REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No: 45 of 2008 BETWEEN THE CHIEF FIRE OFFICER THE PUBLIC SERVICE COMMISSION APPELLANTS AND SUMAIR MOHAN RESPONDENT PANEL: A. Mendonça, J.A. P. Jamadar, J.A. N. Narine, J.A. APPEARANCES: Mr. R. Martineau S.C, Ms. T. Maharajh instructed by Ms. P. Rampersad appeared on behalf of the Appellants Mr. M. Seepersad appeared on behalf of the Respondent DATE DELIVERED: November 16 th, 2011 1 of 13
JUDGMENT Delivered by A. Mendonça, J.A. 1. This is an appeal from the judge's order as to costs in favour of the respondent and the subsequent assessment of them. 2. The respondent at all times material to this matter was a Fire Sub-officer; he had over 27 years of service. Sometime in mid March, 2007, he saw a copy of the Fire Service Order No. 4 of 2007 whereby promotions were made to the rank of Fire Sub- Station Officer. He was not among the officers promoted. He, in fact, noted that several officers junior to him were promoted ahead of him. He thought he was bypassed and he was not informed that he was bypassed or that he was about to be bypassed and not recommended in accordance with the usual practice and policy and procedure for promotion. According to the respondent the practice, policy and procedure was based on regulation 160 of the Public Service Commission Regulations. 3. By pre-action letter dated the 11th of June, 2007, written by his attorney at law to the Public Service Commission (the Commission), the respondent claimed that he was not notified pursuant to regulation 160 of his omission from the list of persons selected for promotion. He also stated that he held an Associate of Arts Degree in labour studies which he obtained after full-time study at the Cipriani College of Labour and Cooperative Studies which he claimed was the necessary related equivalent qualification. He claimed that officers with lesser qualifications were promoted because their diplomas were accepted as the equivalent related qualification. Similar pre-action letters were sent to the Attorney General and the Chief Fire Officer. By letter of the 26th of June, 2007, the Commission acknowledged receipt of the pre-action letter and indicated that it was considering same, however, no further response was received from the Commission. By letter dated June 28th, 2007, the Attorney General replied and asked that the complaint be directed to the Commission. There was no response from the Chief Fire Officer 2 of 13
4. On October 3rd, 2007, the respondent sought and obtained leave to apply for judicial review for the following relief, inter alia: (i) (ii) (iii) (iv) (v) (vi) A declaration that the Chief Fire Officer was obligated to inform him that he was omitted from the list of persons recommended for promotion and the reasons for bypassing him in accordance with the said regulation 160; An order of certiorari to remove into this Honourable Court and quash the purported decision of the Chief Fire Officer not to recommend him for promotion; A declaration that his rights under regulation 160 were infringed; Alternatively, a declaration that the failure of the Chief Fire Officer to recommend him for promotion was illegal, unlawful and/or unreasonable. A declaration that he was treated unfairly in breach of the principles of natural justice; and A declaration that the Chief Fire Officer acted illegally, arbitrarily, and/or unfairly and in breach of the rules of actual justice and/or in contravention of the applicable regulations. 5. On December 3rd, 2007, the appellants filed an affidavit. The affidavit was sworn by Noel Jones, Acting Chief Fire Officer. He stated that the respondent's claim was that some officers junior to him in terms of length of service were promoted to the post of Fire Sub-Station Officer. He, however, contended that the respondent was not discriminated against, as these officers held qualifications required for promotion to the post, whereas the respondent did not. He stated that the Fire Service (Terms and conditions of Employment), Regulations 1998 require that officers holding that post hold a preliminary certificate of the Institute of Fire Engineers or had passed a job-related written examination conducted by the Examinations Board. The respondent, he contended, possessed neither qualification. 6. With respect to the respondent s Associate Degree from the Cipriani College of Labour and Co-operative Studies specifically, the deponent stated that the degree is not one of the requisite qualifications as specified in the regulations. In any event, the 3 of 13
Accreditation Council of Trinidad & Tobago did not evaluate the program offered at that institution and could not make a definitive statement in that regard. 7. On December 5, 2007 the trial Judge gave directions for the filing by the respondent of an affidavit in reply and adjourned the matter to February 13, 2008. No further affidavits however were filed by the respondent and on February 13, 2008, by consent order leave was granted to the respondent to withdraw the application for judicial review. The appellants were ordered to pay the costs of the claim which were assessed in the sum of $34,000.00. They now appeal. 8. The appellants contend that the judge was wholly wrong in awarding costs to the respondent. They submit that it was his duty to verify that he was, in fact, eligible for promotion to the post for which he claimed he was being bypassed and there existed sufficient grounds for judicial review. The information disclosed in the appellants affidavit, they contend, was essentially available to the claimant if he had chosen to conduct the necessary inquiries. Had the respondent made proper inquiries, he would have known that he was not qualified or eligible for promotion. It follows that if he was not eligible, the respondent had no arguable case. 9. The respondent, on the other hand, argued that the judge cannot be faulted for making the order she did. He contended that the appellants' failure to reply to the pre-action letters was critical. These failures on behalf of the appellants caused the respondent to file the claim. 10. The orders as to costs made by the judge is a matter within her discretion to make. It is well settled that an appellate court will not interfere with the exercise of the judge's discretion simply on the basis that it would have come to a different conclusion. The appellate court will only interfere if the judge erred in principle and exceeded the generous ambit within which reasonable disagreement is possible and may therefore be said to be plainly wrong. 11. The following extract from The Supreme Court Practice 1997, Volume 1, at 59/1/59 in our view, correctly states the approach of the Court of Appeal in appeals from 4 of 13
the exercise of the judge's discretion and this states as follows (omitting reference to the authorities therein mentioned): "There are many authorities for the proposition that an appeal will not be entertained from an order which it was within the discretion of the judge to make, unless it be shown that he exercised his discretion under a mistake of law or in disregard of principle or under a misapprehension as to the facts; or that he took into account irrelevant matters or failed to exercise his discretion or the conclusion which the judge reached in the exercise of his discretion was outside the generous ambit within which a reasonable disagreement is possible. 12. Where, however, the judge does not give reasons for the order she made, this Court is entitled to review the matter afresh, and form its own opinion on the appropriate order. (See in this regard Inniss v the Attorney General 2008 U.K. PC at page 42, Civil Appeal 154 of 2006, Romauld James v the Attorney General (Phonetic). 13. In this case, the judge's reasons, although seeking to explain the amount in which costs were assessed, contains no reasons as to why she made the order that the appellants should pay the costs of the claim. The judge, therefore, has given no reasons for the order that the appellants pay the costs. In those circumstances, this Court is entitled to view the matter afresh and form its own opinion on the appropriate order. 14. Where a claimant in judicial review proceedings discontinues the claim, the general rule is that that will be at his own costs. In other words, the claimant will be liable for the defendant's costs. This is, of course, so especially where the discontinuance or withdrawal occurs in circumstances that are tantamount to an acknowledgment or defeat. There is no doubt that this is the case here. The claim was withdrawn in circumstances where the claimant on the filing of the appellants affidavit saw the hopelessness of the claim. 15. This is a corollary to the general rule contained in rule 66.6(1) of the Civil Proceedings Rules, 1998, which provide that as a general rule an unsuccessful party pays the costs of the successful party. It is also similar to rule 38.6 (1) which applies where a claimant discontinues by notice. In such a case, unless the Court orders 5 of 13
otherwise, he is liable for the costs, which a defendant against whom he discontinued, has incurred or on or before the date on which notice of discontinuance was served on him. 16. But these are all general rules and may be departed from. So that part 66 of the Civil Proceedings Rules, 1998 notwithstanding 66.6(1) referred to above, provides at 66.6 (2) and (3) that the Court may order a successful part to pay all or part of the costs of an unsuccessful party. 17. Similarly, where a claimant has withdrawn or discontinues the claim, the Court may for good reasons depart from the general rule and make some other order as to costs. The Court must therefore decide in each case whether the general rule should be applied or some other order as to costs should be made. In so deciding, rules 66.6 (4) (5) and (6) are relevant. These provide as follows: 66.6 (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) (b) (c) the conduct of the parties; whether a party has succeeded on particular issues, even if he has not been successful in the whole of the proceedings; whether it was reasonable for a party- (i) (ii) to pursue a particular allegation; and/or to raise a particular issue; (d) the manner in which a party has pursued- (i) (ii) (iii) his case; a particular allegation; or a particular issue; (e) (f) whether a claimant who has won has won his claim caused the proceedings to be defended by claiming an unreasonable sum; and whether the claimant gave reasonable notice of his intention to issue a claim. 6 of 13
(6) The conduct of the parties includes- (a) (b) conduct before as well as during the proceedings, and in particular the extent to which the parties comply with any relevant pre-action protocol; and whether either or both parties refused unreasonably to try an alternative dispute resolution procedure." 18. Of particular relevance to this matter, as will be obvious from the above, are 66.6 (5)(a), the conduct of the parties, in particular the pre-action conduct in the failure to comply with any relevant pre-action protocol (66.6(6)) and 66.6 (5)(c), whether it was reasonable to pursue the allegation or raise a particular issue. 19. In this case the respondent says that the pre-action conduct by the appellants in not replying to the pre-action letters is what led to the commencement of the proceedings. The implication is, had they responded to the letters and put their case in reply, as was set out in the affidavit, the proceedings would not have been commenced. The appellants position is that the information contained in the affidavit was discoverable on proper inquiries and should have been discovered by the respondent, whose duty it was to ensure that he had sufficient grounds for judicial review. They therefore say that the claim ought not reasonably to have been brought in the first place. 20. The pre-action protocols, of course, provide that the appellants should have replied to the pre-action letter. They should have done so within 30 days. This they did not do. Pre-action protocols are an integral part of the Civil Proceedings Rules 1998. One of their purposes is to allow a prospective defendant, wherever possible, to demonstrate to a prospective claimant that a particular claim is doomed to failure. It is such an integral part that it is specifically provided for that failure to comply with the protocols is something that the Court can take into account in awarding costs, and failure to comply may be met with an adverse order. In particular where in the opinion of the Court, non-compliance has led to the commencement of proceedings which might otherwise not have needed to be been commenced, or has led to costs being incurred in the proceedings that might otherwise not have been incurred, the orders the Court may make include: 7 of 13
(a) (b) An order that the party at fault pay the costs of the proceedings, or part of those costs, of the other party or parties; and An order that the party at fault pay those costs on an indemnity basis (see Practice Direction on Pre-action Protocols para. 2.4 at p. 485 of the Civil Proceedings Rules, 1998). Of course the orders the Court may make are not limited to those specifically mentioned. The Court has a wide discretion. The appropriate order depends on the circumstances of each case and in particular those referred to at 66.6(5) of the Civil Proceedings Rules, 1998). 21. It is also true, however, that a claimant should properly research his case and satisfy himself that he has proper grounds for judicial review. The position of the appellants as stated in their affidavit was not really more than a reliance on the relevant regulations. Regulation 7 of the Fire Service (Terms and Conditions of Employment) Regulations provides that: "6. A candidate for appointment of the office of Fire Sub -Station Officer shall be- (a) (b) a person appointed to the office of Firefighter with four or more years service in the Service, who has passed a job-related written examination and a practical examination conducted for that purpose by the Examinations Board; or a person appointed to the office of Firefighter with four or more years service in the Service who holds the Preliminary Certificate of the Institution of Fire Engineers and who has passed a practical examination conducted by the Examinations Board. 22. The affidavit of the appellants had set out that the respondent did not possess any of these qualifications. The respondent seemed to be relying on regulation 160 of the Public Service Commission Regulations which set out the process of promotion in the Fire Service. This regulation requires, inter alia, that the Chief Fire Officer advise an officer who was omitted from the list of officers eligible for promotion of the reason for his 8 of 13
omission. By relying on this provision, the respondent appeared not to have properly, or all, considered whether he was eligible for promotion in the first place. When the requirements for eligibility were brought to the respondent's attention by the affidavit of the appellants, the proceedings were brought to a quick and definitive end. 23. While it is simple to infer from the action of the respondent that had regulation 7 been brought to his attention the action would not have commenced, it is equally true that he neglected to properly research the matter and ascertain whether he had sufficient grounds for judicial review. Had he looked at the relevant regulation, the criteria for eligibility were easily discernible and he ought not to have reasonably pursued the claim. 24. On the one hand, therefore, there is the respondent who neglected to properly prepare his case before embarking on the matter, and on the other hand there are the appellants whose failure to adhere to the pre-action protocols have also led or contributed to the initiation of the proceedings. In these circumstances, the question arises should anyone bear the costs of the other. We think not. Both are equally responsible for this frivolous claim going as far as it did. 25. It seems to us that the appropriate order should be no order as to costs and each party should bear the costs of the claim which was initiated by their mutual failures. We therefore allow the appeal and set aside the judge's order and make no order as to costs in the Court below. 26. The costs of the appeal, however, in our judgment are on a different footing. The parties are here because the respondent wrongly persuaded the judge to make an order as to costs that ought not, in our opinion, to have been made. He has continued in this Court to argue that it should have been made. The respondent, as a consequence, in our judgment should pay the costs of the appeal. 27. Under rule 67.14, of the Civil Proceedings Rules, 1998 the costs of an appeal, unless there is an order for budgeted costs, must be determined in accordance with 67.5, 67.6 and 67.7 and Appendix B, but must be determined at two-thirds of the amount that would otherwise be allowed under Appendix B. 9 of 13
28. In this matter there is no costs budget, the prescribed costs provisions at 67.5, 67.6 and 67.7 therefore apply. In determining prescribed costs, it is necessary to determine the value of the claim. The relevant provision in our view is 67.5 (2)(c) which states that: In determining such costs the value of the claim shall be decided-(c) if the claim is for a monetary sum as if it were a claim for $50,000. For the purposes of the calculation of prescribed costs in favour of the appellants, this claim should therefore be treated as if it were a claim for $50,000.00. 29. In accordance with Appendix B the prescribed costs on a claim for $50,000 would amount to $14,000.00. However, as this is an appeal, and under 67.14 the costs must be determined at two-third of the amount that would otherwise be allowed under Appendix B; the resulting figure is $9,324.00. In the circumstances, the respondent shall pay to the appellants the costs of the appeal determined at $9324.00. Allan Mendonça Justice of Appeal R. Narine, Justice of Appeal Delivered by P. Jamadar, J.A. 30. I agree with what my brother Mendonça, J.A. has said. There are however two observations which I feel compelled to make - even if only for the purpose of emphasis. 31. The first is to agree that when no or no sufficient reasons are given by a judge for the exercise of his/her discretion, then on appeal the Court of Appeal is entitled to look at the matter afresh and come to its own conclusions as to how that discretion ought to be 10 of 13
exercised. Unfortunately that was the position in this matter, as explained by my brother. The authority for this approach is of course the Privy Council decision in Inniss v The Attorney General of St. Christopher and Nevis 1, which was applied by the Court of Appeal in Romauld James v The Attorney General of Trinidad and Tobago. 2 What I wish to emphasize are the reasons for the importance of the provision of reasons by judges. 32. Broadly speaking, providing adequate reasons is vital for maintaining public trust and confidence in the administration of justice. Doing so is one of the concrete ways by which individual judicial officers and the Judiciary as an institution maintain accountability to society for their core function decision making. 33. However, there are more specific reasons. In Romauld James, Kangaloo, J.A. was pointing to this when he cited with approval the statements of Henry LJ in Flannery v Halifax Estate Agencies Ltd. 3 as follows: The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not. 34. Clearly, the failure to give any or any adequate reasons will result in it being virtually impossible (and if possible only speculatively so) to ascertain why a judicial officer has come to the decision or opinion that he/she has on any particular point 1 See paragraph 16 (2008) UKPC 47. 2 Civ App. No. 154 of 2006. 11 of 13
(whether of fact or law). And it will also result in it being equally impossible to judge whether he/she has gone wrong in his/her assessment or interpretation or application of the facts or the law. Judicial officers therefore have both a duty and responsibility to take time and care to provide adequate explanations for their opinions, conclusions and findings. 35. This case is a good example of the necessity for giving adequate reasons. Any decision as to costs which does not apply the general principle - that costs should follow the event, 4 requires justification. Here it required a careful analysis of the facts and a balancing of the legal considerations identified in Part 66 Rule 66.6 and in particular at 66.6 (2), (3), (4), (5) and (6) CPR, 1998. 36. The second observation I wish to make concerns the particular order made by the Court of Appeal in this case. Whereas I agree that the appropriate order in the special circumstances of this case, was to allow the appeal and direct that the appropriate order for costs before the High Court was no order as to costs and before this court that the Respondent pay the costs of the appeal, I want to emphasize that this approach ought not to be taken as the general approach in circumstances which are similar to these. That is, where a party brings a case that is bound to fail on the facts and/or law, which is known to or reasonably discoverable by that party and/or his/her attorneys-at-law, and which is not pointed out by an intended defendant by reason of the failure to respond to a preaction protocol letter (when the same is also known to the intended defendant and recipient of the pre-action protocol letter). 37. In my opinion, where in such circumstances a claimant discontinues or withdraws his/her claim upon subsequent receipt of the information from a defendant recipient of a pre-action protocol letter, the general approach should be a reduction of the costs payable to the successful party (the defendant as the case may be) by an appropriate percentage 3 (2000) 1 WLR 377 at 381G to 382C. 4 See Part 66 Rules 66.1 and 66.6(1) CPR, 1998. 12 of 13
based on the circumstances of each case, assessed in light of the Rule 66.6 considerations. 38. In my opinion, a claimant and his/her legal representatives always have the primary responsibility to ensure that it is reasonable to pursue a particular allegation and/or raise a particular issue. And, generally a claimant ought not to be rewarded for carelessly or irresponsibly failing or neglecting to discharge that duty by an award of costs in his/her favour, even a no order as to costs order, being made. P. Jamadar, Justice of Appeal 13 of 13