Kentucky Fried Chicken (bermuda) Ltd v The Minister of Economy, Trade & Industry et Al

• Jurisdiction: Bermuda
• Judgment Date: 01 May 2013
• Neutral Citation: [2013] SC Bda 17 ,[2013] SC Bda 35
• Date: 01 May 2013
• Docket Number: Civil Jurisdiction 2012 No 188
• Court: Supreme Court (Bermuda)

In the matter of Order 53 of the Rules of the Supreme Court

And in the matter of a Decision by the Minister of Economy, Trade and Industry made on or about 3 May 2012

Between:

Kentucky Fried Chicken (Bermuda) Limited

Applicant

and

The Minister of Economy, Trade And Industry

1st Respondent

and

The Bermuda Industrial Union

2nd Respondent

2013 Bda LR 34

Civil Jurisdiction 2012 No 188

In The Supreme Court of Bermuda

Costs – Second Respondent

The following cases were referred to in the judgment:

Bolton Metropolitan District Council v Secretary of State for the EnvironmentUNK [1996] 1 All ER 184

R v Industrial Disputes Tribunal, ex parte American Express Co IncUNK [1954] 2 All ER 764 (Note)

R (Friends of the Earth Ltd) v Secretary of State for Environment, Food and Rural AffairsUNK [2001] EWCA Civ 1950

HLB Kidsons (a firm) v Lloyds Underwriters [2007] EWHC 2699 Comm

Binns v BurrowsBDLR [2012] Bda LR 3

First Atlantic Commerce v Bank of BermudaBDLR [2009] Bda LR 18

Seepersad v Persad and anor (Trinidad and Tobago)UNK [2004] UKPC 19

Mr J Pachai for the Applicant

Mr C Rothwell for the 1^st Respondent

Mr D Duncan and Mr K Masters for the 2^nd Respondent

RULING ON COSTS of Kawaley CJ

Introductory

1 On March 22, 2013, I gave judgment on KFC's application for judicial review and concluded as follows:

‘88. The Applicant's application for judicial review of the 1^st Respondent's reference of the labour dispute between KFC and the BIU to the Tribunal established by her under the Labour Disputes Act 1992 is refused. This Court should only exceptionally review the legality of such a reference. Here, as will probably appertain in the vast majority of cases, the Tribunal is the appropriate forum for the precise parameters of the issues to be determined to be worked out. The Minister has no power under the Act to determine the Tribunal's terms of reference even though such terms of reference were drawn up in the present case (and possibly in past cases as well). Save in extreme cases, the courts are not competent to challenge the policy judgment of the Minister that a labour dispute sufficiently engages the public interest to warrant a reference to a tribunal under the Act.

89. Nor does the Tribunal have the “draconian” powers which KFC's application, in particular its constitutional arguments, assumed it might deploy. It is empowered to determine existing and past disputes but cannot lawfully make binding determinations which have the effect of imposing a new bargain on the parties as regards future terms and conditions of employment. However, the Tribunal can no doubt encourage the parties to resolve disputes about future contractual terms and can probably make non-binding recommendations in this regard.

90. I will hear counsel as to costs and as to the terms of the Order to be drawn up to effect to the present Judgment. In particular, it may be that a formal declaration might assist the Tribunal with respect to its jurisdiction having regard to the legal findings set out above in substantially the following terms:

(i) It is hereby declared that in its determination of the dispute between KFC and the BIU referred to it by the Minister on or about May 3, 2012, the Tribunal shall not be bound by the terms of reference drawn up by the Minister on or about May 22, 2012;

(ii) It is hereby declared for the avoidance of doubt that the Tribunal has no jurisdiction to make binding determinations with respect to the terms of any future agreements between the parties, whether with respect to a modification or replacement of the CBA or otherwise.’

2 The Applicant and the Minister were content to have a declaration being made in the terms suggested. Mr Duncan expressed concern that this would undermine the chances of similar disputes about expired collective bargaining agreements being referred to the Tribunal1. The question of costs was argued fully fortified by skeleton arguments and authorities with the unsuccessful Applicant contending that costs should not follow the event and, in particular that:

• i. there should be a discount of any costs awarded to the 1st Respondent because the Applicant had achieved a significant degree of success in relation to the principle underlying its constitutional argument, the rejection of the pleaded case altogether notwithstanding;

• ii. the usual rule that two respondents ought not to be awarded costs in judicial review proceedings ought to be applied so that only the 1^st Respondent (the Minister) and not the 2^nd Respondent (the BIU) was entitled to recover costs in any event.

3 One interlocutory costs issue which was reserved was not open to serious argument on either side. The BIU's attempt shortly before the main hearing of KFC's judicial review application to have the Court adjudicate an issue under section 31 of the Employment Act 2000 was refused on the grounds that this was a private law matter which fell outside the scope of the present public law proceedings. It was obvious that KFC ought to be awarded its costs of successfully opposing that application and that the BIU ought not, in any event, be able to recover any costs in relation to an issue which was never argued at the main hearing.

4 The second question, whether or not both Respondents are entitled to recover...