Danville Walker v Contractor General

• Jurisdiction: Jamaica
• Judge: Campbell J,Sykes J,Straw J
• Judgment Date: 15 November 2013
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2012 HCV 00994
• Date: 15 November 2013

[2013] JMFC FULL 1(A)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Cor:

The Honourable Mr Justice Campbell

The Honourable Mr Justice Sykes

The Honourable Miss Justice Straw

CLAIM NO. 2012 HCV 00994

Between

Danville Walker

Applicant

and

The Contractor General

Respondent

Raoul Lindo instructed by Bishop and Partners for the applicant

Mrs Jacqueline Samuels Brown QC for the respondent

APPLICATION FOR COSTS — JUDICIAL REVIEW — WHETHER COST SHOULD BE AWARDED AGAINST APPLICANT — COSTS GRANTED IN EXCEPTIONAL CIRCUMSTANCES — WHETHER EXCEPTIONAL CIRCUMSTANCES EXIST IN PRESENT CASE

Campbell J

1 I have had the advantage of reading the judgment of Straw J in draft and I agree with her Ladyship's reasoning and conclusion. There is nothing useful that I could add.

Sykes J

2 The main issue is whether costs should be awarded to the respondent who appeared at the renewed application for leave and successfully opposed the grant of leave. The sub-issue which arises if the answer to the main issue is yes, whether costs should be awarded for the entire period from the service of the notice of renewal to the dates of hearing.

The facts

3 The relevant facts for the purpose of this judgment are these. The full facts are detailed in ( Walker v The Contractor-General [2013] JMFC Full 1 ). In response to public concern that shipments of scrap-metal from Jamaica occurred while a ban on such exports was in place, the Contractor General (CG) launched an investigation to find out what exactly occurred. In the course of investigations, by way of a letter dated November 18, 2011 (the requisition), the CG required answers from Mr Danville Walker, the then Commissioner of Customs. Initially, Mr Walker did not answer the questions but eventually did so by December 23, 2011. Between November 18 and December 23, letters were exchanged between the parties. During the stand-off, the CG told Mr Walker that should he not supply the answers by a stated date, the matter would be referred to the Director of Public Prosecutions (DPP) for action. By the time the answers came from Mr Walker the matter was indeed referred to the DPP who decided that Mr Walker should be charged with breaches of section 29 of the Contractor General Act. He was summoned to court in February 2012. After he was summoned, Mr Walker sought judicial review of the CG's decision to administer the requisition and the decision to refer the matter to the DPP. He served the application for leave to apply for judicial review on the CG. A contested hearing took place before David Fraser J on February 20 and March 9, 2012. Reasons for judgment refusing the application were handed down on March 26, 2012 ( Danville Walker v The Contractor-General of Jamaica [2012] JMSC Civ 31 ). Mr Walker erroneously appealed to the Court of Appeal despite the fact that the judgment of Fraser J informed him that he may renew his application under rule 56.5 (1) of the Civil Procedure Rules (CPR) ( [67] ). The Court of Appeal redirected him to the Supreme Court and the renewed application was heard in the Full Court of the Supreme Court January 11,12 and 13, 2013 with judgment delivered on April 10, 2013 ( Walker v The Contractor-General [2013] JMFC Full 1 ). Mrs Samuels Brown QC, counsel for the CG, after judgment was delivered, applied for costs. The parties were invited to make submissions in writing and to submit them by Wednesday, April 17, 2013. Both parties supplied submissions in writing.

The law

4 Both counsel referred to rule 56.15 (4) and (5) in CPR which states as follows:

• (a) The court may, however, make such orders as to costs as appear to the court to be just including a wasted costs order .

• (b) The general rule is 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 .

5 I am not convinced that this is the correct starting point. This rule occurs in rule 56.15 which deals with costs at a full judicial review hearing. It would seem to me that rule 56.15 (4) and (5) does not apply to the current situation because it speak to costs in the context of a full hearing after leave has been granted and the claim has been heard. There is nothing in Part 56 dealing with costs at the leave stage. The decision of Golding v Simpson-Miller SCCA 3/08 (unreported) (decided April 11, 2008) has to be mentioned. The Court of Appeal decided that Part 56 does not permit the use of any other rule in the CPR when dealing with judicial review unless some rule in Part 56 itself specifically refers to some other rule in the CPR. However, that case was considering the specific question of whether the CPR permitted the court to extend time within which to file a claim for judicial review after leave had been granted. The court held that Part 56 did not permit any extension of time and there was no reference to any other rule in Part 56 that permitted the court to extend time. The court did not consider the issue that has arisen in this case.

6 There are no decided cases from the Court of Appeal of Jamaica (so far as I am aware) that has considered costs in the specific circumstance before this court. The closest one gets to any authority on the point in Jamaica is The Industrial Disputes Tribunal v University of Technology Jamaica [2012] JMCA Civ 46. In that case the Court of Appeal reversed the decision of Mangatal J and therefore her costs order was set aside. However, that case had progressed beyond the leave stage to a full judicial review hearing. The Industrial Disputes Tribunal prevailed in the Court of Appeal and so the costs order in favour of the University of Technology Jamaica could not stand. The court applied the general rule expressed in rule 56.15 (5). It is important to note that the Court of Appeal did not say that Mangatal J was wrong in principle to award costs. It is possible to argue that had her Ladyship's judgment been upheld her costs order may well have survived.

7 It is my view that the correct starting point has to be the primary legislation, then the secondary, and then any principle underlying judicial review that may have an impact on the award of costs. The first primary legislation is section 28E of the Judicature (Supreme Court) Act (JSCA). Section 28E of the states:

• (1) Subject to the provisions of this or any other enactment and to the rules of court, the costs of and incidental to all civil proceedings in the Supreme Court shall be in the discretion of the Court .

• (2) Without prejudice to any general rule to make rules of court, the Rules Committee of the Supreme Court may make provision for regulating matters relating to the costs of civil proceedings including, in particular prescribing —

  • (a) scales of costs to be paid —

    • (i) as between party and party;

    • (ii) the circumstances in which a person may be ordered to pay the costs of any other person; and

  • (b) the manner in which the amount of any costs payable to the person or to any attorney shall be determined .

• (3) Subject to the rules made under subsection (2), the Court may determine by whom and to what extent the costs are to be paid .

• (4)…

• (5)…

8 The second primary legislation is the Judicature (Rules of Court) Act (JRCA) which authorises the Rules Committee to make rules regulating civil procedure in the Supreme Court. The CPR was made pursuant to this enabling statute. Rule 2.2 (1) and (2) of the CPR states quite clearly the following:

• (1) Subject to paragraph (3), these Rules apply to all civil proceedings in the court .

• (2) ‘ Civil proceedings ’ include Judicial Review and applications to the court under the Constitution under Part 56 .

• (3) These Rules to not apply to the following proceedings —

  • (a) Insolvency (including winding up of Companies);

  • (b) proceedings when the court acts as a Prize Court; and

  • (c) any other proceedings in the court instituted under any enactment, in so far as rules made under that enactment regulate those proceedings . (emphasis in original)

9 The importance of the JSCA is that it makes clear that subject to that Act or any other legislation and any relevant rule of court, costs in civil proceedings are within the discretion of the court. The JSCA does not define civil proceedings and neither does the JRCA. Both legislations have declined any attempt at a definition of civil proceedings to the CPR.

10 Unfortunately, the CPR does not define civil proceedings but makes the point that (whatever civil proceedings may mean) it includes judicial review. From the CPR the large class is civil proceedings and a species within the genus is judicial review. This means that judicial review, by definition, has some characteristics of civil proceedings to be within that genus but still has enough differentiating features sufficiently different to be a separate species.

11 The implication of what I have said so far is this: since judicial review is a civil proceeding (judicial review necessarily includes applications for and renewal of applications for leave), then, in the absence of any rule to the contrary, Part 64 (costs) applies. The general rule under Part 64 is that the unsuccessful party pays the costs of the successful party (rule 64.6 (1)). It seems to me that Part 64 applies generally unless there is some rule or policy that restricts, modified or excludes its operation.

12 In respect of a substantive judicial review hearing the CPR limits the operation of Part 64 by providing in rule 56.15 (4) and (5) that no costs may be awarded against the applicant unless he acted unreasonably. However, rule 56.15 (4) and (5), textually and in the specific area of Part 56 where it appears is obviously restricted to the...