Kilatu v Kalena Timber Company Ltd [1996] SBHC 28; HC-CC 236 of 1994 (5 June 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 236 of 1994

ter">JOHN KILATU

-v-

KALENA TIMBER CO. LTD & OTHERS

e: Muria Cria CJ

Hearing: 5 June 1996 - Judgment: 5 June 1996

Counsel: P. Tegavota for Plaintiff; F.S. Waa for 1st Defendant; P. Afe. Afeau for Attorney General; Sol-Law for Others

MURIA CJ:

The plaintiffs application by way of an Originating Summons had been summarily dismissed by the then Commissioner of the High Court at a sifting in Gizo on 17 August 1995. Consequently the first respondent has filed this application by way of Notice of Motion seeking increase of costs in the scale of costs (Appendix J) under the High Court (Civil Procedure) Rules.

The plaintiffs Originating Summons sought a number of declaratory relief which if granted would halt the first respondent's logging operation. In view of the seriousness of the consequences of the orders sought in the Originating Summons, the first respondent instructed Mr. Waleilia who then briefed overseas counsel who appeared at the hearing on 17 August 1995 when the application was summarily dismissed.

On the question of costs, it has been vividly provided under the Rules that "the costs of and incident to all proceedings in the Court ... shall be in the discretion of the Court. . ." (O.65, r 1). Thus costs are a matter of discretion for the Court.

Mr. Waleilia, in this case, seeks an increase in the scale of costs so that the first respondent is paid in full its costs assessable on a Solicitor and own client basis. Such an increase must be certified by a judge of the Court as stated in item 43 of Appendix J. where it provides:

"43. In any case a judge of the Court either at the trial or on notice of motion made within 14 days after judgement is pronounced may certify for an increased in any of the above charges, of such amount as he think fit having regard to all the circumstances of the case."

Appendix J (Scale of Costs) had been added in 1975 by the amendment to the Rules as contained in LN 22 of 1975. By that amendment rule 13 was added to rules in Order 65 and provides as follows:

"13. There shall be allowed to practitioners in the Court in relation to the various matters set out in Appendix J fees and costs amounting to not less than those prescribed in the lower scale of the said Appendix and not exceeding those prescribed in the Higher Scale of the said Appendix."

When one reads rule 13, ordinarily the discretion of the court on costs is bounded by the maximum scale and the minimum scale. Each of the items (which in my view are in effect sub-rules to rule 13) in Appendix J prescribes the Lower Scale and Higher Scale and a judge or taxing master is, by rule 13, entitled to exercise his discretion to allow the fees and costs as prescribed by the Lower Scale or by the Higher Scale or allow amounts of fees and costs failing in between the two. Stopping there, we may well have a situation in which a judge or a taxing master finds himself tied to a very restricted scope within which to exercise his discretion with limited or little regard to the circumstances of the case.

It is therefore with significance that in 1975 the Rules Committee added in Appendix J item No. 43 which gives the Court power "in any case" to certify for an increase "in any of the charges" specified in the items under Appendix J of such an amount" as he thinks fit having regard to all the circumstances of the case." The phraseologies used by the Rules Committee in the provision of item No. 43 must obviously be intended to impart a general discretion on the judge in a particular or special case to certify for an increase above the maximum set by the Higher Scale "if he thinks fit having regard to the circumstances of the case." In other words, rule 13 of Order 65 confers a two-fold discretion, firstly the discretion to allow fees and costs not less than that specified in the Lower Scale and not exceeding those prescribed in the Higher Scale in Appendix J, and secondly, a general discretion in particular cases to allow additional costs and charges if the court thinks fit having regard to the circumstances of the case. See In re Ermen [1903] UKLawRpCh 64; [1903] 2 Ch 156 and see also Darcy -v- Piasi CC262/93.

In the present case, the circumstances of the case outlined both in this hearing and at the Gizo sitting on 17 August 1995 justify an exercise of the Court's discretion to certify for an increase in the costs to the first respondent as sought and that I do so now.

I therefore certify for an increase in the costs in the scale of costs in favour of the first respondent assessable on a Solicitor and own client basis.

Order accordingly.

ter">GJB Muria
CHIEF JUSTICE