Rollin Clifton Bertrand and others v Anthony Elias (Trinidad and Tobago)

Under the Civil Proceedings Rules 1998, prescribed costs are the starting point after discontinuance, but the court retains a discretion to order assessment. That discretion should be exercised only for good reasons and in exceptional cases, consistently with the certainty and proportionality purposes of prescribed costs. Relevant circumstances may include an ill-founded claim, gross disparity between actual and prescribed costs, exceptional importance or complexity, and risks to access to justice, freedom of speech or equality of arms. For an unspecified damages claim, the value for a defendant’s prescribed costs is the fullest value alleged, not a value proved after trial.

The claimants brought defamation proceedings arising from statements made by the defendant at a shareholders’ meeting. The claims were discontinued immediately before, or on the first day of, trial. The High Court ordered the defendant’s costs to be assessed by the Master, holding that it could not stipulate the value of the claims fairly before hearing the evidence and cross-examination.

The Court of Appeal allowed the claimants’ appeal, held that sufficient material existed to stipulate the value of the claims, and remitted the matter for that purpose so that prescribed costs would apply. The defendant appealed to the Board, principally arguing that the discretion to order assessed costs should be exercised because prescribed costs would be grossly inadequate in the circumstances. The central issues were the proper approach to stipulating the value of an unspecified damages claim and whether the general prescribed-costs rule should be displaced.

1. Disposition. Lord Stephens gave the judgment of the Board. The defendant’s appeal was allowed, and the High Court order that the claimants pay the defendant’s costs, to be assessed by the Master in Chambers, was reinstated.
2. Prescribed costs and valuation. On discontinuance, the claimant is liable for the defendant’s costs unless the court orders otherwise. Where fixed or budgeted costs do not apply, the general rule is that costs are quantified as prescribed costs. For a defendant in a damages claim where the claim form specifies no amount and the parties have not agreed a value, the court must stipulate the value of the claim. The relevant value is the fullest value alleged by the claimant, not a value proved after trial. The High Court therefore erred in treating the absence of evidence and cross-examination as preventing valuation.
3. Discretion to order assessment. The Court of Appeal correctly held that the value could be stipulated, but erred in treating that conclusion as requiring the appeal to be allowed without exercising the separate discretion whether to order assessed costs. That discretion exists even where no advance application or order for adjusted prescribed costs or budgeted costs has been made. It must be exercised only for good reasons and in exceptional cases, so that the purposes of certainty and proportionality are not undermined. The Board applied the approach discussed in Rampersad v Ramlal [2022] UKPC 50.
4. Application. The case was exceptional because the corporate claimants expressly acknowledged that their proceedings were ill-founded, the claims had been pursued despite detailed notice of the defendant’s estimated costs, and the reasonable actual costs were hugely disproportionate to the likely prescribed costs. The importance of the allegations, the significant factual and legal complexity, the risk to access to justice and freedom of speech, and the disparity in resources and equality of arms were cumulative reasons supporting assessment. Complexity is relevant only where it is significant and contributes substantially to the disparity.

• Privy Council: In [2023] UKPC 34, allowed the defendant’s appeal and reinstated the order for the defendant’s costs to be assessed by the Master in Chambers.
• Court of Appeal of the Republic of Trinidad and Tobago: Allowed the claimants’ appeal, held that the value of the claim could be stipulated from the available material, and remitted the matter to the trial judge for stipulation of that value.
• High Court: Charles J ordered that the defendant’s costs be assessed by the Master in Chambers.