Ingersoll-Rand v Banco Portugues Do Atlantico

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J.)
• Judgment Date: 23 December 1988
• Court: Grand Court (Cayman Islands)
• Date: 23 December 1988

Grand Court

(Collett, C.J.)

INGERSOLL-RAND

and

BANCO PORTUGUES DO ATLANTICO

R. D. Alberga, Q. C. and R. Nelson for the plaintiff;

A. Foster for the defendant.

Cases cited:

(1) Andrews v. BarnesELR(1888), 39 Ch. D. 133.

(2) E.M.I. Records Ltd. v. Ian Cameron Wallace Ltd., [1983] Ch. 59; [1982] 2 All E.R. 980, distinguished.

(3) McCallister v. Tortuga Club (No. 2), 1984–85 CILR 411, dictum of Summerfield, C.J. applied.

(4) Tower Corp. Ltd. v. Hadsphaltic Intl. Ltd., Grand Ct., Cause No. 419/84, November 17th, 1987, unreported.

Legislation construed:

Grand Court (Civil Procedure) Rules, r.52(2):

‘Any application for special costs to be allowed, for authority for payment out of any money paid into Court, or for a stay of execution pending an appeal should ordinarily be made to the Court immediately after judgment . . . .’

Grand Court Law (Law 8 of 1975), s.13(1): The relevant terms of this sub-section are set out at page 191, line 40 – page 192, line 10.

Judicature Law (Revised) (Law 11 of 1975, revised 1976), s.30(1):

‘The scale of general court fees, advocates” costs and Bailiff”s fees shall be on the scale laid down in Schedules “A”“B” and “C respectively . . . .’

s.30(3): The relevant terms of this sub-section are set out at page 192, lines 26–32.

Schedule ‘B’: The relevant terms of this schedule are set out at page 193, lines 31–34.

Civil Procedure-costs-taxation-costs limited by Judicature Law (Revised), s.30 and mandatory application of scales in Schedules-reference to ‘special costs’ in Grand Court (Civil Procedure) Rules, r.52(2) no authority to depart from scales

The applicant applied for a review of costs to be taxed under the Judicature Law (Revised), s.30.

The applicant had been successful in proceedings brought against him by the respondent. He applied to have various items, not specified in the Schedules to the Judicature Law, allowed as costs to be paid by the plaintiff; namely for travel, accommodation and subsistence for overseas witnesses and for overseas leading counsel, plus remuneration for expert witnesses and others who were present at the trial. He also applied for certification that the action was fit for leading counsel; and for an order directing the taxing officer that she was not bound by the amounts set in the Schedule ‘B’ scale for advocates” fees and costs but should allow on taxation all such matters as appeared to her to be fair and reasonable for the proper defence of the action.

The applicant submitted that by s.13(1) of the Grand Court Law, the Grand Court had the same statutory and discretionary powers as the High Court in England and could therefore award costs of and incidental to all civil proceedings before it, to the extent necessary to meet the justice of the case.

The respondent submitted in reply that the court was bound by the express provisions of s.30 of the Judicature Law (Revised), the terms of which did not permit of any departure from the Schedules either in respect of items which were not specified therein or in respect of a more generous allowance for advocates” fees and costs.

Held, refusing the applications with respect to costs:

(1) The scope of s.30 of the Judicature Law (Revised) was confined to authorizing the court to use the scales prescribed in the Schedules to that Law. Although under the Grand Court Law, s.13(1), the Grand Court had in principle the same powers as the English High Court, its discretion in awarding costs was limited by the ‘provisions of this and any other laws of the Islands.’ Unlike the equivalent English Act which was more general in its terminology, there were Schedules to the Judicature Law (Revised) which laid down prescribed scales listing each item for which an award could be made and the amount that could be awarded. The Grand Court was therefore precluded from making any changes to those Sched-

ules and the reference to applications for ‘special costs’ in the Grand Court (Civil Procedure) Rules, r.52(2) could not be interpreted as authorizing any departure from those scales (page 192, lines 20–23; page 192, line 41 – page 193, line 23; page 193, line 40 – page 194, line 5).

(2) This conclusion was further reinforced upon the application of the principle expressio unius est exclusio alterius in construing the court”s powers with respect to the award of costs. The fact that only two...