The Corporation of Hamilton v The Attorney-General
| Jurisdiction | Bermuda |
| Judge | Clarke P,Bell J.A.,Gloster J.A. |
| Judgment Date | 06 February 2023 |
| Neutral Citation | BM 2023 CA 1 |
| Docket Number | Case No: Civ/2021/11 |
| Court | Court of Appeal (Bermuda) |
Neutral Citation Number: [2023] CA (Bda) 1 Civ
THE PRESIDENT, Sir Christopher Clarke
JUSTICE OF APPEAL Geoffrey Bell
and
JUSTICE OF APPEAL Dame Elizabeth Gloster
Case No: Civ/2021/11
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SUPREME COURT OF BERMUDA SITTING IN ITS
ORIGINAL CIVIL JURISDICTION
THE HON. CHIEF JUSTICE
CASE NUMBER 2019: No. 092
Dame Lois Browne-Evans Building
Hamilton, Bermuda HM 12
Jeffrey Jowell, KC instructed by Ronald Meyers, Marshall, Diel & Myers, for the Appellant
Delroy Duncan KC and Ryan Hawthorne instructed by Lauren Sadler-Best of the Attorney-General's Chambers, for the Respondents
Hearing date(s): On the papers
On 18 March 2022 we dismissed the appeal of the Corporation of Hamilton (“the Corporation”) against the decision of the Chief Justice. In the last paragraph of my judgment, with which my Lord and My Lady agreed, I said that, subject to any further submissions, the Corporation should pay the respondents their costs of and occasioned by the appeal to be taxed on the standard basis. Submissions were duly filed by the Corporation to the effect that we should make no such order. This is our decision in the light of the sequence of submissions by the parties as to what costs order should be made.
In these proceedings the Corporation contends that the decision of the Government of Bermuda to convert the Corporation into what it would describe as a quango would, if it had been implemented, by the enactment of the Municipalities Reform Bill 2019, result in the passing of an Act which would contravene sections 1 and 13 of the Bermuda Constitution Order 1968 (“the Constitution”).
One of the several effects of the proposed Reform Act, if enacted, would be that municipal elections would be abolished and replaced by the selection and appointment of Members of the Corporation by the Minister, or by the Minister acting on the recommendation of a Selection Committee the members of whom were persons appointed by the Minister. The Corporation's central complaint was that the level of control which various Municipal Amendment Acts already passed had imposed and which the Reform Act, if passed would, itself, impose, amounted to a deprivation of the Corporation's property — contrary to sections 1 and 13 of the Constitution. The extensive control over the Corporation afforded by the various Amendment Acts already passed is set out in paragraph 12 of the judgment.
My judgment is lengthy, and no useful purpose would be served by attempting a precis of any substantial length. It is sufficient to say that, in paragraph 244, I reached the following conclusions:
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(a) Section 1 of the Constitution does not have independent force;
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(b) There has been no breach of the Corporation's common law right to the protection of the law;
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(c) Section 7 AA 1 (A) of the Municipalities Act 1923 does not deny the Corporation the protection of the law;
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(d) Neither the Amendment Acts, nor the proposed Reform Act, if enacted, contravene Section 13 of the Constitution;
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(e) The Reform Bill, if enacted, will not contravene section 9 of the Constitution.
In relation to issue (a) I considered at paragraphs [19] – [74] a number of authorities, and, having done so, I decided, in paragraphs [75] – [105]:
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(i) that the Chief Justice was bound by three Court of Appeal cases ( Grape Bay 1, Inchcup 2 and Ferguson 3) to decide that section 1 did not have independent force; and
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(ii) that we were bound to follow Ferguson, a case in which the Court of Appeal had had to decide whether to follow either Farias 4 or Inchcup and had decided to follow Inchcup.
I also decided that the “protection of the law” provision in section 1 was not, by itself, directly enforceable: [106] – [115].
In relation to issue (c), Section 7AA 1 (A) of the Municipalities Act 1923 provides that any act or thing required to be done, or done, by the Corporation in pursuance of Ministerial directions given under subsection (1) should be deemed to be for municipal purposes and as a function of the Corporation. I decided at paragraphs [117] – [143] that the mere existence of that provision did not offend the rule of law; although particular directions made by the Minister might be held to be unlawful.
In relation to issue (d), I determined, at paragraphs [146] – [191], that section 13 (1) of the Constitution was not infringed, because neither the Amendment Acts nor the proposed Reform Act amounted to a transfer of property or property rights to the Government. I considered a number of Privy Council authorities which considered the ambit of “ taking” of property and concluded that neither the Amendment Acts nor the Reform Act amounted to a taking of possession of the property of the Corporation or the acquisition of an interest in or right over it, whether actually or constructively.
As to item (e), I determined at paragraphs [198] – [226] that the proposed Reform Act would not contravene the right of expression under section 9 of the Constitution. We had considered the submission that it would do so de bene esse, since it had not been argued before the Chief Justice nor contained in the original Notice of Appeal. In essence the allegation was that the proposed Reform Act interfered with the freedom of expression of electors under section 9. I rejected that contention essentially on the basis that there was no constitutional right to municipal elections and that their abolition would not give rise to any breach of the right to freedom of expression; and that section 9 could not be invoked to mandate democratic elections for municipalities.
The Corporation submits that, although their appeal has failed, there should be no order as to costs, relying on the “ Biowatch/ Barbosa principle”, to use the expression adopted by this Court in Dr Gina Tucker v the Public Service Commission and Board of Education [2021] CA (Bda) Civ 13,
In Barbosa Baker P quoted a substantial passage from the judgment of Sachs J in Biowatch where that judge had said the following, in relation to cases between private parties and the State:
“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 said the following:
‘The award of costs is a matter which is within the discretion of the Court considering the issue of costs. It is a discretion that must be exercised judicially having regard to all the relevant considerations. One such consideration is the general rule in constitutional litigation that an unsuccessful litigant ought not to be ordered to pay costs. The rationale for this rule is that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights. But this is not an inflexible rule. There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious. There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs. The ultimate goal is to do that which is just having regard to the facts and the circumstances of the case …”
[Bold added in this as in subsequent paragraphs]
Sachs J then cited a passage from Motsepe v Commissioner for Inland Revenue [1997] ZACC 3 to the effect that there was no inflexible rule that litigants were free to challenge the constitutionality of statutory provisions no matter how spurious the grounds for doing so might be or how remote the possibility that the Court would grant them access. He then continued:
“[22] In Affordable Medicines the general rule was applied so as to overturn a costs award that had been given in the High Court against the applicants, the High Court having reasoned in part that the applicants had been largely unsuccessful and that they had appeared to be in a position to pay. Although Ngcobo J in substance rejected the appeal by the medical practitioners on the merits, he overturned the order on costs made by the High Court against them, and held that both in the High Court and in this Court each party should bear its own costs. In litigation between the government and a private party seeking to assert a constitutional right, Affordable Medicines established the principle that ordinarily, if the government loses, it should pay the costs of the other side, and if the government wins, each party should bear its own costs.
[23] The rationale for this general rule is three-fold. In the first place it diminishes the chilling effect that adverse costs orders would have on parties seeking to assert constitutional rights. Constitutional litigation frequently goes through many courts and the costs involved can be high. Meritorious claims might not be proceeded with because of a fear that failure could lead to financially ruinous consequences. Similarly, people might be deterred from pursuing constitutional claims because of a concern that even if they succeed they will be deprived of their costs because of some inadvertent procedural or technical lapse....
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