IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE IN THE MATTER OF PEARL JOB, PENSIONER OF NO.93 MT. GOMERY LOCAL ROAD, TOBAGO IN CONTEMPT PROCEEDINGS ARISING OUT OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM by her Daughter and next of friend HEATHER JOB also of No.93 Mt. Gomery Local Road, Tobago CONTEMPT PROCEEDINGS BETWEEN PEARL JOB AND THE TOBAGO REGIONAL HEALTH AUTHORITY Claimant Defendant Before The Hon. Madam Justice C. Gobin Appearances: Mr. M. George for the Claimant Mr. R. Thomas for the Defendant REASONS/ORDER FOR WASTED COSTS 1. On September 20 th 2013, I delivered judgment in the substantive matter herein. In it (at para. 48), I gave notice that I intended to make an order for wasted costs pursuant to CPR Part The substantive decision was not appealed within the time prescribed by the Rules. 2. I fixed a hearing on November 25 th 2013, for Counsel to show cause why he should not be made to pay the respondent s costs personally, whether in whole or in part.. Page 1 of 5

2 3. On the 25 th November 2013, Mr. George did not appear. An associate of the firm of Martin George and Company appeared and indicated that he was before the High Court. Ms. Bernard further explained that the matter had not been diarised by the firm on the last date. Ms. Bernard had in fact attended to take the judgment on September 20 th The matter was once again adjourned to the 27 th January 2014 to proceed. Parties were encouraged to speak and to notify the Court at latest, by the 17 th December 2013, whether the appointment for the January hearing should be kept. 5. By letter dated 17 th December 2013, Counsel for the Respondent, Mr. Richard Thomas, indicated that no agreement had been reached and advised that the Court needed to deal with the matter. 6. On the 27 th January 2014, yet again Mr. George did not appear. The matter was stood down and Ms. Bernard eventually appeared. The transcript of the proceedings reflects the following exchange: MS. BERNARD: go into paragraph 25 of the judgment, page 12, you found that on the fifth line, that by 20 th March, the Claimant was entitled to a fine being that the Respondent was in contempt. Page 2 of 5

3 MS BERNARD: However, after that date, from what I can glean, the contempt was purged and there was really no need to go for a trial and I agree with that. MS. BERNARD: So I actually have no difficulty with advising the client well, not advising but make the submission that yes, we should pay the cost of the trial because it was not necessary and Well, the issue was not so much whether the client should pay but whether counsel would be in a better position to assess whether the trial was necessary. And Counsel who is under the duty to save the costs in pursuance of the overriding objective; that s the whole point. So if you re telling me I can go and make an order for cost which is (successive) then I will hear Mr. Thomas on the quantum. MS. BERNARD: necessary. Well, yes, because my view is that a trial is not Good. All right. MS. BERNARD: My Senior might not agree but at the moment I have conduct in the matter so 7. In the judgment delivered on the 20 th September 2013, I indicated the reasons that I was considering the wasted costs order, and I repeat (a) (b) That I have concluded there was no proper motive for proceeding with this contempt application. In the course of the trial, attorneys saw me in chambers. Counsel for the claimant indicated he would take instructions to withdraw the proceedings if the defendant would pay the claimant s costs. I indicated then that there was an issue of abuse of process on the part of the applicant. Counsel chose to continue the trial. 8. As to the reasons for my arriving at the conclusion above I rely on my judgment of 20 th September, Page 3 of 5

4 9. As for the particular ground that according to paragraph 25 of the judgment it was held that By the 20 th March therefore the claimant was entitled to a finding that the Respondent was in contempt. The passage does not reflect a finding. This statement was made in the context of my reciting the claimant s case for contempt, as the subheading in the judgment clearly indicates. Having set out the claimant s case very simply I proceeded to give my reasons for rejecting it. The subhead Dismissal/Reasons, followed and which introduced paragraph 26 of the judgment, indicated my findings. 10. As to ground 2(b), at all times in the course of several hearings on which issues regarding Mrs. Job s care were discussed, I indicated that I was sensitive to the social problems of geriatric care (paras judgment 20/9/13). These discussions between Counsel and the Court were intended to remind Heather Job, the daughter of the nominal claimant Pearl Job, as well as her counsel, of what should have been the focus of all parties attention, the well-being of the elder Mrs. Job. 11. My sensitivity to the issue had no bearing on my findings on the determination of the contempt proceedings. 12. Counsel s insistence on proceeding, in spite of those open discussions however did influence my decision to serve notice pursuant to CPR Counsel adopted a position which resulted in the unnecessary allocation of judicial time and resources. It caused the attendance for cross-examination of senior officials of the TRHA. On the claimant s part it led to the attendance, and the cost of it, for cross-examination of an Page 4 of 5

5 eminent surgeon such as Dr. Toby, on an issue which was only academic and for what I considered an improper motive. 13. Further, at the stage that Mr. George indicated his insistence on proceeding with the contempt application, it would have been only too apparent that the TRHA officials had been going beyond what was required of them in the proceedings to assist the elderly Mrs. Job and that her daughetr was less than willing to assume responsibility for her care. This only confirmed, that underlying his insistence, was what Counsel wrongly perceived as an entitlement to costs of the contempt application. Dated this 25 th day of February 2014 CAROL GOBIN JUDGE Page 5 of 5