Terry Lynn Thompson v The Public Service Commission

• Jurisdiction: Bermuda
• Judge: Shade Subair Williams J
• Judgment Date: 08 August 2023
• Docket Number: 2019 No. 200
• Court: Supreme Court (Bermuda)

BETWEEN:

Terry Lynn Thompson

Applicant

and

The Public Service Commission

1 ^st Respondent

and

His Excellency the Governor of Bermuda

2 ^nd Respondent

and

The Attorney General

3 ^rd Respondent

2019 No. 200

In The Supreme Court of Bermuda

CIVIL JURISDICTION

Application for Judicial Review against Decision not to appoint Applicant as the Director of Parks — Construction of Section 82 of the Bermuda Constitution Order 1968 — Whether the decision of the PSC to abort the recruitment process was ultra vires and void — Public Service Commission Regulations 2001 — Delegation of powers vested in H.E. The Governor of Bermuda to the Public Service Commission — Legitimate Expectation

Counsel for the Applicant: Mr. Adam Richards ( Marshall Diel & Meyers Limited)

Counsel for the Public Service Commission: Mr. Richard Horseman ( Wakefield Quin Limited)

Counsel for H.E. The Governor and the Attorney General: Mr. Brian Myrie (Crown Counsel)

RULING ON COSTS

RULING of Shade Subair Williams J

Shade Subair Williams J

Introduction:

1 The parties in this matter are in dispute as to the appropriate award to be made on costs arising out of my judgment of 17 November 2021. That judgment was made in answer to an application for judicial review against the process employed in refusing to appoint the Applicant, Ms. Terry Lynn Thompson, to the post of Director of Parks for the Department of Parks under the Government Ministry of Public Works.

2 On 12 July 2023 Counsel appeared and made oral arguments before me, having filed written submissions. This is my Ruling as to costs.

Summary of the Arguments:

3 Mr. Richards, on behalf of the Applicant, argued that costs should follow the event. His position was that the Applicant had overall success, when looking at the substantive judgment of this Court as a whole. As such, the Applicant is opposed to a partial costs award as proposed by my provisional Order granting 70%.

4 Counsel relied on RSC Order 62/3(3) which empowers the Court, in the exercise of its discretion, to make an order for costs to follow the event. Under that provision it states:

“ If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs.”

5 Mr. Richards also pointed to the decision of the Honourable Chief Justice Mr. Kawaley (as he then was) in Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade and Industry (Costs) [2013] SC (Bda) 35 Civ (1 May 2013) [13]:

“ Mr. Pachai's most ambitious submission was the contention that the Minister's costs should be reduced to reflect the significant success the Applicant achieved in relation to its constitutional point. He faced two hurdles. Firstly, this Court's jurisdiction to make issues- based costs orders finds no express support in the Rules unlike the position under the English CPR (paragraph 44.3(6)(f); the Court of Appeal for Bermuda has cautioned this Court against playing fast and loose, as it were, with the basic principle that costs follow the event and that success should be measured in practical terms.”

6 Kawaley CJ was referring to Sir Anthony Evans JA's...