Phillip Bradley Hinds v Clive Montrivelle Hinds, Administrator of the Estate of Esther Rosalind Hinds

• Jurisdiction: Cayman Islands
• Judge: Mr. Justice Angus Foster
• Judgment Date: 04 November 2014
• Court: Grand Court (Cayman Islands)
• Docket Number: FSD 104 OF 2011 (AJEF)

In the Matter of the Estate of John Samuel Hinds (Deceased) and the Estate of Esther Rosalind Hinds (Deceased)

And in the Matter of the Grand Court Rules Order 85

Between:

Phillip Bradley Hinds

Plaintiff

and

(1) Clive Montrivelle Hinds, Administrator of the Estate of Esther Rosalind Hinds

(2) Clive Montrivelle Hinds

(3) John Leverette Hinds III

(4) Thomas Anthony Hinds

(5) Sharon Hinds

(6) Norahs Kcotsob Limited

Defendants

Coram:

Mr. Justice Angus Foster

FSD 104 OF 2011 (AJEF)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

Appearances:

For the Plaintiff: Mr. Peter McMaster, QC and Mr. Rupert Coe of Appleby

For the 1 ^st Defendant: Mr. Tom Lowe, QC instructed by Mr. George Giglioli of Giglioli and Company

For the 2 ^nd, 3 ^rd and 4 ^th Defendants: Ms. Clare Stanley instructed by Mr. Robert Jones of Tayler Jones

For the 5 ^th and 6 ^th Defendants: Mr. Kenneth Farrow, QC of HSM Chambers

RULING ON FORM OF ORDER TO BE MADE ON JUDGMENT DATED 9th JULY 2014 AND ON COSTS OF THE PROCEEDINGS

1 Introduction

• 1.1 This Ruling concerns the appropriate form of order to be made on the judgment dated 9 ^th July 2014 (“the Judgment”) following the trial of this matter and also the appropriate award(s) to be made in respect of the costs of the proceedings, I shall use the same designations, abbreviations and references as in the Judgment

2 Form of Order

• 2.1 Although the Judgment refused all the relief which Phillip sought as plaintiff and dismissed all his claims, it was nonetheless submitted on his behalf that the declarations which he sought in his originating summons dated 17 ^th June 2011 (as amended on 17 ^th December 2012) insofar as relating to 4 of the 7 parcels in issue (namely parcels 15B/81, 15C/172, 15C/175 and 15E/222), should be granted in the order to be made on the Judgment. This was contended on the basis that in the Judgment I reached the view that these parcels of land, which had been transferred by Sir Vassel from Bradley's estate to Esther, were assets of John Samuel and were transferred to Esther in her capacity as Administratrix of his estate and not transferred to her beneficially (Judgment para. 6.28).

• 2.2 However, that argument was only one of the issues in the case and Phillip's contention in this respect seemed to me to ignore the fact that the Judgment concluded not only that Phillip's claims were both misconceived (Judgment paras. 8.5, 8.10 and 8.12) and barred by limitation (Judgment para. 12.21) but perhaps more significantly, this submission also ignored the fact that the Judgment concluded, after a lengthy analysis of Phillip's knowledge, that he had acquiesced in the matters of which he complained and that it would be unjust and inequitable in the circumstances to permit him to assert the rights which he sought to enforce by his claims (Judgment para 15.24). Furthermore, it failed to appreciate that the Judgment concluded too that it would be unconscionable to permit Phillip to assert the relief which he claimed due to laches (Judgment para. 19.3). The relief being referred to clearly included all the relief claimed by Phillip in his originating summons (as amended), including the declarations concerned. In my opinion the Judgment makes it quite clear that the court had concluded that the claims which Phillip brought should be refused in their entirety and that the court had declined to grant any of the relief which he sought (Judgment para. 20).

• 2.3 When I pointed out these conclusions in the Judgment to leading counsel for Phillip during the course of the hearing he did not persist in this submission regarding the form of order. Accordingly, I now direct that the order to be made on the Judgment should provide that the court, having tried the plaintiffs claims made in his originating summons (as amended on 17 ^th December 2012), declines to grant any of those claims and they are accordingly dismissed in their entirety.

3 Costs

• 3.1 It is uncontroversial that the award of costs is in the discretion of the court. However, the overriding objective is that the successful party in proceedings should recover his reasonable costs from the losing party unless the court orders otherwise (see GCR O.62, r.4 (2)). It is furthermore expressly provided that if the court sees fit to make an order for costs it should order the costs to follow the event unless it considers that in the particular circumstances some other order should be made in relation to the whole or any part of the costs (see sub-para. (5) of the same rule). In the latter connection it is also specifically provided that the court may make an order that a party must pay a proportion or a stated amount of another party's costs or the costs relating only to a distinct part of the proceedings (see r. 4 (7)).

• 3.2 Notwithstanding the overriding objective and the express provision that costs should follow the event, leading counsel for Philip rather valiantly attempted to argue that Phillip had succeeded in relation to four of the parcels of land and “on major issues” concerning the devolution of assets from his father to his mother as administratrix, and should therefore have all of his costs against all of the defending parties (except Sharon and the Company, against whom he conceded he had lost). I found this a surprising and misconceived submission in light of the clear conclusions in the Judgment. Phillip did not succeed in his claims to any of the parcels concerned; his claims were dismissed entirely and there is, in my opinion, no basis for his contention otherwise.

• 3.3 It was also submitted on behalf of Phillip as an alternative that he should not anyway be ordered to pay the entire costs of the proceedings because, it was said, Clive as administrator and the defendants had made arguments which were either subsequently abandoned or which were unsuccessful and which, it was contended, took up “a very large proportion” of Phillip's and of the court's time. As pointed out above, GCR O.62, r. 4 (7) provides that the court may make an order for a party to pay a proportion of the costs or the costs relating only to a distinct part of the proceedings. I was referred in this connection to the judgment in Elgindata Ltd (No.2) [1993] 1 All ER 232 in the English Court of Appeal in which in setting out the principles on which costs were to be awarded it is summarized in the headnote inter alia that:

  • “(iii) that the general rule did not cease to apply simply because the successful party raised issues or made allegations that failed, but that he could be deprived of his costs in whole or in part where he had caused a significant increase in the length of the proceedings, and

  • (iv) that where the successful party raised issues or made allegations improperly improperly or unreasonably the court could not only deprive him of his costs but could also order him to pay the whole or part of the unsuccessful party's costs

  The fourth principle implied, moreover, that a successful party who neither improperly nor unreasonably raised issues or made allegations which failed ought not to be ordered to pay any part of the unsuccessful party's costs…..”

  That summary of those principles was cited with approval by Chief Justice Smellie in A.B. Jnr. and Another v. M.B. and Others [2013] 14 June, unreported

• 3.4 It was argued on behalf of Phillip that since he had succeeded in his submission that the parcels deriving from Bradley's estate were assets of John Samuel and transferred to Esther as administratrix of his estate and, it was said, the arguments of leading counsel for Clive as administrator and of counsel for the defendants to the contrary were unjustified and unreasonable. It was contended that this issue had taken up a significant part of and had added significantly to the length and cost of the proceedings. It was argued that the costs incurred in connection with this issue should therefore be awarded to Phillip.

• 3.5 While it is correct that that particular issue was a significant one, I did not find Phillip's contention in relation to it persuasive. In the overall context of the proceedings that issue was only one of several significant issues, some of which, particularly the issues of acquiescence and laches which involved lengthy cross-examination and submissions, took up considerably more time and were in my view more significant in the end of the day. I do not consider that the issue on which Phillip relies took up an undue or disproportionate amount of time having regard to the proceedings as a whole. Furthermore, in my view, the position taken and the submissions made on behalf of Clive as administrator and the defendants in relation to this issue were not at all unjustified or unreasonable in the circumstances nor was the outcome of the debate on this issue a forgone conclusion. It was made clear in the Judgment that the final conclusion thereon was only reached with considerable hesitation and only on balance considering the known circumstances (Judgment para. 6.28). It was also made clear that determination of this issue had been made considerably more difficult and unsatisfactory in the absence of the evidence of the two principal witnesses, Sir Vassel and Esther, which was directly due to Phillip's own inappropriate and unjustified delay in commencing these proceedings (Judgment for example paras 6.2 et seq and para 17.10). In the circumstances I do not consider it appropriate in the circumstances of this case and do not propose to segregate out the costs of this particular issue or this part of the proceedings from the overall costs.

• 3.6 Leading counsel for Phillip also pointed out that the defendants had amended their points of defence in September 2013 to plead that parcel 15B/81 had been purchased by John Samuel and Esther using money belonging to the defendants and that during the trial John III had admitted this allegation was a...