CC 142/08   2008  D No 5





By Judges Summons dated 27th January 2009 the Defendants/applicants prayed inter alia that the Order made by the court in its Ruling of 28th November 2008 10 wit "that the costs thrown away to be agreed upon otherwise to be taxed" be set aside on the ground that it was made per incuriam, the court having already ordered in the same Ruling that "'The costs of this application assessed at Le2 million shall be borne by the defendants".

In support of this application the Defendants filed an affidavit sworn to by James Blyden Jenkins Johnston on the 27th January 2009 together with the exhibits attached.

Counsel for the Defendants submitted in argument that the 3rd order in the Ruling of 28th November 2008 ordering the cost of the application assessed at Le2 million to be borne by the defendants effectively disposed of the question of costs for the application. And so the 4th order was made per incuriam as there can only be one order as to costs in any application. Counsel further submitted that the words "the cost of this application" effectively took care of all costs in relation to that application and included the costs thrown away. Counsel referred to order 57 Rule 2 (5) of the High Court Rules 2007 as well as paragraph 62/3/13 of the Annual Practice 1999.

Counsel for the plaintiff did not file any affidavit in opposition but submitted that the plaintiff had filed a similar application which said motion was struck out by this court and that instead of applying for that motion to be relisted, they have now filed this application.

Counsel for the plaintiff further submitted that a distinction must be drawn between the costs awarded or incurred on the application before the court which was to set aside a default judgment and the costs thrown away leading to the application. He submitted that in any application to set aside a default judgment such shall be on terms that costs thrown away shall be borne by the applicant and such costs are distinct from costs awarded in the application.

I have carefully considered the application before me and have read the orders granted in my Ruling dated 28th November 2008, which is exhibited here and marked "B".

Was the said 4th order made per incuraim?. The "expression "per incuraim" is defined in the Dictionary of English Law by Clifford Walsh as follows "Per incuriam, through want of care. A decision or dictum of a judge which clearly is the result of some oversight is said so have been given per incuiam "

In the case MORELLE LTD V WAKELING 1955 1 ALL ER 708 (CA) Sir R. Evershed MR described per incuriam in the following terms at page 718 of the judgment. "As a general rule the only cases in which decisions should be held to have been given per incuraim are those of decisions given in ignorance or forgetful ness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, hut cases not strictly within it which can properly he had to have been decided per incuriam must , in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be. in the language of Lord Greene, MR, of the rarest occurrence ".

Was the order complained of made per incuiriam? Was it erroneous? Has it been found or does it appear to be "demonstrably wrong"? What statutory provision or rules if any does the order offend?

In the Ruling of the 28th November 2008, the 3rd and 4th orders are clearly distinct and appear to contemplate different aspect of costs Firstly the cost of the application would mean or refer to the motion dated 22'1' October 2008, the affidavits in support and in opposition and its hearing, which constitute the application to set aside. The 4th order seems to contemplate any other costs incurred which have been "thrown away" now that the judgment dated 17th October 2008 had been set aside.

Was the court wrong in drawing this distinction and awarding separate costs?

I think not. I cannot find my statutory authority or rule that prevents me from doing so. Order 57 Rule 1(1) of the High Court Rules 2007 gives the court power and discretion to award costs in any proceedings in court. The court may assess such costs if it is practicable to do so or may refer such assessment to be the taxing officer. See Order 57 Rule 2 (5) and (6)

In the instant case it is clear that the court could and did assess the "cost of the application" to set aside the default judgment and this was done in the 3" order in the said Ruling. However the costs that may have been ''thrown away" could not readily or practicably be assessed hence the 4th order was granted i.e." to been agreed otherwise to be taxed."

I am fully aware that the Annual Practice 1960 is no longer applicable in our jurisdiction but I find in it a very succinct description the expression "Costs thrown away", which I believe to be very helpful.

In the notes under Order 65 Rule 1 of the Annual Practice 1960 page 1845, "Costs thrown away" was described thus:

"This is an order frequently made on an application to set aside a judgment. It is one of the penalties imposed upon a defendant who, having failed to observe the rules as to appearance or delivery of defence, has allowed judgment to be entered by default. The words "Costs thrown away" include all costs reasonably incurred in enforcing the judgment such as execution and garnishee proceedings but do not include bankruptcy proceedings which are outside the Action........... The words do not necessarily include the costs of the application to set aside. These should be specifically provided for."

This passage clearly acknowledges the distinction between the two types of costs and the need for them to be provided for separately.

Indeed it seems that the above passage is clearly consistent with the decision/orders given in the case of BERTH AN MACAULAY V JIM DIAMANTOPOULOS 1962 SLLR 14. Here the plaintiff served a writ of summons on the defendant who failed to enter an appearance. The plaintiff entered judgment and then proceeded to file a motion to assess damages. The defendant then filed an application to set aside the default judgment. The court in granting the application had this to say @ page 16.

"I will therefore, grant the order sought on the motion on terms, namely that the defendant/applicant pay {he costs of the motion to assess damages as well as the costs of this application, "

Surely the judge in the last cited case clearly drew a distraction between the cost of the application to set aside and other costs which were incurred by the plaintiff in that case being the application to assess damages, which in my view would constitute the "costs thrown away"

In the light of the above I believe the costs awarded in the 3rd and 4th orders in the Ruling of 28th November 2008 were proper and do not offend any rule or order or stamory provision. Order 62 Rule 3 (5) particularly paragraph 62/3/13 in the Annual Practice 1999 in my view recognizes the existence of different heads of costs (including costs in the application and costs thrown away) which could be awarded in an action or interlocutory application as the case may be.

I therefore hold that the 4th order in the Ruling of 28th November 2008 was not made per incuriam.

I must now move on to briefly deal with the alternative order prayed for in this motion which was not specifically canvassed by the Defendant and so not replied to by the Plaintiff. I am considering it in the interest of justice as it is contained in the motion and not expressly abandoned.

My brief comment here is that in the 4th order in the Ruling of 28th November 2008 the court in it wisdom had ordered that those costs if not agreed were to be taxed. The court has clearly opted for the option of referring the assessment to the taxing officer. See Order 57 Rule 2 (5) & (6). One would have expected the Defendant to attend the proceedings of the taxing master and if dissatisfied with that assessment would then in accordance with the rules appeal or apply to the court for a review as the case may be. What the applicant is seeking in the alternative order prayed for is not a review of the award by the taxing officer but that "the costs allegedly thrown away be assessed by the Court". This was precisely what the court had declined to do and in any event the issue had since been taken to the taxing officer. In this regard 1 therefore find myself unable to grant the alternative order prayed for.

For the above reasons the Defendants' application contained in Notice of Motion dated 27th January 2009 is therefore refused. No order as to costs