The Court of Appeal has ordered CEPEP Contractor Eastman Enterprises Limited to pay CEPEP’s legal costs after the conclusion of an appeal concerning the use of an Alternative Dispute Resolution clause in the parties’ contract.
The court held that the contractor was wrong to bypass the clause by filing a claim in the courts. It stated that the parties had agreed to use dispute resolution before approaching the courts and that bypassing the process removed the purpose of the agreed procedure.
Senior Counsel Larry Lalla, who appeared for the contractor with attorneys Kareem Marcelle and St. Clair Michael O’Neil, argued that the court should make no order as to costs. Counsel submitted that each party should bear its own costs because the Court of Appeal ruled that the trial judge erred in referring the matter to the Director of Public Prosecutions.
The court, however, rejected the argument in a unanimous judgment by Justices Rajkumar, Aboud and Rahim. The Court accepted CEPEP’s submission that the referral issue was a minor part of the appeal and did not justify any change to the original costs order. The Court found that the main issue concerned the circumstances in which Alternative Dispute Resolution clauses operate as a condition precedent to litigation.
The Court stated that the referral to the DPP was not a significant aspect of the appeal and did not occupy any real time during the hearing. The Court held that the issue did not affect the main bases of the stay application or the issues determined by the trial judge and the Court of Appeal.
The Court ordered the losing party to pay CEPEP two thirds of its legal costs, subject to a 20 per cent discount to account for the reversal of the referral to the DPP.
CEPEP has called on Contractors to follow their contractual terms and stated that it remains committed to the rule of law.
