Court name
Supreme Court of Turks and Caicos Islands
Case number
CL 162 of 2019

Big Blue Collective Limited v Kathleen De Bruyne (CL 162 of 2019) [2020] TCASC 20 (20 March 2020);

Media neutral citation
[2020] TCASC 20
Flynote
Case summary:

The Defendant served a statutory demand on the Plaintiff, Big Blue Collective Limited (BBC), when there was no debt due by BBC to the Defendant. Within hours of BBC issuing its originating summons, the Defendant withdrew the demand. Mr. Griffiths says he is entitled to a wasted costs order on his originating summons. Ms. Allan, for the Defendant, says no because BBC is the “reincarnation” of BBU, the defendant in the personal injury proceeding successfully prosecuted by Ms De Bruyne, and in which she holds an unpaid interim certificate for costs in the sum of $130,000.00 plus continuing per diem interest.

Headnote and holding:

Plaintiff to have its costs of and incidental to these originating summons proceedings arising from the statutory demand.

  1. The question of whether inter partes costs may be awarded before the issue of proceedings was answered in the affirmative by Sir Robert Megarry V-C in Re Gibson’s Settlement Trusts; Mellors and another v Gibson and Others [1981] 1 All ER 233. Megarry V-C’s decision was followed and applied by Judge Peter Coulson QC in McGlinn v. Waltham Contractors Ltd. and others [2005] 3 All ER 1126. Therefore, in the instant case, costs incurred from the date of service of the statutory demand on 24 October 2019 are “incidental” to the costs of these originating summons proceedings to set aside that demand, and are recoverable. It matters not that the demand was withdrawn before the Court could pronounce on its propriety, nor does the reason for its withdrawal (paras 10, 11); see McGlinn v. Waltham Contractors Ltd. and others [2005] 3 All ER 1126 (dicta of Coulson J at paras 6 and 7 APPLIED).

  2. In the face of strong authority to the contrary, I cannot see Mr. Parrish and Mr. Shearer, nor can I see BBU behind BBC without piercing the corporate veil of BBC, and in that regard I must again have a mind to the decisions of superior courts that are either binding or highly persuasive (paras 16-23); see Yukong Line Ltd of Korea v. Rendsburg Investments Corp of Liberia and Others [1998] 2 BCLC 485 (CONSIDERED); Linsen v. Humpuss [2011] EWCA Civ 1042 (CONSIDERED); Prest v. Petrodel Resources Ltd. [2013] UKSC 34 (CONSIDERED); Rossendale BC v. Hurstwood Properties (A) Ltd. [2019] EWCA Civ 364 (CONSIDERED).

Coram
Simons QC, J