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Polynesian Airlines v Kingdom of Tonga [2000] TongaLawRp 18; [2000] Tonga LR 145 (19 May 2000)

IN THE SUPREME COURT OF TONGA

Polynesian Airlines

v

Kingdom of Tonga

Supreme Court, Nuku'alofa
Finnigan J
C 126/97

8, 9 May 2000; 19 May 2000

Costs — taxation of costs — scale charges may be exceeded

Costs — taxation of costs — defendant was allowed costs of taxation process

On 27 January 1999 the Court determined liability for costs and directed that costs be paid by the plaintiffs. They were to be taxed if not otherwise agreed. The defendants lodged their bill of costs and the plaintiffs notified that they wished to be heard by filing a notice of objection.

Held:

1. Most cases before the Court in Tonga do not require counsel from overseas, but where that is thought necessary charges outside the scale maxima may be appropriate.

2. The question was, what was the amount that was "reasonably necessary or proper" to pay as a fee for counsel capable of defending the rights of the defendant in the particular case.

3. Fees for travelling time and for days on which no work was done were taxed off because the fees were not "reasonable, necessary or proper for defending the rights of the defendant".

4. In Tonga costs were intended to be a contribution towards the solicitor and client expenses of a successful party, calculated by reference to a scale, whose maximum may be exceeded.

5. As to costs for preparation time the Court applied a standard of 15 days preparation to 1 day of trial. This was due to the complexity and particularly by reason of the documents that were discovered and used.

6. With respect to disbursements, the principle to be applied was what was reasonably necessary for the defence of the defendant's rights.

7. Where an item or service purchased outside Tonga was recognised as being available in Tonga at a cheaper rate then prima facie it was the local rate that should be allowed, but this was not inflexible.

8. The defendant sought reimbursement of the costs of the taxation process. As the issues were clear cut, the Court allowed preparation time of 3 days per day of hearing so allowed costs of 6 days preparation and 2 days of hearing.

9. A judgment in costs was a judgment debt, and the Court had a discretion whether to award interest. The Court decided that to do so was just in the present case. Interest was payable on the total taxed costs at 10% per annum, the time to commence to run from the day 1 calendar month after the date of taxation.

10. The total all of those taxed fees and disbursements was Lstg 391,974.15 and 10% per annum commencing on and including 20 June 2000.

Cases considered:

Edwards v Kingdom of Tonga [1994] Tonga LR 62 (CA)