Winston Godwin and Greg DeRoche v The Registrar General and Ors (Costs)
| Jurisdiction | Bermuda |
| Judgment Date | 25 September 2017 |
| Date | 25 September 2017 |
| Docket Number | Civil Jurisdiction Jurisdiction 2016 No 259 |
| Court | Supreme Court (Bermuda) |
[2017] Bda LR 99
In The Supreme Court of Bermuda
Civil Jurisdiction Jurisdiction 2016 No 259
In the matter of Order 53 of the Rules of the Supreme Court
And in the matter of the inaction of the Registrar General with regards to a Notice of Marriage
Mr M Pettingill and Mr G Spurling for the Applicants
Ms Dill-Francois for the Respondents
Mr R Attride-Stirling for the 1st Intervenor
Mr D Duncan for the 2nd Intervenor
The following cases were referred to in the judgment:
A and B v Director of Child and Family Services and the Attorney General [2015] Bda LR 13
Bermuda Bred Co v Minister of Home Affairs and Attorney General [2015] Bda LR 10
Bermuda Environmental Sustainability Taskforce v Minster of Home Affairs [2014] Bda LR 68
Minister of Home Affairs v Bermuda Industrial Union and Ors [2016] Bda LR 32
Holman and Ors v Attorney General (Costs) [2015] Bda LR 93
Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176
R (E) v JFS and Ors [2009] UKSC 15
R (Barker) v Bromley London Borough Council [2007] 1 AC 470
Fay v Governor and Bermuda Dental Board [2006] Bda KR 72
British Academy of Songwriters, Composers and Authors v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin)
Griffiths v Minister of Home Affairs [2016] Bda LR 66
Phoenix Global Fund Ltd v Citigroup Fund Services (Bermuda) Ltd [2009] Bda LR 70
Amoco (UK) Exploration Co v British American Offshore Ltd [2000] EWHC 212
American Patriot Insurance Agency v Mutual Holdings (Bermuda) Ltd [2012] Bda LR 23
Trott and Slater v Douglas [2015] Bda LR 53
Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade and Industry (Costs) [2013] Bda LR 34
R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192
Smith v Minister of Culture and Social Rehabilitation; Ombudsman for Bermuda Intervening [2011] Bda LR 7
Terms of final order — Costs in public interest matter — Costs of or against intervenors in judicial review matter — Whether conduct of party attracts indemnity costs order
1. In this ruling I address the issues of a final order and of costs arising out of a substantive Judicial Review hearing of the application brought by the Applicant's Messrs Godwin and Deroche. I shall use the same abbreviations that were used in the Judgment dated the 5th May 2017. In that Judgment I determined that:
“… it is apt that the Court should develop the common law by giving effect to the will of Parliament as expressed in the HRA and specifically reflected in sections 29 and 30(b), of the HRA. As the Marriage Act and the MCA are informed by the common law definition of marriage, I believe that as a matter of internal and external cohesion and legal certainty it would be appropriate for the Court to remedy those sections and grant appropriate declaratory relief along the lines of those drafted below subject to hearing counsel on the precise terms of the final Order to be drawn up to give effect to the present Judgment and as to costs.
i. The Applicants are entitled to an Order of Mandamus compelling the Registrar to act in accordance with the requirements of the Marriage Act; and
ii. A Declaration that same-sex couples are entitled to be married under the Marriage Act 1944.
136. I include below a draft regarding other Declarations and possible reformulations of relevant sections of the Marriage Act and Matrimonial Causes Act. But, as said above, I will hear from counsel on the precise terms of the final Order:
i. The definition of marriage to be inoperative to the extent that it contains the term “one man and one woman” and reformulated to read “the voluntary union for life of two persons to the exclusion of all others.
ii. As the Marriage Act is informed by the common law definition of marriage, it would be appropriate for the court to declare section 24 (b) of the Marriage Act 1944 to be inoperative to the extent that it refers to “man” and “wife”. And further to reformulate that section to read: “and each of the parties shall say to the other inthe presence of the Witnesses “I call upon these persons here present to witness that I [A.B.] do take thee [C.D.] to be my lawful wedded wife/husband/spouse” (as the case may be).
iii. In a similar vein section 23 (4) of the Marriage Act should be reformulated inthe following way: “I [A.B.] do take thee [C.D.] to be my lawfully wedded wife/husband/spouse”. And “each of the parties shall during the course of the celebration say to the other in the presence of the witnesses “I call upon these persons here present to witness that I [A.B.] do take thee [C.D.] to be my lawfully wedded wife/husband/spouse”.
iv. As part of the existing marriage laws, the Matrimonial Causes Act reflects the common law definition of marriage. For the reasons stated above it is appropriate for the court to declare section 15 (c) of the Matrimonial Causes Act inoperative.”
2. Counsel for the Applicants submitted a draft written form of order that coincides with the draft terms of order provided in the judgment as cited above. Counsel for the HRA supports the version of order contended for by the Applicants.
3. Counsel for the Defendants Mrs Dill Francois contends that section 29 of the HRA does not permit the Court to reformulate a provision of law or add words to it. She contends that the section simply allows the court to declare a provision inoperative. Section 29 of the HRA provides:
“In any proceedings before the Supreme Court under this Act or otherwise it may declare any provision of law to be inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless such provision expressly declares that it operates notwithstanding this Act.” (emphasis added)
4. Mrs Dill Francois prays in aid the case of A and B v Director of Child and Family Services and the Attorney-General[2015] Bda LR 13 (A and B) at paragraph 42, where she suggests that Justice Hellman exercised judicial restraint and remained within the letter of the law (my words) when he stated:
“…pursuant to section 29 of the 1981 Act, I declare the word “married” in subsections 28(1) and 28(3) of the 2006 Act to be inoperative.”
5. In A and B Hellman J was dealing with what he found to be discrimination on the basis of the two applicants' marital status as they were an unmarried same-sex couple. Section 28 provided for a joint application by a married couple only. Hence to remove the discriminating provision Hellman J declared the word “married” to be inoperative.
6. Counsel for the Defendants seek further support from the finding of the Chief Justice in the case of Bermuda Bred Company v Minister of Home Affairs and the Attorney-General[2015] Bda LR 10 (Bermuda Bred). She contends that the declaration made by the Chief Justice at paragraph 99, was in keeping with section 29 of the HRA. In that case the Chief Justice stated:
“Sections 25 and 60 of the Bermuda Immigration and Protection Act 1956 shall be inoperative to the extent that they authorise the Minister to deny the same-sex partners of persons who possess and enjoy Bermuda status, and who have formed permanent relationships with such Bermudians, residential and employment rights comparable to those conferred on spouses by the said sections 25 and 60 respectively.”
7. It is to be noted that in that case the Chief Justice did not have the ease of declaring only a word or two inoperative. He found that the whole of the provisions in sections 25 and 60 offended the HRA in that they were being operated in a discriminatory manner by the Minister against same-sex partners of Bermudians. The Chief Justice declared inoperative the above referred sections to the extent that they reflected the discriminatory basis for the Minister excluding a same-sex couple from the benefit of the immigration provision.
In my judgment dated the 5th May 2017 in the present case, one of the proposed declarations that I drafted reads as follows:
“the common law definition of marriage is inoperative to the extent that it contains the term “one man and one woman” and reformulated to read “the voluntary union for life of two persons to the exclusion of all others.”
8. Mrs Dill Francois objects to the proposed reformulation in the declaration; she submits that it goes further than is necessary and is not in accordance with section 29 of the HRA. Additionally, she argues that such a reformulation can lead to further questions such as whether the term “two natural persons” can refer to persons who have not yet reached the age of majority or whether it refers to persons who are prohibited by virtue of consanguinity. It is her position that if the Court wishes to make a declaration regarding the common law definition of marriage, then it should be limited so as to read as follows:
“the common law definition of marriage is inoperative to the extent that it contains the term “one man and one woman”.
9. She also suggests that the draft reformulation of sections 24(b) and 23(4) of the Marriage Act 1944 by the addition of the word “spouse” in each provision goes beyond the intended reach of section 29 of the HRA.
10. Mr Attride-Stirling for the HRC disagrees with Mrs Dill Francois' submissions. He argues that Justice Hellman in A and B went further than just delete the word “married” from subsections 28(1) and 28(3) of the 2006 Adoption Act, contending that the judge added the words:
“… by an unmarried couple whether same-sex or different-sex, provided that they have been living together for a continuous period of one year …”
11. I think that Mr Attride-Stirling is acting under a...
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