AN­NA-LISA PAUL

Se­nior Re­porter

an­nal­isa.paul@guardian.co.tt

The Ju­di­cial Com­mit­tee of the Privy Coun­cil (JCPC) yes­ter­day de­liv­ered a land­mark rul­ing, where it re­versed a de­ci­sion of the Court of Ap­peal and re­stored the judg­ment of High Court Judge Joan Charles in a mat­ter in­volv­ing costs.

Charles had or­dered for­mer chair­man of Trinidad Ce­ment Lim­it­ed (TCL) Rollin Clifton Bertrand, and Caribbean Ce­ment Lim­it­ed (CCL), to pay Dr An­tho­ny Elias’ costs in a defama­tion claim they filed against him when they dis­con­tin­ued their claim just be­fore tri­al.

The judge had or­dered the costs in favour of Elias, in­di­cat­ing they should be quan­ti­fied on the “as­sessed costs scale”. This scale of costs per­mits the court to or­der a rea­son­able sum of mon­ey in­curred by a de­fen­dant in de­fend­ing a claim.

How­ev­er, the Court of Ap­peal re­versed Charles’ de­ci­sion and in­stead or­dered the claimants to pay Elias’ costs, but to be quan­ti­fied on a low­er scale known as the “pre­scribed costs regime.”

This meant that the claimants would have on­ly had to pay Elias $27,000.

The costs they would have had to pay to Elias if the costs were quan­ti­fied on the as­sessed costs scale could have amount­ed to hun­dreds of thou­sands of dol­lars.

How­ev­er, Elias ap­pealed the de­ci­sion of the Court of Ap­peal to the JCPC.

The tri­al was sched­uled to be­gin on Jan­u­ary 20, 2015, but a few days be­fore, the claimants dis­con­tin­ued the mat­ter.

The claimants had the fi­nan­cial back­ing of the two com­pa­nies, while Elias had to re­tain pri­vate at­tor­neys to de­fend the claim for over four years.

The state­ments Elias, who is a share­hold­er and doc­tor, made, were in re­la­tion to a ce­ment cri­sis which in­volved de­fec­tive ce­ment sup­plied by CCL.

CCL had to re­call hun­dreds of tonnes of de­fec­tive ce­ment and the share­hold­ers were as­sured by Bertrand that there would be no li­a­bil­i­ty by the share­hold­ers for the de­fec­tive ce­ment.

At sub­se­quent share­hold­er meet­ings, Elias al­leged that Bertrand gave the share­hold­ers in­ac­cu­rate in­for­ma­tion and ac­cused him of mis­con­duct and mis­man­age­ment of the fi­nan­cial af­fairs of the com­pa­nies.

The JCPC, in its judg­ment, de­cid­ed that the pre­scribed costs regime, un­der the Rules of Court of Trinidad and To­ba­go, ought to be award­ed by the court in the ex­er­cise of its dis­cre­tion for gen­uine claims.

It de­cid­ed, there­fore, that the pre­scribed costs regime should not be used to pro­tect the com­pa­nies and Bertrand from re­im­burs­ing Elias for rea­son­able costs he in­curred in de­fend­ing the un­found­ed claim.

It fur­ther held that the claim should not have been brought.

The JCPC al­so stat­ed that claimants can bring ground­less claims of defama­tion against de­fen­dants and then just be­fore tri­al, dis­con­tin­ue the claims—and then ask the court to award costs against it based on the pre­scribed costs regime.

The JCPC or­dered the costs of Elias to be paid by the claimants, once this is as­sessed by a Mas­ter in Cham­bers.

In ad­di­tion, it al­so set aside the judg­ment of the Court of Ap­peal and in­stead or­dered the costs to be as­sessed by a Mas­ter in Cham­bers.

Elias was rep­re­sent­ed by Ramesh L Ma­haraj, SC, as­sist­ed by Robert Strang, Vi­jaya Ma­haraj, Michael Rooplal and Isa Dook­ie.
Ian Ben­jamin, SC, ap­peared for Bertrand, while Ja­son K Mootoo, SC, ap­peared for the two com­pa­nies.