Ayo Kimathi v Attorney General for Bermuda

• Jurisdiction: Bermuda
• Judgment Date: 24 October 2017
• Date: 24 October 2017
• Docket Number: Civil Jurisdiction 2016 No 312
• Court: Supreme Court (Bermuda)

[2017] Bda LR 114

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 312

In the matter of an application for Security for Costs

And in the matter of the Rules of the Court of Appeal

And in the matter of the Registrar's Summons under Rule 2/7

Between:

Ayo Kimathi

David Tucker

Appellants

and

Attorney General For Bermuda

Minister Of Home Affairs

Executive Officer of the Human Rights Commission

Respondents

Mr E Johnston and Ms D Johnston for the Appellants

Mr B Myrie and Ms L Sadler-Best for the 1st & 2nd Respondents

Mr A Doughty and Ms G Tucker for the 3rd Respondent

The following cases were referred to in the judgment:

Sannapareddy v Commissioner of the Bermuda Police Service and Attorney General [2017] Bda LR 77

Minister of Home Affairs and Attorney General v Barbosa [2017] Bda LR 32

Holman v Attorney General [2015] Bda LR 93

Biowatch Trust v Registrar: Genetic Resources [2009] ZACC 4

Chief of Police v Nias (2008) 73 WIR 201

Allied Trust & Allied Development Partners Ltd v Attorney General & Minister of Home Affairs [2016] Bda LR 31

Jaroo v Attorney General [2002] UKPC 5

Nasser v United Bank of Kuwait [2002] 1 All ER 401

Application for security for costs — Late adjournment request — Appeals from the Supreme Court

Ruling of Subair Williams R

Introductory

1. The Respondents seek an order for security for costs for the due prosecution of this appeal against the final judgment of the learned Hon. Chief Justice, Ian Kawaley in Judicial Review proceedings dealing with the boundaries of freedom of expression and public speech. The appeal is fixed to proceed during the upcoming Court of Appeal session on 8 and 9 November 2017.

2. The Appellants object to the making of a security for costs order. On 5 September 2017 I refused to make a security for costs order in favour of the Appellants' primary submission is that this is a case of wide public and constitutional importance and that they fall under the category of unsuccessful private-citizens in pursuit of non-frivolous constitutional claims. The Appellants successfully asserted that the exception to the general rule of costs to follow the event applies. However, I gave liberty to the Respondents to restore the application for security for costs which was heard on 19 October 2017.

3. The Appellants now, by informal email correspondence, seek an adjournment of the Appeal from the November 2017 session to the March 2018 session.

The 5 September 2017 Hearing

Order of Directions on Registrar's Summons

4. By summons dated 15 August 2017 and issued by me (in my capacity as Registrar of the Supreme Court) pursuant to Rule 2/7 of the Rules of the Court of Appeal (“the Rules”), the parties first appeared before me on Tuesday 5 September 2017. On that occasion Mr Eugene Johnston and Mrs. Dawn Johnston appeared on behalf of both Appellants. The Respondents were present through their Counsel, namely Crown Counsel Mr Brian Myrie holding for Ms Sadler-Best on behalf of the First and Second Respondents and Mr Allan Doughty appearing on behalf of the Third Defendant.

5. On 5 September 2017 I ordered various directions preparatory to the hearing of the appeal. I also confirmed the fixture of the appeal hearing dates to be 8 and 9 November 2017. The Respondents were initially hesitant to agree to the appeal being listed in the November 2017 session but reluctantly confirmed their availability after Mr Johnston pleaded against further delay and insisted on the appeal proceeding in November 2017 as fixed.

6. A draft copy of my Order was provided by the Court to Mr Johnson on the following day, 6 October 2017. Mr Johnston was directed to liaise with opposing Counsel to ensure that the Order was correctly stated. I further directed Mr Johnston to file the Order, if and once agreed, with a back-page affixed and the requisite stamp duty thereon.

5 September 2017 Oral submissions on Security for Costs:

7. Mr Doughty made an application for security for costs. While joining Mr Doughty in the application, Mr Myrie apologized for being unable to make fuller submissions with the support of case law. He explained that he was merely holding for Ms Lauren Sadler-Best who was unavailable to attend.

8. Mr Doughty and Mr Myrie complained that Mr Johnston had been non-responsive to their attempts for pre-hearing discussions on security for costs and other possible disputes. Mr Doughty informed the Court that Mr Johnston had not replied to any of his emails to this effect. Mr Johnston accepted that he had not engaged in any discussions with Counsel and remarked ‘I am going to keep my powder dry until I see whether my learned friends make an untenable submission. Our view is that there should be no order for security’. Mr Johnston then proceeded to make full oral submissions before me opposing the Respondents’ application for a security for costs order.

9. I pause here to record the Court's disapproval of this ambush-style approach to security for costs applications. These applications are a standard component of hearings on summonses issued under Rule 2/7. On the vast majority of occasions, the Registrar will make an order for security of costs. Counsel are always expected to engage in pre-hearing dialogue with one another in order to ascertain if an agreed position on security can be reached prior to the hearing before me. In this case, Mr Johnston ought to have made it known to opposing Counsel in advance of the hearing that he intended to argue against the making of an order for security for costs. Had he done so, the Respondents would have known to prepare accordingly.

10. On hearing the oral arguments which proceeded, Mr Doughty submitted that this case is not, strictly speaking, a constitutional matter and that an order for security for costs in the sum of $30,0001 would be appropriate as the First Appellant is a foreign national living outside of Bermuda. Crown Counsel, Mr Myrie joined Mr Doughty in these submissions.

11. Mr Myrie, stated that his office made unsuccessful attempts to ascertain from Mr Johnston an agreed position on whether, on the first part, this is truly a public interest matter and, on the second part, how much it would likely incur in legal fees. Without the benefit of a hard-copy of the judgment to hand, Crown Counsel relied on the

judgment of the learned Hon. Chief Justice, Ian Kawaley, in Sannapareddy v Commissioner of the Bermuda Police Service and The Attorney General[2017] Bda LR 77 to support his submission that this is the approach expected of the Crown.

12. Mr Johnston, in contemplation of a possible order as a ‘fall-back’ position, argued that any security for costs order should only be set in the amount necessary to pursue the overseas appellant (said by Mr Johnston to be residing in Washington DC, USA) in execution of the final Court order. Counsel for the Appellants suggested that the more appropriate sum would be in the range of $2,500. However, as his primary point, Mr Johnston relied on Minister of Home Affairs and Attorney General v Barbosa[2017] Bda LR 32 where the Bermuda Court of Appeal upheld the general rule opposing costs orders against unsuccessful private-citizen litigants in non-frivolous constitutional actions. This rule was stated by the learned Justice Stephen Hellman at first instance in Barbosa and also in Holman...