{"id":37900,"date":"2025-08-07T06:55:00","date_gmt":"2025-08-07T06:55:00","guid":{"rendered":"https:\/\/www.cdr-news.com\/?p=37900"},"modified":"2025-08-06T16:58:29","modified_gmt":"2025-08-06T16:58:29","slug":"indemnity-costs-and-issue-based-costs-orders-in-the-bermuda-court-of-appeal","status":"publish","type":"post","link":"https:\/\/www.cdr-news.com\/categories\/expert-views\/indemnity-costs-and-issue-based-costs-orders-in-the-bermuda-court-of-appeal\/","title":{"rendered":"Indemnity costs and issue-based costs orders in the Bermuda Court of Appeal"},"content":{"rendered":"\n

Conor Doyle of Conyers explains that recent court decisions will have a real impact on how litigation is conducted in Bermuda.<\/strong><\/p>\n\n\n\n

The Court of Appeal for Bermuda has lately clarified two important aspects of the law of litigation costs in Bermuda: the test for indemnity costs and the availability of issue-based costs awards. In each respect the Court of Appeal has endorsed a more flexible approach, while aligning Bermuda law with the corresponding position in England and Wales.<\/p>\n\n\n\n

The net result is a mixed blessing for successful litigants. On the one hand, the courts will apply a more lenient test when deciding whether to award costs on the higher indemnity scale. On the other, the courts are now empowered to apportion costs awards according to the victor\u2019s success or failure on discrete issues, rather than simply awarding all costs to the \u2018overall\u2019 winner.<\/p>\n\n\n\n

Indemnity costs: the \u2018out of the norm\u2019 test<\/strong><\/h3>\n\n\n\n

The default rule in Bermuda is that \u2018costs follow the event\u2019, meaning that the successful party is ordinarily entitled to an order that its costs be paid by the unsuccessful party. Costs are awarded on one of two scales: the standard basis and the indemnity basis.<\/p>\n\n\n\n

A costs award on the standard basis means that the receiving party will be entitled to a reasonable amount in respect of all costs reasonably incurred in the proceedings. Any doubts as to whether the costs in question were reasonably incurred or were reasonable in amount are resolved in favour of the paying party.<\/p>\n\n\n\n

A costs award on the indemnity basis means that all costs are recoverable except insofar as they are of an unreasonable amount or have been unreasonably incurred. Any doubts on those points are resolved in favour of the receiving party.<\/p>\n\n\n\n

In practical terms \u2013 and as a broad rule of thumb \u2013 a party awarded its costs on the standard basis can expect at taxation (i.e. a judicial assessment of its costs) to recover up to 70% of its costs actually incurred. An indemnity costs award will result in a substantially higher recovery.<\/p>\n\n\n\n

For many years an indemnity costs award was a rarity in Bermuda. In his influential judgment in De Groote v Macmillan and others<\/em> (1993), Ground J held that indemnity costs were reserved for exceptional circumstances \u201cinvolving grave impropriety going to the heart of the action and affecting its whole conduct\u201d. Though that statement of principle was never expressly approved at the appellate level, it was widely understood among practitioners as reflecting the correct, highly restrictive approach to indemnity costs. Following De Groote<\/em> indemnity costs were seldom sought and almost never awarded.<\/p>\n\n\n\n

The Court of Appeal had occasion to review the position in St John\u2019s Trust Company Ltd v Medlands (PTC) Ltd & Ors <\/em>(2022). The underlying dispute concerned the administration of a high-value Bermuda trust. The appellant (SJTC) brought an unsuccessful appeal against an order of the Supreme Court removing it as trustee of that trust. The successful respondents to the appeal sought an order that SJTC along with the sole shareholder of its parent company, who had intervened unsuccessfully in the appeal, be jointly and severally liable for the respondents\u2019 costs on the indemnity basis.<\/p>\n\n\n\n

In resisting the application, SJTC and the intervener cited a first-instance costs decision which in turn relied on the De Groote<\/em> authority and other cases following it. The Court of Appeal (Smellie JA, with whom Gloster JA and Simmons AG agreed) decisively rejected the strict \u2018grave impropriety\u2019 test. The court confirmed instead that indemnity costs are available when the circumstances are \u201cout of the norm\u201d, a formulation entailing \u201csomething outside the ordinary and reasonable conduct of proceedings\u201d.<\/p>\n\n\n\n

The Court held that the SJTC had pursued the appeal \u2013 at the direction or behest of the intervener \u2013 in the service of personal interests and without regard to the interests or welfare of the trust\u2019s beneficiaries. The court went on to observe that the appeal itself was an \u201cexercise in futility\u201d and had been \u201chopeless from beginning to end\u201d. More extraordinary still was the court\u2019s conclusion that the conduct of the appellant and intervener \u201cin relation to the appeal was highly unreasonable, at times bordering on the unrestrained\u201d. In light of these remarkable findings, the Court of Appeal had little difficulty making the appellant and intervener jointly and severally liable for the successful respondents\u2019 costs on the indemnity basis.<\/p>\n\n\n\n

The significance of the St John\u2019s<\/em> costs ruling is that the Court of Appeal has finally disapproved the strict De Groote<\/em> approach to indemnity costs in favour of the much less restrictive \u201cout of the norm\u201d test adopted from the English authorities.<\/p>\n\n\n\n

Issue-based costs order: no longer disfavoured<\/strong><\/h3>\n\n\n\n

For some time there was uncertainty regarding whether and in what circumstances the Bermuda courts would depart from the general rule that \u2018costs follow the event\u2019 by apportioning costs based on the winning party\u2019s success or failure on discrete issues raised in the litigation.<\/p>\n\n\n\n

Until recently the received wisdom was that so-called \u2018issue-based\u2019 costs orders were unavailable or at least disfavoured. An authority that was often cited for that view was the costs decision of the Supreme Court in Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade and Industry<\/em> (2013). In that case Kawaley CJ observed that, unlike the English Civil Procedure Rules, Bermuda\u2019s Rules of the Supreme Court did not make express provision for issue-based costs orders. He went on to refer to the Court of Appeal\u2019s admonition against \u201cplaying fast and loose, as it were, with the basic principle that costs follow the event\u201d. Accordingly the prevailing approach of the Supreme Court had been to consider as a matter of \u201ccommon sense\u201d which party was the practical or \u201creal life\u201d winner of the litigation and to award them their costs in toto<\/em>.<\/p>\n\n\n\n

In retrospect it is surprising that the Supreme Court had turned its face against issue-based costs orders. The Court of Appeal had on more than one occasion expressly endorsed the costs principles set out by the English Court of Appeal (per Nourse LJ) in Re Elgindata (No 2)<\/em> (1992), a pre-CPR decision. The fourth of those principles is that \u201cwhere the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party’s costs\u201d. As formulated by the Bermuda Court of Appeal in First Atlantic Commerce v Bank of Bermuda<\/em> (2009), the principle is that \u201cthe successful party\u2019s recoverable costs can be proportionately reduced when superfluous issues were raised unnecessarily, or for other good reason\u201d.<\/p>\n\n\n\n

The question came before the Court of Appeal in Global Distressed Alpha Capital I Limited v Herman and<\/em> Eddlestone (2024). On the question of costs, it was common ground among the parties that the Bermuda courts had not embraced the fourth Elgindata<\/em> principle. The Court of Appeal (per Gloster JA) held that to be incorrect and expressly confirmed that both the Supreme Court and the Court of Appeal have a wide discretion to grant issue-based costs orders where appropriate. <\/p>\n\n\n\n

The Court of Appeal did just that in its subsequent costs ruling in Afiniti v Chishti <\/em>(2024). In that case, both parties claimed to be the \u2018winner\u2019 of the appeal. In its costs ruling the Court (per Kawaley JA) agreed with the appellant (for whom the authors\u2019 firm appeared in the Supreme Court and the Court of Appeal) that it had achieved \u201csubstantial success overall\u201d. The court nevertheless reduced that the appellant costs award on the application of the fourth Elgindata<\/em> principle.<\/p>\n\n\n\n

The court adopted a two-stage inquiry: was a disproportionate amount of time expended on issues upon which the overall winner did not prevail; and were the issues \u2018superfluous\u2019 in the sense that the ought not reasonably to have been pursued?<\/p>\n\n\n\n

One of the issues on appeal in Afiniti<\/em> was whether the Supreme Court had been bound, in the circumstances of the case, by the decision of the Privy Council in Munni Bibi v Tirloki Nath<\/em> (1931) concerning the applicable test for issue estoppel as between co-defendants.<\/p>\n\n\n\n

In its substantive judgment the court had rejected the appellant\u2019s attempts to distinguish Munni Bibi<\/em> on appeal. In the costs ruling Kawaley JA observed that the issue estoppel point received disproportionate attention and would ordinarily have justified a reduction \u201cin the order of 40% of the Appellant\u2019s costs\u201d of its appeal. Kawaley JA went on to conclude, however, that it was \u201cdifficult to say it was entirely unreasonable [for the appellant] to pursue the point, because it is clear from this Court\u2019s Judgment that the point was not resoundingly rejected\u201d. Indeed, remarkably, each of the three judges had expressed their own reluctance or ambivalence in concluding that the Bermuda courts were bound by Munni Bibi<\/em>.<\/p>\n\n\n\n

Ultimately the court concluded that the appellant\u2019s pursuit of the issue estoppel point \u2013 as well as another ground of appeal which involved less time but which was \u201cfirmly rejected\u201d \u2013 warranted a 30% reduction to the costs award for the appeal.<\/p>\n\n\n\n

Conclusion<\/strong><\/h3>\n\n\n\n

These highly significant costs developments are very likely to have wider implications for the conduct of litigation in the Bermuda courts.<\/p>\n\n\n\n

The flexible and pragmatic St John\u2019s <\/em>test has made indemnity costs orders far more accessible for successful parties and, concurrently, increased the potential cost exposure for losing litigants. The diligent practitioner will take extra care to guard against litigation conduct that may strike the court at the costs stage as unreasonable or outside the norm.<\/p>\n\n\n\n

Meanwhile the court\u2019s renewed confirmation of the availability of issue-based costs orders means that a party who achieves \u201creal life\u201d success \u2013 irrespective of their success on each individual issue \u2013 can no longer be confident of a complete costs order. Rather, the litigant who takes a bad or ambitious point in the pursuit of a winning case may lose some of the benefit of his victory. Following the Court of Appeal\u2019s recent clarification, well-advised litigants will be more discriminating in crafting and presenting their cases.<\/p>\n\n\n\n

Conor Doyle is a senior associate with Conyers in Bermuda.<\/em><\/p>\n\n\n\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

Conor Doyle of Conyers explains that recent court decisions will have a real impact on how litigation is conducted in Bermuda.<\/p>\n","protected":false},"author":16,"featured_media":37372,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[32],"tags":[1123,1124,2878,6802,11897,11895,11898,178,1176],"class_list":["post-37900","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-expert-views","tag-bermuda","tag-conyers","tag-costs","tag-england-and-wales","tag-indemnity-costs","tag-indemnity-costs-and-issue-based-costs-orders-in-the-bermuda-court-of-appeal","tag-issue-based-costs","tag-litigation","tag-supreme-court"],"yoast_head":"\nIndemnity costs and issue-based costs orders in the Bermuda Court of Appeal - CDR News<\/title>\n<meta name=\"description\" content=\"Conor Doyle of Conyers explains that recent court decisions will have a real impact on how litigation is conducted in Bermuda.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.cdr-news.com\/categories\/expert-views\/indemnity-costs-and-issue-based-costs-orders-in-the-bermuda-court-of-appeal\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indemnity costs and issue-based costs orders in the Bermuda Court of Appeal - 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