Hewitt (john) v. Rivers(Tara) and others

¶ 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CAUSE NO. 198 OF 2013 3 4 AND IN THE MATTER OF AN ELECTION FOR THE ELECTORAL DISTRICT OF 5 WEST BAY HELD ON THE 22ND DAY OF MAY 2013 6 7 8 BETWEEN: 9 10 AND: 11 12 AND: 13 14 15 AND: 16 17 18 19 IN CHAMBERS JOHN GORDON HEWITT TARA RIVERS DELANO SOLOMON (Returning Officer) ATTORNEY GENERAL FOR THE CAYMAN ISLANDS PETITIONER 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 20 BEFORE THE HON. ANTHONY SMELLIE, CHIEF JUSTICE 21 THE 18TH SEPTEMBER 2014 AND THE 13TH MARCH 2015 22 23 24 APPEARANCES: 25 26 27 28 29 30 31 Mr. Paul Keeble of Hampson & Company for the First Respondent Ms. Reshma Sharma, Senior Crown Counsel, for the Second Respondent and the Attorney General for the Cayman Islands 32 Election petition, statutory provision for security for costs- whether jurisdiction of the court 33 limited to the statutory provision. 34 35 36 JUDGMENT AS TO COSTS 37

¶ [1] On 9th August 2013 judgment was delivered in this matter dismissing the Election Petition and 38 holding in favour of the 1 st Respondent that her election as a member of the Legislative 39 Assembly for the District of West Bay is valid. At the time of delivery of judgment, the JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Han Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 10F13 1 question of the costs of the Petition was reserved, the Court expressing the hope that the 2 question would not be pressed because of the obvious public interest in the issues taken up in 3 the Petition. The 1st Respondent now seeks an order for her costs nonetheless, relying upon 4 the principle that the costs should follow the event of the outcome of the Petition. The costs 5 are quite significant in amount and so she says it would neither be fair nor appropriate that she 6 should be required to bear them herself when they have been incurred because ofthe wrongful 7 challenge to her election by the Petitioner who was acting not purely in the public interest, but 8 also in the personal interest of his wife, who was her closest rival at the elections. 9 10 Functus Officio 11 On behalf of the Petitioner, Mr McField first of all submits that I have no jurisdiction to award 12 costs because I am Functus Officio. This he says came about at the moment that I delivered 13 judgment on 9th August 2013 without making an express order for the costs of the Petition. 14 He puts his argument in this way:- 15 16

¶ [13] "The principle of Functus Officio derives from the Court of Appeal case ST 17 NAZARINE (sic) CO (1879) 12 CH D.88. In ST NAZARINE (sic) the Court of 18 Appeal heard that the Court has no Jurisdiction to re-open or amend a final Decision 19 except for: 20 21 1) Error in drawing up Judgment, and, 22 2) Error in expressing the manifest intention of the Court JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Corom: The Han Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 20F13 1

¶ [14] In this case the principle of Functus Officio applies on the statutory basis of finality of the 2 proceedings. 3

¶ [15] There was and is no error by the Hon. Chief Justice in drawing up his determination; 4 and, the Hon. Chief Justice made no error in expressing the manifest intention of his 5 Court. " 6 7 From my reading of the case relied upon - In Re St Nazarene Company (proper citation)- it 8 stands for the trite proposition that there can be no appeal at all to the Judge of first instance 9 against any decision, either of his predecessor (High Court judge) or of the Appeal Court (per 10 Jessel MR at 99-100). 11 12 The case lhu~ ~tands for the principle that there shall be finality in the decision-making 13 process of the Court. It must therefore be accepted, as a general rule, that the Court has no 14 power under any application in an action, to allow or vary a judgment after it has been 15 entered, or an order after it is drawn up, except so far as is necessary to correct errors in 16 expressing the intention of the Court: In Re St Nazarene Company (above); Kelsey v Donne 17

¶ [1912] 2 K.B 482 and the Notes to the Rules of the Supreme Court ("RSC') 1999 Ed. 18 paragraph 2011117; and the other cases cited there. At the same paragraph of the RSC the 19 several exceptions to that general rule are also cited. JUDGMENT AS TO COSTS: Hewitt" Rivers et 01 G 198 of 2013 Coram: The Han Chief Justfce Smellie - Doted: 18 Sept. 2014 & 13 March 2015 30F13 1 However, to my mind, the question at hand is better addressed by reference to the dictum of 2 Marton J. in Re VG.M Holdings Ltd [1941] 3 All E.R. 417 (Ch. D.), which is well 3 summarized in the headnote: 4 5 "Where a judge has made an order for a stay of execution which has been passed and 6 entered, he is functus officio, and neither he nor any other judge of equal jurisdiction has 7 jurisdiction to vary the terms of such stay. The only means of obtaining any variation is to 8 appeal to a higher tribunal. " 9 And there is an additional editorial note to the headnote: 10 "This is a practice point. It is well-settled that the court can vary any order before it is 11 passed and entered. Ajier it has been passed and entered, the court is functus officio, and 12 can make no variation itself Any variation which may be made must be made by a court of 13 appellate jurisdiction. " 14 This "well-settled" point of practice is that which Mr McField seeks to rely upon and given the 15 line of cases discussed above, must indeed be recognised as settled law. But the answer to the 16 objection raised by Mr. McField must therefore lie in the fact that upon delivering judgment on 17 9th August 2013, I reserved the question of costs. No final order as to costs was "passed and 18 entered". 19 I therefore hold that I have jurisdiction to make an award of costs in relation to the Petition and 20 this was in fact already expressed to be the case in a directions order of 2nd May 2014 setting this 21 very matter down for determination in these terms (inter alia): JUDGMENT AS TO COSTS: Hewitt v Rivers et 0/ G 198 oj 2013 Coram: The Hon Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 40F13 1 "IT IS HEREBY ORDERED AND DIRECTED THAT 2 3 1 This Court has jurisdiction to determine the issue for costs and is not (as raised by the 4 Petitioner in correspondence) functus officio;" 5 In effect therefore, the foregoing are my reasons for that order of 2nd May 2014. 6 7 The extent of the jurisdiction 8 A further question of jurisdiction is raised by Mr. McField on behalf of the Petitioner. He 9 relies on Section 86(b) and (c) of the Elections Law which expressly require a petitioner to 10 provide the amount of CI$3,000.00 as "security for payment of all costs, charges and 11 expenses that may become payable by the petitioner" to persons including: 12 "(N) ........ the member whose election or return is complained of; or 13 (iii) ........ any other person named as a respondent in the petition. " 14 15 Mr. McField submits that this is meant to be an exclusive and comprehensive provision and 16 that my jurisdiction is therefore curtailed; that I can make no award of costs beyond that sum 17 of security in the amount ofCI$3000. 18 That argument would however, overlook section 90 of the Elections Law which also expressly 19 confers on a Judge presiding over an Election Petition "the same powers, jurisdiction and 20 authority ..... as nearly as the circumstances admit, as in the trial of a civil action in the 21 Grand Court ..... " . - JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 0/2013 Coram: The Hon Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 50F 13 1

¶ [2] I am satisfied, on the basis of section 9 and for the reasons which follow, that in providing for 2 security for costs, the Elections Law (2009 Revision) in section 86(b), is not intended to 3 exclude the general costs jurisdiction vested by the Judicature Law (2013 Revision) and the 4 Grand Court Rules (1995 Revision). Rather, "security" means, as the word implies in this as 5 in any other context of civil litigation, a reasonable provision for costs, which at a minimum, 6 will be available to the successful party. This form of security has never been regarded as the 7 same thing as a provision for full standard costs, let alone a provision for full indemnity costs. 8 It is a provision aimed at allowing the courts to ensure that at minimum the amount as 9 prescribed (or ordered) is available to meet the costs of the successful respondent. And where, 10 as here, the statute prescribes an amount for security for costs, it can only sensibly be regarded 11 as doing so from the point of view of what the legislature thought reasonable at the time of 12 passage of the law. With the passage of time the value of that sum will have been eroded by 13 inflation. The legislature must be regarded as having been cognizant of that fact and for that 14 reason included section 90 to preserve the ability of the court to award such costs as would be 15 both reasonable and realistic as time goes by. It follows that the security of CI$3,000.00 16 required by s. 86(b) of the Elections Law (2009 Revision) should be regarded as a provision 17 of a minimal sum which should go towards meeting the costs of the successful party. It is to 18 be noted as well in light of section 86(b) which allows three days after the filing for deposit 19 with the court, that the provision of that minimal security is "a condition precedent" for the 20 hearing (or, as in the case of Jamaica, for the filing of a petition) to challenge an election. See 21 Dabdoub v Vaz, in the Jamaica Court of Appeal, Application No:87/08, judgment delivered 22 26th September 2008. JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Hon Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 60F13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

¶ [5] Other courts have taken similar views of similar provisions for security for costs in relation to election petitions. See, for instance, Missick v Forbes, (in the Supreme Court of the Turks and Caicos) TC [1999] SCI, May 24, 1999 Suit No. CL22 of 1999 per Ground CJ in the formal order of the court (as he then was); Benjamin, Rogers and Herbert v Grant, OECS Court of Appeal (sitting for St Christopher and Nevis), judgment delivered 15th July 2008 in Cause HCVAP2006/009/0011, where the statutory provision for security was regarded by the Court of Appeal as establishing "a presumption that costs will be awarded"; Selver v Smith, Missick, the Supervisor of Elections and the Attorney General, Supreme Court of the Turks and Caicos Petition No. CL 237/12, judgment delivered 7th February 2014, per Ramsay-Hale J (as she then was), holding that notwithstanding the statutory provision for security "there is no reason to derogate from the principle that costs should follow the event.." Counsel in this matter also very helpfully provided further material from around the Commonwealth of Nations on the treatment by the courts of this question of costs of election petitions. The cases show that the courts have consistently regarded the question of costs as being at large, to be dealt with in the exercise of the general costs jurisdiction and discretion, in keeping with the merits. In Dabdoub v Vaz, in the Jamaica Court of Appeal Application No:45/2008, judgment delivered 13 March 2009, it was held (following Johnsey Estates (1990) Ltd v Secretary of State for the Environment (2001) EWCA 535) inter alia that "the starting point for exercise of the discretion [given by the Elections Petitions Act] is that costs should follow the event. It JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Han Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 70F13 1 may be said, in light of section 281, that to make an order by which the costs did not follow the 2 event, there must be good cause. " 3 4

¶ [6] The position in England is confirmed by Halsbury's Laws of England which states (at Vol. 5 15(4) Fourth Edition 2007 Reissue, paragraph 868) that: "The rules of the Supreme Court with 6 regard to costs to be allowed in actions, causes and matters in the High Court are in principle 7 and so far as practicable to apply to the costs of election petitions and other proceedings 8 under the relevant provisions"; citing among others, the Representation of the People Act 9

¶ [1983] 10 11 12

¶ [7] In Peters and Another v. Attorney General and Another [2002] 3 LRC 32, in its application of 13 section 144 of the Representation of the People Act of Trinidad and Tobago, the Court of 14 Appeal (per de la Bastide CJ) regarded the courts as having the same general jurisdiction to 15 award costs as vested under the rules of court. The Court of Appeal accordingly awarded costs 16 to be taxed "fit for junior and senior counsel" for each of the successful parties. 17 18

¶ [8] The cases also show that substantial amounts of costs will be awarded where it is appropriate 19 to do so. JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Han Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 BOF13 1

¶ [9] In Pilling and Others v Reynolds (above), the successful respondent Mr Reynolds was 2 awarded his costs in the amount of £10,000.00, and the successful second respondent the 3 returning officer Mr Rumbelow, the amount of £20,000.00; amounts well above the maximum 4 prescribed for security for the costs of the petition in that case. 5

¶ [10] In Cedric Liburd and ors v Hamilton SKBHCV2004/0183 (OECS, St Kitts and Nevis), costs 6 well in excess ofthe statutory security were awarded, amounting to well over USD600,000.00 7 for the fees of two teams ofleading and junior counsel. 8 9 Indemnity costs 10

¶ [11] Mr Keeble on behalf of the 11 responding to the petition. He points to a letter sent to the Petitioner shortly before the hearing 12 in which it was offered that should the Petitioner withdraw the petition, the 1st Respondent 13 would seek no order as to costs. He also argues that arguments put forward in support of the 14 petition were untenable and so caused the 1st Respondent to incur unnecessary and wasteful 15 costs in responding to them. 16 17 In response, I am reminded by Mr. McField that the provisions of the Elections Law and the 18 Constitution allow the challenge of an election by the bringing of an election petition and that 19 this connotes a public benefit and allows members of the public to challenge and to 20 investigate through the Court, an election in respect of which they have doubt and concerns. It 21 is in this sense that there is always a public interest in election petitions and an award of 22 indemnity costs, usually premised upon the litigant acting unreasonably, would be 23 inappropriate and would be discouraging of petitions in the future. JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Corom: The Hon Chief Justice Smelfie - Dated: 18 Sept. 2014 & 13 March 2015 90F13 1 It was with this principle in mind that in the case of Pilling and others v Reynolds (above), 2 that Mr. Justice Blake stated at [39]: 3 4 "In our judgment, public law principles for the award of costs are an appropriate guideline 5 in the case of a legitimate and serious challenge to a ballot paper that was decisive of the 6 outcome of an election. There is an important public interest in clarifYing the legitimacy of 7 the ballot and the vote on which the disputed paper depends, It would be contrary to the 8 public interest to deter such scrutiny because of the disproportionate consequences in costs 9 for any unsuccessful petitioner, There is some analogy with the court's concerns to limit the 10 costs consequences of public interest challenges in environmental litigation or on other 11 important public law claims: see per Carnwath U in R (on the application of England) v 12 Tower Hamlets London BC [2006} EWCA Civ 1742, [2006} All ER (D) 314 (Dec), 20 13 December 2006, and the report of Sir Maurice Kay 'Litigating the Public Interest ' (July 14 2006), " 15 16 Earlier, in R(Corner House Research) v, Secretary of State for Trade and Industry [2005] 3 17 Costs LR 455, the English Court of Appeal had set out important governing principles and 18 practical guidance relating to protective costs orders in public interest litigation, These 19 included that a cost capping order for a claimant's costs will normally be required in all such 20 cases by reference to the courts' powers to make such orders identified in King v Telegraph 21 Group [2004] EWCA Civ 6l3, JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Corom: The Hon Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 10 OF 13 1 It was out of such concerns that I expressed the views I did when handing down judgment on 2 9th August 2013, in exhortation to the successful parties not to press for costs in what by any 3 measure, was a petition that raised important constitutional issues. And recognizing as well, 4 how the award of a full indemnity for costs could impact upon a well-meaning but 5 unsuccessful petitioner. 6 7 against the Petitioner. 8 9 But none of these concerns may preclude the successful 1st Respondent for pressing for her 10 costs. Her position as a private litigant was very different from that of the 2nd and 3'd 11 Respondents who participated in their roles as public officer holders, funded by the public 12 purse. 13 14

¶ [12] I must therefore fall back on the settled principles for the award of indemnity costs and it is 15 well recognized that an order for indemnity costs will not usually be made unless a party has 16 behaved improperly, negligently or w1feasonably such as by refusing a reasonable offer of 17 settlement (see In Re eVe/Opportunity Fund 2002 CILR 531 CA) or by raising frivolous and 18 vexatious arguments (see AHAB v SAAD Inv eo Ltd and ors 2013 (2) CILR 344) . 19 20

¶ [13] In recognition of the public interest nature of the Petition going beyond the private interests of 21 the Petitioner (or, for that matter, those of his wife as the contending candidate that he sought 22 to advance); I do not consider it appropriate to award costs on the full indemnity basis here. It JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 1013 Corom: The Han Chief Justice Smellie - Doted: 18 Sept. 2014 & 13 March 1015 11 OF 13 1 can In no wise be said that the petition was "improperly, negligently or unreasonably" 2 brought. 3 4

¶ [14] Nor do I regard the petition as one that was frivolously or vexatiously argued, although 5 presented on a basis which has been found to be erroneous in law. Rather, it was presented as 6 premised upon legal advice following, I am told, high judicial precedent from another 7 Commonwealth jurisdiction. Mr McField also explains that the Petition was brought against 8 the background of the Petitioner being informed of legal advice given to the Returning Officer 9 for the District of Bodden Town which resulted in the disqualification of another candidate, a 10 candidate who is described as being similarly positioned as the 151 Respondent and on 11 constitutional grounds of disqualification similar to one of those unsuccessfully raised in the 12 Petition. 13 14

¶ [15] From the foregoing survey of the case law, it is well settled that costs will follow the events of 15 petitions challenging the validity of elections and that the discretion of the court for the award 16 of costs (including where appropriate indemnity costs) is preserved. 17 18

¶ [16] I hold that the costs shall follow the event in this case, as in the usual course of any other kind 19 of civil litigation conducted before the Grand Court. The costs are therefore awarded to the 20 successful 151 Respondent to be taxed if not agreed, not on the indemnity basis, but on the 21 standard basis as set out in Order 62 of the Grand Court Rules (1995 Revision) and Practice 22 Direction No. 1 of 20 11 emanating from those Rules. 23 JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Han Chief Justice Smellie - Dated: 18 Sept. 2014 & 13 March 2015 12 OF 13 1

¶ [17] For the guidance of the taxing officer, I also note my acceptance that it was necessary for the 21 st Respondent to have engaged both leading and junior counsel, as well as the expert, Prof 3 Cole, who testified on United States law. 4 5

¶ [18] The question also arose for consideration whether I should make an order for contribution by 6 the 2nd and 3'd Respondents to the I st Respondent's costs (or to those to be paid to her by the 7 Petitioner). I decided that it would be inappropriate to make such an order here. While I do not 8 doubt the existence of the power to make such an order (the 2nd and 3'd Respondents were 9 parties to the petition), I must bear in mind that they were joined and responded only in the 10 public interest. As already noted, it is also clear that the Petitioner obtained and acted upon 11 independent legal advice. Thus, his Petition was not necessarily predicated upon the outcome 12 of the legal advice given to the Returning Officer for Bodden Town - that which is said to 13 have resulted in the disqualification of a potential candidate for that District on similar 14 grounds to those relied upon by the Petitioner. 15 16

¶ [19] Any contribution to the costs of the 1st Respondent not covered by the costs ordered to be paid 17 by the Petitioner must be a matter for the Government of its own volition to consider. 18 19 20 21 22 23 JUDGMENT AS TO COSTS: Hewitt v Rivers et 01 G 198 of 2013 Coram: The Han Chief Justice Smellie - Doted: 18 Sept. 2014 & 13 March 2015 13 OF 13