Aggrey Downer v Firearm Licensing Authority
| Jurisdiction | Jamaica |
| Judge | A. Nembhard J |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] JMSC Civ 141 |
| Docket Number | CLAIM NO. SU 2020 CV 01681 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU 2020 CV 01681
Mr Hugh Wildman and Ms Faith Gordon instructed by Hugh Wildman & Company for the Applicant
Mrs Tana'ania Small-Davis Q.C. and Ms Kathryn Williams instructed by Livingston, Alexander & Levy for the Respondent
Costs — Application for leave to apply for judicial review discontinued — Application for the costs of the discontinued application for leave to apply for judicial review made by statutory body — Whether the making of the application for leave to apply for judicial review was unreasonable — Whether the conduct on the part of the applicant for leave to apply for judicial review was unreasonable — Whether an alternative remedy was available to the applicant for leave to apply for judicial review at the time of the making of the application — Whether a review board was in existence at the time the application for leave to apply for judicial review was made — Whether the applicant for leave to apply for judicial review applied to the minister for a review of the decision of the statutory body prior to making the application — Whether the application for leave to apply for judicial review was discontinued promptly — Whether a cost order should properly be made in the circumstances — The appropriate cost order to be made in the circumstances — The Judicature (Supreme Court) Act, sections 28E(1), (2) and (3), The Firearms Act, sections 37(1)(c), 37A(1), (2)(a) and (b), 37A(3) and (4) and the Fourth Schedule, paragraphs 1, 2 and 9, The Civil Procedure Rules, 2002, rules 2.2(1) and (2), 37.6(1), 64.3, 64.5(1), 64.6(1), 64.6(3), 64.6(4)(a),(b),(d)(i) and (ii), (e)(i), (ii),(iii) and 64.6(5)(a),(c),(d),(e) and (f)
This matter concerns an application brought by the Firearm Licensing Authority (“the FLA”) against Mr Aggrey Downer, to recover the costs of the discontinued Application for Leave to Apply for Judicial Review which was filed by Mr Downer.
The application for costs is contained in a Notice of Application for Court Orders, filed on 28 October 2020, by virtue of which the FLA seeks an Order that: -
-
I. The costs of this claim be awarded to the Firearm Licensing Authority, against the Applicant Aggrey Downer, to be taxed if not agreed;
-
II. Costs of this application to the Respondent; and
-
III. Such further or other relief as this Honourable Court deems just.
The application for costs is made pursuant to rule 37.6(1) of the Civil Procedure Rules, 2002 (“the CPR”) which provides that unless the parties agree otherwise, a claimant who discontinues a claim is liable for the costs of the defendant against whom the claim is discontinued, incurred on or before the date on which the notice of discontinuance is served.
The application for costs is made against the background that the FLA is a statutory body established in 2005 under the Firearms Act (“the Act”). By virtue of the Act, it is responsible for the granting, renewal and revocation of firearm licences which includes monitoring and regulating the issuance of firearm licences and conducting the relevant investigative checks when necessary.
Mr Aggrey Downer is a registered farmer and has been the holder of two (2) licensed firearms for over thirty (30) years. 1
On 20 February 2019, the FLA took the decision to revoke Mr Downer's Firearm Licence, on the basis that he was not considered a fit and proper person to retain a firearm licence.
On 22 March 2019, Mr Downer made an application to the FLA to renew his Firearm Licence. 2
On 22 March 2019, Mr Downer was served with the Revocation Order of the FLA, dated 20 February 2019. 3
As a consequence, on 26 March 2019, Mr Downer, aggrieved by the decision of the FLA, applied to the Firearm Licensing Authority Review Board (“the Review Board”) for a review of the decision to revoke his Firearm Licence. 4 The application for review was submitted to the FLA on 1 April 2019. 5
On 29 May 2020, subsequent to his application to the Review Board, Mr Downer filed a Notice of Application for Leave to Apply for Judicial Review of the FLA's decision to revoke his Firearm Licence.
On 8 June 2020, Mr Downer's application for leave to apply for judicial review came before J. Pusey J, at which time the FLA raised an objection to the proceedings on the basis that Mr Downer's appeal of the FLA's decision was pending before the Review Board and that, as a consequence, the application was premature as Mr Downer had not yet exhausted all alternative remedies.
On 8 July 2020, the FLA was advised that Mr Downer's appeal before the Review Board had been heard and that the responsible Minister, the Minister of National Security (“the Minister”), had made the decision to reinstate his Firearm Licence. 6
As a result, on 21 August 2020, Mr Downer filed a Notice of Discontinuance discontinuing his Application for Leave to Apply for Judicial Review. The Notice of Discontinuance was also served on the Attorneys for the FLA on 21 August 2020. 7
On 28 October 2020, the FLA filed a Notice of Application for Court Orders seeking to recover its costs incurred in respect of the discontinued Notice of Application for Leave to Apply for Judicial Review.
The FLA's application for costs raises the following core issue for the Court's determination: -
a. Whether the costs of Mr Downer's Application for Leave to apply for Judicial Review, filed on 29 May 2020, should properly be awarded to the FLA against Mr Downer.
In seeking to determine that core issue, the following sub-issues must also be resolved: -
-
I. Whether there was an alternative remedy available to Mr Downer at the time that he made his Application for Leave to Apply for Judicial Review;
-
II. Whether Mr Downer applied to the Minister for a review of the decision of the FLA prior to making his Application for Leave to Apply for Judicial Review;
-
III. Whether a properly constituted Review Board was in existence at the time that Mr Downer made his Application for Leave to Apply for Judicial Review;
-
IV. Whether Mr Downer acted promptly in discontinuing his Application for Leave to Apply for Judicial Review, upon the reinstatement of his Firearm Licence; and
-
V. Whether Mr Downer acted unreasonably in making the Application for Leave to Apply for Judicial Review.
It has been submitted on behalf of the FLA that the application for costs is made pursuant to rule 37.6(1) of the CPR. That rule provides that, unless the parties agree or the court orders otherwise, a claimant who discontinues a claim is liable for the costs of the defendant against whom the claim is discontinued that were incurred on or before the date on which the notice of discontinuance is served To buttress this argument, the Court was referred to the authorities of Re Ernest Carroll Thorburn, 8 Anton Teasdale v HSBC Bank Plc, 9 Winston Finzi v Mahoe Bay Company Limited and JMMB Merchant Bank Limited 10 and Danville Walker v The Contractor General. 11
The FLA posits that Mr Downer ought to be ordered to pay the costs incurred by it for the reasons that the application was hopeless, given the fact that he had not exhausted the alternative remedy; that he acted unreasonably in bringing the application and that Mr Downer's overall conduct in pursuing the matter put the FLA to significant expense. 12
For his part, Mr Downer did not agree that rule 37.6(1) of the CPR assists the FLA in this instance, as, no claim has been filed in respect of the matter. Mr Downer makes the point that the matter was discontinued at the stage of the application for leave to apply for judicial review and that no claim has been filed in respect of the matter.
The Court is not convinced that rule 37.6(1) of the CPR is the correct starting point for its analysis of the issues raised by the application for costs or that it is applicable to this application any at all.
The rules contained in Part 37 of the CPR set out the procedure by which a claimant may discontinue all or any part of a claim. The rules contained in Part 37 of the CPR are replete with references to a ‘claimant’ and a ‘defendant’. A ‘claimant’ is defined as “a person who makes a claim and, in relation to any proceedings commenced before these Rules came into force, includes a plaintiff in an action or the petitioner or applicant in any proceedings commenced by
It is clear from a reading of the CPR that they establish a regime in which an important distinction is made between a ‘claimant’ and an ‘applicant’. Indeed, Part 11 of the CPR sets out the general rules about Applications for Court Orders. Part 11 of the CPR deals with applications for court orders made before, during or after the course of proceedings. An ‘applicant’ is defined as “a person who seeks a court order by making an application.” 15
In Re Ernest Carroll Thorburn, 16 by way of a Fixed Date Claim Form, filed on 22 December 2017, the claimants, Diana Thorburn, Rachel Hernould and Barbara Thorburn-McIntosh sought a declaration that they are the nearest relatives of Ernest Carroll Thorburn for the purposes of the Mental Health Act; that Ernest Carroll Thorburn is incapable by reason of mental disorder of managing and administering his financial affairs; that they be appointed to manage the financial affairs of Ernest Carroll Thorburn and until the determination of the claim and that the 1 st hearing of the claim be treated as the trial of the matter.
On 22...
To continue reading
Request your trial