.

4

The applicable rules of court are CPR 65.11(1) and (3). They read:

"Assessed costs – procedural applications 65.11 (1) On determining any application except at a case management conference, pre-trial review or the trial, the court must –

  • (a) decide which party, if any, should pay the costs of that application;

  • (b) assess the amount of such costs; and

  • (c) direct when such costs are to be paid.

(3)...

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