Vladimir Niyazov v Maples and Calder

• Jurisdiction: British Virgin Islands
• Judge: Ellis JA
• Judgment Date: 12 October 2020
• Neutral Citation: VG 2020 CA 18
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCMAP2018/0051
• Date: 12 October 2020

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mde. Vicki Ann Ellis Justice of Appeal [Ag.]

BVIHCMAP2018/0051

Between:

Vladimir Niyazov

Appellant

and

[1] Maples and Calder

[2] Agon Litigation

Respondents

Appearances:

Mr. Jonathan Crystal for the Appellant

Mr. David Welford for the First Respondent

Mr. Michael Fay, QC for the Second Respondent

Commercial appeal — Recovery of costs — Whether solicitor and/or barrister acting in person can recover costs — Interpretation of Legal Profession Act, 2015 — Whether a firm of legal practitioners is entitled to recover legal costs in proceedings for which it acted for itself — Whether the exception to the rule governing recovery of costs in London Scottish Benefit Society v Chorley, Crawford and Chester applies in the Territory of the Virgin Islands — Chorley exception — Whether Chorley exception unconstitutional in light of the right to equality before the law under section 12 of the Constitution of the Territory of the Virgin Islands

On 22 ^nd January 2019, the appellant was granted leave to appeal a decision from the Commercial Court. However, the appellant failed to either serve the notice of appeal within the period prescribed by the said order or to file and serve his written submissions or the bundle of documents in support of the notice of appeal. The appellant sought relief from sanctions and an extension of time to file written submissions in support of his appeal. This application was dismissed, inter alia, on the ground that the appeal had no prospects of success. As a consequence, the Court also dismissed the substantive appeal. The respondents who were law firms and who acted as self-represented litigants submitted that the appellant should be ordered to pay not only their costs of the application but also the costs of the appeal.

The broad issues which arose for determination before this Court were: (i) whether the Chorley exception would operate to cover barristers and or law firms when acting as litigants in person in proceedings in the Territory of the Virgin Islands (“BVI” or “the Virgin Islands”); and (ii) whether the Chorley exception should be abandoned on the basis that it violates section 12 of the BVI Constitution which guarantees that everyone is equal before the law and has the right to equal protection and benefit of the law.

Held: ordering that the appellant pays the costs of the respondents on their application and such reasonable costs incurred in preparing for the hearing of this appeal to be assessed by a judge of the Commercial Court if not agreed within 30 days of the date of this order, that:

• 1. The Civil Procedure Rules 2000 (“CPR”), which provides the procedural framework, makes it clear that costs are in the discretion of the court. A court has full power to determine by whom, to whom and to what extent costs are to be paid. It is clear that the relevant provisions of the CPR do not reflect any distinction between barristers and solicitors and are therefore clearly inconsistent with the limited application of the Chorley exception. It is also apparent that the BVI has never, as a matter of law or practice, recognised a distinction between solicitors and barristers in so far as the recovery of costs is concerned. Given the peculiar historical context and the evolving and peculiar legislative framework which currently operates in the Virgin Islands, the Court can see no proper basis to refrain from extending the Chorley exception so as to enable self-represented barristers to recover their costs in respect of work undertaken, as if they had been retained as counsel.

  Rule 2.4 and Part 64 of the Civil Procedure Rules 2000 applied.

• 2. Fairness, justice and equality before the law and their reflections in a lack of differential treatment without a reasonable relation to a proper objective, must characterise the judicial process and its expected outcomes. When considering the rationales which underpin the Chorley exception, the Court is satisfied that they do not meet the relevant threshold and that the only logical conclusion which remains is that the exception is grounded in privilege accorded to solicitors. The Chorley exception is inconsistent with the equality of all persons before the law.

  Quincy Mc Ewan v The Attorney General of Guyana [2018] CCJ 30 (AJ) applied; Husbands v Warefact [2003] UKPC 23 distinguished.

• 3. In the Eastern Caribbean, the common law has continued to evolve such that there is no reason to continue to maintain the general rule that a self-represented litigant should not obtain recompense (other than out of pocket expenses) and the common law distinction between barristers and solicitors adumbrated in the Chorley line of authorities. The modern approach reflected in Horsford v Bird [2006] UKPC 55, [2007] 2 Costs LR 245 and in rule 2.4 and Part 64 of the CPR is one which fully remedies the constitutional dilemma fostered by Chorley and its disparate treatment of self-represented lay litigants.

  Horsford v Bird [2006] UKPC 55, [2007] 2 Costs LR 245 applied.

• 4. Section 13 of the Legal Profession Act, 2015 (“the LPA”) was intended to remove any lingering distinctions between barristers and solicitors thus entitling all persons who are admitted to the roll, now referred to as legal practitioners, to have the right of audience before any court; to practise law in the BVI and to sue for and recover their fees for services rendered. However, the transitional provisions introduced shortly after the LPA was passed, effectively suspended the operation of section 13 of the LPA while inadvertently ignoring the fact that section 66 (1) of the LPA had repealed sections 70 and 71 of the Eastern Caribbean Supreme Court (Virgin Islands) Act 1969 which entitled an enrolled barrister to practise as a solicitor, and to sue for and receive his or her taxed costs as such. In temporarily suspending the total fusion of the legal profession in this way, the Legislature could not have intended to deprive enrolled barristers of a long established right which is also reflected in the historical and practical realities which obtain in the Virgin Islands.

  Sections 13, 66(1) and 67(1) of the Legal Profession Act, 2015 No. 13 of 2015, Laws of the Virgin Islands and the Legal Profession (Amendment) Act No. 1 of 2016, sections 70 and 71 of the Eastern Caribbean Supreme Court (Virgin Islands) Act, Cap. 80, Revised Laws of the Virgin Islands 1991 considered.

1 Ellis JA [AG.]: The appeal in this matter arose out of an ex tempore judgment by Wallbank J (“the learned judge”) in which he dismissed the appellant's application for a wasted costs order against Agon Litigation and Maples and Calder (referred to collectively as “the respondents”), and ordered the appellant to pay in total $25,000.00 in costs ($18,000.00 to Agon Litigation; $7,000.00 to Maples and Calder).

2 The appellant was granted leave to appeal that decision on 22 ^nd January 2019. However, the appellant did not serve the notice of appeal within the period prescribed by the order which granted leave to appeal and also failed to file and serve his written submissions or the bundle of documents in support of the notice of appeal in accordance with rule 62.10(1) of the Civil Procedure Rules 2000 (“the CPR”).

3 By notice of application filed 20 ^th June 2019, the appellant sought relief from sanctions and an extension of time to file his written submissions in support of his appeal. On 19 ^th July 2019, this Court dismissed the appellant's application for an extension of time inter alia on the ground that the appeal had no prospects of success. In light of this finding, the Court then went on to dismiss the substantive appeal. The Court then had to consider whether any further orders should be made in relation to the issue of costs.

4 Both respondents submitted that costs should follow the event and so the appellant should be ordered to pay their costs of the appeal and the costs of the application for an extension. However, during the course of these proceedings, the respondents, being law firms, acted as litigants in person and so the Court was compelled to consider the application of the common law rule which permits a litigant in person to recover only his out of pocket expenses.

5 The parties were asked to address the Court on the question of whether a legal practitioner's law firm is entitled to recover legal costs for acting for itself in proceedings in the Virgin Islands, and in particular, whether it can do so when acting for itself in a wasted costs application.

6 When it became clear that the matter could not be resolved at the hearing, the parties were asked to address the issue in written submissions. These written submissions reveal significant common ground between the parties. All parties relied on the English appellate decision in London Scottish Benefit Society v Chorley, Crawford and Chester. 1 In that case, an action was brought against the defendants, who were solicitors. The result of the litigation was in the defendants' favour, and they recovered costs against the claimants. The defendants sought to have their costs taxed as if they were acting as solicitors for another person, and the court had to consider whether this contention could be maintained. It was argued on the one side, that with regard to taxation of costs, there is no difference between a solicitor and any other party to an action who sues or defends in person; and, on the other side, that a solicitor who sues or defends in person and is successful is entitled to the same costs as if he were acting for a client.

7 The English Court of Appeal expressly rejected the assertion that a solicitor embarking upon litigation and seeking his costs should be treated the same as a litigant in person doing...