Brenton Henry v Her Honour Mrs. D. Gallimore-Rose

JurisdictionJamaica
CourtSupreme Court (Jamaica)
JudgeLawrence-Beswick J,Straw J,D. Fraser J
Judgment Date15 July 2020
Date15 July 2020
Docket NumberCLAIM NO. 2013HCV05366

[2020] JMFC Full 3

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Before:

THE HON. Ms. Justice C. Lawrence-Beswick

THE HON. Ms. Justice J. Straw

THE HON. Mr. Justice D. Fraser

CLAIM NO. 2013HCV05366

Between
Brenton Henry
Claimant
and
Her Honour Mrs. D. Gallimore-Rose
1 st Defendant

and

Attorney General of Jamaica
2 nd Defendant

Hadrian Christie instructed by Jerome Spencer of Patterson Mair Hamilton for the claimant

Mrs. Nicole Foster-Pusey QC, Ms. Carlene Larmond and Ms. Carla Thomas instructed by the Director of State Proceedings for the defendants

Administrative Law — Constitutional Relief — Judicial Review — Principles on which Costs should be awarded

(Considered based on previous oral and subsequent written submissions)

Lawrence-Beswick J
1

I have had the privilege of reading the draft judgment of my learned brother. I agree with his reasoning and conclusions and have nothing further to add.

Straw J
2

I have also had the privilege of reading the draft judgment of my learned brother. I agree with his reasoning and conclusions and have nothing further to add.

D. Fraser J
Introduction
3

In the substantive application in this matter filed by Fixed Date Claim Form on November 21, 2013, the claimant sought the following relief:

  • a. An order for certiorari, quashing the decisions of the 1 st defendant to impose bail conditions on the claimant on diverse days;

  • b. An order of certiorari, quashing the order of the 1 st defendant refusing to grant the stay and to remit the application for stay before another Judge of the Family Court;

  • c. An order of certiorari, quashing the decisions of the 1 st defendant to commit the claimant to prison on diverse days;

  • d. Declarations that the 1 st defendant has infringed the claimant's Fundamental Rights and Freedoms to:

    • i. liberty (section 13(3)(a));

    • ii. freedom of movement (section 13(3)(f));

    • iii. equality before the law (section 13(3)(g));

    • iv. freedom of the person (section 13(3)(p)); and

    • v. due process (section 13(3)(r));

  • e. Damages for assault, battery and false imprisonment;

  • f. Constitutional/Vindicatory Damages;

  • g. Interest on damages; h. Costs; and

  • i. Such other remedies as this Honourable Court may see fit.

4

In our judgment in the matter Brenton Henry v HH Mrs. D. Gallimore-Rose and The Attorney General [2016] JMFC Full 10, refusing the relief sought, we made the following orders:

  • 1. Judicial Review refused;

  • 2. Orders for Certiorari are refused;

  • 3. Declarations are refused;

  • 4. Damages are refused; and

  • 5. The issue of costs reserved for submissions to be made in writing by counsel.

5

Submissions in writing were received only on behalf of the defendants. Counsel for the claimant is taken to have rested on relevant oral submissions he made during the course of the hearing.

The Relevant Costs Orders
6

Over the life of the claim the following orders were made in respect of costs:

  • a. Order of Anderson J on November 8, 2013 that the costs of the claimant's application for extension of time within which to apply for leave to apply for judicial review and costs of the claimant's further amended application for leave to apply for judicial review shall be costs in the claim;

  • b. Order of Sykes J, (as he then was), on January 14, 2014 at the first hearing that costs of that hearing should be costs in the claim;

  • c. Order of Cole-Smith J on June 4, 2014 adjourning the hearing of the claim to December 1, 2 and 3, 2014 and setting the defendants' application for an extension of time to file an affidavit/ and for the affidavit to stand for October 2, 2014. The issue of costs was reserved for the substantive hearing;

  • d. Order of C. Brown J (Ag), (as she then was), on October 2, 2014 granting the defendants' application for extension of time to file further affidavit/for affidavit filed to stand. The issue of costs was reserved to the substantive hearing;

  • e. Order of this court on February 2, 2015 adjourning the part-heard matter at the instance of the defendants. The issue of costs was reserved;

  • f. Order of this court on April 17, 2015, refusing the application of the defendants for an extension of time to file affidavits. Costs of that application were already awarded to the claimant, therefore no submissions were required; and

  • g. Order of this court on December 20, 2016 dismissing the claimant's claim for the relief sought, with the issue of costs being reserved for submissions to be made in writing by counsel.

The Applicable Law/Rules
7

The starting point is always that the decision to award costs is discretionary. If the court decides to make a costs order, the general rule is that the unsuccessful party pays the costs of the successful party, that is, costs should follow the event: (See rule 64.6 (1) of the Civil Procedure Rules (CPR)). That general rule may however be displaced depending on particular factors such as those outlined 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 an administrative order, unless the court considers that the applicant has acted unreasonably in making the application, or in the conduct of the application ( CPR rule 56.15(5)). See also Gorstew Ltd v Her Hon Lorna Shelly Williams and Ors [2016] JMSC Civ 71.

9

In the case of Toussaint v Attorney General of St. Vincent and the Grenadines [2007] UKPC 48 the Judicial Committee of the Privy Council outlined that the aim of rule 56.15(5) is to encourage administrative law applications, and that it does not prohibit an award of costs being made in favour of a successful applicant. However where an applicant is successful, in a situation where the court has accepted the defendants' submissions on important issues, the court may apportion costs in a manner to reflect that. See University of Technology Jamaica v The Industrial Disputes Tribunal and the University and Allied Workers Union 2009HCV1173 (April 23, 2010).

Submissions and Analysis
10

Counsel for the defendants' Ms. Thomas 1 submitted that the claimant acted unreasonably in bringing the claim because the committal orders which were the subject of the claim were in respect of maintenance orders which the claimant had substantially failed to comply with. Further, at no time did the claimant dispute that sums were owed. Therefore, the claimant should be ordered to pay the costs of the proceedings.

11

We have given due consideration to this submission but consider that the claimant raised a number of significant legal points in his claim concerning, among other things, whether Resident Magistrates, (as the first defendant then was), were liable in their personal capacities for actions taken in discharge of their judicial functions; the applicability of the Bail Act in civil proceedings; and the process that must be followed before the committal of a defendant is ordered for breach of a maintenance order.

12

We therefore do not find that the applicant acted unreasonably in making the application. There was also no complaint that he acted unreasonably in the conduct of the application. Accordingly, we do not find that there is a basis to depart from the general rule in administrative proceedings, that no order for costs should be made against an applicant for an administrative order.

Orders at paragraph 6 a and b
13

These orders being orders for costs to be in the claim, in light of the finding in the preceding paragraph that the claimant did not act unreasonably, no order for costs will be made in relation to them.

Order at paragraph 6 c
14

The adjournment referenced in the order was granted to facilitate the defendants' subsequent application for an extension of time to file an affidavit / and for the affidavit to stand. Counsel for the defendants advanced that if the court was of the view that the claimant should not pay the defendants' costs then the court ought to exercise its discretion in favour of the defendants and make no order as to costs or order that each party should bear their own costs.

15

Counsel further submitted that if the court was minded to award costs for the adjournment on that...

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