Detective Sergeant David Bhagwan v Stephen Corbishley
| Jurisdiction | Bermuda |
| Judge | Smellie JA,Bell JA,Clarke P |
| Judgment Date | 21 December 2022 |
| Neutral Citation | BM 2022 CA 22 |
| Docket Number | Case No: Civ/2021/10 |
| Court | Court of Appeal (Bermuda) |
(Commissioner of the Bermuda Police Service (BPS))
(Asst. Commissioner of Police, Interview Panel Chairman),
(Asst. Commissioner of Police, Interview Panel Member),
(BPS Human Resource Manager, Interview Panel Member), John Payne (Interview Panel Member)
Neutral Citation Number: [2022] CA (Bda) 20 Civ
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Geoffrey Bell
JUSTICE OF APPEAL Sir Anthony Smellie
Case No: Civ/2021/10
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CIVIL JURISDICTION
THE HON. CHIEF JUSTICE
CASE NUMBER 2019: No. 065
Sessions House
Hamilton, Bermuda HM 12
Mr. Philip J Perinchief of PJP Consultants for the Appellant
Mr. Allan Doughty and Miss Safia Gardener of MJM Limited for the Respondents
Hearing date: written submissions on costs filed on 1, 5 and 21 July 2022
By judgment delivered on 17 June 2022, (the “ Judgment”) this Court dismissed the Appellant's appeal against a judgment of the Chief Justice which refused his application for judicial review of the decision of the First Respondent (the “ Commissioner”) not to promote him to the rank of Inspector within the Bermuda Police Service.
Written submissions as to the costs of the appeal were invited and those having been eventually received, this is the judgment on costs.
The submissions presented on behalf of the Appellant by Mr Perinchief and those on behalf of the Respondents by Mr Doughty, are starkly opposed.
Mr Perinchief submits that “ there ought to be no order as to costs, primarily as the fundamental issues were matters of public importance”, and that “ It is of immense ‘public importance’, and in the interests of national safety and security, that the public have supreme confidence in “an assessment process and regime” that consistently ensures that it is serviced by well trained and accurately assessed police officers through each and every rank, individually and collectively. This was such a case. A case where one officer, the Appellant officer Bhagwan, was notwithstanding limited financial means, bold and brave enough to take on (sic) both for himself of course, and indeed for current and future officers coming through the ranks and being assessed “on merit” via the prevailing assessment processes.”
Its hyperbolic bent aside for the moment, this is taken as an argument for invoking the Court's discretionary jurisdiction to make no order as to costs and so avoid imposing an order for costs upon the unsuccessful Appellant because of the general public interest in the issues said to be raised by his appeal.
Mr Perinchief concludes his written submissions in these terms: “ The justice of this case, when considered in the round, should not follow the usual outcome of awarding the “winner” costs. In our respectful submission, the Appeal was properly and earnestly brought, and the circumstances of same ought not to attract a cost award to any party, but rather should be settled with a “no order as to costs” award. Any adverse award would or could deter other erstwhile litigants from lodging meritorious Appeals in the future.”
This “general public interest” principle is clearly recognised and explained in the case law, most recently by this Court in Tucker v Public Service Commission and Board of Education [2020] CA (Bda) Civ 13, judgment delivered 27 August 2021, at [41] to [47]. I will return to consider whether the principle might properly be applied in relation to this appeal. On behalf of the Respondents, as already noted, the position taken by Mr Doughty is diametrically opposed.
First, he argues for an order for costs against the Appellant on the indemnity basis, relying upon dicta from the Supreme Court in Phoenix Global & Another v Citigroup Fund Services & Another [2009] Bda LR 70 (SC) and citing what he describes as “ exceptional circumstances, involving grave impropriety on the part of the Appellant and his lawyer, going to the heart of the action and affecting its whole conduct.”
Secondly Mr Doughty seeks to invoke this Court's jurisdiction for the imposition of a wasted costs order upon Mr Perinchief himself. This he proposes on the basis of the judgment of this Court in Kimathi & Another v Attorney General et al [2017] CA (Bda) 9 Civ, 17 November 2017, and what he describes as Mr Perinchief's unreasonable and improper conduct of the action both before this Court and below in the Supreme Court, conduct which he asserts has caused the Respondents to incur unnecessary costs. The order that he seeks is that Mr Perinchief be ordered to show cause why he should not be ordered to pay wasted costs to the Respondents in the amount of 30% of the overall indemnity costs payable to the Appellant, unless he concedes the issue, and that, in the event that he is ordered to pay wasted costs, that the amount of costs payable by the Appellant be reduced by the amount for which Mr Perinchief is personally liable.
I will address this alternative argument first, explaining why it may not be accepted.
In Kimathi, this Court, per Kay JA (at pp 6 to 7), recognized the existence of the longstanding jurisdiction to make an award in respect of wasted costs. It is a jurisdiction which is both inherent to the courts, as explained authoritatively in Myers v Elman [1940] AC 282, and, as explained in Kimathi; vested by virtue of the procedural provisions of the Rules of the Court of Appeal, to award wasted costs in appellate proceedings. In Kimathi, Kay JA also explained the threefold test in Bermuda for the imposition of a wasted costs order. Following the formulation from Ridehalgh v Horsefield [1994] Ch 205 (CA) (at pp 232–233), Kay JA postulated the test as follows:
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“ i. Has the legal representative acted unreasonably or improperly?
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ii. If so, did such conduct cause the applicant to incur unnecessary costs?
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iii. If so, is it, in all the circumstances, just to order the legal representative to pay the whole or part of the relevant costs?”
Kay JA regarded the first limb of the test (suggested by the arguments in Ridehalgh by reference to section 51(7) of the UK Supreme Court Act as including negligent acts or omissions on the part of the lawyer as a free standing basis for an order) as being qualified by Order 62 Rule 11 of the Rules of the Supreme Court where, in codifying the jurisdiction, negligence is omitted. He explains this, at [16], on the basis that the concept of negligence in this context “ will usually add little to “unreasonable”. This, it is worthy of note, is a sentiment which appears to accord with views expressed by Bingham JA (as he then was) in Ridehalgh itself (at p 233 B) where he said on behalf of the Court of Appeal:
“.. for whatever importance it may have, we are clear that “negligent” should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession… We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp definition between these expressions is useful or necessary or intended.”
In Kimathi, on clear and undisputed facts, and with the principles explained above in mind, the Court of Appeal of its own motion raised the enquiry and came to conclude that there was abundant evidence that the respondent lawyer, Mr Johnston, conducted the appeal both unreasonably and improperly by continuing to act in the matter while being ineligible to practice.
More particularly, it was held at [31], that “ the truly unreasonable and improper conduct began on 1 October 2017. He (Mr Johnston) must have known that, from that day, his firm had no indemnity cover and, therefore, could not satisfy the condition which permits practice. By the Bar Council's letter of 11 October 2017, he was told to “cease and desist operating legal services” until he had submitted proof of cover. He was also told that he should arrange for clients to be represented by another firm, “particularly those who have pending cases”.
The wasted costs occasioned by the postponement and delay of the appeal and which were a direct result of Mr Johnston's unreasonable and improper failure to comply with those directives, were the subject of the order made against him and his firm (of which he was sole proprietor).
It is nonetheless, clear from the three-stage test itself, that an enquiry into whether a wasted costs order might be justified will be a fact sensitive exercise.
In recognition of this, one sees from all the cases, the requirement of procedural fairness that the subject lawyer be given adequate notice of the intent of a party to seek or of the court of its own motion to impose, an order for wasted costs.
Adequate notice will include an opportunity to show cause by being informed clearly what is the conduct or omission being called into question. As stated in Ridehalgh at 239 B-C:
““ Show cause”
Although Ord 62, r 11(4) in its present form requires [as does the equivalent Bermuda rule] 1 that in the ordinary way the court should not make a wasted costs order without giving the legal representative “a reasonable opportunity to appear and show cause why an order should not be made,” this should not be understood to mean that the burden is on the legal representative to exculpate himself. A wasted costs order should not be made unless the applicant satisfies...
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