Bermuda Environmental Sustainability Taskforce v Minister of Home Affairs

• Jurisdiction: Bermuda
• Judgment Date: 25 June 2014
• Date: 25 June 2014
• Docket Number: Appellate Jurisdiction 2014 No135
• Court: Supreme Court (Bermuda)

[2014] Bda LR 68

In The Supreme Court of Bermuda

Appellate Jurisdiction 2014 No135

Between:

Bermuda Environmental Sustainability Taskforce

Appellant

and

Minister of Home Affairs (In his Capacity as Minister Responsible for Planning)

Respondent

Mr A Potts for the Appellant

Mr B Adamson for the Respondent

M A Martin for the Joint Receivers of TPC Management Ltd and Tuckers Point Golf, Beach & Tennis Club Ltd (Interested Parties)

The following cases were referred to in the judgment:

R (Corner House) v Trade and Industry SecretaryWLR [2005] 1 WLR 2600

R (Compton) v Wiltshire PCTWLR [2009] 1 WLR 1436

Baker v Hinton Organics (Wessex) Ltd and CAJEUNK [2009] EWCA Civ 107

R (Garner) v Elmbridge Borough CouncilUNK [2010] EWCA Civ 1006

Application for protective costs order — Public importance and public interest — Right of access to the Court

RULING ON PROTECTIVE COSTS ORDER of Kawaley CJ

Introductory

1. BEST appeals by Notice of Originating Motion issued on April 2, 2014 against the Minister's decision dated March 12, 2014, whereby he dismissed BEST's appeal to him against the decision of the Development and Applications Board (the ‘DAB’) granting conditional approval to four planning applications. The grounds of appeal included the following complaints:

• i. The Minister erred in law in finding, contrary to the recommendation of the Independent Inspector, that an Environmental Impact Assessment (‘EIA’) was not required before the final planning approval application;

• ii. the Minister contravened the rules of natural justice by meeting with the Interested Parties in BEST's absence while the appeal was pending;

• iii. the Minister took into an account an irrelevant consideration, namely the representation by the Interested Parties that if the planning applications were refused, there would be ‘a detrimental effect to the Tucker's Point Club…’.

2. The present interlocutory application, by Summons dated May 30, 2014, sought, inter alia, an interim stay of the DAB decisions and specific discovery. I made an Order in the course of the hearing directing that the Minister file a supplementary Affidavit, while the Interested Parties undertook to give disclosure of a redacted version of notes of certain meeting with the Minister. That obviated any need to order specific discovery at this juncture, without prejudice to BEST's right to re-apply, should the need arise. However, the primary relief sought under the interlocutory Summons was an Order that:

‘1. There be a Protective Costs Order made in favour of BEST, pursuant to sections 12 and 18 of the Supreme Court Act 1905, RSC Order 1A, rule 1, RSC Order 62, rules 2(4), 3(2), and/or 3(3), section 61(2) of the Development and Planning Act 1974, and/or the inherent jurisdiction of the Court.’

3. Although there is no known precedent for this Court granting a Protective Costs Order (a ‘PCO’), it was common ground that a PCO could validly be granted, based on the Court's flexible statutory discretion to deal with costs and guided by persuasive English case law grounded in a comparable civil procedural regime. Controversy turned on how the principles developed by the English courts should be applied to the facts of the present case. On the one hand, BEST's counsel contended that the English guidelines should be applied with a light touch, with precedence being given to the need to do justice on the facts of the present case. On the other hand the Minister, supported by the Interested Parties, contended that the principles applicable to the making of a PCO developed by the English courts ought not to be departed from without good cause.

4. In “big picture” terms, the dispute turned on whether BEST, an environmental non-governmental organization with admittedly limited funds and no private interest at stake, ought in the public interest to be protected from the usual costs consequences of pursuing its appeal, in the event that it failed, and if so, on what terms.

Findings: principles governing the granting of Protective Costs Orders

5. The most authoritative guideline principles were articulated by Lord Phillips MR (as he then was) on behalf of the English Court of Appeal in R (Corner House) v Trade and Industry SecretaryWLR[2005] 1 WLR 2600; [2005] EWCA Civ 192. The following guidance was given in that case:

‘74. We would therefore restate the governing principles in these terms:

(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

i) The issues raised are of general public importance;

ii) The public interest requires that those issues should be resolved;

iii) The applicant has no private interest in the outcome of the case;

iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;

v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.’

6. Mr Potts pointed out that before setting out these guiding principles, Lord Phillips made the following qualifying remarks:

‘70. The important difference here is that there is a public interest in the elucidation of public law by the higher courts in addition to the interests of the individual parties. One should not therefore necessarily expect identical principles to govern the incidence of costs in public law cases, much less the ‘arterial hardening’ of guidance into rule which the majority of...