Robert Strang Instructed by BDB Pitmans LLP (London) for the Appellant
Lord Stephens:
1. Introduction
This appeal concerns whether costs should be quantified in accordance with the scale of prescribed costs set out in rule 67.5 of the Civil Proceedings Rules 1998 (“the CPR”) (“prescribed costs”) or assessed in accordance with rules 67.1 and 67.12 of the CPR (“assessed costs”). If costs are quantified as prescribed costs, then it is suggested, see para 31 below, that costs would amount to TT$27,000. In contrast, if costs are assessed, then it is suggested, see para 24 below, that costs would amount to TT$559,695.
The appeal arises in the context of proceedings brought by Rollin Clifton Bertrand, Trinidad Cement Ltd (“TCL”) and Caribbean Cement Ltd (“CCL”) (together “the claimants”) for defamation against Dr Anthony Elias (“the defendant”). At an early stage of the proceedings the defendant made clear to the claimants that he would be incurring substantial legal costs by, for instance, instructing senior counsel, to achieve equality of arms with the claimants, who had also, for instance, instructed senior counsel.
The proceedings were discontinued by Mr Bertrand on the day before the trial was to commence and by TCL and CCL on the day of trial. Accordingly, the defendant was entitled to an order for costs against the claimants under rule 38.6(1) of the CPR. The general rule is that, where proceedings have been discontinued, the costs shall be quantified in accordance with the prescribed costs regime; see rule 38.7(1) of the CPR. However, quantification of prescribed costs requires a sum either to be agreed between the party entitled to, and the party liable for, such costs or if not agreed stipulated by the court as the value of the claim in circumstances where the claim is for damages, but the claim form does not specify the amount claimed. If no sum is agreed or stipulated, then it is not possible to apply the scales of prescribed costs in Appendices B and C to Part 67 of the CPR. The parties did not agree a sum as the value of the claim and the judge, Charles J, decided that “without having heard the evidence” and “before cross-examination” she could not stipulate a sum so that the prescribed costs regime was not applicable. Accordingly, she made an order that the claimants pay the defendant’s costs, to be assessed by the Master in Chambers.
The claimants appealed to the Court of Appeal against the judge’s order. The Court of Appeal (Yorke-Soo Hon, Rajkumar, and Wilson JJA) allowed the appeal holding that it was possible to stipulate a sum as the value of the claim. The Court of Appeal remitted the matter back to the trial judge “for the stipulation of the value of the claim” so that the defendant’s costs would be quantified as prescribed costs.
The defendant now appeals to the Board primarily contending that in the exercise of discretion the general rule that costs should be quantified in accordance with the scale of prescribed costs should be displaced in favour of costs being assessed.
A further issue in relation to costs, raised on behalf of Mr Bertrand before the judge and the Court of Appeal, was whether all the claimants were jointly liable for the defendant’s costs or whether, as submitted on behalf of Mr Bertrand, the only order for costs in favour of the defendant should be against TCL and CCL or alternatively whether the order for costs against Mr Bertrand should be limited to one third of the defendant’s costs. The judge rejected these submissions on behalf of Mr Bertrand holding that as this “was a joint claim [brought] by all three claimants … all the claimants are jointly liable to pay the Defendant’s [assessed] costs”. On appeal the Court of Appeal upheld this part of the judge’s order. Mr Bertrand has not pursued this issue before the Board.
2. The factual background
The factual background is taken from the allegations contained in the pleadings, the judgments below, and the parties’ agreed Statement of Facts and Issues before the Board.
Mr Bertrand “is a prominent citizen of Trinidad and Tobago with a distinguished career in business and in commerce” who “has been since 1998 … the Group Chief Executive Officer (‘CEO’) of [TCL] Group of Companies with responsibility for 12 operational companies of the TCL Group ….”; see para 1 of the Statement of Case. In paras 2-4 of the Statement of Case the various ways in which Mr Bertrand has achieved success in business and his contributions to public life in Trinidad and Tobago are set out. These include, for instance, chairing the Water and Sewerage Authority and having been a director of the Trinidad and Tobago Stock Exchange.
TCL “is the holding company of the TCL Group of Companies operating across the Caribbean”. The TCL Group is alleged to be “the leading producer and marketer of cement and ready mixed concrete and aggregate products across the Caribbean region”; see para 5 of the Statement of Case.
CCL is a subsidiary of TCL. CCL was incorporated in Jamaica and “[its] primary activity is the manufacture and sale of Ordinary Portland Cement and Portland-Pozzolan Cement”; see para 6 of the Statement of Case.
The defendant is a well-known Trinidad and Tobago medical practitioner, who at all material times was a shareholder in TCL; see para 7 of the Statement of Case.
On 12 May 2009 at an annual general meeting of the shareholders of TCL, the defendant, attending in his capacity as a shareholder, made statements about Mr Bertrand, voicing his dissatisfaction about the way Mr Bertrand had provided information about TCL to its shareholders, and the accuracy of such information in relation to a cement quality crisis at CCL’s cement plant in Jamaica in 2006.
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