McCallister v Santa Cruz Inv Company Ltd

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 16 September 1985
• Court: Grand Court (Cayman Islands)
• Date: 16 September 1985

Grand Court

(Summerfield, C.J.)

McCALLISTER

and

SANTA CRUZ INVESTMENT COMPANY LIMITED (trading as TORTUGA CLUB) (No. 2)

C. Adams for the applicant;

T. Shea for the respondent.

Cases cited:

(1) Bwanaoga v. Bwanaoga, [1979] 2 All E.R. 105; (1978), 122 Sol. Jo. 713; 9 Fam. Law 60.

(2) Mahon, In re, [1893] 1 Ch. 507; (1893), 68 L.T. 189; 9 T.L.R. 230; 62 L.J. Ch. 448; 41 W.R. 257; 37 Sol. Jo. 234; 2 R. 337.

Legislation construed:

Grand Court Law (Law 8 of 1975), s.13(1): The relevant terms of this sub-section are set out at page 414, lines 13–24.

s.20: The relevant terms of this section are set out at page 414, line 41 – page 415, line 8.

Judicature Law (Law 11 of 1975), 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 . . . .

(2) In every case in which any party recovers judgment against another, such party shall have judgment for the court fees payable under this law . . . .

(3) Where . . . an advocate has been employed or other costs or charges have been incurred then . . . the awarding of such costs and charges shall be in the discretion of the court which may . . . award them to the successful party in accordance with the prescribed scale.

(4) Where a court orders taxation of costs, such costs shall be taxed by the Clerk of the Court and shall be subject to review by the court.’

Schedule, Part B: The relevant terms of this Part are set out at page 415, lines 33–37.

Civil Procedure-costs-taxation-law applicable-Judicature Law, s.30 and Schedule only basis for taxation-of costs-English substantive law concerning costs not imported into Islands, therefore no taxation on basis of party and party costs, solicitor and client costs and solicitor and own client costs

Civil Procedure-costs-taxation-‘Instructions to sue or defend in the Grand Court’-all instructions, by personal attendance, telephone, telex or letters, necessary or reasonable for/preparation of appropriate process, pleadings or supporting documents.allowable-computation by reference to time involved and necessary disbursements by attorney, but matters of pure convenience, excess caution or unnecessary repetition excluded

Civil Procedure-costs-taxation-‘Every necessary attendance in and about the client”s business in cases in Grand Court’-any necessary matter (including perusal and writing of letters or telexes, telephone conversations, taking of proofs) to which attention given in preparation for trial or other resolution of case allowable-computation solely by reference to time involved, no disbursements included

The applicant applied for a review of taxed costs under the Judicature Law, s.30(4).

The applicant was awarded costs in proceedings brought by him against the respondent (reported at 1984–85 CILR 123). His claim for costs under the item: ‘Instructions to sue or defend in the Grand Court’ included the cost of telephone attendances, perusing or writing letters and telexes whereby instructions were taken for the suit, but the taxing officer disallowed these claims and allowed only the first interview. His claim under the item: ‘Every necessary attendance in and about the client”s business in cases in Grand Court’ included the cost of perusing or writing letters in preparation for trial or negotiated settlement, but the taxing officer made no allowance for this. The applicant also claimed the cost of his air fare to attend the trial, although no special order had been made by the court concerned, but again his claim was disallowed.

The applicant then made the present application for a review of the taxed costs, on the ground that the taxing officer had wrongly referred only to Part B of the Schedule to the Judicature Law when making his determination; he submitted that the Grand Court Law, s.1f(1), whereby the court possessed the same jurisdiction as that vested in the

English courts, and s.20, whereby English practice and procedure was applicable in the absence of local provision, meant that English law relating to costs, in particular O.62 of the Rules of the Supreme Court, was imported into the Islands and that the taxing officer could, therefore, properly have referred to the English provisions when determining what might be recovered by way of party and party costs and solicitor and client costs.

Held, allowing the application:

(1) Section 30 of the Judicature Law, read with the Schedule, was the only basis for taxation of costs in the Islands and there could be no taxation on the basis of party and party costs, solicitor and client costs or solicitor and own client costs. None of the English substantive law on the subject had been imported-the Grand Court Law, s.13(1) merely defined the scope of the court”s jurisdiction, i.e. the range of judicial power, and the operation of s.20(2) which, in the absence of local provision, would have imported the English practice and procedure, was ousted by the Judicature Law, s.30 read with the Schedule (page 414, line 11 – page 415, line 19).

(2) Since the award of costs was intended to reimburse the applicant for such costs as had been properly incurred, the items in the Schedule should, so far as was...