IN THE HIGH COURT OF JUSTICE V MICHAEL ELIAS EMILE ELIAS DECISION

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE HCA #5234 OF 1985 Civil Appeal No. 138 of 1995 BETWEEN JOSEPH ELIAS ROBERT ELIAS V MICHAEL ELIAS EMILE ELIAS ************** Before The Honourable Madam Justice Pemberton Appearances: For the Plaintiffs: Ms M. De Verteuil-Milne For the Second Defendant: Ms. J. Byrne for 2 nd Defendant Plaintiffs Defendants DECISION [1] INTRODUCTION This case has had a long and checkered history. It started with an action filed in 1985, the original parties being Joseph and Robert, the Executors and Trustees of the Will of Nagib Elias ( the Executors ) laying suit against Michael Elias. In June 1990, Emile Elias ( Mr Elias ) was joined as a Second Defendant. [2] The trial of this matter commenced before Crane J. (deceased) on 15 March 1994, nine (9) years after filing. The High Court judgment was delivered on 25 May 1995, one year and two months after. The Executors were successful in the claim. The Defendants failed in their counterclaim. Costs were awarded against them. The Executors appealed the Page 1 of 21

matter and the Defendants cross-appealed. The appeal was similarly dismissed and the cross-appeal was allowed. The terms of the Court of Appeal Order were: IT IS FURTHER ORDERED that the Appellant do pay the Respondent costs certified fit for two Counsel in the Court below and costs for one Counsel in the Court of Appeal. Both Bills of Costs were prepared by Attorneys-at-law for the successful party and taxed before Taxing Officer Burgess. Applications for Reviews of both Bills were filed and the Bills were reviewed. This is an appeal by Mr Elias against the Reviews, with respect to certain items on the Bills. [3] REMIT OF THE REVIEW AND THE APPEAL Order 62 Rules 33 and 34 1 outline the procedural steps that must be taken to invoke the review jurisdiction of the taxing officer, and the jurisdiction itself. Rule 34 (2) specifically gives the Taxing Officer on a review, power to receive further evidence and to exercise all powers which he might exercise on an original taxation. These provisions are all expressed to be directory by the use of the word may and not mandatory, which would have been understood by the use of the word shall. [4] It is settled that the remit of a Judge in Chambers, acting as an Appeal forum of a Taxing Officer s decision is not limited to a review of quantum or fact. The Judge s jurisdiction is unfettered save only that unless otherwise directed by the Judge, no fresh evidence may be brought forward in support of or in derogation of prior attitudes taken by the parties at the taxation or the review. Further, all arguments on the Appeal must be confined to the original grounds of objection on the Review. The objecting party gets as it were, in the words of Benjamin J. a fresh mind to reconsider the objections. The Judge at the hearing of the Appeal may exercise all such powers and discretion as are vested in the taxing officer in relation to the subject matter of the application 2. 1 See RULES OF THE SUPREME COURT, 1975 (RSC, 1975). 2 Rule 35 of the RSC Page 2 of 21

[5] HIGH COURT BILL OF COSTS TAXING OFFICER S REASONS I have read the Reasons advanced by the Honourable Taxing Officer, the structure of which was to outline the submissions made by both Attorneys for the Plaintiff - Mrs de Verteuil-Milne - and the Defendant - Mrs Byrne. The Honourable Taxing Officer reiterated her role on the Review and the matters to be taken into consideration at the exercise. I shall not spend any time on this, as I say up front that the Taxing Officer set out and correctly identified the principles by which she ought to have been guided 3. The issue was whether that guidance was employed by the Taxing Officer in arriving at her decision on the quantum that she allowed on the disputed items. I shall now examine each of the Items or groups of Items to be reviewed. [6] ITEM 63 OF THE BILL ITEM 1 OF THE REQUEST FOR REVIEW The main issues addressed were the time and labour expended by Counsel; the Value of the Estate; the importance of the case to the client; and the skill and the specialized knowledge employed by Counsel during the trial. [7] TIME AND LABOUR EXPENDED BY COUNSEL The Taxing Officer stated and analysed the submissions made by both parties. She considered the Mrs de Verteuil-Milne s point that the defendant raised every single defence available in a contested probate action and that each defence had to be carefully considered. This met resistance that the issues raised were merely issues of fact. [8] Further, the Taxing Officer considered the plaintiff s contention that most of the time spent in cross-examination of Mr Elias at the trial was due to the nature of his examination-inchief. The reason proffered for the lengthy trial was again placed at Mr Elias s feet, the manner in which he conducted the case. Of course, this was met by stern opposition. Mrs Byrne asserted that blame for the lengthy trial should not be wholly cast at her client. The 3 See RSC, 1975, ORDER 62 Appendix 1 Part X (c) Page 3 of 21

trial judge had a part to play in this. No difficult or novel points of law arose during the 66 days of trial. [9] The taxing officer concluded that it was clear from the evidence that the time and labour expended by the Executors in perusing the brief and in representing the clients in court over such a lengthy period was substantial. [10] VALUE OF THE ESTATE When discussing the value of the estate, the taxing officer based her conclusion on Mrs de Verteuil-Milne s written submission at the review and Mrs Byrne s rebuttals at the hearing. The Plaintiff s position was that when one looks at the value of the estate, the award of the costs on this item falls below 1% of the said value. The defendant s counter was that there was no statutory or other provision that prescribes a percentage - based fee for contentious probate proceedings. [11] IMPORTANCE TO THE CLIENT The allegations of fraud made against the Executors and others and those of forgery made against the Executors themselves by Mr Elias were not treated lightly, according to Mrs de Verteuil-Milne. In addition, the taxing officer was asked to consider the extensive press coverage, which attended these proceedings. According to Mrs Byrne, though this matter was of grave importance to the family, it would not have caught the general public s attention and was limited to members of their community. Such matters as press coverage should not therefore trouble the taxing officer. [12] SKILL AND SPECIALISED KNOWLEDGE Matters involving fraud require skilled Counsel, which the Executors employed in this case. This was buttressed by reading excerpts from the cross-examination of Mr Elias. To this Mrs Byrne could find no fault. Page 4 of 21

[13] QUANTUM Mrs Byrne advanced to the Taxing Officer that the sums claimed of $450,000.00 for Queen s Counsel s fee on brief and the sum of $300,000.00 claimed for Junior Counsel were unfair and unreasonable. The reasons for this opinion were that the facts of the case and the fact that the case was a simple one on the pleadings, counsel would have been compensated by way of refreshers for daily attendance at trial. A more realistic fee on brief would have been $75,000.00 for Queen s Counsel and $50,000.00 for Junior Counsel. [14] Mrs de Verteuil-Milne further objected to the taxing officer s award of $100,000.00 for Queen s Counsel as well on the ground that given the nature of the brief, no Queen s Counsel would have felt attracted to it. Mrs Byrne also had a difficulty with the sum of $100,000.00 being allowed for Queen s Counsel in this case on the ground that the matter was tried in 1994 and that that sum was and still is (as at 2003) a substantial amount of money. [15] The Taxing Officer considered the evidence presented to her with respect to the labour required to be expended by Queen s Counsel to be adequately prepared for this matter, the value of the estate, the importance of the matter to the client and the skill required to prosecute the matter. She came to the conclusion that the sum allowed to Queen s Counsel should be increased to $150,000.00. [16] ITEM 65 OF THE BILL ITEM 2 OF THE REQUEST FOR REVIEW No further submissions to those advanced above were presented for the Taxing Officer s consideration save that Mr C. Phelps, who was the Junior Counsel at that time, was sufficiently senior at the Bar to be entitled to the award of 2/3 of Queen s Counsel fee. Mrs Byrne did not object to this position. The fee was therefore increased by $25,000.00. [17] Thus, the fees allowed under Item 63 were $150,000.00 and under Item 65, $100,000.00. Page 5 of 21

[18] REFRESHERS VARIOUS ITEMS OF THE BILL -ITEMS 3-11 OF THE REQUEST FOR REVIEW The submissions made by Mrs de Verteuil-Milne and Mrs Byrne centered around the following: the use of the five hour rule; the full length of the trial, whether due in part to Mr Elias or not; the heavy nature of the case which precluded Counsel for taking other briefs for the better part of the duration of the trial, what I shall refer to as the effect on Counsel s practice; and the fairness and reasonableness of the sums in the attainment of justice, in which case, on the authority of GARIBDASS 4, the full 10% of the fee on brief for all refreshers should be allowed. A further issue raised by Mrs de Verteuil-Milne was whether Items 5-11 of her request for review can be reconsidered and allowed. Mrs Byrne s countered that the Taxing Officer has a discretion to tax off entirely refreshers for periods less than five hours. [19] These were the matters, which the Taxing Officer took into consideration in coming to her decision. Her decision read as follows: On review, based on the further submissions of attorney for the plaintiff, agreeing that the full 10% should have been allowed the court allowed a further $10,000.00 per day at item 3 of the review and a further $7,000.00 per day at item 4 of the review. However upon reviewing the submissions with respect to the heavy nature of the trial, the length of the trial and the case (c)sited the Court reconsidered its position and was of the view that it was reasonable to allow these items and allowed various sums in proportion to the time occupied for each period as follows: 4 Garibdass HCA No. S2263 of 1988 Page 6 of 21

Item No. Item No. on Length of Trial Allowed on Review per on Review Bill day 5 110,112 Trial lasted 3 hours $9,000 6 124,126 Trial lasted approximately 3½ hours $10,500.00 7 157,159 Trial lasted approximately 3 hours $9,000.00 8 165,167 Trial lasted approximately 1¼ hours $3,750.00 9 169,171 Trial lasted approximately 2½ hours $7,500.00 10 181,183 Trial lasted approximately 3¾ hours $7,600.00 11 206,208 Trial lasted approximately 2¾ hours $ 8,250.00 [20] ITEM 442 OF THE BILL ITEM 12 OF THE REQUEST FOR THE REVIEW CARE AND CONDUCT This item enabled both Counsel to explore before the Taxing Officer the amount that should be recognized as pre-trial and trial work of the preparatory team. Mrs de Verteuil- Milne asserted that over the ten years that the matter took to reach to trial, there was a tremendous amount of legal and factual research of documentary evidence and ongoing discussions and taking instructions from the clients and witnesses and several visits to Counsel. In addition, Instructing Attorney was expected to provide Counsel with a transcript of each day s proceedings in preparation for the adjourned hearings. In the circumstances, the amount claimed of $250,000.00 was reasonable. Not so, says Mrs Byrne, the case was simple on the pleadings and much of Instructing attorney s time would have been spent in attending court at trial, which said sums were allowed for under the items dealing with attendances. [21] This is the Taxing Officer s decision: On reconsideration of the written submissions and viva voce evidence given at taxation and on review the Court was of the view that in the light of the length of trial, the time and labour that had to be expended by instructing attorney in preparation for trial and for the duration of such a lengthy trial, the number and importance of documents prepared and perused and the two Page 7 of 21

thirds rule the fee allowed for instructing attorney should be increased by $25,000.00. [22] THE APPEAL The requests for the Appeal related to the following items: (1) Item 63 - Queen s Counsel fee on brief The original sum allowed was $100.000.00 which was increased on Review to $150,000.00; (2) Item 65 - Counsel s fee on brief The original sum allowed was $75,000.00 which was increased on review to $100,000.00 (3) Various Items 103, 120, 128, 136, 140, 161, 173, 177, 185, 189, 193, 210, 214, 219, 223, 227, 232, 238, 242, 248, 252, 256, 260, 264, 268, 272, 277, 290, 294, 298, 305, 309, 315, 322, 352, 356, 361, 375, 381, 387, 391, 395, 400, 404, 408, 412, 416, 420, 424, 428 - Queen s Counsel s Refreshers The original sum allowed was $5,000.00 which was increased on review to $15,000.00 (4) Various Items 105, 122, 130, 138, 142, 163, 175, 179, 187, 191, 195, 212, 216, 221, 225, 229, 234, 240, 244, 250, 254, 258, 262, 266, 270, 274, 279, 292, 296, 300, 307, 311, 317, 324, 354, 358, 363, 377, 383, 389, 393, 397, 402, 406, 410, 414, 418, 426, 430 - Counsel s Refreshers The original sum allowed was $3,000.00 which was increased on review to $10,000.00 (5) Various Items 110, 112, 124, 126, 157, 159, 165, 167, 169, 171, 181, 183, 206, 208 - Apportioned of Refreshers claimed for various days Disallowed but allowed on Review 29 hours allowed. (6) Item 442 Instructing Attorney s fees for general care and conduct. The original sum allowed was $50,000.00 which was increased to $75,000.00 [23] GROUNDS OF APPEAL Mr Elias s appealed to the Court to tax downwards the amounts allowed by the Taxing Officer at the Review stage. His appeal was based on the following grounds: 1. That the Assistant Registrar wrongfully exercised her discretion to do so in the absence of any relevant evidence before her; Page 8 of 21

2. That the said decision to review was excessive in that the costs awarded on the 1 st occasion were doubled even though there was no new evidence before the said Assistant Registrar on which to increase same; 3. That the said Assistant Registrar considered several extraneous and irrelevant matters in arriving at her decision aforesaid; 4. That the said Assistant Registrar did not adhere to Part X of Order 62 of the Rules of the Supreme Court 1975 with respect to discretionary costs, in arriving at her decision; 5. The Registrar disregarded the written submissions filed by the Second Defendant/Appellant herein with respect to the said bill of costs. [24] MR ELIAS S EVIDENCE ON THE GROUNDS Mr Elias filed an affidavit in support of the Summons setting out the grounds of Appeal. Paragraph 2 of the Affidavit states: I am advised by my Attorneys at Law that both High Court and Court of Appeal Bills of Costs herein dated and filed on the 12 March 1999 were taxed before the Assistant Registrar Ms Burgess on the 25 March 1999. I am further advised that on the 29 July 2003 the Plaintiff/Respondents filed through their attorneys applications for review of the said Bills of Costs. Copies of the two bills of costs Paragraph 3: I am informed and verily believe that on the 9 December 2003 she was notified of the date of the reviews as being the 12 December 2003. True copies Answers to the objections revised raised by my Attorneys Paragraph 4: My said Attorney at Law informed me and I verily believe that on the 12 th December 2002 the said reviews were heard and that the Assistant Registrar reserved her decisions until 15 th December 2003. I am further informed by my Attorney at Law and verily Page 9 of 21

believe that the Attorney at Law for the Plaintiffs/Respondents raised nothing new by way of legal submissions before the Assistant Registrar and mainly read excerpts from the evidence contained in the Records of Appeal in this matter, namely from Volume 5 part 2, page 2417 to 2418, Volume 1 Page 201 to 203 and Volume 1 Pages 87-139. I am informed by my Attorney at Law and verily believe that Mrs de Verteuil-Milne Attorney at Law for the Plaintiffs/Respondents requested reasons from the said Assistant Registrar in writing on the completion of the hearing of the Review. Paragraph 5 reads in part: I am informed by my Attorney at Law and verily believe that on the 15 th December 2003 the said Ms Burgess immediately before demitting office and without any reasons increased the following items in the High Court Bill Those items are already indicated above in this judgment. Paragraph 6 reads: My said Attorney at Law informs me and I verily believe her that she requested in writing the Registrar s reasons for her decision by letter. [25] MRS de VERTEUIL-MILNE S AFFIDAVIT Mrs de Verteuil-Milne swore an affidavit in reply in which she stated inter alia that: Paragraph 4: With respect to paragraph 2 of the said affidavit (the Emile Elias affidavit), I stated that the Assistant Registrar Burgess concluded the taxation of the said Bills on 24 June 2003 and not 15 March 1999. Page 10 of 21

Paragraph 5: I further state that these Bills were originally taxed before Assistant Registrar Boodan who made several orders and who thereafter requested written submissions by both sides with respect to the main items in dispute namely: (a) High Court Bill on items 63 and 65; on items relating to refreshers for both Cousel and on item 442 relating to care and conduct; (b) Court of Appeal Bill on item 26, item 27 and item 71. I now see produced and shown to me true copies of the Plaintiffs Written Submission filed on 10 January 2000, the Second Defendant s Skeleton Arguments filed on the 11 January 2000 the Plaintiffs Reply to Written Submission filed on 26 January 2000 and the Second Defendant s Response to Submissions filed 26 January 2000 as well as the Second Defendant s Arguments filed on 8 May 2000 and the Plaintiffs Written Submission filed on 18 September 2000. Paragraph 6 Ms Boodan demitted office without delivering her decision on the disputed items and the matter was eventually commenced de novo before Assistant Registrar Burgess. Paragraph 7 I stated that it was agreed that both parties would rely on the Written Submissions previously filed in relation to the items dealt with therein and these written submissions formed part of the arguments before the learned taxing Officer. It was important to set out the contents of the affidavits in some detail in order to provide a backdrop to the matters under consideration. Page 11 of 21

[26] MRS BYRNE S SUBMISSIONS What then does this add up to? The basic objection is that the Taxing Officer ought not to have changed the figures on the Review since she had no further and/or new evidence before her to direct her mind in order to exercise her discretion to effect an upward review of the figures previously allowed. In other words there was no justification to warrant the upward changes effected on the review. [27] MRS DE VERTEUIL-MILNE S SUBMISSIONS Not so, says Mrs de Verteuil-Milne. There was every reason for the upward revision and the Taxing Officer was justified in exercising her discretion in that way. There was further evidence presented, which when taken into account at the review, brought the figures now allowed in line with reason. [28] I shall look at each item in turn. Item 63 QUEEN S COUNSEL FEE ON BRIEF Mrs. Byrne at this Appeal, referred me to the Taxing Officer s conclusion and was of the view that there was nothing new for the taxing officer to address in substance. Mrs de Verteuil-Milne argued that this was not so. The Taxing Officer stated that Counsel for the Plaintiff proceeded to present viva voce evidence in addition to written submissions filed 29 July 2003. Mrs Byrne relied mainly on written submissions filed 11 December 2003. The court must therefore accept that there was new evidence presented to the Taxing Officer on review. [29] Further, Mrs de Verteuil-Milne argued, the value of the estate of the deceased and the importance of the case to her client had not been put previously to the Taxing Officer for her consideration. These two issues were in the nature of further evidence, which the Taxing Officer may have received. The length of the trial was canvassed at the review stage as well. Page 12 of 21

[30] ISSUES The issues which I need to address to determine whether I should trouble the Taxing Officer s award are: 1. Was there fresh evidence placed before the Taxing Officer at the review? 2. If not, is that fatal to the revision of the figures at the review? 3. Did the Taxing Officer base her decision in the absence of reasons? [31] ANALYSIS AND CONCLUSION I do not agree that because the Taxing Officer says that there was fresh evidence, that this must be accepted without more. I must conduct an examination of the evidence before me to come to that determination. What therefore is the evidence showing that the Taxing Officer looked at fresh matters on the review? The documents clearly show that the Executors raised the issue of the value of the estate at the taxation to illustrate that the case was of great value to them. However on review, the same issue was argued which although it did not bring forward fresh evidence, the result was that the Taxing Officer applied her mind differently. Tackled by a different route, it brought out further evidence in terms of the value of the estate in relation to the quantum allowed on the taxation, an issue not addressed at the taxation. [32] Further the importance of the case to the Plaintiff was argued at the taxation and reconsidered at the Review even though it was not made clear whether new evidence was unearthed. [33] When one examines the Reasons advanced by the Taxing Officer and Counsel s submissions, it is clear to me that the taxing officer examined each of the items afresh, taking into account, as she ought to have done, matters argued before her at the taxation and further evidence. These are clearly identified by her as the time and labour expended, which was canvassed at the taxation and so stated and the value of the estate and the value of the case to the client, clearly stated to be raised at the review stage. I cannot read the plain and ordinary words used in the decision any other way. Page 13 of 21

[34] RECEIVING NEW EVIDENCE AND EFFECT ON THE AWARD The Rules provide that the Taxing Officer on review may take fresh evidence into consideration. He/she is not obligated to do so. The power is not a mandatory one but a discretionary one to be exercised as necessary. Since I have concluded that matters were argued afresh using the same evidence and new evidence, the revision of the figures is not fatal and can be allowed. [35] NATURE OF THE DECISION VALUE OF THE CLAIM I must say that I accept Mrs Byrne s argument of the absence of statutory or other provision prescribing a percentage - based fee for contentious probate proceedings in our jurisdiction. This does not however, styme the Taxing Officer s discretion in any way. It is an indicator which the Taxing Officer can reasonably be expected to consider in her deliberations. [36] TIME AND EFFORT EXPENDED There is no dispute that the defences raised were as stated. The law, pleadings and evidence through the documents and as it unfolded from day to day at trial needed to be considered by Counsel for the Executors as a natural element of proper preparation and efficient representation of his client. I cannot say otherwise and shall say no more. [37] The length of the trial was undisputed. It was long. Not the usual length of a trial. To my mind it therefore was indicative of its complexity and detail and cannot merely be ascribed to the way that Counsel chose to deal with the witness at cross-examination. In addition, to ask a court to apportion responsibility for this of the length of the trial between Counsel s conduct of the trial, the litigant and the trial judge is incomprehensible. To that I am adding nothing else. [38] REASONABLENESS OF THE DECISION There is no evidence brought by the Defendant that I ought to employ any other method but the literal meaning of the words. Having said that, did the taxing officer exercise her Page 14 of 21

discretion in such a way as to make her decision so totally out of sync with reason? Again, Counsel for the Defendant has brought no evidence of this. A court can only act on evidence and not on bald statements, mere opinion or speculation. [39] The conclusions arrived at by the Taxing Officer were all conclusions of fact. Unless the conclusions were so outrageous that no reasonable person looking at the evidence could approach the same conclusion, I am not minded to interfere with the Taxing Officer s decision. Thus, as far as Item 63 is concerned, there is no basis for me to interfere with the Taxing Officer s conclusion. The figures allowed on Review for Item 63 shall stand. [40] Item 65 COUNSEL S FEE ON BRIEF Mrs. Byrne s submission was that the Rule should apply, since Mr Phelps was not Senior Counsel but was Junior to Mr Procope Q.C. In that regard, Mrs Byrne relied on the same arguments that she raised in relation to Item 63. [41] Mrs de Verteui-Milne stood by her submissions with respect to Item 63. [42] The use of the two-thirds rule is not unusual, so that to my mind there cannot be much discussion on this. The Taxing Officer s decision will therefore stand. [43] REFRESHERS Mrs Byrne urged me to look at the time at which these refreshers would have accrued. It was during the period 1983-1984. She referred me to STAUBLE v BOLAI 5 and THE SIMPSON MOTORS CASE 6 and urged me to look at the figures which were allowed in that light. There were no new facts laid before the Taxing Officer to which her mind could have been directed so as to exercise her discretion to increase the fees on review. In Mrs Byrne s estimation, the Taxing Officer provided no sufficient reason as to why she reconsidered her position. This demonstrates the arbitrariness of her actions. The reasons given are therefore not reasonable or sufficient to justify the change of heart. 5 See HCA No. S803 of 1976 STAUBLE V BOLAI judgment of the Hon. Justice Shah 6 See THE SIMPSON MOTORS CASE [1964] 3 AER. 833 Page 15 of 21

[44] Mrs de Verteuil-Milne reiterated that the matter was fully argued before the Taxing Officer on the review and as she was entitled to do, applied a fresh mind to the facts and evidence and came to her conclusion. Again, the margin of error must be great in order for an appeal court to interfere with the decision. [45] ANALYSIS AND CONCLUSION In my view, the Taxing Officer did offer reasons for her decision. After considering the heavy nature of the case, the length of trial and the case cited, she decided to allow the various sums in proportion to the time occupied for each period. No one can fault this approach. However, in considering the STAUBLE v BOLAI CASE and the dicta of Shah J. I wish to revisit this issue and to associate myself with the dicta of the learned judge where he stated: The point is that one must consider all the circumstances at the time when the costs were incurred not when the bill is taxed. In that case, Shah J. allowed refreshers for Senior Counsel incurred in 1981 in the sum of $3,500.00 and applied the two-thirds rule for Junior Counsel. [46] What is the position in the case at bar? These refreshers were incurred over the duration of the trial and they accrued due from 1994 7 and not 1983-1984 as Mrs Byrne asserts. Mrs de Verteuil Milne s submission that spoke to the amount that she could have claimed but did not is even more telling. When we use the figure of $3,500.00 per day awarded by Shah J. for fees incurred in 1981 and we apply the present value formula at a rate of a modest 6% per annum, to 1994, we calculate that refreshers could have been allowed in the sum of $8,150.00. I therefore am of the view that the Taxing Officer failed to consider the time at which the costs were incurred in coming to her decision on the items comprising Item 3 of the request for review. [47] In all of the circumstances, when I take into account the heavy nature of the case, the length of trial and the time at which the costs were incurred, I shall award the sum of $9,000.00 per day as refreshers for Queen s Counsel. The sum awarded to Junior 7 See item 103 of the Bill of Costs filed March 12 1999, Page 16 of 21

Counsel as claimed at Item 4 of the request for review will stand at two thirds of that allowed for Queen s Counsel. [48] Using the same analysis as above, I have arrived at a similar conclusion with respect to Items 5-11 of the request for review. These figures do not seem to take into account all of the factors which I highlighted above, more particularly that the figures must relate to the time that the items accrued. In the premises, I shall adjust the figures as follows: Item no. on review Item no. on Bill Length of Trial at $1,500.00 per hour Allowed review per day 5 110,112 Trial lasted 3 hours $4,500.00 6 124,126 Trial lasted approximately 3½ hours $5,250.00 7 157,159 Trial lasted approximately 3 hours $4,500.00 8 165,167 Trial lasted approximately 1¼ hours $1,875.00 9 169,171 Trial lasted approximately 2½ hours $3,750.00 10 181,183 Trial lasted approximately 3¾ hours $6,550.00 11 206,208 Trial lasted approximately 2¾ hours $4,050.00 on [49] ITEM 12 OF REVIEW - CARE AND CONDUCT I have already alluded to the principles to which the High Court, sitting in appeal on a review, must take cognizance of in deciding whether to disturb the award given by a Taxing Officer. There is no need for me to reiterate them here. I see no need therefore to disturb the Taxing Officer s award under this head of $100,000.00. [50] THE REQUEST FOR REVIEW OF THE COURT OF APPEAL BILLS In this instance, Mrs Byrne again filed a request for review by way of Summons filed December 23 2003. The objections related to the following items on the Bill of Costs: 1. 26 Paid Queen s Counsel fee on brief $150.000.00 2. 27 Paid VAT on Counsel s fees $52,500.00 3. 71 General Care and Conduct $100,000.00 Page 17 of 21

[51] The grounds of appeal were a carbon copy of those set out in the Review of the High Court Bill. I shall still set them out for convenience: 1. That the Assistant Registrar wrongfully exercised her discretion to do so in the absence of any relevant evidence before her; 2. That the said decision to review was excessive in that the costs awarded on the 1 st occasion were doubled even though there was no new evidence before the said Assistant Registrar on which to increase same; 3. That the said Assistant Registrar considered several extraneous and irrelevant matters in arriving at her decision aforesaid; 4. That the said Assistant Registrar did not adhere to Part X of Order 62 of the Rules of the Supreme Court 1975 with respect to discretionary costs, in arriving at her decision; 5. The Registrar disregarded the written submissions filed by the Second Defendant/Appellant herein with respect to the said bill of costs. [52] The Taxing Officer s reasons were brief and cryptic. She found: On reviewing the evidence before the Court with respect to the labour extended by Counsel for the Plaintiff and instructing Attorney and the fact that both Attorney-at-Law for the Plaintiff and the Defendant agreed that VAT should be recovered the Court made the following ruling: Item 26 allow a further 75,000.00 Item 27 VAT allowed Item 71 allow a further 50,000.00 [53] This approach did not meet with Mrs Byrne s approval at all. With respect to Item 26, Mrs Byrne referred me to Sharma J.A. s (as he then was) order that the costs of the appeal be those of Mr Elias personally fit for one counsel. Mrs Byrne was of the view that an award of $75,000.00 was reasonable since there was nothing new for the Taxing Officer to consider. The decision to advance the award to $150,000.00 was not reasonable and was Page 18 of 21

not a proper exercise of discretion. Mrs Byrne urged me to look at the matter afresh and to allow fees for Junior Counsel as originally allowed. [54] Mrs de Verteuil-Milne urged me away from that view. She advised that I should reject this summons as none of the grounds have been established. Even though the Taxing Officer s reasons were not lengthy, it is patent that the submissions were weighed in coming to a decision. It is clear that evidence was reviewed and on the face of it, there is no reason to review the sums awarded. There is nothing to show that the figures were unreasonable and one cannot say that there was no exercise of discretion at all. [55] ANALYSIS The Taxing Officer s reasons were short. Is that, however, a reason to find that they were so unreasonable that no reasonable person could have made that decision or that it was manifest that there was no exercise of discretion at all in the face of no evidence in support of those contentions? I think not. [56] In any event, when I look at the sums awarded at the review under the various headings, I find them to be manifestly reasonable given the nature of this matter, the skill it would have taken on the part of Counsel to prepare and present this appeal and of course the time taken to do same. The time spent on his legs at the Appeal stage is a relevant factor and one that was taken into account by the Taxing Officer. In addition, the preparation of a Record of Appeal is not an activity to be downgraded in any quarter. It is painstaking and time-consuming labour, and I am entitled to use my experience and judgment in coming to this conclusion. With respect to VAT, I am not in a position to posit otherwise than that the sum is allowable. [57] In the premises, the sums allowed by the Taxing Officer on review are allowed. [58] CONCLUSION I am of the view that generally, the Taxing Officer exercised her discretion correctly and applied the proper principles and considerations in arriving at her decisions. There is Page 19 of 21

nothing on the face of the decisions that leads me to believe that her reasoning was so off colour as to encourage me to interfere with her decisions. Save for the issue of being time relevant and specific in the award of refreshers that I adverted to above, I am of the view that the sums awarded by the Taxing Officers for the Items complained against must stand. ORDER 1. That on the Summons filed on December 23 2003 requesting a review of the taxation of the Bill of Costs filed in H.C.A. 5234 of 1985 dated March 12 1999 it is ordered as follows: i. Item 1 - the sum of $150,000.00 do stand ii. Item 2 - the sum of $100,000.00 do stand iii. Item 3 - the sum of $9,000.00 per day being Queen s Counsel s refreshers is allowed. iv. Item 4 - the sum of $4,000.00 per day being Junior Counsel s refreshers is allowed. v. Items 5-11 the sums awarded for refreshers are allowed as stated in the table below: Item no. Item no. on Length of Trial at $1,500.00 per hour Allowed on on review Bill review per day 5 110,112 Trial lasted 3 hours $4,500.00 6 124,126 Trial lasted approximately 3½ hours $5,250.00 7 157,159 Trial lasted approximately 3 hours $4,500.00 8 165,167 Trial lasted approximately 1¼ hours $1,875.00 9 169,171 Trial lasted approximately 2½ hours $3,750.00 10 181,183 Trial lasted approximately 3¾ hours $6,550.00 11 206,208 Trial lasted approximately 2¾ hours $4,050.00 vi. Item 12 the sum of $100,000.00 do stand. Page 20 of 21

2. That on the Summons filed on December 23 2003 requesting a review of the taxation of the Bill of Costs filed in C.A. 138 of 1995 dated March 12 1999 it is ordered as follows: i. Item 1 the sum of $150,000.00 do stand ii. Item 2 the sum of $52,500.00 do stand iii. Item 3 the sum of $100,000.00 do stand. I wish to place on record my gratitude to both Mrs de Verteuil-Milne and Mrs Byrne for their assistance in this matter. Dated this 30 th day of June 2008. /s/ CHARMAINE PEMBERTON HIGH COURT JUDGE Page 21 of 21