The Estate of the Late Sir Harold St. John QC v Eric Ashby Bentham Deane (Deceased)

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 11 August 2023
• Neutral Citation: BB 2023 HC 28
• Docket Number: Civil Suit No. 1826 of 2015
• Court: High Court (Barbados)

IN THE MATTER OF the Legal Profession Act Cap. 370A of the Laws of Barbados

AND IN THE MATTER of the Legal Services rendered by the late Sir Harold St. John QC to Eric Ashby Bentham Deane, Owen Basil Keith Deane, Owen Gordon Deane and Philip Vernon Nicholls, formerly directors of Kingsland Estates Limited

BETWEEN:

The Estate of the Late Sir Harold St. John QC

Claimant

and

Eric Ashby Bentham Deane (Deceased) (Acting by Mr. Richard Mark Basil Deane the Executor named in the will of the said Eric Ashby Bentham Deane)

First Defendant

Owen Basil Keith Deane

Second Defendant

Owen Gordon Deane

Third Defendant

Philip Vernon Nicholls

Fourth Defendant

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No. 1826 of 2015

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Assessment of Costs — Attorney & Client — Matter concluded pre — CPR 2008 — Applicable Rules — Incorrect Procedure of Taxation — Dissatisfaction with Taxation by Registrar — Available Redress and Remedy.

Appearances:

Mr. Kevin Boyce, Clarke Gittens Farmer for the Claimant

Ms. Doria Moore for the 1 ^st, 2 ^nd & 3 ^rd Defendants

Mr. Phillip Nicholls, 4 ^th Defendant in Person

Mr. Alair Shepherd K.C. in association with Ms. Sumaya Desai for the Interested Party – the Estate of Marjorie Knox (Deceased).

DECISION

Introduction

1 In December 2015 the Claimant, the Estate of Sir Harold St. John, filed in the High Court of Barbados, an Originating Motion for the hearing and determination of an appeal against a taxation of costs conducted by the Registrar of the Supreme Court. The taxation arose in respect of legal services provided by deceased attorney Sir Harold St. John to the four Defendants herein, in a previously concluded case, namely - Action No. 1805 of 1998. The taxation was conducted during May 2014 to October 2015 and a decision on the taxation was communicated to the parties in October 2015. The grounds of the appeal as filed herein, are that:

• (i) The Registrar wrongly disallowed items on the attorney/client taxation, on the basis that those items were already allowed in the party/party taxation;

• (ii) The Registrar misapplied the CCJ decision of Knox v Deane by refusing to allow items on the basis that the attorney/client taxation had to be of a lesser amount than the party/party costs;

• (iii) The Registrar failed to give reasons for the reduction of the attorney's costs.

2 Despite being filed in December 2015, this matter did not progress for several years, and movement came only in March 2021 when the Claimant was required by this Court, to support the originating motion (which had been filed to commence the matter), with an affidavit, as though the matter had been commenced by way of a fixed date claim. However, before any issues concerning the taxation could be addressed, the question of whether the Court had the jurisdiction to entertain the appeal was raised as a preliminary issue which the Court then proceeded to hear and determine.

3 This issue of jurisdiction was raised by the Estate of Marjorie Knox (the plaintiff in action no. 1805/1998), in respect of whom the Court had granted permission to be heard as an interested party. Further to the directions of the Court, submissions were filed on behalf of the parties (including the interested party), and the issue of the court's jurisdiction to review or hear an appeal from the Registrar's taxation of the attorney/client's costs, was ventilated by way of written and oral submissions.

The Court orally pronounced its decision on the 23 ^rd June, 2023 in which it was firstly concluded that the attorney/client taxation was carried out pursuant to an invalid process occasioned under the repealed RSC. Further and in any event, the Court also found that there is now no provision under current law for an appeal to the High Court from, or for a review by the High Court of, a Registrar's taxation (now assessment) of costs. The Court now completes its undertaking to provide the written reasons for its decision.

4 The most efficient way for the Court to approach this matter is to briefly extract the material arguments emanating from the respective parties (including the Interested Party), and thereafter to set out the legal framework out of which the Court's determination of the matter has been founded. Once that legal framework has been extracted, the Court would be best placed to illustrate its position that it does not have the jurisdiction to hear and this matter. (The applicable legal provisions referred to below have been reproduced in the Appendix hereto).

The legal arguments in brief

Claimant's Submissions

5 Counsel for the Claimant's argument was based on the proposition that unlike its predecessor the RSC, the CPR 2008 contain no rules to give effect to the court's jurisdiction to review or appeal a Registrar's taxation on costs, inasmuch as section 72 of the SCJ Act enables an appeal against a decision or order of the Registrar. As a consequence of that lack of provision in the CPR, the Claimant's submission was that the RSC was applicable to the taxation in respect of the concluded case no. 1805/1998. Alternatively, the express right of appeal from a decision of the Registrar, as provided in section 72, should fall under CPR Part 60, which provides for appeals to the High Court. 1 If neither of the above options finds favour with the Court, the Claimant submits that the court should under its inherent jurisdiction, give effect to the express right to appeal against a decision of the Registrar, by means of the established mechanism of filling gaps in substantive rights, which are occasioned by the absence of procedural rules to give effect to those rights.

1 ^st – 3 ^rd Defendants' Submissions

6 The submission on behalf of the 1 ^st – 3 ^rd Defendants was that the question of the court's jurisdiction to entertain an appeal against taxation by the Registrar, was clearly grounded in statute. The collective provisions giving rise to that jurisdiction are:-

The submission continues however, that as an officer of the High Court, an appeal from an order or decision of the Registrar lies to the Court of Appeal and not the High Court. Accordingly, the submission on behalf of the 1 ^st-3 ^rd Defendants is that this Court has no jurisdiction to entertain any appeal against the Registrar's taxation of the several defendants and their attorney's costs in suit no. 1805/1998.

• (i) The Registrar is the Taxing Master (section 71 of Cap. 117A);

• (ii) The statutory cause of action for an attorney-at-law to recover costs from a client after taxation of a bill of costs ( section 34 of the LPA Cap.370A);

• (iii) The right of appeal in favour of any person aggrieved by a decision or order of the Registrar (section 72 of Cap. 117A).

Submissions on behalf of Interested Party

7 King's Counsel for the Interested Party (Estate of Marjorie Knox), submitted that the Claimant's proceedings were flawed for any or all of the following reasons:-

• (i) Having been repealed since 2009, and the CPR's transitional provisions not being applicable to the already concluded Suit 1805/1998, the RSC were not applicable to the attorney/client taxation commenced by the Claimant in 2014;

• (ii) As a consequence of (i) above, the process of review sought to be invoked by the Claimant in respect of the Registrar's decision on the attorney/client taxation, was also inapplicable;

• (iii) Even if applicable, the RSC process was not applicable to taxation of attorney/client costs;

• (iv) The procedure that was applicable to the Claimant's attorney/client taxation in this case was an assessment of costs under CPR R.65.12; 2

• (v) In respect of the CPR's assessment of costs, there is no procedure in the CPR, which is akin to the RSC's process for review of taxation by the Registrar, nor is there provision for an appeal to the High Court in respect of such taxation;

• (vi) To the extent that section 72 of Cap. 117A provides for appeals against a decision or order of the Registrar to the High Court, unlike the RSC's Order 58, there is no rule under the CPR which provides for such appeals to the High Court. In this regard, the Registrar's jurisdiction in respect of taxation is not an independent jurisdiction, it is nonetheless the jurisdiction of the High Court, as prescribed by section 71 of Cap. 117A. In the absence of a specific rule enabling appeals to the High

  Court, as per RSC's 058, any appeal from a decision of the Registrar must be made to the Court of Appeal;

• (vii) The mode of commencement of proceedings in this case (originating motion), not being a procedure in existence much less in accordance with the applicable rules of court (CPR), cannot be used to invoke the jurisdiction of the Court of Appeal; 3

• (viii) Relief could be available to the Claimant by way of judicial review, however the mode of commencement (by originating motion) cannot be used to commence judicial review proceedings against the Registrar's decision on taxation. 4

• (ix) Without an applicable legal basis for its jurisdiction, the Court cannot resort to its inherent jurisdiction to afford the Claimants any relief in entertaining the matter, which ought to be dismissed.

Discussion and Analysis

The Applicable Legal Framework

8 The legal provisions applicable (extracted in the Appendix hereto) to the question of the review/appeal against the Registrar's taxation of the Claimant's attorney/client costs arising out of Suit 1805/1998 are as follows:

• (i) The Supreme Court of Judicature Act, Cap. 117A

  Sections -

  • 2. Interpretation – definitions of ‘action’, ‘cause’, ‘matter’

  • 71. Jurisdiction of Registrar as Taxing Master

  • 72. Right to appeal to the High Court/Court of Appeal from decision or order of the Registrar

• (ii) The Legal Profession Act, Cap. 370A, Part VI (‘the LPA’).

  Sections -

  32. Definition of taxing officer

  34.(1) - No...