Taxation of legal costs before the Registrar: some practical insights

The Registrar of the Supreme Court of Bermuda has recently published three written rulings after contentious taxation hearings, in the following cases (two relating to proceedings before the Court of Appeal for Bermuda, one relating to proceedings before the Supreme Court):

The facts of each case are not sufficiently important to require a summary, and the Registrar’s reasoning and citation of authority is fairly short in each case, but the rulings do offer some practical insights into the Registrar’s current thinking and general approach to taxations, including on issues relating to the recovery, by the winning party against the losing party, of:

  • the costs associated with ‘legal research’ by an experienced attorney (whose hourly rate reflects, in part, his or her knowledge and experience of the law);
  • the costs associated with ‘duplication’ (or repetition);
  • higher hourly rates in the Court of Appeal after guidance published in July 2016;
  • the costs associated with purely administrative tasks, which might form part of the law firm’s ‘overhead’;
  • the costs associated with the taxation process itself;
  • the costs associated with retaining a ‘second’ set of lawyers (including foreign lawyers, such as a firm of English solicitors); and
  • the reasonable disbursements to be paid with respect to the travel and accommodation requirements of a Leading Counsel from London.

The Registrar has also offered some practical guidance on the form in which she expects any Bill of Costs to be presented, for the assistance of the Court and the parties.

One particular point of interest relates to litigation funding and compliance with the indemnity principle. Although the facts of the cases do not appear to have provided a particularly strong platform for exploring the issue, the Registrar appears to have expressed some level of reluctance to order disclosure of the retainer/funding agreement simply because the receiving party’s legal costs had been paid by her insurers (albeit non-parties), in circumstances where the relevant certificate of liability and compliance with the indemnity principle had been affirmed in writing by the receiving party’s lawyer.

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