Seaga v Harper (Jamaica)  UKPC 26 (29 June 2009)
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 29TH June 2009
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Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
Sir Henry Brooke
Success fee: 43%
ATE premium: £43,000
Although he thought the ATE premium was high, he allowed it in the absence of any evidence of a cheaper comparable policy. He invited the Registrar to refer the question whether these items were recoverable at all to the Board for decision.
" [T]he reception and the hearing of the appeal in London is only one step in a composite procedure which starts from the Canadian court and which concludes and reaches its consummation in the Canadian Court. What takes place outside Canada is only ancillary to practical results which become effective in Canada. And the appeal to the King in Council is an appeal to an Imperial, not a merely British tribunal."
It was for this reason that the Board held that the Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
"The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African body, or, for the future, an Irish Free State body I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law."
"75. Taxation of costs
(1) All bills of costs under the orders of the Judicial Committee shall be taxed by the Registrar, or such other person as the Judicial Committee may appoint.
(2) The amount of costs which a party shall be entitled to recover shall be the amount allowed after taxation on the standard basis unless the Judicial Committee has expressly awarded costs on the indemnity basis or the poor person scale.
(3) In no case will costs be allowed which have been unreasonably incurred or are unreasonable in amount.
(4) On a taxation on the standard basis costs will only be allowed if they are reasonable and proportionate to the matters in issue and any doubt as to whether costs were reasonably incurred or are reasonable and proportionate in amount shall be resolved in favour of the party against whom the award of costs has been made ("the paying party").
(5) On a taxation on the indemnity basis, any doubt as to whether costs were reasonably incurred or are reasonable in amount shall be resolved in favour of the party to whom costs have been awarded ("the receiving party")."
"The costs incurred in the prosecution of any appeal referred to the said Judicial Committee shall be paid by such party or parties, person or persons, and be taxed by the aforesaid registrar, or such other person or persons, to be appointed by His Majesty in Council or the said Judicial Committee, and in such manner as the said Committee shall direct."
"19. Costs in Jamaica
Where the Judicial Committee directs a party to bear the costs of an appeal incurred in Jamaica, such costs shall be taxed by the proper officer of the Court in accordance with the rules for the time being regulating taxation in the Court. "
"(1) An attorney may in writing agree with a client as to the amount and manner of payment of fees for the whole or part of any legal business done or to be done by the attorney, either by a gross sum or percentage or otherwise; so, however, that the attorney making the agreement shall not in relation to the same matters make any further charges than those provided in the agreement:
Provided that if in any suit commenced for the recovery of such fees the agreement appears to the court to be unfair and unreasonable the court may reduce the amount agreed to be payable under the agreement.
(2) Fees payable under any such agreement shall not be subject to the following provisions of this Part relating to taxation nor to any other provisions thereof."
This provision, however, casts no light on the question whether success fees or ATE premiums are recoverable on a Jamaican appeal to the Privy Council, where the recoverability of costs is governed by the Privy Council's own rules.
(1) The Board has power to make a direction for "the costs incurred in the prosecution of an appeal" (1833 Act, s 15);
(2) If the Board directs that costs shall be paid on the standard basis, they will only be allowed if they are reasonable and proportionate to the matters in issue (1982 Rules, r 75(4));
(3) There is no Act of the Imperial Parliament or Order in Council which allows for the recovery of success fees or ATE premiums;
(4) The addition of a success fee to a fee that is reasonable and proportionate is almost certain to render the resultant fee unreasonable and disproportionate;
(5) Although the language of s 15 of the 1833 Act is very wide, it certainly does not embrace the recovery of a success fee;
(6) Similarly, the expense of taking out of ATE insurance cover is not naturally to be regarded as part of "the costs incurred in the prosecution of [an] appeal" as opposed to the costs involved in protecting an unsuccessful party from having to pay the costs incurred by the other party in prosecuting the appeal.
"These sums equate to J$9,149,457.68 and J$11,425,274.40 respectively at the current exchange rate of J$148 to £1. These are fabulous sums of money for Jamaican litigants."
It should be borne in mind that a liability to pay J$1.5 million damages (just over one eighth of the basic costs allowed by Master Hurst) was what was under challenge in this case.
"11.5 In deciding whether the costs claimed are reasonable and (on a standard basis assessment) proportionate, the court will consider the amount of any additional liability separately from the base costs.
11.9 A percentage increase will not be reduced simply on the ground that, when added to base costs which are reasonable and (where relevant) proportionate, the total appears disproportionate."
There is also provision in para 11.10 for the factors to be taken into account when deciding whether the cost of ATE insurance cover is reasonable. Nothing at all comparable to these provisions appear in the 1982 Rules.