BARBADOS.

[Unreported]


Civil Appeals Nos. 2 & 4of 2004

BETWEEN:

BEFORE:The Hon. Colin A. Williams, The Hon. Peter D. H. Williams, Justices of Appealand The Hon. Sherman R. Moore, Justice of Appeal (Acting).

2004: March 12 and 31.

Mr. Alair P. Shepherd, Q.C., Mr. M. Adrian King, Miss Hanna Chrysostomand Miss Annette Linton for the Appellant.

Mr. Garth Patterson, Mr. David Thompson and Mr. Satcha Kissoon for theRespondent.

Sir Henry Forde, Q.C. and Mrs. Doria Moore for an interested party.
ADDENDUM JUDGMENT

INTRODUCTION

[1] The judgment which we handed down on 12March 2004 included orders for costs which we considered to be fair andreasonable. Nevertheless, we invited andheard submissions in case either of the parties wished to persuade us that weshould vary those orders in any way. The orders are set out below for easyreference, as follows:

1. Appeal No. 2 of 2003 is allowed and theorder made on 12 January 2004 striking out the plaintiff’s amended statement ofclaim is set aside.

2. Appeal No. 4 of 2003 is dismissed andthe order made on 13 January 2004 dismissing the plaintiff’s application for aninjunction is affirmed.

3. The appellant is to have its taxedcosts of Appeal No. 2 and the respondent is to have its taxed costs of AppealNo. 4. Failing agreement by theparties, it will be for the Registrar to determine a fair apportionment betweenthe two appeals in view of the fact that both appeals were heard together.

4. The orders made by Colin Williams JA on 20and 27 January 2004 awarded costs in the appeals, so the same apportionment asagreed by the parties or determined by the Registrar under the preceding orderwill apply to those costs.

5. The appellant is to have its costs in theHigh Court in respect of its application to strike out the statement of claimfrom the time of service of the amended statement of claim and the respondentis to have its costs in respect of the said application up to the time ofservice of the amended statement of claim.

6. The respondent is to have its costs inthe High Court in respect of the application for an injunction.

7. The costs awarded are all certified fit forone additional Attorney-at-Law and are to be taxed failing agreement by the parties.

APPELLANT’S SUBMISSION ON COSTS

[2] Mr. Shepherd, Q.C. for the appellantsubmitted that in relation to Appeal No. 2 in respect of the injunction, theorders on costs in both the Court of Appeal and the High Court should be costsin the cause and that costs should not be ordered in favour of the respondentagainst the appellant until there was a final determination of the case. Theorders made in paragraphs 3 and 6 should therefore be varied accordingly. Insupport of his submission he referred us to Commercial Litigation:Pre-Emptive Remedies by Goldrein, Fourth Edition, paragraphs A1-545–566 andto the cases of Wilson v. Church (1879) 11 Ch.D. 576 CA and ErinfordProperties Ltd. v. Cheshire County Council [1974] 1 Ch. 261, Megarry J.

[3] However, the circumstances of this casedo not warrant us making the costs of the refusal of the injunction contingenton the final outcome of the proceedings. We stated in the judgment that weconsidered that because of the “subject to contract” provisions in the Heads ofAgreement, the appellant did not have a real prospect of obtaining thedeclaration and injunction sought; that in any event, damages would be anadequate remedy for any breach of the contract pleaded; that the appellant didnot file its application for an injunction in a timely manner; and that theappellant’s undertaking in damages was unfortified by any financialsupport.

[4] It would therefore be unnecessary topostpone a definitive award of costs. Parties need to know as soon as possibleand especially in expensive commercial litigation, the extent of theirliability for costs. It is also helpful for them in the event of settlement tohave a clear indication of the party liable to bear the costs.

[5] Mr. Patterson agreed with the ordersmade in favour of the respondent on the injunction application. No good reasonshave been advanced for a variation in the exercise of our discretion.

[6] The orders are therefore confirmed.

RESPONDENT’S SUBMISSION ON COSTS

[7] Mr. Patterson submitted that therespondent should be paid its full costs in the High Court by the appellant inrespect of the application to strike out the statement of claim, instead ofcosts up to the time of filing and service of the amended statement of claim asordered in paragraph 5. He contended that the application to strike out wasmade on the original statement of claim and it was the original statement ofclaim and not the amended statement of claim that the judge considered. Thereis no merit in this submission. Aspointed out in the judgment, the appellant was entitled without leave to amendits statement of claim; it was the amended statement of claim from the timethat it was filed and served and not the original statement of claim thatbecame subject to the application to strike out; and the judge did properlyconsider and base his decision to strike out on the amended statement of claim.

[8] The respondent could have requested anadjournment to consider the amendments, but its position has been that even theamended statement of claim disclosed no cause of action. It was only in this Court that a concessionwas made by the respondent solely in relation to the Lock-out Agreement asdisclosing a cause of action.

[9] The order made in paragraph 5 istherefore also confirmed.

Justiceof Appeal

Justice of Appeal Justice of Appeal (Acting)