[2017] SC (Bda) 17 Civ (20 February 2017) In The Supreme Court of Bermuda

REGISTRAR’S CHAMBERS

No. 311 of 2008 Between:

DENNIKA WARREN

And

TINEE HARVEY

Plaintiff/ Entitled Party Defendant/ Paying Party __________________________________________________________________

BEFORE: REGISTRAR, SHADE SUBAIR WILLIAMS

Appearances: Craig Rothwell, Cox Hallett Wilkinson Ltd (CHW) for Appellant/Paying Party Jai Pachai, Wakefield Quin Ltd (WQ) for Respondent/Entitled Party 27 September 2016 and 6 October 2016 20 February 2017 Date of Hearing: Date of Decision: RULING ON TAXATION Delay in Delivery of this Decision: Regrettably, this decision is delivered after months of delay attributable to the displacement of the Supreme Court Registry from 113 Front Street on account of mold contamination. (See Supreme Court Circulars 21-25 issued between 18 October 2016 and 17 November 2016). Barring particularly urgent matters, chambers hearings listed before the Registrar in November and December 2016 were adjourned to January 2017.

1. 2. 4. General Background: This is a case which started by a claim for personal injury arising out of a motor vehicle accident on or about 19 August 2007. By letter to the Registry dated 27 August 2014, Counsel requested a fixture for a hearing for damages to be assessed as liability was admitted on 11 February 2008.

3. The matter was listed and heard before the Hon. Chief Justice Ian Kawaley 24-26 November 2014. Order and Judgment of 9 January 2015 An order for damages in respect of various heads of loss was awarded on 9 January 2015: (a) $138,123.09 in respect of the Plaintiff’s loss of future earnings claim applying a discount rate of 3% (subject to leave to apply for a lower discount rate; (b) $86,297.90 in respect of past loss of earnings; (c) $40,462.90 in special damages; (d) $75,000.00 for general damages for pain and suffering and loss of amenity together with interest at 3.5% from 15 February 2008 until judgment; (e) Interest at the rate of 7% on the agreed medical expenses claim in the amount of $679,905.00 (together with 3.5% interest rate in respect of special damages) Further, the Chief Justice ordered that the Plaintiff was to have her costs of the action to be taxed if not agreed. Directions Order for Expert Evidence on 19 January 2015 On 19 January 2015 the Court directed the fixture of a hearing for expert accounting and economics evidence in relation to the appropriate discount rate in respect of the said future damages award. Mr. Pachai for the Plaintiff urged the Court to adopt a 0% rate without hearing expert evidence. The Chief Justice, however, declined the invitation to depart from the discount rate without first hearing expert evidence. Specifically, the central expert evidence was ordered to address the following issues: (1) What is the most appropriate measure in Bermuda for the rate of return on a lump sum conservatively invested? (eg. ILGS/ US TIP securities/local bank term deposit rates)

5. 6. 7. 2

9. (2) What provision, if any, should be made for a gap between price and earnings inflation; (3) Within the constraints of a modest retainer and providing a very basic guide, what range of discount percentage appears appropriate for the 2nd Defendant’s case

8. Mr. Pachai then sought leave to file expert evidence which was unopposed by Mr. Rothwell. This hearing was listed together with two other matters (Thompson v Thomson No. 6 of 2012 and Argus Insurance Company Ltd v Somers Isles Insurance Company Ltd v henry Talbot No. 139 of 2014) wherein similar issues arose for resolve.

10. The three Plaintiffs adduced evidence from the same actuary, Mr. Christopher Daykin. The Defendants called actuary, Mr. Peter Gorham. The Plaintiff in Thompson adduced evidence from an economist, Dr. John Llewellyn. However, each side essentially advanced conflicting expert assessments on the most appropriate discount rate calculation methodology. Bill of Costs filed on 20 and 21 January 2015 for Costs of Action awarded 9 January 2015:

11. A Bill of Costs in the total sum of $223,972.11 filed on 20 January 2015 by Messrs Wakefield Quin Ltd (WQ) followed.

12. Equally, a Bill of Costs from Messrs Conyers Dill & Pearman in the total sum of $61,701.251 was filed on 21 January 2015 under the Wakefield Quin Ltd cover letter.

13. By letter dated 22 February 2015, the former Registrar, Charlene Scott, issued a notice to Counsel for the Defendant that WQ’s Bill of Costs would be taxed on 15 April 2015.

14. By letter dated 19 March 2015, however, Mr. Rothwell wrote to the former Registrar in complaint of the Mr. Pachai’s filing of a Bill of Costs. Mr. Rothwell advised that the action was ongoing in that the issue of the discount rate was yet to be finally determined.

15. By letter dated 25 March 2015, Mr. Pachai wrote to the Registrar stating his disagreement that the Bill of Costs was filed prematurely.

16. By letter to the parties dated 27 March 2015, the then learned Registrar delisted the fixture. 1 Corrected sum totaled $62,941.25 3

Assessment of Damages (Hearing on 1-2 June 2015 and Ruling on 22 June 2015):

17. On 1-2 June 2015 the Chief Justice heard expert evidence on the contentious issue of the discount rate to be applied to the head of loss relating to future earnings.

18. The Chief Justice observed that the only issue for determination in this matter was the discount rate to be applied to the loss of earnings claim of Ms Warren. The Court accepted Mr. Daykin’s evidence that the appropriate discount rate should be -1.5% for her future loss of earnings claim. She was accordingly awarded $135,426.69 in addition to the provisional award for this head of loss of $138,123.09.

19. As such, costs of this application came to be awarded to the Plaintiff. Bill of Costs related to Order of Chief Justice dated 22 June 2015

20. On 29 April 2015 the Bill of Costs for Conyers Dill & Pearman in the sum of $61,701.252 was refiled (having been originally been filed on 21 January 2015 under a cover letter by Messrs Wakefield Quin Ltd dated 29 April 2015).

21. By letter to the parties dated 27 March 2015, Registrar Scott relisted the taxation hearing to Wednesday 22 July 2015.

22. Mr. Pachai wrote to the Court on 10 July 2015 requesting for the 22 July 2015 taxation hearing to be delisted by agreement between to the parties to proposed dates leading up to 15 October 2015. Thus, the taxation hearing did not proceed for hearing on 22 July 2015 before Registrar Scott.

23. By letter of the Court dated 15 July 2015, the matter was accordingly relisted to 14 October 2015. However, by letter from Mr. Pachai dated 12 October 2015, the parties requested the delisting of the 14 October 2015 fixture in light of the pending appeal of the matter. The taxation hearing was then adjourned by Registrar Scott via email to the parties on 14 October 2015 on a sine die basis and relisted to a date up to 30 September 2016.

24. The matter was accordingly relisted to 27 September 2016 and proceeded on that date without completion. The hearing was therefore continued and completed on 6 October 2016. 2 Corrected sum totaled $62,941.25 4

REGISTRAR’S DECSION:

25. In respect of the particulars of objection made to specific item entries (see Tab 12 of the Defendant’s hearing bundle and the Plaintiff’s red-ink replies), I hold as follows:

TAXATION REDUCTIONS TO BILL OF COSTS UNDER ORDER OF 9 JANUARY

2015

ITEM REGISTRAR’S

DECISION

CATEGORY OF TASK

2 1.3hrs to 0.5hrs Review of Somers Isles claims; pleadings… 3 1.4hrs to 0.5hrs Review of medical reports / records 11 1.2hrs to 0.0hrs Reviewing RSC and joinder authorities 19 1.2hrs to 0.5hrs Review of medical reports / records 24 3.8hrs to 1.5hrs Review of client files/docs…medical reports / records 27 1.3hrs to 0.5hrs Reviewing correspondence and order 37 1.3hrs to 0.5hrs Review of CD&P correspondence / quantum…law joinder 38 0.8hrs to 0.2hrs Review of CD&P correspondence 43 0.2hrs to 0.0hrs 47 51 0.3hrs to 0.1hrs Reviewing correspondence and summons 63 Internal discussions with Counsel of same firm 1.4hrs to 1.0hrs 64 1.2hrs to 0.5hrs Internal discussions with Counsel of same firm Reviewing correspondence, medical reports… in prep for meeting Clients Reviewing correspondence 0.7hrs to 0.0hrs 68 1.8hrs to 1.0hrs Reviewing correspondence 76 0.6hrs to 0.3hrs Reviewing correspondence from Client (including medical reports…) 77 0.8hrs to 0.4hrs Reviewing Client narrative 80 2.8hrs to 0.0hrs Reviewing file … 92 96 104 0.3hrs to 0.0hrs Disallowed by Agreement 105 0.8hrs to 0.5hrs Correspondence… 108 111 Reviewing file … 0.2hrs to 0.0hrs Review of claim docs (hundreds of pages) 1.3hrs to 0.8hrs 112 4.5hrs to 3.0hrs Review of docs and correspondence Disallowed by Agreement Reviewing CD&P correspondence file 115 0.2hrs to 0.0hrs Disallowed by Agreement 116 117 1.8hrs to 1.3hrs Reviewing CD&P correspondence and file docs Reviewing correspondence from Argus with MEF policy… 1.8hrs to 0.8hrs 4.3hrs to 2.0hrs 1.6hrs to 1.0hrs 135 3.6hrs to 1.0hrs Reviewing court file … 149 0.8hrs to 0.0hrs Reviewing pleadings 150 0.7hrs to 0.5hrs 156 Reviewing correspondence and file docs 157 2.5hrs to 1.5hrs Reviewing docs from NYU hospitals 166 Correspondence…reviewing pleadings $884.21 to $0.00 176 0.3hrs to 0.0hrs Reviewing med records from NYU hospitals Reviewing Dennika Warren medical records 7.8hrs to 2.0hrs 180 $500.00 to $0.00 Travel Expense of Plaintiff having to travel to NY for recovery of med records 181 0.6hrs to 0.3hrs Reviewing correspondence and docs from NYU hospitals 197 1.3hrs to 0.8hrs 207 3.3hrs to 0.5hrs Reviewing pleadings… 214 215 0.7hrs to 0.0hrs Reviewing accounts 216 Reviewing correspondence and docs from client and Doctors… 1.3hrs to 0.5hrs Reviewing correspondence… 217 219 0.8hrs to 0.4hrs Reviewing correspondence from GCS… Reviewing correspondence and accounts from Argus … Reviewing med records 0.2hrs to 0.0hrs 0.4hrs to 0.3hrs 5

221 1.3hrs to 0.5hrs Reviewing docs from Argus’ files 224 0.4hrs to 0.0hrs Reviewing correspondence from GCS… 227 0.3hrs to 0.0hrs 228 230 231 $150 to $0.00 Cell phone charges 232 0.6hrs to 0.0hrs Reviewing correspondence from GCS… 238 Reviewing correspondence from GCS… Reviewing Client Narrative Reviewing med records 0.2hrs to 0.0hrs 239 1.5hrs to 0.5hrs Reviewing med records 0.6hrs to 0.3hrs Reviewing correspondence from GCS… Reviewing med records 2.3hrs to 0.5hrs 241 2.6hrs to 0.5hrs 248 1.8hrs to 1.3hrs Finalizing Affidavit 251 1.8hrs to 0.3hrs 253 259 264 0.4hrs to 0.3hrs Preparing Order 266 0.4hrs to 0.3hrs Correspondence to CHW and Registrar 269 Reviewing docs from Client Reviewing law 0.6hrs to 0.2hrs Reviewing correspondence 0.8hrs to 0.4hrs 280 285 1.2hrs to 0.5hrs 319 8.6hrs to 1.0hrs 0.6hrs to 0.0hrs 1.3hrs to 0.5hrs 339 Reviewing docs re Schedule of Losses Reviewing correspondence from CD&P… Review of witness narrative Review of file documents Disallowed by Agreement Reviewing bank statements Reviewing file docs 0.8hrs to 0.0hrs 0.6hrs to o.2hrs 0.6hrs to 0.0hrs 331 334 342 0.8hrs to 0.0hrs Reviewing law 346 0.2hrs to 0.0hrs Disallowed by Agreement 0.2hrs to 0.0hrs 1.3hrs to 0.8hrs 1.4hrs to 0.5hrs 353 Internal discussions with Counsel of same firm Reviewing correspondence and med records Reviewing Client docs Reviewing docs and correspondence 349 0.6hrs to 0.2hrs Reviewing correspondence and med records 356 358 364 0.5hrs to 0.0hrs 366 0.8hrs to 0.0hrs Reviewing law 368 371 374 7.5hrs to 0.0hrs Reviewing law 376 5.3hrs to 0.0hrs Assistance with trial bundles (administration) 378 382 0.3hrs to 0.0hrs Reviewing law Reviewing law Skeleton 0.8hrs to 0.2hrs 0.8hrs to 0.0hrs 2.9hrs to 0.0hrs Reviewing correspondence CHW 384 4.8hrs to 2.0hrs 387 1.3hrs to 0.0hrs Reviewing law 388 Settling trial bundle 0.5hrs to 0.0hrs Reviewing correspondence CHW 393 3.5hrs to 1.5hrs Reviewing Client and file docs 397 0.3hrs to 0.0hrs Disallowed by Agreement 404 1.8hrs to 0.2hrs Reviewing correspondence CD&P 411 1.3hrs to 0.5hrs Review further docs for trial 424 0.8hrs to 0.0hrs Disallowed by Agreement 439 7.0hrs to 0.0hrs Disallowed by Agreement 440 4.2hrs to 0.0hrs Disallowed by Agreement 449 3.0hrs to 0.0hrs Disallowed by Agreement 450 0.2hrs to 0.0hrs Disallowed by Agreement 459 0.8hrs to 0.0hrs Disallowed by Agreement 460 0.2hrs to 0.0hrs Disallowed by Agreement 461 0.1hrs to 0.0hrs Disallowed by Agreement 465 1.0hrs to 0.0hrs Disallowed by Agreement 466 0.2hrs to 0.0hrs Disallowed by Agreement 469 0.3hrs to 0.0hrs Disallowed by Agreement 6

470 0.8hrs to 0.0hrs Disallowed by Agreement 472 0.8hrs to 0.0hrs Disallowed by Agreement 475 1.3hrs to 0.0hrs 476 477 478 0.2hrs to 0.0hrs Disallowed by Agreement 479 0.2hrs to 0.0hrs Disallowed by Agreement 480 Disallowed by Agreement 0.8hrs to 0.0hrs Disallowed by Agreement Disallowed by Agreement 0.2hrs to 0.0hrs 0.2hrs to 0.0hrs Reviewing law 0.8hrs to 0.0hrs Disallowed by Agreement 482 483 3.2hrs to 0.0hrs Reviewing law 484 1.8hrs to 0.0hrs Reviewing law 491 493 0.2hrs to 0.0hrs 513 505 0.3hrs to 0.0hrs 508 1.0hrs to 0.0hrs Disallowed by Agreement 510 0.2hrs to 0.0hrs Disallowed by Agreement 512 0.2hrs to 0.0hrs Disallowed by Agreement 516 Disallowed by Agreement Disallowed by Agreement Disallowed by Agreement 0.2hrs to 0.0hrs Task 517 0.2hrs to 0.0hrs 0.2hrs to 0.0hrs Disallowed by Agreement Disallowed by Agreement Disallowed by Agreement

TAXATION REDUCTIONS TO BILL OF COSTS

UNDER ORDER OF 22 JUNE 2015

ITEM DECISION CATEGORY OF TASK

11 0.1hrs to 0.0hrs Reviewing RSC and joinder authorities 25 $3115.90 + $7725.19 = $10,841.09 to $5,420.545 disbursement Services rendered by C Daykin 53 3.6hrs to 3.0hrs Reviewing appendices to report of C Daykin 55 2.3hrs to 1.5hrs Reviewing appendices reports of Llewellyn and Daykin 67 0.4hrs to 0.2hrs Review of CHW correspondence 68 1.6hrs to 1.0hrs Reviewing expert report of Peter Gorham 69 0.6hrs to 0.2hrs Reviewing correspondence, medical reports… in prep for meeting Clients 71 1.3hrs to 0.8hrs Reviewing correspondence/Judgment/Order/ report of Peter Gorham 83 0.8hrs to 0.5hrs Reviewing report from C Daykin (supplementary report) 85 0.5hrs to 0.3hrs Reviewing further correspondence from C Daykin with final report 95 1.8hrs to 0.8hrs Reviewing docs from PH/summons/affidavits… 99 0.6hrs to 0.0hrs Reviewing pleadings … 110 1.6hrs to 0.5hrs 114 130 0.3hrs to 0.0hrs Reviewing docs 136 Correspondence and reviewing expert evidence Reviewing authorities 2.8hrs to 1.0hrs 137 1.3hrs to 0.5hrs Reviewing Defendant’s authorities Reviewing Defendant’s bundle of docs (400+ pages) 4.6hrs to 1.0hrs 140 1.6hrs to 0.4hrs Reviewing submissions from Canterbury 144 1.2hrs to 0.0hrs Attending meeting … 145 0.8hrs to 0.4hrs Reviewing further authority from PH with docs 163 1.2hrs to 0.5hrs Reviewing accounting and ledger for costs claim 167 1.3hrs to 0.5hrs Reviewing BILL OF COSTS 174 2.4hrs to 1.0hrs Reviewing draft Judgment of CJ … 7

26. The above deductions were made so to allow only a reasonable amount of all costs reasonably incurred. Necessarily, I resolved all doubts on whether the costs were reasonably incurred in favour of the paying party.

27. In taxing down fees which were incurred through review and consideration of the law I followed the principle stated by Ground CJ in Golar LNG Ltd v World Nordic SE No. 163 of 2009 (Commercial List) (para 13-14) in his citation and approval of Cook on Costs Butterworths 2004, p. 230: “Time spent considering the law and procedure is usually non-chargeable- and the higher the expense rate, the more law and procedure the fee earner is expected to know…” In this case there were nuances of law which justified reductions in the fees charged as opposed to complete disallowances.

28. In my view, Mr. Pachai’s hourly rates are in the most upper range of rates allowable. Thus, reductions to the charges allowed in respect of his review of law and procedure is attributable to the expectation and presumption of his knowledge of the law. Again, the reductions were in any event modest having considered the complexities of this case.

29. I also disallowed fees where there appeared to be duplicity of the fees charged. Where I considered fees to be excessive charges for review of documents previously read and considered, I also taxed the costs down.

30. Items 166, 180 and 231 in the Bill of Costs relating to the 9 January 2015 Order are in my view costs which should have formed part of the Special Damages claim. They are not costs for inclusion in a Bill of Costs.

31. Item 25 of the Bill of Costs filed under the 22 June 2015 Order was reduced because I accept Mr. Rothwell’s submission that the Plaintiff should only be entitled to recover for half of Mr. Daykin’s fees which should have been charged in equal shares under a maximum total not exceeding $10,841.09. Conclusion

32. The Bill of Costs filed by CD&P is allowed by consent between the Parties and the Court fees related to this Bill of Costs will be $25.00 on the basis that it was non-contentious.

33. The varying hourly rates up to $700p/h charged by Mr. Pachai in the Bill of Costs relating to the 9 January 2015 Order and the 22 June 2015 Order are allowed.

34. The Appellant’s application to disallow charges beyond the Legal Aid rate during the period leading up to 12 May 2016 in the Bill of Costs on the grounds that it is a breach of section 14 of the Legal Aid Act 1980 is refused. 8

35. Equally, I reject the Appellant’s submission that the Respondent’s change of funding arrangements was unreasonable insofar as the Legal Aid certificate was voluntarily discharged.

36. My reasons for rejecting Mr. Rothwell’s arguments in relation to these points are outlined in my taxation ruling for this case as Registrar for the Court of Appeal in Tinee Harvey v Dennika Warren (Court of Appeal) Bda No. 13 of 2015).

37. Costs taxed off the WQ fees of are reduced as tabled above. Where I have omitted reference to any particular item number in the Bill of Costs where there was an objection, I have purposefully refrained from reducing or disallowing such costs charged.

38. I will hear Counsel, if necessary, on the terms of the Certificate to be drawn up. Otherwise, an agreed amended Bill of Costs giving effect to this Ruling may be filed for my signature.

39. Unless either party applies within 14 days by letter filed in the Registry to be heard on costs of the taxation hearings or interest on the costs award: (i) Costs awarded to the Plaintiff/Entitled Party for the preparation of the taxation proceedings relating to both the 9 January 2015 and 22 June 2015 Orders of the Court. Costs are summarily assessed as follows: a. Total of $650.00 allowed for items 163 and 167 of the Bill of Costs for 22 June 2015 Order; and b. Total of $325.00 allowed for preparation of the taxation proceedings for the 9 January 2015 Order. Costs for the Plaintiff/Entitled Party summarily assessed at $650.00 for attendance at the taxation hearings. Interests at the statutory rate on the award for costs of the taxation. Costs award includes the Court fee of $100 payable to Registry for a contentious taxation pursuant to Schedule to Order 62 R.32 Part I (Item 53). (ii) (iii) (iv) Monday 20 February 2017 __________________________

SHADE SUBAIR WILLIAMS

REGISTRAR OF THE SUPREME COURT

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