Attorney General v Holman

• Jurisdiction: Bermuda
• Judge: Baker P,Bernard JA,Kawaley AJA
• Judgment Date: 30 May 2016
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2015 No 232
• Date: 30 May 2016

[2016] Bda LR 61

In The Court of Appeal for Bermuda

Before:

Baker P; Bernard JA; Kawaley AJA

Civil Appeal 2015 No 232

Between:

Attorney General

Appellant

and

Martin Holman Et Al

Respondent

Mr N MacDonald for the Appellant

The following case was referred to in the judgment:

Fay v Governor and Bermuda Dental Board [2006] Bda LR 72

Approval of consent order — Clarification of principles for costs orders without full argument — Constitutional cases

JUDGMENT of Baker P

1. This is an appeal from an order of Mr. Justice Hellman, which both sides agree should be allowed.

2. Mr Norman MacDonald has appeared before the Court for the Attorney General today, the Respondents are, for obvious reasons, not represented. The terms of the draft Order are as follows:

• i. Leave to Appeal and Extension of Time to apply for Leave to Appeal granted;

• ii. Appeal allowed;

• iii. The judge's ruling of the 13 October 2015 is set aside;

• iv. The respondent's proceeding in the Supreme Court is dismissed;

• v. And the Respondent to pay the Appellant's costs of this appeal and the costs in the Supreme Court, fixed in the amount of $5,000.00.

3. This Court has no difficulty in approving the terms of this Order which are plainly a sensible disposal of the litigation.

4. It is necessary to explain briefly the history of what happened. The Respondents brought proceedings for relief under Section 15 of the Bermuda Constitution, but they discontinued the proceedings when the Appellant sought security for costs. The Appellant sought partial costs from the Respondent, but Justice Hellman dismissed the application on the 13 October of last year and in the course of his expanded reasons, he said this:

“In an application under Section 15 of the Constitution, the applicant should not be ordered to pay the respondents or any third parties costs, unless the court is satisfied that the applicant has acted unreasonably in making an application or in the proceedings. Thus, if the applicant is unsuccessful each party will normally bear their own costs; however, if the applicant is successful, the respondent will normally be ordered to pay the applicants costs.”

5. Mr MacDonald submits that that is an incorrect statement of the law and that the law is correctly stated by Justice Kawaley, as he then was, in Fay v the Governor and the Bermuda Dental Board[2006] Bda LR 72, in particular, paragraph 5.

6. It is apparent that Justice Hellman based his decision on a number of...