Tucker v Public Service Commission and Board of Education (Costs)

• Jurisdiction: Bermuda
• Judge: Clarke P,Smellie JA,Gloster JA
• Judgment Date: 27 August 2021
• Court: Court of Appeal (Bermuda)
• Docket Number: Civil Appeal 2020 No 7

[2021] Bda LR 67

In The Court of Appeal for Bermuda

Before: Clarke P; Smellie JA; Gloster JA

Civil Appeal 2020 No 7

Between:

Dr Gina Tucker

Appellant

and

Public Service Commission

and

Board of Education

Respondents

Mr M Diel for the Appellant

Mr R Horseman for the 1^st Respondent

Mr D Duncan QC and Mr R Hawthorne for the 2^nd Respondent

The following cases were referred to in the judgment:

Biowatch Trust v Registrar of Genetic Resources [2009] 5 LRC 445

Minister of Home Affairs and Attorney General v Barbosa (Costs) [2017] Bda LR 32

Attorney General v Holman [2015] Bda LR 93

Chief of Police v Calvin Nias (2008) WIR 73

Sannapareddy v Commissioner of Bermuda Police Service and Attorney-General (Costs) [2017] Bda 77

Kimathi and Tucker v Attorney-General for Bermuda and Others (Costs) [2017] Bda LR 44

Jaroo v Attorney-General of Trinidad and Tobago [2002] UKPC 5

Harrikissoon v Attorney General of Trinidad and Tobago [1980] AC 265

Bermuda Environmental Sustainability Taskforce v Minister of Home Affairs [2014] Bda LR 68

R (Corner House) v Trade and Industry [2005] EWCA Civ. 192

Bolton MDC and Others v Secretary of State for the Environment [1995] 1 WLR 1176

Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade and Industry (Costs) [2013] Bda LR 34

Costs — Order for costs at first instance were not appealed and cannot be reviewed — Whether matter was of a constitutional nature or a personal one — Whether general public interest — Dual party principle

JUDGMENT of Smellie JA

1. By her Notice of Motion for Judicial Review filed on 30 November 2018 in the Supreme Court, the Appellant sought a declaration against the Respondents that the appointment of Mrs Kalmar Richards as Commissioner of Education for Bermuda made by the Governor acting on the recommendations of the Respondents, was void on the ground of illegality and that the appointment be deemed null and void. Further relief sought by the Appellant, included an order of certiorari to quash the decision of the Governor and of mandamus, requiring the Respondents to conduct the recruitment process again “fairly and in accordance with the Education Act 1996 and the Public Service Commission Regulations 2001”. However, as the Appellant had been appointed to another senior government post and no longer sought appointment to the post of Commissioner, she ultimately sought relief in damages.

2. By judgment of 23 July 2020, (“the Judgment”) the Appellant's appeal was dismissed and the following directions given as to costs:

“Subject to any submissions being made to the contrary within seven days of the handing down of this judgment, the Appellant shall pay the Respondents' costs of the appeal, to be taxed at the standard rate if not agreed.”

3. No arguments were raised as to the costs of the proceedings at first instance and so no orders were made by this Court in that regard.

4. In response to the directions given in the Judgment as set out above, the Appellant now submits that there should be no order as to costs in the case, including not only as regards the appeal but also the proceedings at first instance.

5. On her behalf, Mr Diel relies on three main arguments, which may be summarised as follows:

• i. That, relying on Biowatch1 as approved and applied by this Court in Barbosa2: “In litigation between the government and a private party seeking to assert a constitutional right … 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”.

• ii. That, further, as the proceedings were taken by way of judicial review and raised issues which were of general public interest, the Court should exercise the discretion which it indisputably has to refuse to make a costs order against the Appellant although she was unsuccessful.

• iii. That, as her fallback position, in keeping with what has come in the cases to be called the ‘dual-party principle’, the usual rule is that an unsuccessful applicant for judicial review ought only to pay one set of costs even if she has joined more than one respondent in the application.

6. We turn to deal with each of these arguments below but before so doing will first address the question of the costs at first instance.

7. There, Acting Justice Riihiluoma on 29 January 2020, provided for the costs of the proceedings in paragraph 4 of his order as follows:

“The First and Second Respondent are awarded their costs which shall be paid at the standard rate, with such costs to be taxed if not agreed.”

8. The Appellant did not appeal against that order in any ground set out in her Notice of Appeal or in the submissions to this Court made on her behalf. In dismissing her appeal, it is, therefore, not surprising that the issue of costs at first instance was not addressed by this Court in the Judgment when it pronounced on costs, as set out above. The invitation for submissions as to costs has been limited by this Court in those terms. It follows that paragraph 4 of Riihiluoma J's order of 29 January 2020 stands and cannot now be reviewed.

9. It follows also that the discussion which follows is limited to the costs of the appeal. It is necessary to set the context by reference to the full description of the Appellant's complaints about the appointment process, as taken from paragraph 19 of the Judgment:

• i. The alleged improper selection and composition of the interview panel.

• ii. The alleged improper and ultra vires delegation by the BOE of its functions to the interview panel, including the function of short-listing candidates. The alleged delegation to the interview panel is said to be ultra vires because the panel was not a “committee” to which the BOE could delegate its functions as permitted by paragraph 12 of Schedule 1 to the (Education) Act…

• iii. The involvement of the PS, Mrs Robinson-James, as a member of the interview panel when not herself a member of the BOE and while allegedly harbouring bias against the Appellant.

• iv. The PSC in turn failed to conduct any form of independent process relying solely on the “flawed” recommendations of the BOE. The PSC has the following obligations which it must itself fulfill and which it failed to fulfill:

  • (a) To consider all applications;

  • (b) To recommend the best candidate;

  • (c) The PSC may recommend a candidate who lacks qualification or experience or both (as it is said of Mrs Richards by Dr Tucker), if the PSC is satisfied that the recommended candidate is of sufficient merit to enable it to make the recommendation. But here the PSC failed to consider that issue itself, instead simply deferring to the BOE's “flawed” recommendation.”

The principle from Biowatch as applied in Holman and approved in Barbosa.

10. We begin with the recognition that this principle relates to non-frivolous actions of sufficient constitutional character or public importance to justify protecting an unsuccessful applicant against an adversarial award of costs in favour of the state. Such an action may invoke directly or indirectly, a constitutional right or remedy of personal or public interest.

11. Mr Diel, in detailed and expansive submissions, sought valiantly to persuade us that the principle applies to this case, a proposition which was with equal vigour, resisted in turn by Mr Horseman and Mr Duncan. They both submit that the Appellant's complaint was a purely personal one, alleging only breaches of procedure and due process and raised no issue of sufficient constitutional character to justify the application of this principle. For the reasons we explain below, we agree with their submissions and find that this principle (the “Biowatch/Barbosa” principle) is inapplicable to this case.

12. Biowatch itself involved an appeal to the Constitutional Court of South Africa by the Biowatch Trust, an environmental watchdog. The Trust had taken action in the High Court, to challenge the validity of the South African Government Registrar of Genetic Resources' (the Registrar) (and other agencies') refusal to provide information regarding the genetic modification of organic material. The Trust argued that the failure of the Registrar to provide access to the information was an infringement of its right to information in relation to constitutionally protected environmental interests. The Trust was substantially successful in its claim, but the High Court, to mark its displeasure at what it regarded as the Trust's inept requests for information, decided to make no costs order in its favour against the governmental agencies.

13. Monsanto SA (Pty) Ltd, the South African component of a multinational diversified biotechnology company involved in the research, development and sale of Genetically Modified Organisms (GMOs), together with other producers of GMOs, had resisted the Trust's quest for information and had been allowed to intervene in the litigation. Again, although the Trust was successful in its claim, the High Court held that Monsanto had been compelled by the Trust's conduct to intervene in the litigation, more particularly to prevent it from having access to confidential information which Monsanto had provided to the Registrar; and ordered the Trust to pay Monsanto's costs.

14. As Justice Sachs noted at [4] of his judgment delivered on behalf of the Constitutional Court, the net result was that, although the Trust had been largely successful in its claim against the government agencies, and even though it obtained information whose release Monsanto had strongly opposed, it found itself in the position of having to foot the bill for all its own costs, and in addition, to pay Monsanto's costs.

15. Thus, as Justice Sachs noted at the commencement of the judgment, the case before the Constitutional Court was all about costs awards and the sole issue revolved around the proper judicial approach to determining costs awards in constitutional litigation...