Branch Developments Ltd t/a Iberostar v Industrial Disputes Tribunal and Another

JurisdictionJamaica
JudgePhillips JA,Morrison P
Judgment Date13 May 2016
Neutral CitationJM 2016 CA 44
Docket NumberSUPREME COURT CIVIL APPEAL NO 14/2013
CourtCourt of Appeal (Jamaica)
Date13 May 2016
Between
Branch Developments Limited t/a Iberostar
Applicant
and
Industrial Disputes Tribunal
1 st Respondent

and

The University and Allied Workers' Union
2 nd Respondent

[2016] JMCA Civ 26

Before:

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

The Hon Ms Justice Lawrence-beswick JA (AG)

SUPREME COURT CIVIL APPEAL NO 14/2013

JAMAICA

IN THE COURT OF APPEAL

Dr Lloyd Barnett and Kwame Gordon instructed by Samuda & Johnson for the appellant

Miss Lisa White and Miss Monique Harrison instructed by the Director of State Proceedings for the 1 st respondent

Wendell Wilkins instructed by Robertson Smith Ledgister & Co for the 2 nd respondent

Morrison P
1

The background to this ruling on costs may be briefly stated. In proceedings before the Supreme Court for judicial review, the appellant applied for, among other things, an order of certiorari to quash in its entirety an award given by the first respondent in favour of certain workers represented by the second respondent. In a judgment given on 18 January 2013 1, Batts J dismissed the application, with costs to the respondents.

2

The appellant appealed against this decision and, in a judgment given on 21 September 2015 2, this court made the following orders:

‘1) The appeal is allowed and the judgment of Batts J given on 18 January 2013 is set aside.

2) An order of certiorari is granted to quash the award of the Industrial Disputes Tribunal dated 30 August 2011.

3) The parties are to make written submissions on costs within 21 days of the date of this order and the court will rule on the matter within a further 21 days of receipt of the last such submission.’

3

In keeping with the direction of the court, the appellant and the first respondent filed their submissions on costs on 9 and 13 October 2015, respectively. However, the second respondent's submissions were not filed until 20 January 2016. And now, regrettably, due to an oversight, the promised ruling on costs is only now being given, with profuse apologies from the court for its own contribution to the delay in settling this aspect of the matter.

4

The appellant referred the court to rule 64.6(1) of the Civil Procedure Rules 2002 (the CPR), which states that, ‘[i]f the court decides to make an order about the costs of any proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful party’. However, rule 64.6(2) provides, among other things, that the court ‘may make no order as to costs’. We were also referred to rule 64.6(3)–(4), which provides as follows:

‘(3) In deciding who should be liable to pay costs the court must have regard to all the circumstances.

(4) In particular it must have regard to —

(a) the conduct of the parties both before and during the proceedings;

(b) whether a party has succeeded on particular issues, even if that party has not been successful in the whole of the proceedings;

(c) any payment into court or offer to settle made by a party which is drawn to the court's attention (whether or not made in accordance with Parts 35 and 36);

(d) whether it was reasonable for a party —

(i) to pursue a particular allegation; and/or

(ii) to raise a particular issue;

(e) the manner in which a party has pursued —

(i) that party's case;

(ii) a particular allegation; or

(iii) a particular issue;

(f) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his or her claim; and

(g) whether the claimant gave reasonable notice of intention to issue a claim.’

5

The appellant submitted that, it having succeeded, against opposition, on every ground argued before the court in the substantive appeal, the general rule should apply and that accordingly, as the successful party, it should have its costs against the respondents, the unsuccessful parties, in this court and in the court below below. In this regard, the appellant referred us to R (John Smeaton on behalf of Society for the Protection of Unborn Children) v The Secretary of State for Health and others3 , in which Dyson J (as he then was) is reported as having said the following 4:

‘The basic rule that costs follow the event ensures that the assets of the successful party are not depleted by reason of having to go to court to meet a claim by an unsuccessful party. This is as desirable in public law cases as it is in private law cases.’

6

Specifically as regards the position of the first respondent, the appellant submitted that an order for costs against it was appropriate, it having actively participated in the proceedings and opposed the appellant's case on appeal. The appellant supported this submission by reference to Regina (Davies) v Birmingham Deputy Coroner5, in which Brooke LJ summarised the practice of the High Court in

relation to orders for costs against inferior courts or tribunals in judicial review proceedings in this way 6:

‘… (1) the established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behavior or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings; (2) the established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event; (3) if,...

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5 cases
  • Sally Ann Fulton v Chas E Ramson Ltd
    • Jamaica
    • Court of Appeal (Jamaica)
    • 10 June 2022
    ...party to pay the costs of the successful party”. In Branch Developments Limited t/a Iberostar v Industrial Tribunal and another [2016] JMCA Civ 26, Morrison JA (as he then was) applying the general rule stated as follows: “In my view, rule 64.6(1), which enshrines the long-established princ......
  • Brenton Henry v Her Honour Mrs. D. Gallimore-Rose
    • Jamaica
    • Supreme Court (Jamaica)
    • 15 July 2020
    ...in rule 64.6 (4). See Branch Developments Ltd t/a Iberostar v Industrial Disputes Tribunal and the University and Allied Workers' Union [2016] JMCA Civ 26. 8 In administrative law proceedings a different general rule applies, in that no order for costs may be made against an applicant for a......
  • Steadly Moulton v Wadmar Construction Ltd
    • Jamaica
    • Court of Appeal (Jamaica)
    • 18 March 2022
    ...of Morrison P in Branch Developments Limited t/a Iberostar v Industrial Disputes Tribunal and the University and Allied Workers' Union [2016] JMCA Civ26, at para. [5], was also relied 14 It was submitted that the pertinent issue to be determined was what special circumstances or otherwise e......
  • The Attorney General of Jamaica v Machel Smith
    • Jamaica
    • Court of Appeal (Jamaica)
    • 18 December 2020
    ......, exists to resolve real problems and not disputes of merely academic significance. . . 37 Another factor to consider is whether the dispute has a .... . 93 Citing Branch Development Limited (t/a Iberostar) v the ial Disputes Tribunal and the University and Allied Workers Union ... Development Limited t/a Iberostar v Industrial Disputes Tribunal and another , Morrison P, at ......
  • Request a trial to view additional results

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