IN THE HIGH COURT OF JUSTICE BETWEEN RAZIA LUTCHMIN ELAHIE AND SAMAROO BOODOO DUDNATH BOODOO PARTAPH SAMAROO GOBERDHAN SAMAROO

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN RAZIA LUTCHMIN ELAHIE Claimant AND SAMAROO BOODOO 1st Defendant DUDNATH BOODOO 2nd Defendant PARTAPH SAMAROO 3rd Defendant GOBERDHAN SAMAROO 4th Defendant Before the Honourable Mr. Justice Robin N. Mohammed Date of Delivery: January 16, 2019 Appearances: Mr. Rennie K. Gosine for the Claimant Mr. Vashist Maharaj and Ms. Mickela Panday for the Defendants DECISION ON DEFENDANTS APPLICATION FOR BUDGETED COSTS Page 1 of 22

2 Introduction and Procedural History [1] The claim at bar involves the ownership of a right of way (road reserved). The Claimant filed her Claim Form and Statement of Case against the 1st Defendant on 3rd May An appearance was entered by the 1st Defendant on 27th June 2013 and he filed his Defence on 13th September The matter was then assigned to the Honourable Mr. Justice Rajkumar (as he then was) and the First Case Management Conference was listed for the 6th November 2013 but later relisted to 11th November The record shows that on said date, the parties undertook to agree on a Surveyor, presumably for the carrying out of a survey. The matter was then adjourned to 6th December The Claimant, thereafter, filed an Amended Claim Form and Statement of Case on 6th December 2013 wherein she added the 2nd, 3rd and 4th Defendants. The Case Management Conference came up for hearing on 6th December 2013 but was adjourned to 9th December The endorsement on file for 9th December 2013 stated that the parties had agreed on a Surveyor and directions were given to the parties to draft an order identifying (i) the name of the surveyor; (ii) the instructions to be given to the surveyor; and (iii) an agreement for parties to be bound by the survey and that the costs of survey to be borne equally by all parties. The matter was thereafter adjourned to 19th December 2013 and on that date, the matter was again adjourned to 10th March, [2] The matter was called on 10th March, 2014 and the following consent order was entered: 1. That the parties hereby appoint Lynn Roopchand, Surveyor, to conduct a survey of lands situate at Endeavour Extension Road. The Surveyor shall be provided copies of the Statement of Case, Amended Defence together with copies of all relevant Deeds and determine as follows: (a) To consider and report inclusive of a sketch of the plans of G. Ramcharitar dated the 10th November, 2000 and the plans of S. Permaul dated the 18th November, (b) On the sketch identify the parcel of land used by the Claimant and the Defendant and the Defendant predecessors in title, that is, Harold and Rafeeron Elahie and Samaroo Boodoo respectively. Page 2 of 22

3 (c) That he identify and highlight the common boundary of the parties predecessors in title. (d) To identify and locate the right of way on the sketch. (e) To indicate whether the alleged right of way forms part of the Defendant s land. (f) Whether the only access to the Claimant s land is through this Right of Way (Road Reserved). 2. Whether the Road Reserved 3.35m wide shown on the plan marked A to Deed of Conveyance No. DE exists on the ground and if so its width and whether it passes beyond the Claimant s land (Lot B) in a South to North direction. 3. The Costs of the survey shall be borne equally. The matter was thereafter adjourned to 14th May 2014 for the Surveyor s report and for the parties to engage in discussions. However, when the matter was called on 14 th May, it was adjourned to 9th July 2014 for mention pending the Surveyor s report. The Court received the Surveyor s report on 8th July 2014 and on 9th July 2014, the matter was further adjourned to 19th September 2014 for the Defendants to consider the survey report and to indicate their position. This is the endorsement on the minute sheet of the file. [3] On 19th September 2014, it was ordered as follows: 1. The Claimant and the Defendants to file and exchange List of Documents and copies of all documents on their respective list on or before 17th October The Claimant to file a list of agreed documents on or before 21st October The Claimant and the Defendants to file and exchange Witness Statements on or before the 23rd October The Claimant to file a Trial Bundle comprising all Witness Statements, all Pleadings and all documents agreed and un-agreed on or before 14th November Page 3 of 22

4 5. The Pre Trial Review is fixed for 21st November 2014 at 9:15am in courtrooms POS19 at the Hall of Justice and in SF06 at Supreme Court, San Fernando Leave granted to Defendant to file an application for Budgeted Costs. 7. The Trial is fixed for 3rd December, 2014 at 9:15am in courtroom SF14. [4] The Claimant and the Defendants thereafter filed their Lists and Bundle of Documents (not agreed) on 15th October 2014 and 17th October 2014 respectively. The Defendants Samaroo Boodoo and others, pursuant to the Court s order dated 19th September 2014, filed a Notice of Application on 3rd October 2014 for an order that a Costs Budget be set in the proceedings. [5] On 20th October 2014, the Claimant filed a Notice of Application for an order that the time for the Claimant to file an agreed bundle of documents be extended from the 21st October 2014 to 21st November 2014 and that time for the Claimant to file and exchange Witness Statements be extended from the 23rd October 2014 to 30th January On 21st November 2014, the Court did not grant the Claimant s Application in the terms requested, but instead granted an extension to 1st December 2014 for the filing and serving of the Claimant s Witness Statements. On 22nd October 2014, the Defendants filed a Notice of Application for an order that the date fixed for filing and serving of the Defendants Witness Statements and Witness Summaries of the 23rd October 2014 be varied and extended to 30th October Such order was granted by the Court on 4th November, The Defendants filed their Witness Statements on 30th October On 21st November 2014, it was ordered that the time for filing of agreed list of documents be extended to 28th November, Consequently, the Defendants filed their list of documents on 28th November The endorsement on the file indicated that on 1st December 2014, the Pre Trial Review was fixed for 2nd December 2014 and the trial date was confirmed for 3rd December This was via video link from courtroom POS19 in Port of Spain to courtroom SF06 in San Fernando Page 4 of 22

5 [6] At the Pre Trial Review on 2nd December 2014, the trial date of 3rd December 2014 was vacated and costs were reserved to be dealt with at the end of the trial. The Pre Trial Review was then adjourned to 16th December However, on 16th December 2014, the following order was made: 1. Permission is granted to the Claimant to withdraw the Claim Form filed on the 3 May 2013; 2. The Claimant to pay the Defendants costs to be determined by this Court in default of agreement; and 3. This matter is adjourned to the 27 January 2015 at 9:15am in courtroom SF10 Supreme Court, San Fernando. [7] When the matter was next called on 25th February 2015, the Defendants Notice of Application for Budgeted Costs filed on 3rd October 2014 was referred to be determined by a Master in Chambers on a date to be fixed by a Master. The Defendants subsequently filed an Amended Notice of Application for an order for Budgeted Costs on 10th June The matter was then assigned to Master Martha Alexander and the hearing of the Application for Budgeted Costs was fixed for 12th June On 12th June 2015, the endorsement stated that the Court had to verify whether the matter (the Application for Budgeted Costs) can be dealt with before the Master. It appears that the Master satisfied herself that the said Application was one that had to be decided by the Judge since the endorsement on the file shows that the matter was then returned to the Honourable Mr. Justice Rajkumar. The matter was relisted before Justice Rajkumar on 28th October Thereafter, the matter was adjourned before Rajkumar J from time to time without the said application being determined. The last adjournment date was 20th July Rajkumar J was then elevated to the Court of Appeal and so the matter had to be re-assigned to another Judge. [8] By Notice of Re-assignment dated 29th September 2016, the parties were notified that the matter was re-assigned to my docket. A hearing was thereafter set for 9th December On that date, it was made clear to this Court by the attorneys-at-law for both sides that what was before the Court for determination was the Amended Notice of Application for Page 5 of 22

6 Budgeted Costs filed on 10 th June After hearing both sides, this Court ordered as follows: 1.Both parties to file and exchange written submissions with authorities on the question of budgeted costs on or before 24th February Permission is granted to both parties to file and serve reply submissions on or before 31st March The amended application for budgeted costs filed on 10th June 2015 is adjourned to 28th April 2017 at 10:30am for half an hour in courtroom SF09 Supreme Court, Harris Street, San Fernando. [9] The Claimant filed her skeletal submissions on the Application for budgeted costs on 31st January By order dated 28th April 2017, it was ordered that time was extended for the Defendants to file and serve their submissions on the Amended Application for Budgeted Costs on or before 31st May 2017 and permission was consequently granted to the Claimant to file and serve reply submissions on or before 21st June On 21st September 2017, the Court ordered that the written submissions filed by the Defendants on 20th July 2017 were to stand notwithstanding being filed out of time. The Claimant s time to file and serve reply submissions was consequently extended to 29th September I will now give my decision on the Defendants Amended Application for budgeted costs. The Application for Budgeted Costs [10] The Amended Application for budgeted costs filed on 10th June 2015 invalidates the Application for budgeted costs filed on 3rd October Thus, the application before the Court to be determined is the Amended Application filed on 10th June The Amended Application sets out the grounds of the application. However, the Court, at this juncture, finds it necessary to highlight that the Defendants cover page of the Amended Application only includes the 1st Defendant and not the three other Defendants. Page 6 of 22

7 Nevertheless, the Amended Application states that it is fair and reasonable to set a costs budget herein higher than the prescribed costs as calculated in accordance with the Civil Proceedings Rules 1998 Part 67.5(2) (iii) 2 (sic) as the prescribed costs are grossly inadequate having regard to the nature and circumstances of the case, the issues to be determined and the work required to be done. It is further stated in the Amended Application that the Defendant has acted and conducted himself reasonably, sensibly and complied with all the directions of the Court and that he had thereafter taken all possible steps to resolve this dispute. The Amended Application also states that the written consent of the Claimant 3 (sic) is annexed hereto and marked B. Again, the Court notes that only the written consent of the 1st Defendant was annexed to the Amended Application and no consent from the other three Defendants were on file. [11] By the said Amended Application, the Defendants seek an order that the costs budget be set in the sum of $225, The costs budget included fees for both instructing and advocate attorneys-at-law for work completed as well as work to be performed along with incurred disbursements. Submissions [12] The Claimant, in her skeletal submissions filed on 31st January 2017, submitted that the matter was determined by the reasoning of the Honourable Justice Rajkumar (as he then was) dated 1st December 2014 and that this Court does not have jurisdiction after the trial has been completed to grant an order for budgeted costs. The Claimant stated that Part 67.8 of the Civil Proceedings Rules 1998 as amended sets out the provisions for budgeted costs and that Part 67.8(2) of the CPR stipulates that an application for such a costs budget must be made at or before the first case management conference. The Claimant further submitted that in keeping with the purpose of budgeted costs, it is not appropriate in these proceedings as costs cannot be limited in advance if the matter has already been completed. 2 This is exactly how the rule was stated by the Defendants attorney-at-law in the Application. It seems, however, that the attorney-at-law wanted to refer to Part 67.5(2)(b)(iii) of the CPR 1998 as amended. 3 This is the party referred to in the Defendants Application. It seems that this was inadvertently done and the attorney-at-law meant to say the Defendant. Page 7 of 22

8 The Claimant submitted that having regard to the nature of the case at bar being grounded in nuisance and/or right of way, there is no good reason as to why budgeted costs should be awarded, taking into account the simple nature and circumstances of the case and the fact that the matter has already been determined. The Claimant further submitted that a joint survey report was prepared to determine whether in fact the right of way was a part of the Defendants land and the report was in favour of the Defendants. [13] The Defendants cited Part 67.8 of the CPR, specifically Part 67.8(2). The Defendants submitted that the Court has the jurisdiction to grant the Application for budgeted costs as the trial has not yet been completed and that the Defendants have complied with all the requirements of Part 67.8 and 67.9 of the CPR The Defendants further submitted that the Application was made at the first case management conference and at no time did the Claimant object to or appeal the application. The Defendants relied on the Court of Appeal case of Estate Management and Business Development Company Ltd v Saiscon Ltd 4 wherein the Honourable Justice of Appeal Jamadar dealt with the issue of when does the first case management conference end. The Defendants further submitted that the Claimant has, at all stages of litigation, flouted the principles under the new costs regime which are to reduce costs in litigation and not to allow parties to be prejudiced by their financial position. The Defendants contended that from the inception of the matter, there were problems with the Claim Form and the Statement of Case; the Claimant did not disclose that she resides out of the jurisdiction until she filed the Notice of Application for an extension of time for the filing of her Witness Statements on 20th October 2014; and the Certificate of Truth appended to the Statement of Case was not signed by the Claimant but by one Mr. Ramesh Rajnath as the lawful attorney of the Claimant. [14] The Defendants submitted that the issue of contention in the matter was the ownership of the road reserved and in an attempt to keep the costs of the proceedings down, the learned 4 Civil Appeal No. P 104 of 2016 Page 8 of 22

9 Trial Judge (Justice Rajkumar as he then was) by Order dated 10th March 2014 ordered by consent that the parties appoint a Surveyor to conduct a survey of the said lands. The Defendants submitted that the conduct of the Claimant throughout litigation directly impacts on their costs and to award prescribed costs would fly in the face of the reasons provided by Justice Rajkumar (as he then was) dated 1st December The Defendants further submitted that in light of the Claimant s actions to ignore the findings in the agreed Surveyor s Report, the Defendants were correct to file an application for budgeted costs. The Defendants further contended that if the Court is not minded to allow the Application for budgeted costs, the Court should award costs according to Part 67.6(1)(3) (sic) 5 of the CPR for costs to be prescribed at a higher level. [15] The Claimant, in her reply submissions, submitted that the Defendants Application for an order for budgeted costs was filed after the first case management conference and such application ought not to be granted at such a late stage in the matter as it defeats the purpose of an order for a costs budget. The Claimant also relied on the Court of Appeal case of Estate Management and Business Development Company Limited v Saiscon Limited (supra) and contended that the learned judge at the time did not give directions that the first case management conference is to be adjourned. The Claimant further submitted that the Defendants failed to respond to substantive matters raised in her submissions that this matter was not one of any extraordinary complexity so as to require a costs budget. Issues [16] From the submissions of the parties, it appears that resolution of the question as whether the Defendants Amended Application for budgeted costs ought to be granted requires the Court to consider the following attendant issues: (a) Are budgeted costs appropriate to these proceedings? 5 This is exactly how the rule was stated by the Defendants attorneys-at-law in the Application. It seems, however, that the attorney-at-law wanted to refer to Part 67.6(1) and (3) of the CPR 1998 as amended. Page 9 of 22

10 (b) Does the Defendants Amended Notice of Application for budgeted costs meet the requirements of Rules 67.8(4)(a) and 67.9 of the Civil Proceedings Rules, 1998? Law and Analysis [17] Before considering these issues, the Court, at this juncture, will examine the circumstances under which the Amended Application for budgeted costs was made. Part 67.8 of the CPR states as follows: (1) A party may, however, apply to the court to set a costs budget for the proceedings. (2)An application for such a costs budget must be made at or before the first case management conference. (3) The application may be made by either or both parties but an order setting a costs budget may not be made by consent. (4) (5) [18] This Court, in an earlier decision 6, examined when an application for budgeted costs can be made. In that case, this Court attempted to differentiate between an application made under Part 67.8 of the CPR and an application made under Part 67.6 of the CPR. In my view, in an application for budgeted costs, the parties should be able to ascertain from the outset whether the matter has the required novelty or complexity to warrant that a different costs budget be set. Accordingly, as required by the CPR, an application for budgeted costs must be made at or before the first case management conference. [19] On 19th September 2014, permission was granted to the Defendants to file an application for budgeted costs by Justice Rajkumar. It can be reasonably deduced that the hearing on 19th September 2014 was not the first case management conference. However, although 6 Mukesh Sirju v The Attorney General of Trinidad and Tobago CV Page 10 of 22

11 the Rules specifically require that an application for budgeted costs be made before or at the first case management conference, leave was, nevertheless, given to the Defendants to file their application. As a consequence of the exercise of the Judge s judicial discretion, Rule 67.8(2) of the CPR no longer has any applicability in this instance for it does not fall for this Court to decide whether (i) the Application or Amended Application was made within the specified period (i.e. before or at the first case management conference); or (ii) whether the Judge (Rajkumar J) was correct to grant permission to the Defendants to make such an application. For this Court to entertain the re-consideration as to whether the order was properly made would entail this Court acting as a Court of Appeal, a jurisdiction which this Court does not possess. If the Claimant wanted to challenge the order made by Rajkumar J on the 19th September 2014 wherein permission was granted to the Defendants to file such application, the Claimant ought to have appealed that order. As a consequence of not having done so, the Claimant is now estopped from raising that point as an issue to defeat the application. [20] As such, the Court, at this juncture, ought only to consider whether the application for budgeted costs should be granted. a. Are budgeted costs appropriate to these proceedings? [21] This Court delivered a comprehensive judgment centred on the purpose of budgeted costs and its suitability to certain proceedings in Mukesh Sirju v The Attorney General of Trinidad and Tobago 7. In that case, the Claimant made an application for budgeted costs on the ground that it is fair and reasonable since prescribed costs were grossly inadequate having regard to the nature and circumstances of the case. The purpose of the application was essentially to secure higher costs via budgeted costs since prescribed costs were highly insufficient. This Court then embarked on a mission to determine whether, on a proper interpretation of the underlying principles of the CPR, this ought to be the purpose for which the regime of budgeted costs was devised and introduced in the CPR. In that 7 CV Page 11 of 22

12 case, I relied on the learning from the text Review of Civil Procedure 8 wherein Mr. Dick Greenslade, the initial draftsman of the CPR, stated the rationale for budgeted costs as follows: The aim would be that the fixed costs regime, properly constructed, should cover some percent of all litigation. However, there will be cases in which the low amount of the claim masks considerable complications of law and/or facts. These are mainly those types of cases which I describe as complex cases... In such cases the fixed costs might well not be appropriate. Hence my suggestion that the parties could agree, or one party could apply at the case management conference, for a budget to be fixed for the case. [Emphasis mine] [22] As I stated in Mukesh Sirju (supra), Mr Greenslade envisioned that a budgeted costs application would usually be used for cases where one or both parties wished to increase the sum recoverable in costs due to the novelty and/or complexity of the case. However, in my view, the philosophy behind budgeted costs was always to contain costs and thus, arrive at a figure that would not be exceeded by the successful party. Budgeted costs are quite similar to the English equivalent cost-capping orders, which similarly attempt to allow the parties to set an upper limit of what they believe to be reasonable costs for the nature of the matter. Lord Jackson in his report Review of Civil Litigation and Costs in England and Wales 9 highlighted that these are distinct concepts, the purpose of which is similar in terms of ensuring proportionality and controlling costs. Cost capping orders are provided for in Part 3.1(2)(ll) of the UK CPR 10 under the Court s general powers of management, which allows the Court to order any party to file or exchange a costs budget. 8 By Dick Greenslade 9 Final Report, 21st December, See Part 3.1 (2) (ll) of the UK CPR in the White Book 2014 Page 12 of 22

13 [23] Accordingly, both regimes attempt to achieve the principal aim of effective costs management to save costs as stated in the overriding objective. Lord Jackson in his report Review of Civil Litigation and Costs in England and Wales 11 commented on the principle behind effective cost management: Effective costs management has the potential to lead to savings of costs and time in litigation. I recommend that lawyers and judges alike receive training in costs budgeting and costs management. I also recommend that rules be drawn up which set out standard costs management procedure, which judges would have a discretion to adopt if the use of costs management would appear beneficial in any particular case. He concluded that: On the basis of all that I have learnt during the Costs Review, I conclude that effective costs budgeting is a skill which all lawyers can acquire, if they are prepared to give up the time to be trained, effective costs management is well within the abilities of all civil judges if properly trained; effective costs management has the potential to control recoverable costs, and sometimes the actual cost of litigation to more acceptable levels. [24] Thus, Lord Jackson, in effect, recommended that the aim of setting costs budgets in England would be to control recoverable costs and encourage access to justice. This strengthens my opinion that applications for budgeted costs should not be filed solely for the basis of achieving increased costs for the successful party. [25] The learned commentators in Civil Procedure, Volume 1, the White Book Service 2008 at page 56 paragraph stated when is the appropriate time to apply for a costs capping order as follows: The appropriate time to apply for a costs capping order is at an early stage of the proceedings when the parties and the court can together plan the steps needed to bring the matter to trial, the costs 11 Final Report, 21st December, 2009 Page 13 of 22

14 implications of those steps and whether a cap is appropriate; a costs cap should normally be prospective, not retrospective. (Petursson v Hutchinson 3G UK Ltd (No 2.) [2005] EWHC 920; Henry v British Broadcasting Corp [2005] EWHC 2503; [2006] 1 All ER 154). [26] In order to set cost cap orders, parties are required by the court to file costs estimates in much the same way as the statement of costs in budgeted costs applications in the Trinidad and Tobago CPR. The principle may best be explained by reference to the case of Griffiths v Solutia (UK) Ltd. 12 where two members of the Court of Appeal commented upon the power to set costs budgets given to arbitrators by section 65 of the Arbitration Act 1996 and expressed the view that the general case management powers set out in CPR Part 3 should be employed in future to set costs budgets whenever appropriate. Section 65 of the Arbitration Act 1996 permits arbitrators to limit in advance the amount which can be incurred as costs by the parties to arbitration. This provision is frequently used and is generally regarded as beneficial in creating equality of arms (a rich party cannot take advantage of a poorer party by threatening to cause or recover substantial costs) and in promoting proportionality (making sure that costs are in proportion to the amount in dispute). [27] In Leigh v Michelin Tyre Plc 13 it was stated that such orders (now called prospective costs cap orders ) can have a significantly beneficial effect in keeping costs within the bounds and concentrating minds on keeping costs proportionate throughout the litigation. Each order should contain provision for the court to review the cap where it is shown that it has become inappropriate due to circumstances that could not reasonably have been foreseen at the time the order was made. [28] It seems, therefore, that under the English CPR, costs budgets in the form of cost cap orders are made in order to limit in advance the amount of costs to be incurred in a matter. I am of the view that, in light of the underlying philosophy of the Trinidad and Tobago 12 (2001) 1 Costs L.R 13 [2004] 1 WLR 846 Page 14 of 22

15 CPR which is to reduce the costs of litigation and not allow parties to be prejudiced by their financial position, budgeted costs under the TT CPR are somewhat akin in purpose to prospective costs cap orders in England - their purpose being to set parameters for costs and prevent them from soaring disproportionately. [29] At this point, I find it necessary to highlight the status of the matter before me. The Claimant has submitted that the matter has already been determined, the Court having granted permission to withdraw the Claim on the 16 th December The Defendants, however, have submitted otherwise. The Defendants are of the view that this matter is still alive since no trial date has yet been set and that the Claimant cannot rely on any order of the Court which shows that the matter has been completed 14. In this Court s view, the matter was in fact determined on 16th December 2014 when Rajkumar J granted permission to the Claimant to withdraw the Claim Form filed on 3rd May It was also ordered that the Claimant pay the Defendants costs to be determined by the Court in default of agreement. This Order was thereafter approved and perfected on the 14th January 2015 by the Assistant Registrar. On a practical construction of the Court s order made on the 16th December 2014 it is clear that the Court inadvertently referred to the Claim Form filed on the 3 rd May 2013 when the Court should have granted permission to withdraw the Amended Claim Form filed on the 6 th December The Court notes that this is a common error made when there are amendments. From the manner in which this matter has progressed since the making of the order on the 16 th December 2014 it is clear to this Court that the Court had intended for the matter to be determined with only the issue of the quantification of costs to be decided. Permission is not required to withdraw a Claim Form where there is an Amended Claim Form or a Re-Amended Claim Form, as it is trite that the latest amended version invalidates the previous versions. 14 See Pages 11 and 12 paragraph 35 of the Submissions filed by the Defendants attorney on 20 th July, 2017 Page 15 of 22

16 [30] Accordingly, the order made on 16th December 2014 ought to have read Permission is granted to the Claimant to withdraw the Amended Claim Form filed on the 6th December The other limb of the order which adjourned the matter to 27th January 2015, but which did not specify for what purpose, has to be construed to the effect that it was the issue of the quantification of costs that was adjourned to that date. This conclusion can be logically inferred since every endorsement on file after this date dealt with the Application and/or the Amended Application for Budgeted Costs which were filed on 3rd October 2014 and on the 10 th June 2015, respectively. [31] On the next adjourned date when both parties were present, the Judge referred the matter to a Master in Chambers to determine the Notice of Application filed on 3rd October 2014 which was scheduled for 12th June The Defendants, thereafter, filed an Amended Notice of Application for Budgeted Costs on 10th June Accordingly, this Amended Application is what stands as it nullifies the Application filed on 3rd October [32] It is to be noted that this Amended Application was filed after the Amended Claim was withdrawn. The question that arises, therefore, is whether an application for budgeted costs can be granted after the matter has been determined. It is therefore necessary to examine the purpose for which budgeted costs was devised in rationalising this question. [33] The paramount objective of budgeted costs (as rationalised in paragraphs above) is to properly account for the recoverable costs of a party by projecting what those costs are likely to be and thereafter setting a budget realistic to the nature of the proceedings, ensuring always that parameters are set in order to prevent costs from soaring disproportionately. Budgeted costs are often used in proceedings involving novel or complex points of law as well as lengthy and cumbersome procedures. In these types of case, parties are often engaged in lengthy arguments, several applications and extensive research. [34] Thus, since the matter has already been determined before the filing of the Amended Application, setting a costs budget at this stage will be at variance with the stated purpose. Page 16 of 22

17 As the matter has been determined, there are no costs to be projected especially as all costs would have already been incurred. Budgeted costs ought not to be retrospective but rather prospective: [see Civil Procedure, Volume 1, the White Book Service 2008 at page 56 paragraph (supra) (Petursson v Hutchinson 3G UK Ltd (No 2.) [2005] EWHC 920; Henry v British Broadcasting Corp [2005] EWHC 2503; [2006] 1 All ER 154) ]. [35] By setting a costs budget now, after the matter has been determined, would be retrospective and therefore inappropriate for these proceedings. [36] In any event, if the Amended Application for Budgeted Costs was filed before the matter had been determined, the Amended Application appears to be premised on the basis that prescribed costs would be grossly inadequate and accordingly appears to be seeking to recover higher costs. However, in my view, such is not the purpose of an application for budgeted costs and so, at the outset, the Amended Application would have been inappropriate as its purpose has been misconceived. I am of the view that the Defendants have made the application simply to claim higher costs as a result of the Claimant s conduct throughout litigation, which is, her alleged protracted litigation. [37] Budgeted costs are often used in proceedings involving novel or complex points of law as well as lengthy and cumbersome procedures. In these types of cases, parties are often engaged in lengthy arguments, several applications and extensive research. In my opinion, the instant claim is not considered to be complex since it is a routine action in possession and ownership of a right of way/road reserved. There is nothing on the facts as alleged which suggests, by any stretch of interpretation, that the case ought to be placed in the category of a complex, novel or complicated matter. Accordingly, I am of the view that a Part 67.8 application for budgeted costs is not warranted and is not appropriate to these proceedings. [38] In my view, however, perhaps the Defendants, more appropriately, should have sought an order for costs to be prescribed at a higher level in accordance with Part 67.6(1)(b) Page 17 of 22

18 of the CPR. The Defendants in fact submitted that if the Court is not minded to grant the Application for Budgeted Costs, then the Court should award costs according to Part 67.6(1)(3) (sic) 15 for costs to be prescribed at a higher level. This rule permits a party to apply for a direction that the prescribed costs be calculated on a higher or lower value. Such an application is descried as an application for costs to be prescribed at a higher level and mandates that Rules 67.8(4) and 67.9 apply. [39] This provision, that is, Part 67.6(3) of the CPR, often leads to a misguided view that there is some integration between this application (application for prescribed costs at a higher level) and an application for budgeted costs because of the reference to Part 67.8(4)(a) and 67.9 of the CPR. However, reference to those provisions only addresses the issue of the client s consent and does not refer to an application for budgeted costs. The both regimes require different considerations. [40] However, in order for the Court to consider an application for costs to be prescribed at a higher level, the Defendants ought to have filed the appropriate application pursuant to Part 67.6(1)(b) of the CPR. Even such an application would have been misconceived for the very fact that the Claim is not for a monetary sum and therefore its value is not known. In this regard, the appropriate application to be made is one pursuant to Part 67.6(1)(a) to determine the value of a claim which has no monetary value. Such an application will necessarily fix the value, and thus prescribed costs, at the appropriate level. Where this is not done, then the party who wins the case is stuck with the provisions of Part 67.5(2)(c) CPR as amended by Legal Notice 126 of 2011 deeming the claim with no monetary value one for $50, In fact, this is what should have been advanced before Rajkumar J. at any case management conference, not necessarily the first case management conference. As it stands, the Claimant has been faced with, and has responded to, the Defendants Application for Budgeted Costs, not an application for costs to be prescribed at a higher level nor one to determine the value of the claim. As 15 This is exactly how the rule was stated by the Defendants attorney-at-law in the Application. It seems, however, that the attorney-at-law wanted to refer to Part 67.6(1) and (3) of the CPR 1998 as amended. Page 18 of 22

19 mentioned earlier, these two regimes require different considerations. Consequently, having refused to grant the Amended Application for Budgeted Costs, the Court cannot then award prescribed costs at a higher level nor seek to determine the value of the claim without the appropriate application having been filed into Court. It is now too late for any such application. b. Does the Defendant s Amended Notice of Application for budgeted costs meet the requirements of Rules 67.8(4)(a) and 67.9 of the Civil Proceedings Rules, 1998? [41] Having concluded that budgeted costs is not appropriate to these proceedings, there is consequently no need to proceed to consider this issue. Nevertheless, for the purpose of completeness, I shall give consideration to this issue as if it was concluded that the application for budgeted costs was warranted. [42] Part 67.8(4)(a) of the CPR requires a written consent to be filed in accordance with Part 67.9 with the Application. Part 67.9(1)(d) requires that such consent should be in a separate document and lists the elements required for this document as follows: (i) is signed by the lay party; (ii) deals only with the question of budgeted costs; (iii) states the attorney-at-law s estimate of what prescribed costs appropriate to the proceedings would be; (iv) gives an estimate of the total costs of the proceedings as between attorney-atlaw and client; (v) sets out the basis of that estimate including the amount of any hourly charge. [43] The written consent of the Defendant, Samaroo Boodoo annexed and marked B to the Amended Application, while it contains his signature, the requirements under Part 67.9(1)(d) of the CPR were not fully complied with. The written consent was not a separate document filed into Court; it was annexed to the Amended Application. The written consent does not state what the Defendants attorney s estimate of the prescribed costs appropriate to the proceedings would be in accordance with Rule 67.9(1)(d)(iii) and it fails to set out the hourly charge so as to outline the basis of the estimate in accordance Page 19 of 22

20 with Rule 67.9(1)(d)(v). The Defendant in his written consent at paragraph 5 stated that the basis of the said estimate is set out in the Notice of Application. However, it is not enough for that information to simply be contained in the Notice of Application as such information goes towards satisfying the Court that the lay party (Samaroo Boodoo) understood the nature of the Application being sought and his obligations thereunder. [44] Nonetheless, the Amended Application was said to be made by the Defendant, Samaroo Boodoo and others. However, only the written consent of Samaroo Boodoo was given. There was no indication that he was authorised to consent to the application on behalf of the other three Defendants. In any event, all Defendants ought to have filed their written consent in a separate document into Court satisfying the requirements in Part 67.9(1)(d) of the CPR as stipulated in Rule 67.9(3) of the CPR. [45] As decided in 3G Technologies & ors v Rudranand Maharaj 16, the written consent of the client must comply strictly with the provisions of Rules 67.8(4)(a) and 67.9 of the CPR before the Court can consider making any order for budgeted costs: [see Rule 67.9(1)]. Accordingly, the written consent of the Defendants in the instant Application is deficient and if budgeted costs were appropriate to these proceedings, the application would have been dismissed for failing to comply with the requirements of the specified Rules. Costs [46] Having decided against the Defendants on the Amended Application for Budgeted Costs, the logical order on the entitlement to costs of such application would be that the Defendants pay the Claimant s costs thereof. However, it is difficult to ignore the dilatory manner in which the Claimant conducted this litigation which was the subject of strong comments and criticisms by Rajkumar J in his written reasons given on the 1 st December 2014 on the Claimant s application for an extension of time to file her witness statements just before the original date fixed for trial. It is clear that the Claimant s conduct prompted the Defendants to apply for and proffer the Application for a costs budget. Taking into 16 CV Page 20 of 22

21 account, therefore, all the circumstances of the case, in particular the factors mentioned in Part 66.6(5) and (6) of the CPR, I find it just to order that there be no order as to costs on the said Amended Application for Budgeted Costs filed on the 10 th June [47] In relation to costs on the withdrawal of the Amended Claim the only issue now before the Court is on what basis are the costs of the proceedings to be quantified. The question of the entitlement to costs has already been decided by the Order of the Court on 16th December 2014: The Claimant was ordered to pay the Defendants costs to be determined by the Court in default of agreement. Considering that budgeted costs are not applicable to these proceedings, the quantification of costs in this matter is on the basis of prescribed costs. Since the Claim was a non-monetary claim; it will be deemed a claim for $50, in accordance with Part 67.5(2)(c) of the CPR. Thus, in accordance with Part 67 Appendix B of the CPR, prescribed costs will be quantified in the sum of $14, for the Claim had the matter been determined after trial. However, the Amended Claim was determined at a Pre Trial Review when permission was granted by the Court to withdraw the Claim, which by virtue of Part 67 Appendix C, the amount to be allowed is 75% of the full prescribed costs totalling $10, [48] The Defendants are also entitled to recover their costs for the disbursements incurred in having to commission a Surveyor s Report dated 8 th July 2014 prepared by Surveyor, Lynn Anand Roopchand since expert s fees for preparing a report and attending any conference, hearing or trial are not covered by or included in prescribed costs but are still recoverable: see Part 67.7(b) of the CPR. [49] On the 2 nd December 2014 the record shows that on the basis that the Claimant was granted an extension of time to put in witness statements, the trial date fixed for the 3 rd December 2014 had to be vacated. The Court ordered that costs occasioned thereby be reserved to be dealt with at the end of the trial. Since there was no trial, such costs are yet to be dealt with in relation to entitlement and quantification. Neither party has Page 21 of 22

22 addressed this issue, therefore, the Court is unable to deal with such costs reserved until the appropriate application has been made pursuant to Part 67.12(2) and (3) of the CPR. Disposition [50] Accordingly, in light of the foregoing analyses and findings, the Court orders as follows: ORDER: 1.The Defendants Amended Notice of Application for Budgeted Costs filed on 10th June 2015 be and is hereby dismissed. 2.There shall be no order as to costs on the said Amended Application of the 10 th June The Claimant shall pay to the Defendants their costs of the Claim to be quantified on the prescribed scale of costs. 4.On the basis that the Claim is deemed a claim valued at $50, but determined at the Pre Trial Review, prescribed costs are quantified in the sum of $10, The Claimant to pay to the Defendants their costs incurred as a disbursement in contributing towards the survey report. Robin N. Mohammed Judge Page 22 of 22