Patricia Anne Huggins v Lloyd Browne
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 18 June 2018 |
| Neutral Citation | VC 2018 HC 38 |
| Court | High Court (Saint Vincent and the Grenadines) |
| Docket Number | SVGHCV2018/0001 1 |
| Date | 18 June 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Henry, J. (Ag.)
SVGHCV2018/0001 1
Mr. Richard Williams with him Ms. Danielle France for the claimant/respondent.
Ms. Suenel Fraser of counsel for the applicant/defendant.
Costs — Striking out application — Whether defendant should pay claimant's costs in respect of application for striking out of defence.
Ms. Patricia-Anne Huggins has accused Mr. Lloyd Browne of trespassing on her property at Golden Vale in the State of Saint Vincent and the Grenadines (‘the subject property’). She alleged that he did so in or around January 2014 and subsequently. She claimed that he has repeatedly dumped tree cuttings and other waste material on the subject land without her consent.
Ms. Huggins filed a Fixed Date Claim Form (‘FDCF’) in the High Court on 4 th January 2018 in which she seeks damages, an injunction and costs.
Mr. Browne filed a Defence 2 denying those allegations and a counterclaim in which he sought damages for nuisance and trespass. On 19 th March 2018 Ms. Huggins filed an application to strike out Mr. Browne's defence and counterclaim. Mr. Browne amended his statement of case and filed an amended defence and counterclaim on 12 th April 2018 pursuant to Civil Procedure Rules 2000 (‘CPR’) 20.1(1). It was materially different from the first one.
Ms. Huggins withdrew her application on the hearing date on the ground that Mr. Browne's amended pleadings rendered the application otiose. The Court accordingly dismissed the application. Ms. Huggins then made an oral application for costs pursuant to CPR 64.7. The parties were directed to file skeleton arguments and list of authorities. They did so. The application is dismissed for the reasons set out below.
The issue is whether Lloyd Browne should be ordered to pay Patricia-Anne Huggins costs in respect of her application to strike out his defence and counterclaim?
The CPR empowers the High Court to make orders for costs in respect of proceedings. 3 The general rule is that it must order costs against the unsuccessful party. 4 Both parties agreed with this statement of the law. Notwithstanding this general rule, the Court may order a successful party
to pay the costs of an unsuccessful party. 5 Costs are recoverable by a party only by agreement with the opposing party, by court order or pursuant to a provision of the CPR.There is no agreement between the parties as to costs in respect of the instant application and no provision of the CPR mandates an award of costs in the particular circumstances of the case. Ms. Huggins submitted that she should receive her costs notwithstanding that her application was not successful. Her counsel Mr. Williams submitted that under CPR 64.6, the Court may award costs even though her application was not successful. Mr. Browne countered that there is no basis on which Ms. Huggins could be awarded costs. He contended that he should receive costs instead.
She contended that in making a determination, the court must have regard to all of the circumstances including the parties' respective conduct. In this regard, she pointed out correctly that the CPR 6 stipulates that the Court takes into account the manner in which they each have pursued a particular allegation, issue or the case; whether a party has succeeded on particular issues but not on the entire proceedings; whether it was reasonable for a party to pursue a particular allegation or raise a particular issue and whether the claimant gave reasonable issue of the intention to issue a claim.
Ms. Huggins rehearsed that her application to strike out Mr. Browne's defence and counterclaim was based on her allegation that it offended CPR 10.5 and amounted to bare denials. She argued that he has since amended it and essentially cured those alleged defects, by providing particulars.
Relying on the case of The Attorney General et al v Anton Tonge, Ms. Huggins submitted that the Court of Appeal provided guidance at paragraph 7, regarding instances in which the general rule regarding award of costs may be disregarded. There Pereira CJ stated:
‘… the court would look to see whether party “A” may have behaved unreasonably in the context of the proceedings and is such that notwithstanding being successful, “A”
should nevertheless either be deprived of his costs or be ordered to pay “B's” costs although “B” was unsuccessful.’ 7
Earlier in the judgment, the learned Chief Justice opined:
‘… the circumstances for departing from the general rule, must either be obvious from all the circumstances such as not to require a stated reason, or otherwise it is expected that a reason or reasons would be expressed for the departure from the general rule.’ 8
Ms. Huggins argued that Mr. Browne acted in an unreasonable manner not in keeping with the CPR. She contended that Mr. Browne's unreasonable conduct was manifested by the filing by him of an unsuccessful application to strike out her claim; filing a defence consisting of bare denials and lodging a counterclaim against her which disclosed no cause of action against her.
Ms. Huggins contended that Mr. Browne made amendments to his statement of case which took into account the grounds laid out in her application to strike. She claimed that Mr. Browne has added another defendant — Eldon Browne to the counterclaim without following the procedure set out in the CPR. She contended that she has expended significant time and resources applying to have offensive and incurably bad statements of case struck out. She argued that the parties would not have been able to proceed if the amendments were not made. She submitted that the Court should therefore award her costs.
Mr. Browne argued that a defendant is permitted by CPR 29.1 to amend his statement of case once prior to case management. He is mistaken. That rule deals with the court's power to control evidence. Mr. Browne contended further that Ms. Huggins incurred no costs since she filed no response to his amended defence. He submitted that Ms. Huggins having not filed any reply or defence to the counterclaim, has incurred no unnecessary expense or inconvenience.
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