Beatrix Gumbs Claimant v Collymore Samuel Substituted by Gasnel Samuel of Vermont but presently residing at 520 Williams St. Apt 2B Brooklyn, NY 11207 pursuant to an order of court dated 21st day of October, 2015 entered on the 18th day of November, 2015. Defendant

• Jurisdiction: St Vincent and the Grenadines
• Judge: Henry, J.
• Judgment Date: 07 December 2016
• Judgment citation (vLex): [2016] ECSC J1207-1
• Court: High Court (Saint Vincent)
• Docket Number: SVGHCV2005/0202
• Date: 07 December 2016

[2016] ECSC J1207-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

SVGHCV2005/0202

Between

Beatrix Gumbs

Claimant

and

Collymore Samuel Substituted by Gasnel Samuel of Vermont but presently residing at 520 Williams St. Apt 2B Brooklyn, NY 11207 pursuant to an order of court dated 21st day of October, 2015 entered on the 18th day of November, 2015.

Defendant

DECISION

BACKGROUND

Henry, J.

1 This is an application1 by Gasnel Samuel for 'costs' incurred for travelling to and from St. Vincent for trial of this case. In May of this year, Mr. Samuel travelled from Brooklyn New York to Saint

Vincent and the Grenadines to attend the trial scheduled for May 12^th. That day, the trial was adjourned on application made by the claimant Beatrix Gumbs. Mr. Samuel has applied for an order that a previous $500.00 costs order made against him be set off against any sum awarded to him. Mrs. Gumbs has opposed the application. For the reasons outlined in this decision, Mr. Samuel is entitled to recover his reasonable travel related expenses.

ISSUES

2 The issue is whether Mr. Samuel is entitled to recover 'costs' and related expenses from Mrs. Gumbs in respect of the adjourned trial.

ANALYSIS

Issue – Is Gasnel Samuel entitled to recover 'costs' and related expenses from Mrs. Gumbs in respect of the adjourned trial?

3 Collymore Samuel deceased was the original defendant in this case. After his death in 2011, Gasnel Samuel was substituted as defendant in his place, by order dated 21^st October, 2015. It appears from the record that this matter was tried on 17^th July 2006.2 The resultant decision was set aside by the Court of Appeal and the case remitted to the high court for re-trial.

4 In January 2016, a new trial date was fixed for 12^th May, 2016 and directions given. Two days before the scheduled trial, Beatrix Gumbs filed an application for adjournment of the trial on the ground that her legal counsel Mr. Samuel Commissiong was ill and unable to prepare the case for trial. The application was supported by affidavit of Suzanne Commissiong, a lawyer who practices from Mr. Commissiong's law firm. She is also his daughter. Ms. Commissiong deposed that her father had sole conduct of the case. She averred that he had been under considerable stress as a result of which he took ill and was advised by his doctor to refrain from stressful activity including work 'until he was deemed clear to do so'. She exhibited a medical certificate from one Dr. Wayne Murray dated 3^rd May, 2016.

5 The application was presented by Mr. Sten Sergeant who informed the court that he was asked roughly a half hour before to hold papers for Mr. Commissiong. Mr. Gasnel Samuel was present in court as was Mrs. Gumbs. Learned counsel Mr. Emery Robertson Snr. represented to the court that his client Mr. Samuel had arrived in the state on May 8^th, 2016. He did not object to the adjournment.

6 In support of the present application3, Mr. Samuel provided affidavit evidence3 and oral testimony. He asserted that the trial was adjourned through no fault of his. He deposed that he purchased an airline ticket to travel from New York to Saint Vincent for the trial, at a cost of US$740.56 or EC$1977.00. He explained that he incurred expenses totaling EC$135.00 for taxi fare from E.T. Joshua airport to Vermont where he stayed while in Saint Vincent and bus fare of $10.00 to attend court on May 12^th. He also claimed loss of earnings for two days at US$300.00 per day, which he said he lost by travelling to the state for the trial. He testified that he is self-employed as a truck driver but he did not produce any documentary evidence of his income. Mr. Samuel also explained that he expended EC$200.00 for meals on those days. He testified that he came to the country for the trial and did not know how long the trial would last. He said that he extended his time and spent almost one month in the state.

7 Mr. Samuel submitted that the English Civil Procedure Rules which deal with recovery of expenses in small claim proceedings apply in the present case. He referred the court to rule 27.14 (2) (c) which permits a party to recover:

'expenses which a party has reasonably incurred in travelling to or from a hearing; … loss of earnings or loss of leave and … such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.'

No similar provision is contained in the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 ('CPR') which govern the procedures and practices in this court. Mr. Samuel did not point to any binding decisions which applied the English provisions. They are not applicable to the case at bar.

8 Mr. Samuel invoked CPR 65.11 (1) (a) (b) ( c), 65.11 (5) (c), 27.5 (4) (c) and 27.5 (5) (c) in support of his contention that the CPR makes provision for assessment of costs in like manner as the referenced English rule. None of those provisions address the issue at hand and are therefore not considered. They provide respectively for the court to make costs orders in respect of legal fees and related disbursements and for the trial date to be fixed by the court. Specifically, they state:

'65.11 (1) On determining any application except at a case management conference, pre-trial review or the trial, the court must—

• (a) decide which party, if any, should pay the costs of that application;

• (b) assess the amount of such costs; and

• (c) direct when such costs are to be paid.

(5) A party seeking assessed costs must supply to the court and to all other parties a brief statement showing—

• (a) …

• (c) the disbursements incurred;

27.5 (4) The court must in any event fix the –

(c) the trial date.

(5) The court office must serve an order containing the directions made on all parties and give notice of the –

(c) the trial date or trial period.'

9 Relying on the cases ofDe Nobriga v De Nobriga (1967) 12 WIR 3424, Williams v The AG (1959) 1 WIR 2285 and Olga Appiah & Others v Winifred Hookumchand and Another (1972) 18 WIR 2446, Mr. Samuel submitted correctly that costs are at the discretion of the court. He urged the court to award wasted costs on the basis of his...