Bhagwantee Singh-Weekes (as Legal Personal Representative of the Estate of Navin Singh) v South-West Regional Health Authority (Trinidad and Tobago)

Under rule 67.13, the word awarded includes costs already awarded and costs still to be awarded. A recipient who is not VAT-registered may recover the appropriate VAT on prescribed costs, subject to the indemnity principle. The recoverable amount is the lesser of 12.5% of the prescribed costs and the VAT actually paid or payable on the attorney’s fees. The recipient bears the burden of establishing entitlement. The evidence and timing required depend on the circumstances and must reflect the overriding objective. In ordinary cases, a VAT certificate and suitable representation may suffice. The court retains jurisdiction to alter its order until that order is perfected.

The appellant, acting as legal personal representative of her deceased son’s estate, succeeded in a medical negligence claim. The trial judge awarded damages and prescribed costs but refused a subsequent request to add VAT. The Court of Appeal increased the damages and awarded prescribed costs on the revised sum, but upheld the refusal of VAT on the basis that rule 67.13 referred only to costs already awarded. Before the Board, the issues were whether the trial judge was functus officio before the order was perfected, whether rule 67.13 authorised VAT on prescribed costs, and what evidence was required to establish entitlement under the indemnity principle.

1. Appeal allowed. The Court of Appeal’s literal interpretation of rule 67.13 was incorrect. In context, awarded means awarded or to be awarded. The rule therefore permits the appropriate VAT to be added to prescribed, assessed or budgeted costs.
2. The trial judge was not functus officio before the order was perfected. Under the inherent jurisdiction recognised in Liberty Development Co Ltd v Official Receiver Civ App No 91 of 2015, and the equivalent English rule identified in In re L and B (Children) [2013] UKSC 8, the court may recall or change an order during that period.
3. The indemnity principle limits recovery. For prescribed costs, the appropriate amount is the lesser of VAT at 12.5% on the prescribed costs and the VAT actually paid or payable by the recipient on the attorney’s fees. Rule 67.13 is concerned with prescribed costs, not the costs actually incurred, but the recipient must have incurred sufficient VAT liability to avoid over-compensation.
4. The burden lies on the recipient of the costs award to establish entitlement. The evidence required varies with the circumstances and must be proportionate and consistent with the overriding objective in rule 1.1 of the Civil Proceedings Rules 1998 of Trinidad and Tobago. Where a VAT-registered attorney has conducted the litigation throughout, a VAT registration certificate and a representation that the VAT charged is at least the sum claimed will ordinarily suffice. The paying party must show a real possibility of breach of the indemnity principle and that further information would be proportionate.
5. Where representation is divided between non-VAT-registered and VAT-registered attorneys, 12.5% of the prescribed costs is ordinarily recoverable if the VAT paid or payable to the VAT-registered attorney equals or exceeds that amount. On the facts, the Board accepted the representation that the VAT liability greatly exceeded the proposed uplift. No further investigation or production of fee notes was required. The appellant was entitled to the 12.5% uplift, understood to be $18,388.85, subject to submissions if that calculation was incorrect. Written submissions on the uplift and costs at each stage were invited within 21 days.

• Privy Council: [2025] UKPC 10 allowed the appeal and held that the appellant was entitled to a 12.5% VAT uplift on the prescribed costs, subject to final submissions.
• Court of Appeal of the Republic of Trinidad and Tobago: increased the damages award, awarded costs on the prescribed basis, but refused to add VAT.
• Quinlan-Williams J: found liability, awarded damages and prescribed costs, and refused the later application to add VAT. The sealed order was issued on 15 December 2020.