Sanderson J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 524 OF 2002
BETWEEN: IRVIN BANKS
PLAINTIFF
AND:
RICHARD ARCH
MARGARET ARCH
DEFENDANTS
Appearances: Mr. Anthony Akiwumi of Stuarts for the Plaintiff
Mr. Kyle Broadhurst of Broadhurst Barristers for the Defendants
Before: Hon. Justice Sanderson
Heard: July 12, 2005
ORAL REASONS FOR JUDGMENT
Costs
I delivered reasons for judgment in this case on July 7th, 2005 in which I awarded the plaintiff damages against the defendants in the amount of $1,131.90.
The parties appeared before me today both seeking costs of the trial.
The plaintiff seeks costs, primarily on the basis of the ordinary rule that costs should follow the event. The plaintiff was successful overall in this case, in that he was awarded damages in the amount of $1,131.90.
The defendant on the other hand asserts that while the plaintiff was successful, it was only for a marginal amount and out of proportion for a trial which took approximately eleven days of evidence and argument. The defendant further asserts that if the court examines the decision on an issue by issue basis, it was the defendants who were largely successful. The defendants submit that the plaintiff advanced arguments which were significantly time consuming, such as the issue of whether or there was a surrender or forfeiture, that those issues took a good deal of time and in the main the defendant was successful on what they refer to as the substantial issues.
There is merit in the plaintiff’s general submission that costs should normally follow the event, absent of good reason for that rule being departed from. It is no answer for the defendants to say that the award was only marginal and therefore the plaintiff should not have his costs. There are ways of dealing with that result, in particular the writing of a Calderbank letter or other offer of settlement which can be brought to the court’s attention post judgment and which the court can take into account in exercising its discretion on the question of costs. I was not told of any Calderbank letter or other offer to settle and accordingly, at least at first instance, the general rule that costs should follow the event, ought to apply.
There is, however, considerable merit in the defendants’ assertion that this case should be examined on an issue by issue basis. As previously stated, the trial and argument occupied some eleven days of hearing over an extended period of time due to counsels estimates of time difficulties of obtaining court time, counsel’s time and the number of issues raised by the plaintiff.
The issue for consideration by the court at this point, is who really was successful on the main issues.
The issue on which the plaintiff was successful was the finding that there had been an irregular distress. There was no dispute by the plaintiff that he owed certain monies to the defendants. That was never an issue that the defendants had to deal with by way of evidence or argument. Having found that the distress was irregular I had, therefore, to turn to the respective valuations to do the best I could to calculate the measure of damages. Those damages were slightly more than the amounts which the plaintiff admitted owing to the defendant. The valuations of the defendants were preferred over the plaintiff’s. The net result was an award in the plaintiff’s favour in the amount stated above.
The issues that were decided against the plaintiff were significant, in terms of the time consumed, the legal complexity and consequences to the parties. The primary issue determined was whether or not there has been a surrender or forfeiture of the lease. That occupied a great deal of time, and in many ways was the focus of the judgment. There
were several other collateral issues which arose from that determination upon which I did not rule. They did however occupy a fair amount of the time both in terms of evidence and argument. There were several other ancillary issues (for example the quantum of damages), which have been pointed out by Mr. Broadhurst as being issues that were decided in favour of the defendants. On balance, the issue that was ultimately determined in favour of the plaintiff was, in a relative comparison with the issues in totality, less significant and time consuming than the issues and claims upon which the defendants were successful. I conclude that this is an appropriate case for varying from the general rule that costs should go to the successful party. The plaintiff was successful in the monetary award but was unsuccessful on the majority of the significant issues that he raised and which took a considerable amount of time.
Accordingly, balancing all of these factors, as best the court is able, I conclude, that the appropriate award in this case, is that each party should bear their own costs on the basis that there has been divided success. The plaintiff achieved a slight monetary success, the defendant succeeded in respect of the more significant and time consuming claims of the plaintiff.
Dated this 12th day of July, 2005
Sanderson, J.
Judge of the Grand Court