Fay and Payne v The Governor and the Bermuda Dental Board

• Jurisdiction: Bermuda
• Judgment Date: 12 October 2006
• Date: 12 October 2006
• Docket Number: Civil Jurisdiction 2005 No. 100
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2005 No. 100

BETWEEN:

Dr James Fay and Keri Payne

Applicants

and

The Governor

Respondent

and

The Bermuda Dental Board

Intervenor

Mr D Kessaram for the Applicants

Mr W Bourne and Mr M Johnson for the Respondent

The following cases were referred to in the judgment:

R (on the application of Corner House Research) v Secretary of State for Trade and IndustryUNK [2005] 4 All ER 1

Save the Ridge Inc v Commonwealth [2006] FCAFC 51

Taxation of costs — Important issues of constitutional law

RULING ON COSTS of Kawaley, J

Introductory

1. All parties filed written submissions on costs on August 25, 2006. However, it was only a week ago that the court ascertained that the parties did not wish an oral hearing at all as to costs, but still wished to be heard on the terms of the formal order to give effect to the Judgments handed down almost two months ago on the Applicants' judicial review and constitutional applications.

The submissions

2. The Applicants seek their costs on the basis that in substance they have succeeded. Their judicial review application was, to a limited extent, successful, and their constitutional application wholly so. They seek the costs of an abandoned preliminary issue in any event.

3. The Governor seeks his costs on the judicial review application, and points out that leave to pursue the constitutional application was not opposed. Time and costs were saved, it is noted, because the preliminary issue was not fully pursued, but this point was raised by the Board in any event.

4. The Board contends that costs should follow the event on the judicial review application, and that this result should not be affected by the Applicants' ‘academic’ success in relation to the negligence charge. The Board played no part in the constitutional application.

Legal principles

5. Order 62 rule 3(3) provides that ‘the Court shall order the costs to follow the event, except where it appears to the Court that in the circumstances of the case some other order should be made.’ Although I have previously assumed that a more flexible approach to costs was justified in public interest matters than in ordinary civil litigation, the better view appears to be that the ordinary rules apply except in cases where the applicant has no personal or financial interest in the proceedings. This appears to be the English view, as applied in the context of granting protective costs orders at an early stage in public interest litigation: R (on the application of Corner House Research) v Secretary of State for Trade and Industry[2005] 4 All ER 1, [2005] 1 WLR 2600. The position appears to be broadly the same, in Australia, in the...