Michelle Trotman, The Caura Hospital Director v Nailah Ramsaroop (Trinidad and Tobago)

Party-and-party costs must reflect work actually done in the particular case and must be proportionate, reasonable and fair to both parties. Assessment requires consideration of the overall figure and individual items, followed by a final review of the total. In an ordinary habeas corpus application, a separate brief fee should not ordinarily be allowed where itemised charges cover all work done. A brief-fee arrangement remains possible, but the work involved must be clearly explained. An appellate court may intervene in a costs assessment for a material factual error, an error of principle, failure to consider relevant matters, or a clearly excessive conclusion.

The appellant and her mother were quarantined at hospital after testing positive for Covid-19. They commenced habeas corpus proceedings. After the Public Health [2019 Novel Coronavirus (2019-nCoV)] (No 10) Regulations 2020 came into force and lawful isolation orders were made, both applications were withdrawn. Rahim J ordered the respondent to pay the costs. An Assistant Registrar assessed the appellant’s costs at $125,770. The Court of Appeal allowed the respondent’s appeal, disallowed amounts for costs submissions and a brief fee, and reduced the remaining sum by 50% to $43,185. The appeal concerned the proper scope of appellate review, the recoverability of a brief fee in habeas corpus proceedings, and the effect of duplication between related claims.

1. Appellate review. The Board held that review of a costs assessment applying the open-textured standards of proportionality, fairness and reasonableness is analogous to review of an exercise of discretion. Intervention is justified for legal misdirection, irrelevant or omitted considerations, an error of principle, or a clearly wrong conclusion. In applying proportionality, there must be a significant error of principle or an identifiable flaw in reasoning undermining the conclusion. This approach was consistent with In re Grayan Building Services Ltd [1995] Ch 241 and R (R) v Chief Constable of Greater Manchester Police [2018] UKSC 47.
2. Assessment of costs. Under the Civil Proceedings Rules 2016, party-and-party costs must be proportionate, reasonable and fair between payer and recipient, and must relate to work actually done in the particular case. The assessor must conduct both a global and item-by-item assessment, then stand back to ensure that the resulting total remains fair, reasonable and proportionate.
3. Brief fees. An ordinary habeas corpus application does not involve a full trial or the additional preparation described in Loveday v Renton and The Wellcome Foundation Ltd (No 2) [1992] 3 All ER 184. Where itemised charges cover all work done, a separate brief fee should ordinarily not be allowed. A party may agree a brief-fee arrangement, but recovery requires a clear explanation of the work involved. Itemised time and charges may provide the more reliable basis for assessment. The Board applied the guidance in Attorney General of Trinidad and Tobago v Haleema Mohammed (by her next of kin and friend Crystal Carmel Mohammed) Civil Appeal No S-218 of 2018.
4. Errors in the assessment. The Assistant Registrar included $16,400 for work not done, allowed a $23,000 brief fee despite the itemised charges, underestimated duplication caused by the related lead claim, and failed to reassess the overall figure adequately. Any one of these errors was sufficient to justify setting aside the assessment. The Court of Appeal was entitled to make its own assessment.
5. Guidance and final order. The Court of Appeal was entitled to give general procedural guidance on costs in habeas corpus cases. The Board followed the restrained approach in Competition and Markets Authority v Flynn Pharma Ltd [2022] UKSC 14, Fourie v Le Roux [2007] 1 WLR 320 and R (Gourlay) v Parole Board [2020] UKSC 50. The appeal was dismissed and the assessment of $43,185 was affirmed.

• Privy Council. The appeal was dismissed. The Board affirmed the Court of Appeal’s substituted assessment of $43,185 and its guidance on costs in habeas corpus proceedings.
• Court of Appeal of Trinidad and Tobago. On 24 November 2023, permission to appeal was granted and the respondent’s appeal was allowed. The Court disallowed $16,400 for costs submissions, disallowed a $23,000 brief fee and applied a 50% reduction for duplication.
• Assistant Registrar Kimberly Prescott. On 17 February 2023, the appellant’s costs were assessed at $125,770 under the Civil Proceedings Rules 2016.
• Rahim J. On 22 May 2020, the respondent was ordered to pay the costs of the withdrawn habeas corpus applications.