In a recent decision from the island of Saint Christopher and Nevis, Master Moise had to consider an application regarding an order of the Court of Appeal by which costs were ordered in favour of the applicant against the first respondent.
The parties could not agree on how the costs should be assessed.
One of the areas of contention between the parties was whether the order was to be assessed under rule 65.11 or 65.12 of the Eastern Caribbean Supreme Court Civil Procedure Rules (CPR). The first respondent submitted that the costs should be assessed under rule 65.11 which caps the costs on applications which are merely procedural generally at 10% of costs in the claim itself. Rule 65.12 does not contain any such limitation on costs and the applicant sought such an order.
Master Moise held “Whilst I do have my doubts as to whether an application for an interim injunction is procedural, there is for now, a clear line of authority which establishes that it is,” citing and approving the decision of Justice Wallbank in United Company Rusal PLC et el v. Corbiere Holdings Limited et el (United Company). In that decision Justice Wallbank held that the test for the purposes of assessment of costs is whether the application decided the substantive issue in the claim. He also stated “I am not taken with the Defendants’ clever submission that discharge of the injunction determined the injunction proceedings, and should therefore be treated as not procedural … There is nothing about interim applications that necessarily direct them to be dealt with under CPR 65.12”.
This decision confirms United Company, that the test to be applied for the purposes of assessment of costs in the High Court is whether the application decides or not the substantive issue in the claim.