Ebanks v Allen

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Kerr, JJ. A.)
• Judgment Date: 05 June 1986
• Court: Court of Appeal (Cayman Islands)
• Date: 05 June 1986

Court of Appeal

(Zacca, P., Georges and Kerr, JJ. A.)

C. EBANKS (as Administrator of the Estate of M.-L. EBANKS, Deceased)

and

ALLEN and BODDEN

T. Shea for the appellant;

A. S. Smellie, Crown Counsel, for the respondents;

R. Alberga, Q. C. and P. Boni as amici curiae.

Cases cited:

(1) McCallister v. Tortuga Club (No. 2), 1984–85 CILR 411, distinguished.

(2) Practice Note, [1933] W.N. 190.

Legislation construed:

Rules of the Supreme Court, O.62, r.30(2): The relevant terms of this sub-rule are set out at page 185, lines 4–7.

Civil Procedure-costs-taxation-suits on behalf of infants-proper to apply practice based on English Rules of the Supreme Court, O.62, r.30(2), and hold costs not payable out of damages awarded to infant, unless court satisfied reasonable to do so

Civil Procedure-costs-taxation-suits on behalf of infants-if costs agreed and infant”s solicitor seeks to deduct further costs from infant”s damages, bill of costs to be certified by Registrar as reasonable-unnecessary if additional claim would not reduce damages payable

The appellant, the administrator of the estate of his deceased daughter, sought to prevent the payment of further legal costs to his solicitors out of the damages awarded to the deceased”s children, such costs being in excess of the amount previously agreed and paid.

The deceased had died of injuries sustained resulting from the dangerous driving of the insured. Since the insured had pleaded guilty to the offence, his insurers suggested that there was therefore no need to apply for judgment and instead proposed a meeting to agree a settlement out of court. However, as no meeting took place, the administrator applied for the entry of interlocutory judgment for the assessment of damages. This was duly done but shortly before the date set for such assessment, the insurers disclaimed liability to indemnify the insured and instructed their solicitors to cease representing the insured on the insurers” behalf and to notify the administrator of such action.

Consequently, the insured was not represented when the assessment came up for hearing. The Grand Court (Hercules, Ag. C.J.) assessed the damages at $69,300.33, with costs to be taxed if not agreed. It ordered that $7,800 be paid immediately to the parents of the deceased with the remainder to be paid into court for the children”s benefit and that trustees should be appointed to set up and administer a trust on the children”s behalf.

Since the insured had no financial means to satisfy this assessment, the administrator sued the insurers for the sum awarded and for costs. The matter was then settled out of court and the Grand Court (Summerfield, C.J.), having heard counsel for both sides, ordered that judgment be entered for the administrator for the sum claimed, i.e. $69,330.33; interest of $10,500 on this sum, and legal costs and disbursements of $14,000.

As the insurers had not been parties to the original proceedings, in which it had been ordered that the money be paid into court, they paid the money to the administrator”s solicitors though no order to that effect had been made by the Grand Court.

Since there was no firm or body willing or able to establish and administer such trust, the solicitors applied to the court for guidance. The Clerk of the Court and the Deputy Clerk of the Court agreed to act ex officio as trustees and the solicitors accordingly paid $59,753.93 into court. The amount deposited was contested by the administrator who submitted that there was no need for taxation of the sum deposited as the amount of costs had already been agreed at $14,000 and approved by the Chief Justice; moreover the $10,500 had been applied to additional costs.

The Grand Court (Hull, J.) ordered that both the $10,500 and the $14,000 should be deposited in court pending taxation, on the basis that the English Rules of the Supreme Court, O.62, r.30(2) required that unless the court otherwise directed, the costs payable to his solicitor by a plaintiff in any proceedings to which the rule applied should be taxed under O.62, r.29; further, no costs should be paid to the solicitor except those certified according to the rule on the taxation, under r.29, of the solicitor”s bill to such plaintiff. The proceedings so covered included those in which money was ordered or agreed to be paid for the benefit of an infant.

The administrator appealed, submitting that (a) O.62, r.30(2) of the English Rules of the Supreme Court was not applicable in the Cayman Islands; and (b) in consequence, further sums as legal costs, in excess of the amounts agreed and paid by the insurers in respect of such costs, could not be deducted from the damages awarded to the deceased”s children.

Held, dismissing the appeal:

(1) Since by virtue of the Grand Court Law, s.20, English procedure and practice was imported into areas in which Cayman law was silent, it was proper to allow the practice based on O.62, r.30(2) of the English Rules of the Supreme Court to be applied in Cayman. Costs would therefore not be payable out of the damages awarded to an infant unless the court was satisfied that it was reasonable to do so. In adapting this practice to conditions in Cayman, the appropriate procedure would be that the court could require a solicitor”s bill of costs to his plaintiff client to be presented to the Registrar for certification of its reasonableness in cases in which it was sought to deduct a further sum, as costs over and above the sum paid by the defendant, from the infant”s award of damages (page 185, lines 25–36; page 187, lines 5–17).

(2) However, the need for such certification did not arise in the present case. The pre-trial damages payable to the deceased”s parents and children should have been paid directly to the administrator. As the father of the deceased, he was entitled to his share of the damages to

compensate for the expenses incurred looking after the children. The sum which should have been deposited in court was $47,757.13. Since it was apparent that an award of interest on that sum at the maximum rate permissible under the Judicature Law, s.62(2)(b) would still not reach the total sum of $59,753.93...