In Re: Smith and Another v. Connolly (CL 71 of 2009)  TCASC 17 (22 December 2009);
IN THE SUPREME COURT OF THE Case No.s CL 71/09, CL71/09
TURKS AND CAICOS ISLANDS
IN THE MATTER OF OLINT TCI CORPORATION LTD
AND IN THE MATTER OF THE COMPANIES ORDINANCE 1982 CHAPTER
122 OF THE LAWS OF THE TURKS AND CAICOS ISLANDS
1. DAVID SMITH
2. TRACY ANN SMITH
JOSEPH P CONNOLLY
(As Official Liquidator of Olint TCI Corporation Ltd. And as Official Liquidator of TCI FX Traders Ltd.)
Heard: 26th November and 11th December 2009
Circulated: 22nd December 2009
For The Liquidator: Mr Stephen Wilson
For David Smith : Mr Oliver Smith
For Tracy Ann Smith: Finbar Grant (failed to attend hearing 11th December 2009)
1. On the 26th November 2009 the Applicants were unsuccessful in their respective applications for Williams J to recuse himself from further hearing and conduct of this
2. On 11th December 2009 Mr Wilson, on behalf of the Liquidator, applied for an order that Mr David Smith and Mrs Tracy Smith do pay his costs of, and occasioned by, the recusal application. Mrs Wilson argued that it was the normal order that would be made in the circumstances. Mr Wilson reminded the Court that his client was a named party in the Notices filed by the Applicants.
3. Any order for costs was opposed by Mr Oliver Smith who represented Mr David Smith. Mr Smith submitted that the Liquidator was technically not a party in this matter, which he argued was only between his client and the Court. Mr Smith had unsuccessfully submitted at the hearing on 26th November 2009 that the Court should not hear any submission from Mr Wilson concerning the recusal application.
4. Mrs Tracy Smith and her attorney, Mr Grant, failed to attend Court on 11th December 2009. Mr Wilson told the Court that he had informed Mr Grant of his intention to make the application at this hearing.
5. At the hearing, the Court provided the parties with a transcript of President of the Republic of South Africa & The Minister of Sport and Recreation & The Director- General Department of Sport and Recreation v Gauteng Lions Rugby Union & Louis Luyt, Constitutional Court of South Africa, 22 November 2001. The Court received further submissions and gave the parties, including the absent Mrs Smith, the opportunity to file any further written submissions by/on 19th December 2009. No further submissions have been received.
6. The South African case dealt with an application to review the taxation of a party and party bill of costs. The disputed bill of costs related to an appeal and an associated recusal application concerning all of the judges of the court. In respect to the recusal hearing, separate award of costs was made in favour of the Appellants against the unsuccessful Applicant. At paragraph 40 of the judgement Kriegler J stated “Though the appellants were not formally parties to the recusal proceedings, their counsel were inevitably involved as officers of the court…….” Then at paragraph 43 of the Judgment Kriegler J went on to state “To a degree the same could be said for the recusal application. Although not intellectually or professionally as demanding as the appeal itself, the task of counsel for the appellants was demanding even when it came to this part of the case. The dual duty of counsel, to the client and to the court, is trite and ordinarily presents little difficulty. In a situation such as occurred here, where the challenge was directed at the bench itself and implied a measure of judicial impropriety, counsel on both sides had an awkward role to fulfil, promoting the interests of their clients but at the same time performing their duties towards the Court. In the case of counsel representing the President the problem was compounded in that the very basis of the generalised application for recusal was that the judges were reasonably to be perceived as seeking to favour their client.”
7. The Constitutional Court’s approach is to be commended. It was patently clear that Mr Wilson made submissions having regard to his dual responsibility to his client and as an officer of the Court. Any adjournment which would have been occasioned by Williams J recusing himself, would likely hinder the Liquidator’s ability to carry out his functions in a timely manner. However, during his submissions, Mr Wilson referred the Court to remarks in cases that might support an application for recusal as well as those that might point to a refusal to recuse.
8. There is no reason for a departure from the normal rule that the unsuccessful party should pay the costs of, and occasioned by their applications. Therefore, I order that Mr David Smith and Mrs Tracy Smith do pay the costs of the Official Liquidator occasioned by their unsuccessful application for the recusal of Williams J.
Dated: 22nd December 2009