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Somana v Isabel Timber Company Ltd [2001] SBHC 167; HCSI-CC 32 of 2000 (27 April 2001)

CC No 23, 2000, HC

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No 32 of 2000

DAVID LENGA SOMANA

-v-

ISABEL TIMBER COMPANY LTD AND EASTERN DEVELOPMENT ENTERPRISES LTD AND JOHN ULUHORU AND OTHERS (AS REPRESENTATIVES OF THE MAJORITY OF THE ETINGI CLAN OF ISABEL PROVICE) AND ULEEN SIPANARU AND OTHERS (AS REPRESENTATIVES OF THE MINORITY OF THE ETINGI CLAN OF ISABEL PROVINCE) AND THE ATTONEY GENERAL (REPRESENTING THE COMMISSIONER OF FORESTS.

In the High Court of Solomon Islands
(Registrar Chetwynd)
Civil Case Number 32 of 2000

Hearing 25thApril 2001
Ruling 27th April 2001

C Ashley for the Plaintiff
G Suri for the 2nd, 3rd and 4th Defendants
No appearances for the 1st or 5th Defendants

Registrar Chetwynd -This matter was directed to come before me by His Lordship the Chief Justice following a hearing on 1/3/01. That hearing was as a consequence of a summons issued by the Plaintiff on 22nd January 2001. The Plaintiff asked the Court to order;

“The 2nd, 3rd and 4th Defendants jointly and severally within 7 days to pay the Plaintiff’s costs for the period 4 May to November 2000, the sum of $32,010.00 or such other amount as the Court shall determine”.

When the parties came before his Lordship on 1/3/01 Mr Ashley appeared for the Plaintiff, Mr Tegavota for the First defendant and Mr Suri for the 2nd to 4th Defendants. It became clear that the parties were arguing about the quantum and His Lordship’s notes show Mr Suri as saying, “We do not dispute that my clients should pay. We are however disputing the quantum.” Mr Tegavota indicated that he had nothing to add, his clients were not directly involved in the application, but suggested the matter be referred to me for the costs to be assessed. There was then apparently a brief adjournment followed by an indication that an agreement had been reached to refer the matter to me for assessment.

I relate this short history because, as may be seen later in this ruling, it has some importance.

I should also say that there are very few cases about costs and taxations in this jurisdiction. The simple reason is that the rates set out in Appendix J of the High Court (Civil Procedure) Rules 1964 are abysmally low. The last time they were revised was in 1975. Over 10 years ago Registrar Stanford-Smith made mention of the fact that they were outdated, in an inflationary sense, by a factor of 5^[1], so it is easy to see that today the amounts allowed are derisory. It is pleasing to note that the Solomon Islands Bar Association is taking steps to address this issue and hopefully in the not to distant future we may have a realistic scale of costs. If that does happen then Practitioners will be well advised to look at the issue of costs and taxations as the number of applications will increase and knowledge of the provisions and case law with regard to costs will become very important.

Returning to the application before me, I heard a little from Mr Ashley, read his affidavit of 19th January (filed 22/01/01) and heard from Mr Suri. I then adjourned so that I could give some thought to the matter and offer some preliminary guidance.

First, what is required for a taxation of costs. The English rules actually set this out. Our Rules are not so detailed. The English Rules^[2] say you need, in effect, to produce the authority for taxation, Le the order or judgment and ultimately, of course, the bill itself. I believe that our requirements are the same as the English requirements simply because our Rules are silent as to the exact procedure.

The form of the bill itself is specialised. Indeed it is so specialised that in Jurisdictions where scale fees are realistic there are firms who do nothing but produce bills of costs for Lawyers. Many make a very good living out of it because most Lawyers or Practitioners do not have the particular expertise needed to draw a bill of costs, nor do they have the time. The requirements are set out in O. 65, r.25 RSC which is deceptively short. Nowhere in our library have I been able to discover a precedent. Atkinson [volume 13] sets out procedural tables but not the form of the bill itself. The only guidance is to be found in Volume 44 of the 4th Edition of Halsburys Laws. That volume relates to Solicitors costs in the United Kingdom. This stems from the fact that in the United Kingdom the legal profession is divided into Solicitors and Barristers. Barristers never prepared bills, they simply sent Solicitors fee notes to pay. It was left to the Solicitors to recover costs.

In the present application the order was provided, ie the ruling of Awich J on 9/11/00. However a bill of costs, in the strict sense of that word, was not provided. That is the first matter that the Plaintiff must address.

Having go to the stage, we should now look at Awich J’s decision. He says [at page 4 paragraph 2], “They [the 2nd, 3rd and 4th Defendants] are to pay the costs of this application in any event, to be agreed or taxed by the Registrar.” The issue now raised before me is how do I deal with this order. The Plaintiff says, quite naturally, he should have all his costs from the date of the Conditional Appearance up to and including the application itself. For those who are going to have to pay it is said that they should only pay for the work that is strictly related to the application. It is also said that the Bill should be taxed on a party and party basis, not on a Solicitor Own Client basis or Common Fund basis.

In my view the order made by Awich J means that the costs must be taxed on a Party and Party basis. The general principle concerning the amount of the costs which should properly be recovered, in the absence of any special circumstances, was stated as long ago as 1875.

It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs^[3]

In more modern times it has been said that a successful litigant should recover proper costs which includes costs not strictly necessary but reasonably incurred for the purpose of the proceedings^[4], a more generous approach than that set out in Smith-v-Buller. That is the general approach that is adopted by the Courts but the Court can indicate, in a particular case, that a litigant should recover more in the way of costs. The Court can order costs to be taxed on a Common Fund basis or even Solicitor Own Client basis. However, in the absence of a reference to any such “special” basis for taxation then the costs must be dealt with on a Party and Party basis.

The only hint of special circumstances in the judgment of Awich J is the fact that the Plaintiff was awarded costs even though his applications were refused. In other words a deviation from the norm that it is the successful litigant who recovers costs.

It is my preliminary view therefore that in this case the Plaintiff is to recover such costs as were reasonably incurred in the making of the application, even if they were not absolutely necessary. It will be for the parties to argue, in a taxation, about the reasonableness or otherwise of any particular item of costs.

As indicated, it is also my view that any taxation will have to proceed on a Party and Party basis.

Unfortunately the matter does not end there. It is also my preliminary view that the application to tax or assess costs is premature. The jurisdiction for English Courts to award costs is discretionary and stems from both the Judicature Act of 1925 and the Rules of the Supreme Court. I have not researched the issue in detail but I would have thought it odd that the Rules promulgated under the Western Pacific (Courts) Order in Council,1961 and the Foreign Judgments (Reciprocal Enforcement) Ordinance, 1963 would have a different basis. Our own rules say that where there is silence on a particular point then reference can be made to the RSC. That being so it becomes clear from English authorities that the Courts generally allow only one taxation and that is at the conclusion of all proceedings. The case of Allied Collection Agencies Ltd –v-Woods [1981J 3 All ER 176 seems to make it quite clear that exceptional circumstances and exceptional words are required in any order to enable a successful litigant to tax his costs immediately i.e. before the conclusion of any cause or action. This difficulty, for litigants, stems from the wording of O. 62, r. 11(1) and O.62, r.4(1) of RSC. Our rules as to costs cover some two pages. In the 1970 Supreme Court Practice [and I refer to that edition because the amendments made to Appendix J by Legal Notice 22 of 1975 seem to refer to the situation under the RSC as at 1st January 1970 although it may possibly also refer to 1st January 1980] the rules and notes relating to costs cover 141 pages. Clearly there is a difference not only of detail but of complexity between the two sets of rules but I am of the preliminary view that the same approach should be taken, that is that taxation of costs should not take place until proceedings are at an end.

That does pose a problem. It is clear that Awich J’s order was made in unusual circumstances. However, he did not use exceptional words to indicate that he intended there to be an immediate taxation. Normally, in those circumstances ie where there is a genuine doubt as to what His Lordship intended I would have asked the parties whether or not they would like to go back before the Judge and obtain clarification. Awich J has now left this jurisdiction and so that course of action is impossible. I must confess that I do not know the solution to this problem. The parties might like to make an application to one of Awich J’s brother Judges. However, I can imagine that such an application would not be entertained lightly by another Judge because of the difficulties of, what amounts to, trying to read the mind of Awich J. I cannot see any brother Judge relishing that prospect even though Awich J is no longer with us.

As is it, this matter stands adjoined generally with liberty to apply. The only way forward maybe for the Plaintiff to apply for a taxation of his interlocutory costs immediately. From what is stated above, it is obvious that I would be bound to refuse to proceed with taxation. The Plaintiff may then be able to appeal my decision. It is not a course that I would readily wish on the Plaintiff but I see no alternative.

As I have said, my preliminary order is that this application stands adjourned generally with liberty to apply.

Dated this 27th April 2001

Registrar Chetwynd

^[1] Hyundai Timber Co Ltd -v- Qatu and others [1990] SILR page 2
^[2] O.62, r.21
^[3] Smith –v- Buller (1875) LR 19 Eq., p.475
^[4] Societe Anonyme Percheries Ostendaises –v- Merchant Marines Insurance Co [1928] 1KB per Atkin LJ