Basseterre, St. Kitts, November 8 2017 – The Eastern Caribbean Court of Appeal has ruled in favour of former St. Kitts-Nevis Labour Party candidate and former government minister, Mr. Rupert Herbert.
The court upheld Justice Thomas’ quantum of cost amounting to US$283,333.33 or EC$762,999.99 and awarded cost to Mr. Herbert in the appeal matter.
The Court regarded the appeal as another episode in the long-running battle between the appellant Lindsay Fitz-Patrick Grant and the respondents – Supervisor of Elections, Mr. Leroy Benjamin and Returning Officer Mr. Wentworth Rogers following the general elections in St. Kitts and Nevis in 2004.
Mr. Grant and Rupert Herbert contested the election for the constituency of St. Christopher 4. Mr. Herbert was the successful candidate.
Mr. Grant brought an election petition against Mr. Herbert as the successful candidate, Mr. Benjamin and Mr. Rogers as the 2nd respondent and the 3rd respondent respectively.
The petition was heard by Justice Francis Belle on 2nd May 2006 who dismissed the petition and made no order as to costs.
The Respondents (Herbert/Benjamin/Rogers) appealed Justice Belle’s order denying them their costs of the proceedings in the High Court and Court of Appeal.
Civil Appeal No. 11/2006 was consolidated with another appeal by the Respondents in Civil Appeal No. 12 of 2006 – Leroy Benjamin et al v Eugene Hamilton involving similar issues.
The Consolidated Appeals were heard by a panel comprising the Acting Chief Justice Sir Brian Alleyne and Justices Dennis Barrow and Errol L. Thomas.
The unanimous judgment of the court was delivered by Justice Barrow and the Court of Appeal allowed the appeals of Herbert/Benjamin/Rogers and ordered Mr. Grant to pay them their costs of the appeals and in the court below, such costs to be quantified.
The Respondents’ costs arising from Justice Barrow order in Civil Appeal No. 11 of 2006 were quantified by Justice Thomas sitting in his substantive position as a judge of the High Court.
He carried out the quantification under what he described as the inherent jurisdiction of the court applying the principles relating to reasonable costs in a quantification exercise and not under the provisions of Parts 64 and 65 of the CPR which has different methods of quantifying costs. Justice Thomas awarded US$283,333.33 to Mr. Herbert and EC$545,368.41 to the 2nd and 3rd Respondents.
Mr. Grant appealed against the Justice Thomas’ quantification of the costs. Prior to the hearing of the appeal Mr. Grant settled the claim of the 2nd and 3rd respondents and on 9th October 2015 filed a consent order discontinuing the appeal against those respondents. The appeal continued against Mr. Herbert only.
Ms. Sooko, who represented Mr. Herbert, argued that the judge was correct in quantifying costs under the court’s inherent jurisdiction as the CPR did not apply to election petitions.
Mr. Grant argued that the quantum of costs awarded by Justice Thomas was unreasonable and excessive.
Ms. Sookoo provided the Court with helpful comparables on the quantum of costs in the following election cases from cases decided in the Federation: SKBHCV2003/0183 – Cedric Liburd and others v Eugene Hamilton where the total awarded was EC$770.368.41 and NEVHCV2011/0130 – Mark Brantley v Hensley Daniel where the total awarded was approximately EC$800,000.00
Based on these awards the Court of Appeal found the amount awarded to Mr. Rupert Herbert in this matter which involved multiple proceedings in the High Court and Court of Appeal does not appear to be unreasonable nor out of line with comparable cases.
In a split decision on July 14th 2017, Justices Paul Webster and Tyrone Chong dismissed Mr. Grant’s appeal, affirmed Justice Thomas’ award of costs in the lower court; and awarding Mr. Herbert costs of the appeal. Justice Mario Michel dissented.
Mr. Grant was represented by Ms. Marguerite Foreman and Ms. Teshari A. J. John-Sargeant.