IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 024 OF 2008

BETWEEN:

DAVID GILMOUR
1st Plaintiff

: FIJI WATER
2nd Plaintiff

: NATURAL WATER OF VITI LTD
3rd Plaintiff

AND:

JANUSZ KUBS
Defendant

Before: Master Anare Tuilevuka 
Counsel: Mr. Tuitoga of Munro Leys for the Plaintiffs Ms Chan of Chan Law for the Defendant 
Date of Ruling: 12 December 2011 

RULING

(Taxation of Costs)

BACKGROUND

[1].	On 30 January 2007, Mr. Justice Jitoko ordered costs “to be taxed if not agreed” against Janusz and Mama O Kubs in favour of Gilmour. The Kubs had been co-defendants in the consolidated proceedings against Gilmour. Their battle was always fought on common ground(s). And they shared a common solicitor before and after consolidation. Effectively, Jitoko J’s order rendered the Kubs liable jointly and severally for the costs. In 2008, Gilmour began taxation proceedings.  But he has only served Janusz with a copy of his bill of costs.  To this day, Mama has not been served. Gilmour is not aware of Mama’s whereabouts. And neither does Janusz. By an affidavit he swore on 04 November 2008, Janusz deposes that he divorced Mama on 19 March 2007.

[2].	Order 62 Rule 30(3) of the High Court Rules 1988 stipulates that – within 7 days after commencing proceedings, the taxing party must send a copy of his bill of costs to every other party entitled to be heard on the taxation.  On the day appointed for the hearing of taxation, Ms. Chan argued that Order 62 Rule 30(3) requires that the bill of costs be served on Mama before any taxation hearing can proceed. If the hearing was to proceed, Gilmour would have to come back another day for taxation against Mama if she was to appear later.  Mr. Tuitoga argues that since Mama cannot be located, there is nothing to stop his client from pursuing costs against Janusz – with or without Mama.

[3].	Both arguments carry some degree of conviction. The real issue is – what is to be the consequence of Gilmour’s non-compliance with Rule 30(3) in this case? In answering that question, I have kept in mind the decision of Robert Walker J of the English Chancery Division in Mainwaring v Goldtech Investments Limited [1997] 4 All ER 16 and also the views  - on appeal - of Pill, Mummery and Gibson LLJ of English Court of Appeal. Amongst the issues that arose, is the question – what consequences should follow a breach of Rule 30(3) in the particular extreme circumstances that presented in that case.

THE RULES

[4].	Order 62 Rule 30(3) sets out that – within 7 days after commencing proceedings, the taxing party must send a copy of his bill of costs to every other party entitled to be heard on the taxation.  The taxing party must commence taxation proceedings within three months after judgement. Proceedings commence when the taxing party produces the following at the High Court Registry:

(i)	relevant documents as set out in Order 62 Rule 36.

(ii)	a statement containing the particulars prescribed under Order 62 Rule 29(7)(b).

(iii)	a bill of costs in the form prescribed under Order 62 Rule 29(7)(c).

(iv)	papers and vouchers specified in Order 62 Rule 29(7)(d)(i) – (viii).

[5].	The taxation procedure under Order 62 is designed to produce a single certificate under Order 60 Rule 22(1) at the end of the taxation process. 

[6].	Rule 30(4) lays down that a failure to comply with the requirements of Order 62 in beginning or purporting to begin taxation proceedings shall be treated as an irregularity. But this irregularity shall not nullify the proceedings. 

[7].	When such an irregularity arises, the taxing officer may – under Rule 30(5) – set aside the taxation proceedings either wholly or in part on such terms as he thinks just, or exercise his powers under Order 62 to make such order (if any) dealing with the taxation proceedings generally as he thinks fit.
[8].	Robert Walker J commented on Rule 30(5) as follows:

On its face, r 30(5) is expressed in wide terms. Taxation proceedings may be set aside ‘either wholly or in part’. I see no reason in principle why that should not include, in an appropriate case, permanently setting aside taxation proceedings as against one or some only of the paying parties. After such an order there would still be a single process of taxation, but the paying parties would have been reduced in number. Were the taxing officer’s powers more restricted, absurd results might follow. 

[9].	Robert Walker J then hypothesized as follows to illustrate the point: 

Imagine the case of ….. 100 plaintiffs …..who …..all become jointly and severally liable under an order for costs in favour of a single defendant. The defendant wishes to proceed to taxation and (having lost track of one single plaintiff, through no fault of that plaintiff) decides to proceed against the 99 who can be served, consciously not giving notice to the hundredth, who is thought not to be worth pursuing. Three years later, just before the end of the taxation, the hundredth plaintiff reappears, having inherited a fortune or won a lottery. Fairness and common sense suggest to me that it would be absurd for the receiving party to be able to bring the hundredth plaintiff into the taxation at that stage, especially if the consequence was that the whole process had to be rerun in order to hear new objections from a single paying party. But it would also be absurd if the 99 plaintiffs who had notice or the taxation, and had taken part in it over three years, could receive a windfall benefit, possibly by having the whole taxation proceedings set aside.

[10].	Later, referring in particular to the above passage, Pill LJ of the English Court of Appeal said as follows:

If one of many unsuccessful plaintiffs was not served, disallowance against him would involve disallowance against the other plaintiffs. I accept that difficulties may arise in such actions but there is no escaping the obligation under O62r30(3) to serve every party entitled to be heard. Further, the taxing officer must under O62 r28(4) take into account “all the circumstances” and courses other than disallowance of costs against the unserved plaintiff will usually be appropriate.

[11].	I do not read Pill LJ as saying that if one of the parties was not served, costs should be totally disallowed against that party and any other party who was served. Rather, Pill LJ was applying the extreme hard-line option available under Rule 28(4) against the laxity of the taxing party’s lawyers in that case in not having served Lisle the bill of costs for many years and only to try and include him in the taxation certificate. Also – Pill LJ was considering the prejudice to the parties concerned. 

[12].	As I state below – it is unlikely that this situation will arise in the instant case now before me. There is still yet an opportunity in Gilmour’s case for remedial orders for service before a hearing date can be set for taxation.

MAINWARING v GOLDTECH INVESTMENTS LIMITED

[13].	In Mainwaring, the order for “costs to be taxed if not agreed” was accepted to create in the co-plaintiffs (a Ms. Mainwaring and a  Mr. Lisle) a joint and several liability. Mainwaring and Lisle have always shared the same address. Taxation proceedings commenced on 30 May 1990. Shortly thereafter, the taxing party served a copy of its bill of costs in accordance with Rule 30(3) on Mainwaring at the address she shared with Lisle. For one reason or another, Lisle was not served a copy, even though the taxing party knew that Lisle and Mainwaring shared the same address. Because Lisle was not served, the ensuing taxation proceedings did not at all include him.

[14].	But, on 18 September 1992, nearly two and half years after the proceedings commenced, the taxing party applied for a taxation certificate against Lisle. The Chief Taxing Master however found that the taxing party had failed to comply with Rule 30(3) in not having served Lisle a copy of the bill of costs. Later however, on 06 September 1994, a taxation certificate was purportedly signed on the authority of the Chief Taxing Master against Lisle. This was duly served on Lisle on 09 September 1994 by the taxing party.

[15].	Lisle resisted the taxed costs against him by filing a summons for disallowance of all the costs. Then - perhaps in an attempt to preempt the issue of lack of service under Rule 30(3) - the taxing party responded promptly by sending Lisle a copy of the taxed bill of costs on 29 March 1996. Hence, when the lack of compliance with Rule 30(3) was later raised, the Chief Taxing Master, purporting to exercise his discretion under Rule 30(5), ordered inter-alia on 23 May 1996 that copies of the taxed bill sent to Lisle on 29 March 1996 should stand as good service as of 23 May 1996.

[16].	Lisle then applied to the English Chancery Division to review the Chief Taxing Master’s decision. Robert Walker J was to wholly disallow costs against Lisle whilst keeping intact the taxed costs against Mainwaring. On appeal, the English Court of Appeal unanimously upheld Mainwaring’s argument that, if costs were totally disallowed against Lisle, they should also be totally disallowed against Mainwaring by virtue of the common law principle of joint liability together with Order 62 Rule 28(4).

ANALYSIS

[17].	The consequences of Gilmour’s non-compliance with Rule 30(3) cannot be as harsh as that which the English Court of Appeal favoured in Mainwaring. In my view, Mainwaring is clearly distinguishable from Gilmour’s case in at least three ways. Firstly, in Mainwaring, the costs had been taxed when the taxing party sought to bring Mainwaring into the picture by including his name in the taxation certificate several years after taxation began. In Gilmour, the taxation hearing has not even begun.  Secondly, in Mainwaring, the taxing party had always known Lisle’s address and yet did not bother to send to him a copy of the bill for some six years or so. In Gilmour, Mama’s whereabouts are unknown to anyone.  Thirdly, in Mainwaring, the taxing party, without good reason, had strayed so much from the taxation rules in its convoluted bid to include Lisle in the taxation certificate - even though Lisle had not participated in any way in the taxation hearing. This created a dilemma which, greatly prejudiced both Lisle and Mainwaring. The prejudice to Lisle lay in his having been excluded from the taxation by the taxing party’s disregard of Rule 30(3) and accordingly, being denied an opportunity to challenge the quantification. The prejudice to Mainwaring lay in the fact that – if Lisle was to be left off the hook, because of the taxing party’s non-compliance with Rule 30(3), she would end up being alone liable for the full amount of taxed costs – as it was not open to her, in the circumstances of the case, to pursue a common law claim for contribution from Lisle.

[18].	In Gilmour’s case, the situation has not quite spiraled down to that level of Mainwaring-complication because there is yet still a valid opportunity to regularize the irregularity of non-service.

[19].	According to Robert Walker J, there was also public interest at stake.  That perception actually underlay much of the reasoning of the Chancery Division and the English Court of Appeal. 

[20].	As Mummery LJ observed on appeal:

..the problem posed to the Chief Taxing Master, to Robert Walker J and to this Court would never have arisen if Goldtech’s solicitors had …served Mr. Lisle, as well as Ms Mainwaring, with a copy of the bill of costs at the commencement of the taxation proceedings.

 “Party entitled to be heard on taxation”

[21].	To reiterate, Mama’s whereabouts are unknown.  Rather than seek the leave of the court to serve Mama by way of substituted service, Gilmour has simply pursued taxation against Janusz and appears yet to be disinterested in including Mama. Again, Rule 30(3) makes it mandatory for the taxing party to “send a copy of his bill of costs to every other party entitled to be heard on the taxation”. In Mainwaring, Robert Walker J defined “every other party entitled to be heard on the taxation” as follows:

By Ord 62, r 30(3), a party whose costs are to be taxed must within seven days after commencing the taxation process send a copy of his bill of costs to every other party entitled to be heard on the taxation. As might be expected, that includes any party to the proceedings who has taken any part in the proceedings and is directly liable under a costs order made against him (see r 29(8)(a)). 

[22].	In Fiji, Rule 29(8) (a) in so far as is relevant in this case, defines a “party entitled to be heard on the taxation” as “a person who has acknowledged service or taken any part in the proceedings which gave rise to the taxation proceedings and who is directly liable under an order for costs made against him”.

[23].	Mama is clearly a party entitled “to be heard on the taxation”. She should have been served a copy of the bill of costs. Peter Gibson LJ’s following observation on the reason why service of the bill of costs on every party entitled to be heard is mandatory – resonates the basic principle of natural justice that is so fundamental in our concept of fairness:

I take the reason underlying the requirement of service of the bill of costs on every party entitled to be heard to be that everyone interested in the taxation of that bill is to have the opportunity to make representations and will be bound by the taxing officer’s decision.

The legal consequences of non – service on Mama

[24].	As stated above, a failure to comply with the requirements of Order 62 in beginning or purporting to begin taxation proceedings shall be treated as an irregularity but which failure shall not nullify the proceedings. When faced with such irregularity, the taxing officer may set aside the taxation proceedings either wholly or in part on such terms as he thinks just, or exercise his powers under Order 62 to make such order (if any) dealing with the taxation proceedings generally as he thinks fit.

[25].	Having said that, a failure to serve the bill of costs may also attract the consequences under Rule 28(4) as happened in Mainwaring. As Peter Gibson LJ observes:

It is plain that a failure to serve the bill of costs on Mr. Lisle as provided for by r.30 (3) was both a failure by Lipkin Gorman without good reason to conduct proceedings for the taxation of their costs in accordance with O. 62 for the purposes of r.28 (4) and a failure to comply with the requirements of O. 62 for the purposes of r.30 (4).

[26].	In this case, there is good reason why Gilmour has been unable to serve Mama a copy of the bill of costs. Rule 28(4) does not apply to him. Rule 30 sub-rules (4) and (5) do apply though to render the lack of service on Mama as – but an irregularity which does not nullify the proceedings.

Could Janusz then validly object to the continuation of taxation proceedings against him in the absence of Mama?

[27].	Logically, if the irregularity that arises from the non-service to Mama does not nullify the proceedings against Janusz, then Janusz cannot raise that irregularity as a basis of objecting to the continuation of the taxation proceedings against him.

[28].	In raising this irregularity before the actual hearing of the taxation, Ms. Chan has afforded Gilmour an opportunity to apply to this court for appropriate remedial directions pursuant to Rule 30(5). In other words, whilst the fact of non-service on Mama cannot be validly raised by Janusz as a preliminary objection to the continuation of taxation proceedings against him, raising it now affords an opportunity to steer clear of the potential fatal application of Rule 28(4) as happened in Mainwaring.

Three Options Open to a Taxing Master where one paying party has not been served with a copy of the bill of costs.

[29].	Robert Walker J identified three options open to a taxing  master where one of several paying parties has not been served:

What then is to happen if, for whatever reason, one of several paying parties is not furnished with a copy of a bill of costs, and the taxation proceeds in his absence? The starting point must be Ord 62, r 30(4) and (5), the terms of which I have already set out. A taxation that has proceeded in a paying party’s absence is not a nullity, but it is irregular, and the taxing officer has a wide discretion whether to set aside the taxation proceedings permanently, or to set them aside and start again, or to take some less drastic action to deal fairly with the irregularity.

[30].	The second and the third options appeal more to me i.e. to either set the proceedings aside and start again, or to take some less drastic action to deal fairly with the irregularity. I am inclined towards the third option. Robert Walker J further opined thus in the particular context of Mainwaring.

The situation facing the Chief Taxing Master on 23 May last was a very unusual and contentious one. He had (depending on the view which one took of the facts) a wide range of choice open for the exercise of his discretion. At one extreme (had he accepted the failure to give notice to Mr. Lisle as the merest formality in view of the paying parties’ shared address), he might have waived the irregularity on the ground that no injustice had been occasioned….

Towards the other extreme, the Chief Taxing Master could (if I am right in my view of r 30(5) and subject to the question of jurisdiction) have permanently and entirely set aside the taxation proceedings as against Mr. Lisle, leaving the completed process of taxation and the certificates of 06 September 1994 intact as against Miss Mainwaring. The most extreme course of all (and to my mind probably outside the range of reasonable choice) would have been to set aside the taxation permanently and entirely as against both paying parties. The only justification for an order in those terms would have been a conviction that that was the only way of doing justice to Mr. Lisle (because of likely contribution claims against him); and in the circumstances of this case, that seems to me to be a very steep and high hill to climb.

[31].	At this point, I highlight that the English Court of Appeal did favour the third “most extreme” course. In contrast, Robert Walker J articulated his less drastic second approach as follows: 

“More than six years had passed since the orders for costs had been made. For three and a half years the solicitors have been on notice of the failure to serve Mr. Lisle. Dozens of hours of the Chief Taxing Master’s time had already been taken up in the taxation process. In the interests of the parties concerned and in the public interest it was time to make an end of the matter. 

………….
If I make such an order but it is expressed not to alter Ms Mainwaring’s liability then unless the Court of Appeal decides that I have not power to make or ought not to make such an order she cannot and will not be released. Such a result would be contrary, it seems to me, to principle, precedent and common sense. ... I cannot accept that justice or equity requires that the taxation proceedings should be set aside or the certified sums be further reduced as against Ms Mainwaring. On the contrary, I think that justice and equity requires that I should set aside the proceedings and certificates against Mr. Lisle alone and that is what I shall do. I shall order that the certificates in respect of [the bills] should be amended or reissued in a form which names Ms Mainwaring as the only paying party and by substituting the revised figures which I have already mentioned and which I understand to be agreed. The taxation proceedings against Mr. Lisle and the certificates as against him are wholly set aside and if there is any shadow of doubt about that, that fact should be expressly endorsed on the amended or re-issued certificates”.

The English Court of Appeal

[32].	As stated, Ms. Mainwaring did appeal Robert Walker J’s ruling to the English Court of Appeal. She contended that, if costs were disallowed against Lisle, then they should be totally disallowed against her as well. The English Court of Appeal upheld that argument on the following reasoning.

It is common ground that the orders for costs made by Hoffmann J created in Ms Mainwaring and Mr. Lisle a joint and several liability. By virtue of the common law rule, one person under a joint liability for debt is released by the discharge of the other (In re EWA [1901] 2 KB 642). The common law rule was upheld, not without reluctance, in this Court in Watts v Aldington (unreported, 15 December 1993). It is subject to the exception that the creditor may agree with a joint debtor to release him but reserve in the agreement his rights against the other tortfeasor (In re EWA p 649 and Watts v Aldington per Steyn LJ). However, it is also common ground that, subject to argument on the effect of r 28(4), the function of a taxing master, and of the Court on review of taxation, is to tax costs which is a process of pure quantification. 
………….
Because liability under the 1989 orders for costs was joint, she too was released from liability under these orders by the release of Mr. Lisle by order of the Court. That was the effect of the disallowance under r28 (4) combined with the operation of the common law rule with respect to a joint debt.
………….
The issues for the Court, which I consider to be related, are whether the judge’s order in relation to Mr. Lisle necessarily extinguishes Ms Mainwaring’s liability to the respondents in costs and, if not, whether it is open to her to seek contribution on the ground that the joint orders for costs made by Hoffmann J subsist. The two are related because it may be seen as a fetter upon the r 28(4) power if a defendant who has obtained a disallowance remains liable to contribution proceedings by a co-defendant. That disallowance is the starting point because there is no appeal against it. 

In my judgment, the existence of the common law rule runs together with the unlikelihood of the rules being intended to create a situation in which a defendant who has a r 28(4) order, wholly disallowing costs, in his favour (and in this case who has not been a party to the taxation proceedings) being liable to contribute. They together go to confirm that the intention of the rule is that disallowance of costs against Mr. Lisle has the effect of disallowing costs against the joint debtor Ms Mainwaring. Each order of Hoffmann J was for costs to be taxed (if not agreed). In the absence of agreement, a taxation in accordance with the rules is necessary if money is to be recovered under the Order. Upon a nil taxation in accordance with the rules, the joint debt created by the order in my judgment ceases to exist. 

This may be considered an undeserved windfall for Ms Mainwaring but appears to me the least unsatisfactory result following the serious default of the respondents by their solicitors. It would only be in an extreme case, such as the present, in which a taxing officer would wholly disallow costs against a party and there can be no legitimate complaint if the joint debtor is also released. 

[33].	It might appear from the above that the English Court of Appeal had selectively applied the principles of “joint” liability in total disregard of the “several” part of the equation. However, to reiterate, the English Court of Appeal was underscoring the taxing party’s failure without good reason to commence and/or conduct the proceedings in accordance with Order 62 in that case and the resulting prejudice. As I have stated, the circumstances of Gilmour’s case does not merit such a drastic option. In fact, that option does not even arise.

What would happen if Gilmour was to try and bring Mama in later?

[34].	Obviously, if Gilmour was to try and bring Mama into the proceedings sometime later after having commenced proceedings against Janusz, the same issues (and options) that arose in Mainwaring would have to be considered then. But as stated above, these have not yet arisen and I do not feel compelled to discuss them at this time.

Substituted Service?

[35].	As stated, the two options I consider appropriate in this case - in my view – are to - either set the proceedings aside and start again, or to take some less drastic action to deal fairly with the irregularity. Setting aside the action with liberty to Gilmour to start-afresh would only be appropriate if Gilmour was attempting to include Mama into the proceedings at a time when the hearing had been completed either in part or in full. I prefer a less drastic approach that deals fairly with the irregularity. Ideally, Gilmour should be allowed an opportunity to file an application for substituted service and/or service out of jurisdiction if need be. The taxation hearing could then be adjourned to another date. Since the time for service under Rule 30(3) has long expired, Gilmour should file an application seeking the following Orders:-

(i)	for leave under Order 62 Rule 21 to extend the period with which to serve Mama.

(ii)	for leave to serve Mama by way of substituted service and/or, if need be, service out of jurisdiction – under Order 62 Rule 21 and Rule 30(5).

Single Certificate of Taxation

[36].	Ms. Chan had been concerned at the outset (see above) that if the hearing of taxation of costs was to proceed against Janusz without Mama, Gilmour would have to come back another day for taxation against the latter. On this point, it is important to underscore that Order 62 is designed for a single Certificate of Taxation as Robert Walker J states:

It seems to me reasonably clear from the general scheme of Ord 62, Pts IV and V that one of the basic principles (underlying the detailed provisions that I have already referred to) is that normally there should be a single process of taxation of the costs of proceedings, culminating in a single final certificate issued by the taxing officer under Ord 62, r 22. That final certificate will show what amount is receivable by each receiving party and what amount is payable by each paying party. This analysis is supported by what Ferris J said in Re Macro (Ipswich), Re Earlibe Finance Co Ltd [1996] 1 All ER 814 at 818, [1996] 1 WLR 145 at 149.

[37].	Then again, on page 23 of his judgement between lines d – e, Robert Walker J said as follows:

I summarise, therefore, what I take to be the relevant principles relevant here. There is to be a single process of taxation, culminating in one final certificate under r 22. But a taxing officer may (at any rate before a final certificate is issued) set aside the taxation proceedings under r 30(5), and may in appropriate circumstances (which will be exceptional) do so in relation to one or some only of several paying parties.

[38].	The principle of single taxation is one that applies to our Order 62 as well. If Gilmour were to comply with the directions for substituted service on Mama, then the parties can be rest assured that the proceedings will advance smoothly to a single taxation certificate, with or without Mama.

Common Law Claim for Contribution

[39].	Whether or not a common law claim for contribution would be available to Janusz against Mama even if she was absent from the proceedings after substituted service – is something that Janusz will have to consider in due course. The availability or otherwise of this was discussed in Mainwaring. I am not concerned with that now.

DIRECTION

[40].	Compliance with Rule 30(3) is mandatory. Gilmour is at liberty to:

(i)	formally seek the leave of the court under Order 62 Rule 21 to extend the period with which to serve Mama; and,

(ii)	formally seek leave to serve Mama by way of substituted service and/or, if need be, service out of jurisdiction – under Order 62 and Rule 30(5).

[41].	Master Amaratunga will give appropriate directions on the setting of a hearing date for taxation following the above.

………………………..
Anare Tuilevuka
Master

At Suva.
12 December 2011.