IN THE HIGH COURT OF JUSTICE

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO PART 56.3 OF THE CIVIL PROCEEDINGS RULES, 1998 AND PURSUANT TO SECTION 5(1) OF THE JUDICIAL REVIEW ACT, CHAPTER 7:08 AND IN THE MATTER OF AN APPLICATION FOR REDRESS PURSUANT TO SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO FOR THE VIOLATION OF FUNDAMENTAL RIGHTS GUARANTED UNDER SECTION 4 BETWEEN SASHA MOONSAMMY Applicant/Intended Claimant AND THE MINISTER OF WORKS AND TRANSPORT First Named Respondent/Intended Defendant THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Second Named Respondent/Intended Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Ms. J. Lutchmedial instructed by Ms. K. Sarran for the Claimant Ms. L. Moore instructed by Mr. A. Lamont for the Defendant

2 REASONS FOR DECISION ON COSTS 1. On the 6 th October 2016, this court gave permission to the Applicant/Intended Claimant to withdraw her application for leave to file a Judicial Review claim and ordered that the Respondents/Intended Defendants pay the costs of the application in the sum of five thousand dollars ($5,000.00). These are the reasons for the order for costs. 2. By application of the 21 st September 2016, the Intended Claimant sought permission to file a claim for judicial review challenging the continued inaction of the Intended First Defendant in failing to renew or transfer a Priority Bus Route Pass (pass) to her. The intended relief sought all related to that decision and a mandamus was also pursued to compel the Intended First Defendant to issue the pass. Briefly, it was the case for the Intended Claimant that she purchased a maxi taxi and applied for a transfer of the unexpired life of the pass so that she could lawfully work the maxi taxi along the bus route. In pursuance of this request and on the assurance of personnel from the office of the First Defendant was possible she obtained and submitted all the required documents for the transfer between March and September She then paid the fee as requested but up to the date of filing of the application for leave to file judicial review the pass was yet to be transferred to her. 3. In the application before the court the Intended Claimant also sought a declaration pursuant to sections 4(a) and 4(b) of the Constitution but no leave was needed for these relief. 4. The Intended Claimant swore to and filed an affidavit in support of her application in which she set out the material facts. In addition to several visits which she made to the office of the Intended First Defendant, the Intended 2

3 Claimant also caused a letter of request pursuant to the Freedom of Information Act (FOIA) dated the 11 th may 2016 to be sent. Two responses were received, both requesting more time for a substantive response. By the 4 th July 2016 nothing further had been forthcoming in response to the FOIA request and so the Intended Claimant caused another letter to be dispatched. This time a response by letter of the 24 th June 2016 was received on the 7 th July That response contained the disclosure of all the information requested. That letter also stated that the Ministry was proceeding with renewals of the Intended Claimant along with applications for renewals by other similarly circumstanced persons. It went on to say that the process was almost complete and the Intended Claimant could expect to be notified in the very near future. 5. Some five days later, attorneys for the Intended Claimant wrote once again to the Intended Defendants calling upon them to decide within fourteen days. The Intended Claimant alleged that no response to this letter was received by her attorneys. 6. Subsequent to the filing of the application for leave the court instructed that the application be served and the hearing of the application was listed for the 28 th September 2016, on which occasion all parties were represented in court. On that occasion, attorney at law for the Intended Defendants indicated that the pass was in the process of being signed and requested an adjournment of the application for one month to have it done and laminated. The court was of the opinion that a month was too long a period having regard to the circumstances and adjourned the application to the 6 th October On that date the court was informed that the pass had been granted and collected by the Intended Claimant and that she wished to withdraw her claim but wanted to be heard on costs. 7. Attorney for the Intended Claimant submitted that the court should award costs to the Intended Claimant assessed at seven hours for both counsel and instructing attorney. According the Practice Direction issued on the 22 nd October 2015, in 3

4 relation to Counsel whose year of call is 2006, the maximum is $2, In the case of Instructing Attorney it is $ per hour. See Bands C and A respectively. 8. Attorney for the Intended Defendants objected to the award of costs on the basis that the Intended Defendants were brought to court by invitation of the court, the application being an exparte one. In the circumstances it was submitted that in keeping with the well known authority of Abzal Mohammed v The Police Service Commission CA Civ. 53 of 2009, the order ought not to be made against the Intended Defendants. No submissions were made by attorneys for the Intended Defendant on the quantum of costs. THE DECISION TO AWARD COSTS 9. Abzal Mohammed, His Lordship Kangaloo JA stated at paragraph 31; Where it becomes a little more uncertain is when the potential defendant is directed by the Court to be present to assist the Court. This is what happened in this case. I would say at the outset that this procedure ought not to be adopted save where it is absolutely necessary to get the assistance of the proposed defendant. It may for example be the position that the evidence in the possession of the applicant is not sufficient to satisfy the judge that leave ought to be granted and the matter is of some urgency. In such a case, the assistance on the factual background or the legal background (in light of the facts known to the defendant) may be necessary. Where the Court so directs, it is difficult to saddle the defendant with the costs if leave is granted even when the defendant opposes the grant of leave. Again, the costs should be reserved to the substantive hearing but generally they should be the claimant s costs in the cause. If leave is refused, it is unfair to the claimant to have to pay the costs to the proposed defendant. In the first place, the proposed defendant is not yet a party and secondly it was brought to Court, not by the claimant but by the Court 4

5 itself for assistance. I would think the proposed defendant would again have to bear its own costs. 10. This court is of the view that Their Lordships of the Court of Appeal was not intending to fetter the discretion of the trial judge in relation to the award of costs in any given case. The learning treats with the circumstance where the application for leave is refused on a legal basis and also the circumstance where leave is granted in which case the order would ordinarily be costs reserved or the Claimant s costs in the cause. The result of the application before this court was of special circumstance. Firstly the application was withdrawn because the cause no longer existed. It was not dismissed on its merits. The result came about because the court asked the Intended Claimant to have the Intended Respondents present as it appeared that the issue could have been readily resolved thereby bringing an end to litigation. Secondly it was an equally clear inference that the Intended Respondents had done nothing for some months since the last reminder had been dispatched to them and that the institution of legal proceedings was the factor that caused them to move to have the matter resolved. In those special circumstances the court was of the view that it was only fair that they pay the costs associated with the preparation and hearing of the application and the court so ordered. 11. In this case, a reading of the affidavit in support of the application demonstrated that the complaint of the Intended Claimant included the fact that despite an assurance of being notified in the very near future, the Intended Claimant heard nothing from the Intended First Defendant for almost three months prior to the filing of the application for leave. In those circumstances, the Intended Claimant could not have been faulted for commencing legal action more than a reasonable period having elapsed since the letter dated the 24 th June was written by the Intended First Defendant. In fact, it appears that the fact that legal proceedings was enough of an impetus to cause the Intended Defendants to treat with the issue of the renewal and transfer of the pass. 5

6 12. Being seized of the facts set out in the affidavit in support the court was of the view, that if the contents of the affidavit were correct then it was highly likely that a resolution could be had at the hearing of the application for leave. In such a case, judicial time and costs would have been saved. The court was therefore of the view that a hearing was desirable in the interest of justice and instructed that notice of that hearing be given to the Attorney General. In so doing the court acted pursuant to Part 56.4(3)(c) and 56.4(4). CPR. In so acting the court was also mindful of the overriding objective of the CPR to ensure that cases are dealt with expeditiously and are not allocated more than their fair share of the court s resources. 13. Part 66.6 CPR sets out; (4) In deciding who should be liable to pay costs the court must have regard to all the circumstances. (5) In particular it must have regard to (a) the conduct of the parties; (b) whether a party has succeeded on particular issues, even if he has not been successful in the whole of the proceedings; (c) whether it was reasonable for a party (i) to pursue a particular allegation; and/or (ii) to raise a particular issue; (d) the manner in which a party has pursued (i) his case; 6

7 (ii) a particular allegation; or (iii) a particular issue; (e) whether a claimant who has won his claim caused the proceedings to be defended by claiming an unreasonable sum; and (f) whether the claimant gave reasonable notice of his intention to issue a claim. (6) The conduct of the parties includes (a) conduct before, as well as during, the proceedings, and in particular the extent to which the parties complied with any relevant pre-action protocol; and (b) whether either or both parties refuse unreasonably to try an alternative dispute resolution procedure. 14. Whether a court gives more weight to one or more considerations will of course depend on the circumstances and context of each case. In this case, the court gave considerable weight to the fact that the Intended Claimant has attempted on several occasions to have the matter resolved by the grant of the pass but to no avail. That despite the promise of the 24 th June, the Intended Claimant appeared to have been left with no alternative but to take legal action and that it was this action that ultimately resulted in a resolution by way of grant of the pass. In the court s view, this was conduct which ought to have attracted an order for costs in the particular circumstances. 7

8 QUANTIFICATION OF COSTS 15. Part 67.2 CPR reads; (1) Where the court has any discretion as to the amount of costs to be allowed to a party, the sum to be allowed is the amount that the court deems to be reasonable were the work to be carried out by an attorneyat-law of reasonable competence and which appears to the court to be fair both to the person paying and the person receiving such costs. (3) In deciding what would be reasonable the court must take into account all the circumstances, including (a) any orders that have already been made; (b) the conduct of the parties before as well as during the proceedings; (c) the importance of the matter to the parties; (d) the time reasonably spent on the case; (e) the degree of responsibility accepted by the attorney-atlaw; (f) the care, speed and economy with which the case was prepared; (g) the novelty, weight and complexity of the case. 16. This court considered that the application was a very straight forward one which was not complex or novel. The bare facts spoke for themselves and preparation of the application was standard. The court therefore was of the opinion that the 8

9 preparation did not require more than two hours for instructing attorney and an hour and a half for advocate. The court also considered that costs were being awarded for the application and not for the claim. The record shows that the hearing on the 28 th September lasted for some nine (9) minutes. Further, that the hearing on the 6 th October lasted for some seven (7) minutes. At the hearing on the 6 th October, the parties submitted only on the issue of costs, the Intended Claimant having been notified at the previous hearing that the pass was to be issued. It was therefore highly likely that the only issue left for the 6 th would have been costs and that attorney for the Intended Claimant would have been so aware. Certainly, by the time parties appeared on the 6 th October attorneys knew that the pass had been granted and attorneys for the Intended Claimant had decided to withdraw the application. So that there was no need to prepare to argue the substantive application. Further, the submissions on the issue of costs were not complex or novel. 17. It is to be noted that no application was made to the court by attorney for the Intended Claimant for an adjournment to provide further information on costs. 18. As a consequence, the court rounded off the figure of $4, to $5, and made the order for costs accordingly. In the court s opinion such a figure was fair to all parties in the circumstances of this application. Dated the 7 th January 2017 Ricky Rahim Judge 9