Phyllis Rampersad and another v Deo Ramlal and 3 others (Trinidad and Tobago)

Under the Civil Proceedings Rules 1998, the unsuccessful party generally pays the successful party, but the court retains discretion over both liability and quantification. Where fixed costs and an approved budget are absent, prescribed costs are the default, not an inflexible requirement: assessed costs may be ordered, normally on the standard basis unless indemnity costs are expressly awarded. Serious fraud allegations pursued dishonestly and requiring an extensive trial may justify assessed costs. Parties should generally be heard and reasons given before departing from costs guidelines, but procedural defects will not invalidate an order without prejudice. A costs appeal ordinarily requires permission, subject to narrow exceptions. Here, the defective and abandoned merits appeal could not support a later costs challenge, which was an abuse of process.

The appellants claimed that the respondents had procured a land transaction by fraudulent misrepresentation and forgery. After a four-day trial, Dean-Armorer J rejected the allegations, dismissed the claim and ordered the appellants to pay the respondents’ costs to be quantified by the Registrar.

The appellants abandoned their merits appeal but later sought to challenge the form and amount of the costs order. The Court of Appeal of Trinidad and Tobago dismissed the challenge as an abuse of process. The central issues before the Board were whether assessed costs could properly be ordered, whether the costs appeal required permission and properly formulated grounds, and whether the Court of Appeal’s own costs order was permissible.

Appeal dismissed unanimously.

1. Under the Civil Proceedings Rules 1998, prescribed costs are generally applicable where fixed costs do not apply and no budget has been approved. That does not prevent the court from awarding costs to be assessed under the relevant assessment rules. Unless indemnity costs are ordered, assessment is on the standard basis, excluding costs unreasonably incurred or unreasonable or disproportionate in amount.
2. The trial judge’s order for assessed costs was an unimpeachable exercise of discretion. The claim involved serious allegations of fraud, extensive cross-examination and findings that the appellants had dishonestly distorted the truth. Such circumstances would normally justify indemnity costs, but the order did not expressly impose that basis and was properly construed as an order for assessment on the standard basis.
3. Parties should generally have an opportunity to make representations before a costs order is made. Where the court departs from the CPR guidelines, it should generally give reasons. The Board approved the principles stated in Pan Trinbago Inc v Simpson (CA Civ App No S-027 of 2013) and applied the guidance in English v Emery Reimbold & Strick Ltd ([2002] EWCA Civ 605; [2022] 1 WLR 2409). The absence of a hearing caused no prejudice: the order had an obvious rational basis, and submissions would probably have led to indemnity rather than standard costs.
4. Section 38(2) of the Supreme Court of Judicature Act of Trinidad and Tobago ordinarily requires permission to appeal a costs order. The limited exceptions include a genuine merits appeal, an error of law governing or affecting costs, or a discretion that was not judicially exercised. Permission should ordinarily first be sought from the judge who made the order, with concise grounds as required by the CPR. The Board approved the procedural observation in Attorney General of Trinidad and Tobago v Mohammed (Civil Appeal Application No S 008 of 2015).
5. The original notice of appeal contained only a general merits ground. The appellants neither amended it nor sought permission to challenge costs, and later abandoned the merits appeal. The Court of Appeal was therefore entitled to refuse the costs challenge at the substantive hearing and to treat it as an abuse of process. Its order for appeal costs fell within its reasonable discretion and disclosed no basis for interference.

1. Privy Council — dismissed the appeal unanimously on 8 December 2022.
2. Court of Appeal of Trinidad and Tobago — dismissed the appellants’ costs challenge on 3 February 2021, treating it as an abuse of process.
3. High Court of Trinidad and Tobago — Dean-Armorer J dismissed the claim after trial and ordered the appellants to pay the respondents’ costs to be quantified by the Registrar.