The Human Rights Commission et Al v The Attorney General and Minister of Legal Affairs
| Jurisdiction | Bermuda |
| Judge | Hellman, J. |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] SC Bda 14 Civ |
| Date | 20 February 2018 |
| Court | Supreme Court (Bermuda) |
| Docket Number | CIVIL JURISDICTION 2017: No. 321 |
[2018] SC (Bda) 14 Civ
In The Supreme Court of Bermuda
Hellman, J.
CIVIL JURISDICTION 2017: No. 321
Mr Saul Dismont, Marshall Diel & Myers, for the Plaintiffs
Ms Wendy K Greenidge, Attorney General's Chambers, for the Defendants
Whether conditions for grant of protective costs orders satisfied — form of protective costs order
(In Chambers)
This is a ruling on the Plaintiffs' application for a protective costs order. They seek one in relation to this action, in which they request declaratory relief as to the meaning and effect of section 35 of the Children Act 1998 (“the 1998 Act”).
The Defendants oppose both the Plaintiffs' application for a protective costs order and the Plaintiffs' claim for declaratory relief. They have applied to strike out the Plaintiffs' claim. The strike out application has been adjourned until after the determination of the protective costs application.
The principles governing the making of a protective costs order were stated and discussed in the context of the English Civil Procedure Rules by Lord Phillips MR (as he then was), giving the judgment of the Court of Appeal of England and Wales in R (Corner House) v Trade and Industry Secretary [2005] 1 WLR 2600 at paras 72–80. They were applied in a Bermudian context by Kawaley CJ in Bermuda Environmental Sustainability Taskforce v Minister of Home Affairs (Protective Costs) [2014] Bda LR 68 SC at paras 5–9. The principles must be applied flexibly: see Morgan and Baker v Hinton Organics (Wessex) Ltd [2009] CP Rep 26per Carnwath LJ (as he then was), giving the judgment of the Court of Appeal of England and Wales, at para 40 and the Bermuda Environmental Sustainability Taskforce case per Kawaley CJ at paras 8–9. The jurisdiction should be exercised only in the most exceptional circumstances. See Corner Houseper Lord Phillips MR at para 72.
As stated by Lord Phillips MR in Corner House at para 74:
“ (1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”
The Court must be satisfied that the applicant has a real (as opposed to fanciful) prospect of success, ie that its case is properly arguable. See Corner Houseper Lord Phillips MR at para 73. When assessing that prospect in the present case, the Court must bear in mind the test for granting a declaratory judgment. As stated by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 HL at 448:
“ The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.”
This formulation, although not adopted by the other members of the House in that case, has stood the test of time, being cited with approval in, for example, the legal textbook Wade and Forsyth on Administrative Law, 11 thedition, and the recent case of R (on the application of The Freedom and Justice Party) v Secretary of State [2016] EWHC 2010 (Admin).
Section 5 of the 1998 Act provides that the purposes of the Act are to protect children from harm, to promote the integrity of the family and to ensure the welfare of children. Section 6 of the 1998 Act provides that in the administration and interpretation of the Act the welfare of the child shall be the paramount consideration. These sections provide a legislative steer for the interpretation of section 35.
Section 35 of the 1998 Act provides:
“ Representation of child and of his interests in certain proceedings
(1) For the purpose of any specified proceedings, the court shall appoint a litigation guardian for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.
(2) The litigation guardian shall be under a duty to safeguard the interests of the child.
(3) Where–
(a) the child concerned is not represented by counsel; and
(b) any of the conditions mentioned in subsection (4) is satisfied,
the court may appoint counsel to represent him.
(4) The conditions are that–
(a) no litigation guardian has been appointed for the child;
(b) the child has sufficient understanding to instruct counsel and wishes to do so;
(c) it appears to the court that it would be in the child's best interests for him to be represented by counsel.
(5) Counsel appointed under or by virtue of this section shall be appointed, and shall represent the child, in accordance with rules of court.
(6) In this section ‘specified proceedings’ means any proceedings–
(a) on an application for a care order or supervision order;
(b) in which the court has given a direction under section 30(1) and has made, or is considering whether to make, an interim care order;
(c) on an application for the discharge of a care order or the variation or discharge of a supervision order;
(d) on an application under section 33(4);
(e) in which the court is considering whether to make a custody order with respect to a child who is the subject of a care order;
(f) with respect to contact between a child who is the subject of a care order and any other person;
(ff) under Part IVA (custody jurisdiction and access);
(g) under Part V (protection of children);
(h) on an appeal against–
(i) the making of, or refusal to make, a care order, supervision order or any order under section 28;
(ii) the making of, or refusal to make, a custody order with respect to a child who is the subject of a care order;
(iii) the variation or discharge, or refusal of an application to vary or discharge, an order of a kind mentioned in sub-paragraph (i) or (ii);
(iv) the refusal of an application under section 33(4); or
(v) the making of, or refusal to make, an order under Part V; or
(i) which are specified for the time being, for the purposes of this section, by rules of court.
(7) The Minister may establish panels of persons from whom litigation guardians appointed under this section must be selected.”
The Plaintiffs submit that in “ specified proceedings”, which are always public law proceedings, the Court should generally appoint: (i) a litigation guardian, who is usually a social worker, to safeguard the child's best interests; and (ii) counsel to represent the child. They say that this is what happens in England and Wales under section 41 of the Children Act 1989, upon which section 35 is modelled. However the Plaintiffs submit that in Bermuda this rarely happens, and that the legislative scheme — which was intended to protect the child's best interests — is thereby frustrated.
Sara Clifford, in an affidavit sworn on behalf of the First Plaintiff as Acting...
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