Daniel Cummings Claimant v The Central Water and Sewerage Authority Defendant [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: Mathurin, M,CHERYL MATHURIN,Master
• Judgment Date: 31 March 2011
• Judgment citation (vLex): [2011] ECSC J0331-2
• Date: 31 March 2011
• Court: High Court (Saint Vincent)
• Docket Number: CLAIM NO. SVGHCV2009/0124

[2011] ECSC J0331-2

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Before:

Master Cheryl Mathurin

CLAIM NO. SVGHCV2009/0124

Between:

Daniel Cummings

Claimant

and

The Central Water and Sewerage Authority

Defendant

Appearances:

Mr. Emory Robertson for the Claimant

Mr. G Grahame Boilers for the Defendant

RULING

Mathurin, M

1 This is a procedural application filed by the Claimant for an order setting aside an order dismissing an application for costs and also to proceed to assess the costs as originally applied for. The application is made pursuant to Rule 11.18(1) and Rule 65.

2 A brief chronology of proceedings will assist in the determination in this matter which has been approached with such vigor by the Parties.

• (a) Claim form and Statement of Case were filed on the 24 ^th April 2009. The claim was for a declaration that the Claimant was entitled to $64,700.00 monies due and owing, $3000.00 consequential loss, Interest, General damages and costs.

• (b) Acknowledgement of Service filed on the 18 ^th May 2009

• (c) Application by the Defendant for relief from sanctions and extension of time filed on the 18 ^th May 2009

• (d) Order granting relief and an extension of time for filing the Defence on the 24 ^th July 2009. The extension was granted to the 16 ^th September 2009 and costs were assessed in the sum of $750.00.

• (e) Request for judgment in default was filed by the Claimant on the 4 ^th November 2009;

• (f) Judgment entered for the Claimant in the sum of $87,732.50 inclusive of interest and fixed costs on issue.

• (g) Application by the Defendant for a further extension of time and relief from sanctions was filed on the 16 ^th November 2011.

• (h) Default Judgment served on Defendant on 28 ^th December 2009

• (i) Application by the Defendant to set aside Default judgment filed on the 4 ^th January 2010

• (j) Order giving directions for hearing the application and adjourning it to 5 ^th February 2010 made by the Court.

• (k) Application to set aside default judgment dismissed with costs to the Claimant in the sum of $1000.00 ordered on the 19 ^th April 2010.

• (I) Application for the determination of costs by the Claimant filed on the 13 ^th October 2010

• (m) Order of the court dated the 9 ^th November 2010 directing Defendant to respond to the application by 19 ^th November 2010 and for Claimant to reply by the 30 ^th November 2010 for a hearing on the 14 ^th December 2010.

• (n) Submissions and authorities filed by the Defendant on the 19 ^th November 2010.

• (o) Order of the Court by acting Master dated the 17 ^th December 2010 directing Claimant to file and serve submissions with authorities on the issue of costs by the 5 ^th January 2011. Defendant to respond within 7 days of service. Matter adjourned to the 17 ^th January 2011

• (p) No appearance of the Claimant on the 17 ^th January 2011. Non compliance with the directions of the 17 ^th December 2010. No submissions filed. Application dismissed.

APPLICATION FOR PRESCRIBED COSTS

3 On the 17 ^th January 2011, the Court considered the application and dismissed it. The application was for an assessment of costs on a prescribed basis or alternatively in pursuance of Part 65.11. The Defendant opposed the application for costs on the prescribed basis submitting that the fixed costs regime applied as the claim was for a specified sum of money. Judgment pursuant to the Claimant's request was for a specified sum of money. The Defendant submitted for the Court's perusal the cases of Rochamel Construction Limited v National Insurance Corporation Civil Appeal No 10 of 2003 Saint Lucia and The Attorney General of Dominica v Stewco Construction Company Ltd Civil Appeal No 7 of 2008 Dominica.

In both of these cases the issue of costs pursuant to default judgment was considered.

4 In Rochamel, where the defendant admitted liability before action and allowed judgment in default to be entered on a claim exceeding $500,000.00, the fixed costs were assessed at $2,500.00 and Chief Justice Sir Dennis Byron stated as follows;

"The rules have clearly provided encouragement for that conduct by making provision for fixed costs in those circumstances, It is completely inconsistent with furthering the overriding objective to order substantial or punitive costs against a defendant who admitted liability before action and did not defend the claim in any way.

In this case judgment was entered in default. Applying CPR Part 65.4 and Appendix A where judgment is entered in default on a claim exceeding $500,000.00 the fixed amount is $2500.00 in addition to appropriate Court costs…"

5 In AG v Stewco, the judge made and award for prescribed costs in the sum of $24,525.00 in a situation where default judgment pursuant to Part 12 was entered. Gordon JA in overturning that decision stated as follows;

"As a general rule, a party is entitled to prescribed costs only if the fixed costs regime...