Kimathi and Tucker v Attorney General and ors (Costs)

• Jurisdiction: Bermuda
• Judgment Date: 02 May 2017
• Date: 02 May 2017
• Docket Number: Civil Jurisdiction 2016 No 312
• Court: Supreme Court (Bermuda)

[2017] Bda LR 44

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 312

Between:

Ayo Kimathi

David Tucker

Applicants

and

Attorney-General for Bermuda

Minister of Home Affairs

Executive Officer of the Human Rights Commission

Respondents

Mr E Johnston and Mrs D Johnston for the Applicants

Mrs L Sadler-Best for the 1^st–2^nd Respondents

Mr A Doughty and Ms G Tucker for the 3^rd Respondent

The following cases were referred to in the judgment:

Minister of Home Affairs and Attorney-General v Barbosa [2017] Bda LR 32

Holman v Attorney General (Costs) [2015] Bda LR 93

Biowatch Trust v Registrar: Genetic Resources and Ors [2009] ZACC 14

Chief of Police et al v Nias (2008) 73 WIR 201

Costs — Judicial review — Application for constitutional relief — Correct approach to the award of costs where applicants fail to achieve substantial success

RULING ON COSTS of Kawaley CJ

Introductory

1. The Judgment in this matter handed down on April 28, 2017 concluded as follows:

“194. I will hear counsel as to costs and indicate in that regard that my provisional view is that this is a case to which the principles applicable to applications for constitutional relief potentially apply. These principles are most authoritatively set out in a most valuable recent Court of Appeal judgment, Minister of Home Affairs and Attorney-General v BarbosaBDLR[2017] Bda LR 32.”

2. The Court diary did not permit me to deliver an ex tempore ruling after hearing counsel on the issue of costs. I also omitted to express my gratitude to counsel for the assistance which their careful and well-researched arguments provided to the Court. The result of the substantive case was that the Applicants lost overall as against the Attorney-General and the Minister and that the 1st Applicant lost as against the Executive Officer while the 2nd Applicant succeeded. The respective positions on the issue of costs may be summarised as follows:

• (a) the Applicants contended no order should be made as to costs in relation to the 1st–2nd Respondents while those parties sought their costs;

• (b) the 3rd Respondent agreed there should be no order as to costs generally and opposed the 2nd Applicant's application for 50% of the costs attributable to this part of the case.

Overview of the case and the result

3. Although the application sought non-constitutional relief as well, the dominance of the constitutional issues raised is reflected in the opening words of the Judgment itself:

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