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Makin v IAC Pacific Ltd [2003] VUSC 24; Civil Case 140 of 1998 (15 May 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 140 of 1998

BETWEEN:

CAPTAIN PAUL J. MAKIN
Plaintiff

AND:

I.A.C. PACIFIC LIMITED
Defendant

ASSESSMENT OF COSTS

Rule 1.2. Civil Procedure Rules 2002 states:

“(1) The overriding objective of these Rules is to enable the courts to deal with cases justly.

(2) Dealing with cases justly includes so far as practicable:-

(a) ensuring that all parties are on an equal footing; and
(b) saving expense; and
(c) dealing with the case in ways that are proportionate:-

• (i) to the importance of the case; and
• (ii) to the complexity of the issues; and
• (iii) to the amount of money involved; and
• (iv) to the financial position of each party; and

(d) ensuring that the case is dealt with speedily and fairly; and
(e) allocating to it an appropriate share of the courts resources, while taking into account the need to allot resources to other cases.”

The overriding objective was in force under the interim rules from 15^th December 2000. The 2002 Rules came into force on 31^st January 2003. The majority of these proceedings have been conducted when the overriding objective was in force. The parties paid scant regard to them. Indeed, their conduct was more in keeping with First World War trench warfare than the overriding objective. Further, an early resort to Alternative Dispute Resolution might well have saved both parties large sums in legal costs.

Various costs orders have been made throughout the proceedings. It would be wholly out of proportion to the sums and issues involved to carry out a full determination of costs. Further, to do so would allot an inappropriate share of the court’s reasons.

It is on this basis, having received the oral and written submissions of the parties, that an assessment of costs is made. It will necessarily not be a precisely accurate ascertainment of costs.

The Court has also proceeded on the basis of inviting the parties to suggest the percentage of time spent on particular segments of the case and the hours involved.

I will not rehearse the course of the litigation nor the reasons for various rulings and steps. They are set out in the specific documents issued by the Court. I will not set out the arguments of each of the parties on costs. They are set out in the written submissions.

A. Claims Abandoned Before First Day of Trial

The plaintiffs brought and abandoned the employment agency claim and lost a further discovery application. The defendants brought and abandoned the defamation claim. I find the hours claimed for these heads of action are grossly excessive. The defendants say they have spent a little under two full weeks on this defamation claim, and the plaintiffs somewhat over. The defendants say they spent 90 hours defending the employment/agency claim. The employment/agency claim should never have been launched; the defamation claim was tactical.

The question on an assessment is, do the costs for the defamation broadly equal those for the employment action and discovery application; or are they greater or less. I disregard the time figures put forward by the parties, save to note that they are not unduly far apart, the defendants’ figure is approximately 20% more than that of the plaintiff. (The defendant has not given even a broad résumé of how the hours are arrived at; the plaintiff has done so.)

I find that these items in terms of costs are approximately equal and cancel each other out. In my judgment, from the papers and submissions, the work involved was approximately equal.

2. The 13^th Month Claim (Item 4)
   

This was a claim abandoned by the plaintiff, without notice, just before his case was opened. The defendant claims 185 hours (pre-trial) and 30 hours (trial preparation) for this discrete claim, a total of 215 hours. That is grossly excessive. It is said to have taken 51% of the pre trial time (excluding the matters in A). That is wholly disproportionate. These assessments are made taking into account the size of this claim and the fact it was greater, in many terms, than the others put together.

When grossly exaggerated claims are made they tend to undermine the credibility of more realistic figures.

The 13^th month claim was basically one of contract interpretation together with surrounding evidence. The contract itself was not particularly long or complex. The surrounding evidence would have required detailed attention. The law potentially involved was not novel or complicated.

I find 50 hours is a reasonable, if not generous, figure.

100. The Trial Claims
     

Items 5 + 6 – I make an allowance of 2 hours for the costs of these claims. That is proportionate. They also were minute in size and substance when set within the context of these proceedings.

Item 3 – Training Period Levy Underpayment

I find the defendants’ claim of 50 hours for costs under this head is excessive. Whilst it necessarily involved a substantial amount of oral evidence, the failure of the defendants to disclose the KAL-IAC contract until trial enticed the plaintiff into continuing with a claim which might well have been resolved at a much earlier stage. On the other hand the plaintiff virtually conceded the claim in cross-examination.

I assess the work of the defendant under this head at 20 hours.

Item 2 – Days off Claim

This item did take up a significant part of the preparation and evidence, although the sum claimed was not particularly great. The hours claimed in defending this head are out of proportion to the total value of the claim as pleaded, even making allowance for the preceding sentence.

I assess the time at 20 hours.

Item 1 – The Good Faith Payment

Once the thirteenth month payment had gone, this claim was greater then all the others put together and was largely successful. A significant amount of preparation was required for this, a substantial amount of evidence was involved and some law. The plaintiff has not specifically quantified the hours under this head, but it would certainly have been greater than the time spent on the other heads which eventually were tried.

The defendant suggests 50 hours and 13% of the time. I consider this is on the low side. On the plaintiffs figures it was 30% of 232 hours, that is 69.6 hours. I award 70 hours on this head.

D. The Totals

The plaintiff has therefore been awarded a total of 70 hours work. The defendant has been awarded 92 hours. The difference is 22 hours at VT10,000 per hour is VT220,000. The plaintiff must pay the defendant this sum (or its mid-point equivalent in New Zealand or Australian dollars at the defendants’ option) by 3 p.m. on 20^th June 2003. If some or all the costs order made by the Court of Appeal on 1^st November 2001 has not been paid, it may be deducted against this sum.

I make no order concerning disbursements. These costs will lie where they fall.

I make no order for costs concerning the hearings for this assessment.

I have considered this overall costs result in the context of the case as a whole and proportionality to the sums and issues involved. I find it is consistent with these.

Dated at Port Vila, this 15^th day of May 2003.

R. J. COVENTRY
Judge.