The present appeal was in respect of ancillary issues to the substantive dispute, which the Respondents had won at trial. The Eastern Caribbean Court of Appeal upheld just one of three grounds of appeal and despite the parties having made no submissions on costs of the appeal, proceeded to make a "no order as to costs" in the course of reading the headnote of the Court’s decision. Counsel for the Respondents sought an opportunity, before any consequential order was perfected, to make submissions on costs given that the Respondents had effectively won the appeal and lost only on a minor issue that represented just 6 per cent of the sum secured by the Respondents on appeal. The Court ordered that the certificate of result of appeal be deferred by a week during which time the Respondents filed an urgent application seeking reconsideration of the Court’s decision on costs. The Court noted that the quality of the Respondent’s success: “in a case like this where the only relief sought is financial, one is forced to the conclusion that a determination of the successful party on appeal must depend on the financial outcome consequent upon the appeal itself.” (at [13]).

Further, it was noted by the Court of Appeal in response to the Appellant’s argument that although the minor ground was worth less in monetary terms, it was of greater public importance in the long run (because it concerned recoverability of foreign lawyer’s fees), that “in a case exclusively seeking financial relief, it would be improper to utilise … [a] public interest argument of the importance of the matter for others in the future, as a basis for increasing its value for the purpose of ascribing an additional value to it in determining the successful party” (at [14]). Having said that, the Court didn’t completely disregard the Appellant’s success on the minor ground and applying another Court of Appeal authority applied a 20per cent reduction to the Respondents’ costs of the appeal.

The long-standing Barrell jurisdiction originally applied only in exceptional circumstances where there were strong reasons for reopening a matter where oral judgments had been given but no order had been entered. It has since been significantly widened by the English Supreme Court in Re L and B (Children) [2013] UKSC 8 and then emphatically followed by the EC Court of Appeal in Sky Stream Corp et al v Alexander Pleshakov [BVIHCMAP2014/0027 (1 November 2018, unreported): “it has long been settled law that a judge is entitled to reverse his decision and has undoubted jurisdiction to change his mind and revisit his decision at any time before his order is drawn up and perfected. His overriding objective must be to deal with the case justly.”

What is clear from HQ Aviation, therefore, is that (i) the Barrell jurisdiction is an available means to change the Court’s mind to ensure justice is served prior to any order being perfected (ii) a pre-emptive decision by any court on costs, without hearing from the parties, is likely to be prejudicial to the overriding objective.

Harneys acted for the successful Respondents.