Shell Fiji Ltd v Chand [2012] FJSC 16; CBV0003.2011 (7 August 2012)

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Civil Appeal CBV0003.11
[From Court of Appeal ABU0038.08
High Court Civil 38.2001]

Ruling
[on final payment out upon conclusion of Supreme Court litigation]

[1] Appellate litigation concluded in this matter on 4th May 2012 when the Supreme Court handed down its judgment.

"We therefore vary the award of the Court of Appeal by awarding $45,000 as general damages (for pain and suffering and loss of amenities), thus totaling a sum of $57,400 being $45,000 as general damages and $12,400 as special damages (being loss of earnings) with interest as set out in the judgment of the Court of Appeal. We dismiss the appeal subject to the above variation in respect of damages. We also affirm the costs awarded by the Court of Appeal and in addition grant costs of this appeal as $5,000 to be paid to the Respondent by the Petitioner."

[3] However certain matters concerning the calculation of interest, the dates between which it was payable, whether interest can be claimed on the costs orders, whether post judgment interest is claimable and whether the surplus payment into court originally paid as a condition of stay is equivalent to a pre-trial payment in thus protecting the Petitioner [Defendant] from incurring any further costs or interest charges. The Respondent has applied to court by summons for directions on the payment out of monies already in court by reason of the stay order.

[4] The resultant award at the end of the proceedings in the Supreme Court could be tabulated as follows:

General Damages	$45,000 [not disputed]
Special Damages	$12,400 [not disputed]
Sub-total	$57,400

Interest @ 6% [not disputed] on $57,400 from 20th August 2001 to 8th February 2011 [dates not disputed].	$32,652.96 [@$9.44 per day x 3,459 days]

a. High Court Costs b. Court of Appeal Costs c. Supreme Court Costs Sub-total [not disputed, but Petitioner argues no post judgment interest allowable on costs order] Post judgment interest on Judgment Debt at 4% [disputed].	$ 7,500 $ 5,000 $ 5,000 $17,500

[5] On 18th July 2008 Scutt J granted a stay of execution pending appeal of the judgment in the High Court delivered on 27th May 2008 by Jitoko J. A stay was also granted by the Court of Appeal after its judgment. As a result two sums were paid into court, $33,637.93 and $90,405.11. Both sums were placed in an interest bearing account or accounts. It is obvious that with accrued interest the Petitioner [Defendant] has paid into court monies in excess of the final award. It is not disputed that the balance capital sum plus interest belongs to the Petitioner, and after payment out to the Respondent of the award, the balance must be paid out to the Petitioner, and I now so order.

[6] However a payment into court made by a defendant pre-trial is not the same thing as a payment made in compliance with conditions imposed for the interlocutory relief of a stay order pending appeal. The first payment in, the pre-trial payment, secures for the defendant a tactical advantage. For if the plaintiff fails to accept the amount and goes on with the trial but achieves judgment for less than the payment in, the defendant will get his costs thereafter. In such circumstances the defendant is seen as a "successful party". This was the principle of law laid down by Viscount Cave LC in Campbell (Donald) and Co v Pollak [1927] AC 809, at p.811; Findlay v Railway Executive [1950] All ER 969.

[7] In the instant case, the payments in were made in compliance with the orders for stay. They have no bearing on the question of whether interest ceases to be earned for the payee on monies paid in but rather they are ordered to secure the availability of funds to satisfy a judgment.

[8] No citation was provided by Mr Nagin for the proposition that an order for costs does not attract post judgment interest. Authority has established clearly that costs do attract post judgment interest which commences from the date of judgment: Hunt v R M Douglas (Roofing) Ltd [1988] 3 All ER 823 applying Pyman and Co v Burt Boulton [1884] WN100; Boswell v Coaks (1887) 57 LJ Ch 101.

[9] By virtue of section 22 of the High Court Act, Cap 13 section 17 of the (Imperial) Judgments Act 1838 remains in force in Fiji. This section provides that "every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied". The interest accrues automatically and no order of the Court is necessary. It runs from the date of pronouncement of judgment in Court Parsons v Mather & Platt Ltd.(1977) 2 All ER 715 approved in Erven Warnink B.V. v J. Townend and Sons (Hull) Ltd. (No.2) (1982) 3 All ER 312.

[10] This interpretation has been applied in several cases in Fiji including Charan v SCC Civil App 12 of 1989, 27th October 1989; Charan v SCC [1994] FJHC 3; Byrne v J.S. Hill & Associates Ltd (unreported) Civil Appeal 33 of 1993; 19th August 1994; Warner v Hagerman HBC425.09S 13th August 2010; Koya v Dominion Finance Ltd HBC193.09L 9th March 2012.
[11] In QBE Insurance (Fiji) Ltd v Ravinesh Prasad Civil App No. CBV0003.09 18th August 2011 Calanchini JA in the Supreme Court pointed out that there was no specific provision in the Law Reform (Miscellanous Provisions) (Death and Interest) Act to cover interest after judgment. Section 22(1) of the High Court Act provided for the statutes of general application in force in England on 2nd January 1875 to be in force in Fiji. The Judgments Act 1838 was held to be such an Act.

[12] In the absence of specific legislation in Fiji, Calanchini JA considered that section 9 of the Interpretation Act had the effect of extending the application of the English rates of interest (as raised by statutory orders from time to time) to Fiji. For instance in 1983 the rate stood at 8%.

[13] Subsequent to the decision in QBE Insurance (supra) however, an amendment decree has been made stating that every judgment debt is now to carry interest at 4%: section 2 of the Law Reforms (Miscellaneous Provisions) (Death and Interest) (Amendment) Decree 2011 amending section 4 of Cap. 27. So the applicable rate on judgment debts is now fixed at 4%. It is to be levied on the entire judgment including the costs element and unpaid interest.

General Damages	$ 45,000
Special Damages	$ 12,400
Sub-total	$ 57,400

Interest @ 6% on $57,400 from 20th August 2001 to 8th February 2011 [@ $9.44 per day x 3,459 days]		$32,652.96
4. a. High Court Costs	$ 7,500
b. Court of Appeal Costs	$ 5,000
c. Supreme Court Costs	$ 5,000
Sub-total	$ 17,500

5. Post Judgment interest on Judgment Debt

(i) 4% interest on revised Court of Appeal award and costs [$108,926.04 from 8.2.11 to 7.8.12 amounting to 1 year 5 months 30 days (ie: a total of 577 days) at the rate of $11.94 per day
577 days x $11.94	= $ 6,889.38

(ii) Supreme Court costs	= $ 5,000
(iii) 4% interest on SC costs from 4.5.12 to 7.8.12 .55 x 96 days	= $ 52.80

Grand Total [as at 7.8.12]	= $114,495.14

[15] The Respondent was to all intents and purposes successful in his application. His counsel had to attend this court from Labasa to have the matter concluded. He is entitled to some costs for a day away, the summons and affidavit, written submissions and oral argument. I fix costs summarily at $1,250.

[16] Accordingly I direct payment out to the Respondent of $114,495.14 plus today's costs of $1,250. The balance held by the Registrar is to be returned to the Petitioner immediately thereafter.

Solicitors for the Petitioner : Messrs Gibson & Company, Labasa
Solicitors for the Respondent : Messrs Maqbool & Company, Labasa

Supreme Court of Fiji

Shell Fiji Ltd v Chand [2012] FJSC 16; CBV0003.2011 (7 August 2012)