Olive Group Capital Ltd Claimant v Gavin Mark Mayhew Defendant

• Jurisdiction: British Virgin Islands
• Judge: Leon J
• Judgment Date: 29 April 2016
• Neutral Citation: VG 2016 HC 7,[2016] ECSC J0429-4
• Court: High Court (British Virgin Islands)
• Docket Number: Claim No. BVIHC (Com) 2015/115
• Date: 29 April 2016

[2016] ECSC J0429-4

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

COMMERCIAL DIVISION

Claim No. BVIHC (Com) 2015/115

In the Matter of Olive Group Capital Limited

And in the Matter of the BVI Business Companies Act, 2004

Between:

Olive Group Capital Limited

Claimant

and

Gavin Mark Mayhew

Defendant

Appearances on 27 January 2016:

Jeremy Child for Claimant

Mark Forte, Rosalind Nicholson and Tameka Davis for Defendant

Appearances on 2 February 2016:

Jeremy Child (by telephone) for Claimant

Mark Forte, Rosalind Nicholson and Tameka Davis for Defendant

Appearances on 9 February 2016:

Jeremy Child (by telephone) for Claimant

Mark Forte and Tameka Davis for Defendant

Assessments of costs of a claim following an application to determine a preliminary issue, the costs of an interim stay application, and the costs of the assessments of costs.

An order that one party pay another party's costs of a proceeding is a general costs order that includes "pre-litigation costs" (costs incurred before proceedings commence that prove of use and service in the action or the incurring of which was proper for attainment of justice in the case) — Expansive view of pre-litigation costs encourages respondents as well as claimants to investigate, analyze, assess, focus and prepare early, all of which furthers the Overriding Objective.

Costs for appropriate work by foreign lawyers in connection with litigation in the Territory is recoverable as disbursement — In international commercial litigation (which is the vast majority of work of the Commercial Court in the Virgin Islands), the involvement of lawyers from other jurisdictions is common — It is a reality and a practical and reasonable necessity — Costs systems, certainly in relation to international commercial litigation, must recognize realities of today's international commercial litigation — Grand Pacific Holdings Ltd. v Pacific China Holdings Limited, BVIHC 2009/389, 3 December 2010 (Bannister J) followed.

Involvement in commercial and corporate (or other specialized) litigation of an experienced transactional and advisory lawyer (solicitor) can add great value by bringing to litigation team substantive and contextual knowledge; perspectives on legal and sometimes factual issues, on practices 'on the ground', and on the broader context; focused contextual research (hands-on or directed) on difficult corporate law issues; and honed commercial instincts including instincts relevant on overall litigation strategy and tactics — Such corporate legal practitioner involvement on litigation team in these types of cases adds value, increases efficiency and leads to a more effective presentation of party's case.

CPR 69B.11(3) requires that a schedule of costs "particularise the amount of time spent upon the application by the legal practitioner or his partners or employees, specifying in each case — (b) the task or tasks undertaken by the [person] , and (c) the precise time spent upon each such task by the relevant [person] — Task may be defined as "a piece of work to be done or undertaken" — Like all CPR provisions, it is to be interpreted in light of overriding objective of dealing with cases justly — "Justly" means here that it must be interpreted in manner that is just for both parties — Time records, particularly in an intensive or expedited proceeding, need not meet standard of perfection — Can and should be read in context by an informed reader, particularly when assessment conducted by Commercial Court Judge who heard proceedings and, to reasonable degree, knows from recollection and evidence in proceedings what was going on at various stages — Time records need to be read with these considerations in mind and in contextual manner-A time record not being perfect or near perfect time need not lead to its disallowance if reasonably clear from context what was done — Burden on party receiving costs to be realistic and have regard for reasons paying party should have information for assessment purposes, to see if costs claimed meet requirements of CPR and case law ("each item should have been reasonably incurred and the costs for each item should be reasonable").

Total sum claimed reasonable and proportionate, having particular regard to requisite considerations, and viewed globally — At Court's request, costs grouped by "activity" in litigation process, a useful additional way to aid in assessment of reasonableness and proportionality — Bore out reasonableness and proportionality — Sum claimed fair to both parties — Global approach indicated that costs claimed, having particular regard to specified considerations, are proportionate, and with limited exception for which disallowances made, each item of costs claimed was reasonably incurred and costs for each item is reasonable — Alternatively, subject to limited exceptions referenced, work in relation to each item necessary and cost of each item reasonable.

Paying party declined receiving party's invitation to disclose in some manner and to some extent its costs as means to assess or confirm reasonableness and proportionality, and Court did not order disclosure — Perhaps should be practice to do so, at least in some cases, as means to add perspective and context as global 'reality check', recognizing that there always will be differences due to wide range of factors — May deter paying parties from taking overly aggressive and arguably unrealistic hindsight positions on assessments — Would need to be done in cost-effective manner — Detailed costs schedules from paying party would not be helpful — Should show big picture view.

ASSESSMENTS OF COSTS PURSUANT TO JUDGMENT ON CLAIM DATED 21 JANUARY 2016 AND ON INTERIM STAY APPLICATION DATED 22 JANUARY 2016

1 Leon J [Ag] : On 21 January 2016 this Court handed down the Judgment ("Main Judgment") on an application ("Application") to determine a preliminary issue ("Preliminary Issue") in this Claim 1 pursuant to this Court's Order dated 16 October 2015 2, and in the result, the Judgment finally determined the Claim.

2 This Court ordered that the Claimant Olive Group Capital Limited ("Company") pay the Defendant Gavin Mark Mayhew ("Mayhew") his costs of the Claim (including the injunction proceedings and the hearing on 21 January 2016), to be the subject of a detailed assessment by the Court commencing on 27 January 2016, unless agreed ("Main Judgment Costs Assessment")3.

3 Immediately following delivery of the Judgment on 21 January 2016, the Company applied orally to this Court for an interim stay of the Main Judgment pending the Company's proposed application to the Court of Appeal for a stay of the Main Judgment pending the determination of the Company's proposed appeal of the Main Judgment to the Court of Appeal ("Interim Stay Application").

4 On 22 January 2016 the Court delivered Judgment on the Interim Stay Application ("Interim Stay Judgment"), dismissed the Interim Stay Application, and ordered that the Company pay Mayhew his costs of the Interim Stay Application, to be

assessed (in a detailed assessment) by the Court commencing on 27 January 2016, unless agreed ("Interim Stay Costs Assessment")4.

5 This Court has conducted the Main Judgment Costs Assessment and the Interim Stay Costs Assessment, and in addition with the concurrence of the parties this Court conducted an assessment ("Assessment of Costs of Costs Assessments") of Mayhew's costs of the costs assessments ("Costs of Costs Assessments"), subject to the proviso that the Court had yet to receive submissions of the parties and make any decision respecting the award of the costs of the costs assessments. This is the Judgment on those three assessments of costs (collectively, "Assessments").

6 Both parties filed considerable written materials in connection with the Assessments, including the materials described below.

7 Mayhew filed materials that included, among other materials, the following:

• a) Submissions on Costs dated 14 January 2016;

• b) Detailed Schedule pursuant to CPR 69B.13(2) and 69B.11(3) dated 14 January 2016, which were updated during the course of the assessments (collectively, "Statement of Costs — Claim");

• c) Skeleton Argument on Assessment of Costs and Interim Payment [the interim payment application did not proceed in light of the order for an expedited detailed assessment] ;

• d) Witness Statement of Timothy N. Ross ("Mr. Ross") (filed unsigned at the 21 January 2016 hearing with an undertaking, subsequently fulfilled, to file a signed copy in due course);

• e) Further Written Submissions on Assessment of Costs (for hearing on Wednesday 27 January 2016) dated 25 January 2016 with (as requested by the Court) a Schedule of Costs by Activity;

• f) Bundle of Authorities [on] Pre-Litigation Costs;

• g) Statement of Costs in relation to the Stay Application, which were updated during the course of the Assessments (collectively, "Statement of Costs-Stay");

• h) Statement of Costs in relation to the Assessments, which were updated during the course of the Assessments (collectively, "Statement of Costs — Assessments of Costs"); and i) Points in Reply.

8 The Company filed materials that included, among other materials, the following:

• a) Written Submissions on Costs and Interim Payment on Account of Costs ("Company Written Submissions 1") [as noted above, the interim payment application did not proceed in light of the order for an expedited detailed assessment] for hearing on 21 January 2016, dated 19 January 2016;

• b) "Claimant's Points of Dispute on Interim Payment on Account of Costs", which Points of Dispute were updated as "Claimant's Updated Points of Dispute as Directed on 2 February 2016, and supplemented with additional Point of Dispute in relation to Mayhew's "Schedule (Updated)" (collectively, "Points of Dispute Claim Costs");

• c) Written Submissions on Costs for hearing on 27 January...