Minister of Home Affairs and anor v Barbosa (Costs)

• Jurisdiction: Bermuda
• Judge: Baker P,Bell JA,Clarke JA
• Judgment Date: 24 March 2017
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2016 No 3 & 3A
• Date: 24 March 2017

[2017] Bda LR 32

In The Court of Appeal for Bermuda

Before:

Baker P; Bell JA; Clarke JA

Civil Appeal 2016 No 3 & 3A

Between:

Minister of Home Affairs

and

Attorney General

Appellants

and

Michael Barbosa

Respondent

Mr P Perinchief and Ms W Greenidge for the Appellants

Mr P Sanderson for the Respondent

The following cases were referred to in the judgment:

Attorney General v HolmanBDLR [2016] Bda LR 61

Fay v Governor and the Bermuda Dental BoardBDLR [2006] Bda LR 72

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

Chief of Police v NiasUNK (2008) 73 WIR 201

Costs in constitutional cases — Test to be applied

JUDGMENT of Baker P

1. The Respondent is entitled as of right to appeal to Her Majesty in Council under section 2(b) of the Appeals Act 1911. The Court is required to fix the amount of security not exceeding $12,000.00 and the period within which it is to be paid, not exceeding three months from 8 March 2017.

2. The amount of security and the appropriate order for costs both before us and in the Court below has been the subject of dispute between the parties. The underlying issue is the principle on which costs should be ordered in constitutional cases. In Attorney-General v Holman OthersBDLR[2016] Bda LR 61 we declined to express an opinion without reference to the authorities and argument from both sides. In the present appeal we have had that opportunity.

3. The general rule in civil litigation is that costs follow the event, i.e. the loser pays the winner's costs. At least that is the starting point. In Fay and Another v The Governor and the Bermuda Dental BoardBDLR[2006] Bda LR 72, Kawaley J, as he then was, referred to Order 62 Rule 3(3) and said:

‘…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.’

4. Fay was a case that involved both a judicial review application and a constitutional application. As Kawaley J pointed out, the two were interrelated because section 15 of the Constitution requires an applicant for constitutional redress to exhaust other remedies before seeking redress under that section.

5. Fay was not a case about costs in constitutional cases simpliciter and nor does it appear that the judge was referred to a number of authorities dealing with costs in constitutional cases. At first instance in Holman [2015 Bda LR 93), Hellman J referred to a number of cases that had been decided by the Constitutional Court of South Africa. These were Motsepe v Commissioner for Inland Revenue[1997] ZACC 3; City Council of Pretoria v WalkerUNK(1998) 4 BHRC 324; 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.

6. In Biowatch Sachs J, considered the authorities and outlined what he considered should be the correct approach.

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

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