Holman and Ors v Attorney General (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 20 October 2015
• Neutral Citation: [2015] SC Bda 70 Civ
• Date: 20 October 2015
• Docket Number: Civil Jurisdiction 2014 No 399,CIVIL JURISDICTION 2014: No. 399
• Court: Supreme Court (Bermuda)

[2015] SC (Bda) 70 Civ

In The Supreme Court of Bermuda

CIVIL JURISDICTION 2014: No. 399

Between:-

(1) Martin Holman

(2) Judith Holman

(3) Clare Elizabeth Newman

(4) Keith Ashley Holman

Plaintiffs

and

Attorney General

Defendant

Mr Peter Sanderson, Wakefield Quin Limited, for the Plaintiffs

Mr Norman MacDonald, Attorney General's Chambers, for the Defendant

RULING

(In Chambers)

Introduction

1 Any person alleging that their fundamental rights under the Constitution have been or are likely to be breached may apply to the Supreme Court for redress. But what if they lose? Who pays the costs of the application? That is the issue raised by these proceedings.

Background

2 By an Originating Summons dated 19 ^th November 2014 the Plaintiffs claimed a breach of their rights under the Constitution and Magna Carta.

3 The Plaintiffs' case centred on representations allegedly made by the immigration authorities in Bermuda to the First Plaintiff in the early 1970s that he was not Bermudian and was not allowed to live in Bermuda without a work permit. The practical effect of these representations was said to be that in 1976 the First Plaintiff and his wife, the Second Plaintiff, were forced to leave Bermuda. Their children, the Third and Fourth Plaintiffs, were born in the early 1980s while the First and Second Plaintiffs were living in the UK.

4 Belatedly, in 1997 the immigration authorities acknowledged that the First Plaintiff has and has always had Bermudian status and in 2001 they acknowledged that the Third and Fourth Defendants have also always had Bermudian status.

5 The Plaintiffs sought constitutional damages for loss of opportunity to live in Bermuda during the ‘lost’ years in which the Bermudian status of the First, Third and Fourth Plaintiffs was not recognised, and for their distress as a result of this injustice. They alleged that sections 11 of the Constitution, which protects freedom of movement, and section 12, which protects from discrimination, were engaged. So too, they alleged, were the rights which they claimed under Magna Carta not to be disseised of their liberties or free customs or be exiled other than by the law of the land.

6 On 8 ^th March 2015 the Defendant issued a summons for security for costs with a return date of 16 ^th April 2015. On 15 ^th April 2015, the day before the hearing, the Plaintiffs issued a summons for leave to discontinue the action with no order as to costs.

7 When the matter came before me on 16 ^th April 2015 I granted the Plaintiffs' application but reserved the question of costs. The Defendant argued that, notwithstanding that the action had not got very far, he had incurred more than minimal costs defending it and that part of these should be borne by the Plaintiffs. The Defendant sought an order for costs in the sum of $8,000, of which $3,000 was for the costs of the application for costs, although assuming a market rate his actual costs would have been substantially more.

8 I dismissed the Defendant's application in a short ex tempore judgment given at a hearing on 13 ^th October 2015 at which costs were argued. I also dismissed the application for security for costs, which was now redundant.

9 At the request of the parties I am taking the opportunity to set out in more detail the principles governing the award of costs in constitutional cases.

Applicable principles

10 The general rule in civil litigation is that costs follow the event. Ie the loser pays the winner's costs. In Fay v Governor and Bermuda Dental Board (Costs) [2006] Bda LR 72 at para 5, Kawaley J (as he then was) held that constitutional cases were in general no exception.

‘ 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 ordinary public law case:Save The Ridge Inc v Commonwealth [2006] FCAFC 51. However, the Federal Court of Australia in this case observed:

“[12] Where an appeal raises a novel question of much general importance and some difficulty, the appeal court may decline to order costs against the unsuccessful appellant: see Re Mersey Railway Co (1888) 37 Ch D 610 per Cotton LJ at 619, Lindley LJ and Bowen LJ agreeing at 621. …”’

11 The learned Judge was not referred to any cases dealing specifically with costs in constitutional cases. If he had been, he might well have decided that his previous assumption was in fact correct.

12 The question of costs in constitutional cases has been considered in depth by the Constitutional Court of South Africa. I was referred to its decisions in Motsepe v Commissioner for Inland Revenue [1997] ZACC 3 and City Council of Pretoria v Walker (1998) 4 BHRC 324. I have also had regard to Affordable Medicine Trust and others v Minister of Health and Another [2005] ZACC 3 and Biowatch Trust v Registrar: Genetic Resources and Others [2009] ZACC 14.

13 The latter case concerned two unfavourable decisions on costs made in respect of a non-governmental body which had brought constitutional actions seeking information from government bodies. Sachs J, giving the judgment of the Court, described the case as ‘ all about costs awards, and only about costs awards’. He considered the principles governing the award of costs in constitutional cases at paras 21 – 25:

‘ What the general approach should be in relation to suits between private parties and the state

[21] In Affordable Medicines this Court held that as a general rule in constitutional litigation, an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs. In that matter a body representing medical practitioners challenged certain aspects of a licensing scheme introduced by the government to control the dispensing of medicines. Ngcobo J...