Bennett v Att Gen

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 10 May 2010
• Court: Grand Court (Cayman Islands)
• Date: 10 May 2010

Grand Court, Civil Division

(Henderson, J.)

BENNETT

and

ATTORNEY GENERAL

R. Lynagh, Q.C. and C.J. McDuff for the plaintiff;

H.G. Robinson and M. Ram for the respondent.

Cases cited:

(1) Fitzpatrick Contractors Ltd. v. Tyco Fire & Integrated Solutions (UK) Ltd., [2008] EWHC 1391 (TCC), dicta of Coulson J. applied.

(2) Kiam v. MGN Ltd., [2002] 1 W.L.R. 2810; [2002] 2 All E.R. 242; [2002] EWCA Civ 66, dicta of Simon Brown, L.J. applied.

(3) Nike Real Estate Ltd. v. De Bruyne, 2002 CILR 31, referred to.

(4) Quayum v. Hexagon Trust Co. (C.I.) Ltd., 2002 CILR 161, followed.

(5) Sagicor Gen. Ins. (Cayman) Ltd. v. Crawford Adjusters (Cayman) Ltd., 2008 CILR 482, distinguished.

Legislation construed:

Grand Court Rules 1995, O.62, r.4(11): The relevant terms of this sub-rule are set out at para. 4.

Practice Direction cited:

Practice Direction No. 1/2001, Guidelines Relating to the Taxation of Costs.

Attorneys-at-Law-remuneration-conditional fee agreement-court may approve uplift in fees for success subject to taxing officer”s discretion-recovery of uplift not prohibited by Practice Direction No. 1/2001, Guidelines Relating to the Taxation of Costs, s.7.2 if based on hourly rates and hours worked

Civil Procedure-costs-indemnity basis-available if party unreasonably maintains hopeless claim or defence-not available if case merely weak and reasonable for party to seek court”s determination-to be assessed according to facts as should have appeared to party at time, not with hindsight

The plaintiff brought an action for damages against the respondent in respect of an accident allegedly caused by the negligent driving of a police officer.

The plaintiff had been pursued by a police car down a path whilst riding a motorcycle. The two collided and he sought to recover damages from the respondent, who would be vicariously liable for police negligence. The issue of liability turned on whether the end of the path was blocked by three rocks or one: if there were three rocks, it was likely that the plaintiff had turned around and himself caused the collision; whereas if there were just one, it was likely that he could have avoided it, and therefore it must have been the police car that caused the collision. The officer pursuing the plaintiff gave a statement at the time of the collision referring to a single large rock at the end of the path, but testified at trial that there were in fact three. Similarly, the investigating officer had drawn a diagram depicting only one rock, but at trial testified to there having been three. The plaintiff engaged a foreign attorney pursuant to a conditional fee arrangement, whereby the rate at which he would be remunerated would be subject to an uplift of 33% should the plaintiff succeed. This was calculated on the basis that-despite the inconsistencies in the defence-his chances of success were 50%. The attorney incurred expenses travelling to the Cayman Islands for the trial.

The Grand Court (Henderson, J.) held that (a) there was only one rock in the path at the time of the collision; (b) the police car must therefore have caused the collision; and (c) this amounted to negligent driving and the respondent was therefore liable to pay damages to the plaintiff.

The plaintiff applied for indemnity costs, submitting that (a) a number of defence witnesses could not have believed the statements they gave to the court; and (b) it had therefore been unreasonable to maintain a defence based on them. He further applied to recover the costs of the uplift, submitting that (c) although s.7.2 of Practice Direction No. 1/2001, Guidelines Relating to the Taxation of Costs appeared to disallow costs based on contingency agreements, subsequent case-law suggested that recovery of an uplift could be allowed; and (d) the purpose of s.7.2 was to forbid the assessment of costs on any other basis than a consideration of hourly rates and hours worked, and, since the uplift had been calculated on an hourly-rate basis, its recovery could be allowed. He also applied to recover his foreign attorney”s travel expenses.

The respondent conceded liability for costs on the standard basis, but contested the application for indemnity costs, submitting that (a) the defence was not hopeless, since the plaintiff”s attorney had estimated its chances of success at 50%; and (b) seeking the court”s decision was therefore reasonable. He further submitted that he was not liable to pay the costs of the uplift, since s.7.2 of Practice Direction No. 1/2001, Guidelines Relating to the Taxation of Costs expressly disallowed such recovery. He also submitted that the plaintiff should not be allowed to recover his foreign attorney”s travel expenses, since (c) s.9.4 of Practice Direction No. 1/2001 expressly forbade such recovery; and (d) there were no...