Western Air Costs Dispute – Clear Win For ParrisWhittaker In Leading Costs Case

As experienced litigators, the attorneys at ParrisWhittaker know more than most that disputed legal costs are often the trickiest of issues to be resolved by the court.

The prospect of having to shoulder hefty legal fees if you are unsuccessful in the dispute that brought you to court in the first place can often dictate how you approach your case in general.

But concerns about payment of legal costs extends beyond the individuals or businesses caught up in a legal dispute. For law firms too, there is always a risk that enforcement action may need to be taken to secure payment of fees that are owed. Back in 2022 in the Supreme Court we succeeded in obtaining an order for costs on behalf of a client. That client had acted as an attorney for Western Air in its successful, decade long claim against the Bahamas Airport Authority. This dispute over costs was unusual, involving as it did competing claims for entitlement to fees for work carried out in the long running case and whether solicitors could claim for work carried out on a credit basis. Nevertheless it is a useful indication of how protracted and contentious disputes over costs can turn out to be.

Indeed following our successful claim for costs in 2022 Western Air appealed again. The resulting judgment which we discuss below is set to be the leading discussion and ruling on attorney fees and recovery here in the Bahamas.

ParrisWhittaker is an award-winning law firm headquartered in the Bahamas with additional offices in Turks and Caicos, Amsterdam, BVI, Jamaica and Barbados. We combine highly technical legal expertise with a personal, hands-on approach. Direct, partner-led work and accessibility that’s crucial to the client experience mean we provide a different kind of legal service.

You can get in touch with our team directly on 1-242-352-6110 and 1-242-352-6112. Alternatively, you can always contact us online.

Why Do Attorney Costs And Costs Orders Matter?

When individuals are  involved in a court dispute it’s important always to have the potential costs on your radar. Too often we see individuals pursuing expensive litigation, blinded by what they perceive as the rights and wrongs of a dispute that is very personal to them.

It’s also important for the administration of justice generally that attorneys should be able to recover the fees and costs they have incurred in bringing or defending claims for clients. In our 2023 costs appeal Chief Justice Sir Michael Barnett highlighted a 2018 UK case on the issue of attorney and solicitor cost recovery. He quoted the following remark from Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd:

‘The right of the solicitor to recover fees is a judge-made remedy, motivated not by any fondness for solicitors as fellow lawyers or even as officers of the court, but rather because it promotes access to justice. Specifically it enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit.’

Western Air Costs Dispute 2022

In December 2022 the Supreme Court made a decision on a dispute over costs that stemmed from the well-reported case of Airport Authority v Western Air (2020) . We have previously discussed the case and how it illustrates the law of negligence in a Bahamian commercial context. The incident giving rise to the case –the theft of an aircraft – occurred as far back as 2007. Following the final ruling of the Privy Council in November 2020 (which confirmed that the Airport Authority had been negligent) the level of costs due to the lawyers for the successful party was assessed or ‘taxed’.

There followed however a dispute over who was entitled to these costs. This was because Western Air changed attorneys between the time of the Bahamas Supreme Court ruling in the matter and the time of further appeals in the case to the Court of Appeal and ultimately to the Privy Council.

In the event, both firms claimed to be entitled to be paid costs arising from the Supreme Court action.

Crucially:

• The original attorneys (who we represented) obtained a formal certificate of the costs due to them following the Supreme Court ruling
• Although new lawyers subsequently represented Western Air, the original attorneys (our client) remained on the court record as the representatives of Western Air
• The notice of change of attorney (required under the Bahamas court rules) was filed as late as July 2021.

Danger Of Setting An ‘Unholy Precedent’ On Costs

Our clients argued that for it to be forced to initiate proceedings for the recovery of costs – which had already been assessed and accepted – would establish an ‘unholy precedent’. It would mean that attorney’s costs can be defeated by simply filing a notice of change of attorney and forcing law firms like our client to sue their former clients.

At the end of the day our client had provided services to Western Air, and it had successfully obtained a costs certificate following the Supreme Court action. After that, even when Western Air had engaged another attorney our client had:

• Transferred the file without payment of the agreed, taxed costs – enabling Western Air to seamlessly continue its case
• Prepared the record of appeal; and
• Assisted its (former) client Western Air in its continued pursuit of justice

In finding in favour of our client the judge highlighted that in practical terms there was no real evidential dispute as to the amounts owed and how they should be allocated between the two sets of attorneys. In the circumstances it simply would not be ‘just or equitable’ for our client to have to sue independently to pursue those costs.

2023: Further Western Air Appeal Against Cost Order Fails

You might think that, with such a resounding judgment recognising our rightful claim to costs, the decade-long saga would end there. Unfortunately not. As we mentioned above, Western Air proceeded to appeal almost every aspect of the costs order to the Court of Appeal. The resulting judgment of The Honourable Sir Michael Barnett, P is clear and succinct in its recognition of the importance of attorneys being able to recover their costs. It’s been welcomed locally as a definitive statement on attorney fees in the Bahamas. Sir Michael Barnett confirmed:

• Western Air had no basis on which to argue that our client’s claim for the recovery of money was statute barred by the Limitation Act

• Having agreed to the Certificate of Taxation regarding our client’s costs, Western Air was acknowledging that the sum in the Certificate represented the sum that had been spent in pursuing its claim. It could not now dispute that the amount on the Certificate.

• The earlier order, placing a protective charging order on the award of costs was correct

We were also successful in recovering most of the costs involved in mounting this further appeal.

Contact Us

We are always ready to advise you on litigation risks, including adverse cost consequences. Our role in the Western Air cost dispute shows we can handle long-drawn out, high value disputes that have huge commercial consequences for the parties involved.

For advice, please feel free to reach out to us at ParrisWhittaker for an initial, no-obligation discussion.