Wednesday, 20 February 2013

law report - "nominal" damages and costs

Williams v the Bermuda Hospital Board [2013] SC Bda 15 Civ

The Plaintiff had been awarded damages of $2,000 against the Hospital, the Defendant, and awarded the costs of the action. Hellman J had described the damages as "nominal"

The Defendant had applied to overturn the order for costs, on the grounds that when a Plaintiff has succeeded in obtaining only nominal damages, the usual costs order is that the Defendant is entitled to their costs.

Hellman J considered authority which indicated that nominal damages meant something which were not real damages at all, but which gave an entitlement to a judgment or verdict because your rights have been infringed [3]. This was not the same as small damages
Comment - for example, if somebody trespasses momentarily on your land you might be entitled to sue them and win, as your rights have been infringed, but as you have not suffered any real damage, the court would probably award legal costs to the trespasser.

Hellman J clarified that, when he used the term "nominal damages", he was not using it in its strict legal meaning, but was using it in the sense of "small" damages [4].

The Defendant submitted further that the Plaintiff had only obtained 1-2% of the amount claimed. However, the solution for a Defendant who believes a Plaintiff will only obtain a percentage of his claim is to pay the amount into court to protect itself from paying costs [9].

Further, when making a costs order, the Court is entitled to consider the effect that the award would have on the award of damages [11]. If it is the court's view that a party is entitled to a small award of damages, but then awards costs against the Plaintiff, then the result will be that the plaintiff is in debt to the Defendant.

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