Joy Patricia Harrison v The Council of the Caribbean Maritime University
| Jurisdiction | Jamaica |
| Judge | Brooks,F Williams JA,Shelly-Williams JA |
| Judgment Date | 12 February 2024 |
| Neutral Citation | JM 2024 CA 13 |
| Docket Number | APPLICATION NO COA2023APP00279 |
| Court | Court of Appeal (Jamaica) |
[2024] JMCA App 2
THE HON Mr Justice Brooks P
THE HON Mr Justice F Williams JA
THE HON Mrs Justice Shelly-Williams JA (AG)
APPLICATION NO COA2023APP00279
IN THE COURT OF APPEAL
Civil procedure — Application for permission to appeal — Leave to apply for judicial review — Whether the learned judge was correct to order costs against the appellant — Whether the learned judge erred in making orders to transfer the case so that orders could be made under Parts 26 and 27 of the Supreme Court Civil Procedure Rules, 2002 (‘CPR’) — Whether the learned judge correctly exercised her discretion by refusing the appellant's application for leave to apply for judicial review — CPR rr 56.15(5), 64.6(1) and 56.10
Douglas Leys KC instructed by Hay and Johnson for the appellant
Mrs Simone Mayhew KC instructed by Mayhew Law for the respondent
Brooks P
I have had the privilege of reading, in draft, the judgment of my learned sister Shelly-Williams JA (Ag). I agree with her reasoning and conclusion. I have nothing to add.
I too have read the draft judgment of Shelly-Williams JA (Ag) and agree with her reasoning and conclusion.
Shelly-Williams JA (AG)
On 30 November 2023, the appellant, Ms Joy Patricia Harrison, filed an application in this court asking that leave be granted to appeal the decision of Wint-Blair J (‘the learned judge’) contained in an order made on 16 November 2023 refusing leave to apply for judicial review of the decision of the President of the respondent, Caribbean Maritime University (‘CMU’). The order states as follows:
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“1. The declarations sought by the applicant are refused.
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2. The order for certiorari sought by the applicant is refused.
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3. The application for leave is refused.
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4. The application is ordered to be dealt with as a claim.
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5. A Case Management Conference is to be fixed by the Registrar of the Supreme Court as soon as is practicable.
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6. Costs of the application are awarded to the respondent to be taxed if not agreed.”
The appellant had previously sought in the court below permission to appeal the decision but this was refused. This refusal resulted in the filing of the present application in this court for leave to appeal.
The proposed grounds of appeal on which the appellant relies are as follows:
The parties asked for the application for leave to appeal to be treated as the hearing of the appeal. This request was granted.
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“(i) The [learned] judge (as at paragraph 121) erred in awarding costs to the Respondent because the Applicant was the unsuccessful party….
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(ii) The learned judge erred 9 [sic] (at paragraphs 118 and 119) in making an order, albeit conditional on submissions from Counsel that this matter be referred under section 56.10(3) of the CPR….
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(iii) The learned judge erred in finding (at paragraph 118 supra) that the decision of the President of the Respondent is not amenable to judicial review as the [Applicant's] post of treasurer with the university was neither regulated [nor] established by statute….
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(iv) The learned judge erred in finding (at paragraph 113) that for the purposes of judicial review the Applicant was not the holder of statutory office within the intent of the CMU Act and that her employment was based on an ordinary contract of employment….
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(v) The learned judge erred in finding ([at] paragraph 114) that there was no basis for legitimate expectation in this case….
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(vi) The learned judge fell into error (at paragraph 116) based on the conclusions at which she arrived….
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(vii) The Applicant will contend that the learned judge erred in concluding at (paragraph 116) that the appropriate remedy is in private law for a breach of contract….
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(viii) The learned judge misconstrued the facts applicable to this case (as at paragraphs 76 and 77)….”
The appellant was recruited and appointed on 8 May 2020 as the interim treasurer for the CMU. She was initially engaged on contract for two years and there were continuous subsequent renewals to 31 January 2023. During the period of her employment, she was not paid an annual salary incremental increase or a non-taxable travelling allowance for the period 2022 to 2023. She queried this with the Director of Human Resources and it was conveyed to her that, contrary to existing government policy, the CMU paid increments to temporary staff. The Director also indicated that there was no intention to oppose the CMU's practice unless otherwise advised. Further, she was informed that approval of a compensation plan was needed from the Ministry of Finance and, also that, inquiries will be made on how to proceed in making submissions for the payment of the increment.
The appellant, thereafter, wrote to the Ministry of Finance but received no reply. She then raised the matter with the President of the CMU and his response created the genesis of the dispute between the parties. He informed the appellant that she was appointed as interim treasurer and not appointed to the established post of treasurer and as such she was not entitled to the incremental increases or travelling allowance attached to that post. He indicated, however, that she was entitled to the payment of an accessory allowance and any government increase in salary for 2022.
The appellant, aggrieved by that decision, filed an application for leave to apply for judicial review by which the following were sought:
“ (i) ‘A declaration that the Respondent [sic] is entitled to anniversary increments and pecuniary benefits inclusive of travelling allowance pursuant to the provisions of the CMU Act and her contract of employment;
(ii) A Declaration that the Respondent is acting ultra vires the provisions of the Act in denying the Claimant [sic] her just entitlements under the provisions of the Act and her contract of employment.
(iii) An order of Certiorari quashing the decision of the Respondent that the Applicant is not entitled to anniversary increments and other pecuniary benefits by way of email correspondence dated March 6, 2023
(iv) Costs of this Application to the Applicant
(v) The Court on the grant of leave will give such other consequential directions as may be deemed appropriate.’”
(Italics as in the original)
There are three main issues to be resolved, which are:
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I. Whether the learned judge was correct to order costs against the appellant;
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II. Whether the learned judge erred in making orders to transfer the application to case management so that orders could be made under Parts 26 and 27 of the Supreme Court Civil Procedure Rules, 2002 (‘CPR’); and
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III. Whether the learned judge correctly exercised her discretion by refusing the appellant's application for leave to apply for judicial review.
In written and oral submissions, Mr Leys KC submitted that the learned judge failed to appreciate that in an application for leave to apply for judicial review costs are generally not awarded against an appellant at the leave stage except in exceptional circumstances. He indicated that the appellant was not given the opportunity to address the issue of costs to advance any exceptional circumstances. He also submitted that the learned judge erred in applying the general rule as to costs at rule 64.6(1) of the CPR at the leave stage and as such exercised her discretion in awarding costs against the unsuccessful party improperly. He further stated that she did not consider the principles on which costs are awarded as set out in the case of Danville Walker v The Contractor General [2013] JMFC Full 1(A). Reference was also made to the guidance of Auld LJ in Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346 on the exceptional circumstances that may be considered.
On the issue of costs, Mrs Mayhew KC submitted that the learned judge did not exercise her discretion improperly. She argued that in applications for leave to apply for judicial review, rule 64.6(1) of the CPR, which speaks to the principle that costs follow the event, applies. She also indicated that this application for leave was outside of the consideration of rule 56.15 of the CPR, which enjoins the court not to make costs orders in applications for judicial review. In support of her submission, she cited the case of Kingsley Chin v Andrews Memorial Hospital Limited [2022] JMCA Civ 26 which decided that rule 64.6(1) is applicable to the unsuccessful party on an application for leave to apply for judicial review.
This issue will be approached under two limbs namely:
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a. Was the wrong test applied in awarding costs?
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b. Should the appellant have been given an opportunity to be heard prior to the costs order being made?
The CPR address costs orders in relation to different categories of cases. Costs orders in administrative cases are generally governed by rule 56.15(5), which states that:
“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.”
This differs from rule 64.6(1) which addresses the general rule in costs orders. The rule states that:
“If 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.”
The difference between the judicial review cases and other litigation was considered by this court in The Ministry of Finance and Planning and Public Service and Others v Viralee Bailey Latibeaudiere [2014] JMCA Civ 22 where Morrison JA (as he then was)...
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