Court says litigants may recover costs after withdrawing public law cases

Derek Achong

The Court of Ap­peal has pro­vid­ed guid­ance on cir­cum­stances in which lit­i­gants chal­leng­ing de­ci­sions by pub­lic bod­ies may re­cov­er their le­gal costs even when they with­draw their claims at a pre­lim­i­nary stage. 

Ap­pel­late Judges Prakash Moo­sai, Vasheist Kokaram, and Eleanor Don­ald­son-Hon­ey­well pro­vid­ed the guid­ance yes­ter­day as they de­ter­mined a con­sol­i­dat­ed ap­peal in two cas­es.

In one case the Ju­di­cial and Le­gal Ser­vice Com­mis­sion (JLSC) ap­pealed when it was or­dered to pay the le­gal costs in­curred by for­mer mag­is­trate and cur­rent High Court Mas­ter Sarah De Sil­va re­lat­ed to a law­suit over its han­dling of a dis­ci­pli­nary com­plaint against her. 

De Sil­va with­drew the case af­ter the JLSC agreed to dis­con­tin­ue the dis­ci­pli­nary pro­ceed­ings while si­mul­ta­ne­ous­ly ap­point­ing her as a High Court Mas­ter. 

In the oth­er case, ac­tivist Michael Jo­gee was or­dered to bear his own le­gal costs af­ter he with­drew a case against the Cab­i­net over its fail­ure to ad­vise the Pres­i­dent to ap­point mem­bers of the Statu­to­ry Au­thor­i­ties Ser­vice Com­mis­sion (SASC). 

Jo­gee dis­con­tin­ued the case af­ter the Cab­i­net gave the ad­vice be­ing sought in the law­suit, though the move was not im­me­di­ate. 

In de­ter­min­ing the ap­peals, Jus­tice Kokaram not­ed that the tra­di­tion­al sys­tem of award­ing le­gal costs, where­by the los­er pays the costs of the vic­tor, could af­fect cit­i­zens' abil­i­ty to ac­cess jus­tice. 

"It can cause a dis­pro­por­tion­ate lev­el of in­vest­ment in the lit­i­ga­tion by a par­ty just for the sake of win­ning, weaponised by the par­ty with deep­er pock­ets to 'out­spend' the oth­er par­ty to score a vic­to­ry in the lit­i­ga­tion re­gard­less of the val­ue or im­por­tance of the claim," Jus­tice Kokaram said. 

Jus­tice Kokaram sug­gest­ed that lit­i­gants in pub­lic law cas­es de­signed to hold pub­lic au­thor­i­ties ac­count­able should be af­ford­ed some pro­tec­tion based on judges' dis­cre­tion in de­cid­ing le­gal costs. 

He sug­gest­ed that judges should con­sid­er the con­duct of the par­ties in such cas­es when seek­ing to utilise their dis­cre­tion. 

"The im­pulse to re­ward vic­to­ry must al­ways be tem­pered by an ex­am­i­na­tion of the rea­son­able­ness of that par­ty’s con­duct," Jus­tice Kokaram said. 

He al­so said that the par­ty's han­dling of pre-ac­tion pro­to­col let­ters, which ini­ti­ate the lit­i­ga­tion process, should be con­sid­ered. 

"Com­pli­ance with pre-ac­tion pro­to­cols are not mat­ters of pro­ce­dur­al win­dow dress­ing. They are mean­ing­ful rules of en­gage­ment de­signed to pro­mote ear­ly col­lab­o­ra­tion and dis­pute avoid­ance which are re­in­forced by the court’s costs or­ders," Jus­tice Seep­er­sad said. 

"Where there is sub­stan­tive suc­cess which un­der­lies a with­draw­al of a claim the un­suc­cess­ful par­ty who had failed to com­ply with a rel­e­vant pre-ac­tion pro­to­col must bear a heavy bur­den to demon­strate that no costs or­der should be made against it," he added. 

Deal­ing specif­i­cal­ly with De Sil­va's case, Jus­tice Kokaram not­ed that the judge was cor­rect to award her le­gal costs.

It was quite clear in these in­stances that the Re­spon­dent (De Sil­va) was the win­ner and en­ti­tled to the costs of their en­deav­our but­tressed by her rea­son­able pre-ac­tion con­duct and con­verse­ly the Ap­pel­lant’s un­rea­son­able pre ac­tion con­duct," he said. 

In terms of Jo­gee's case, he ruled that he (Jo­gee) should have re­ceived a par­tial costs or­der up to when he learnt that Cab­i­net had giv­en the ad­vice but not for the pe­ri­od he con­tin­ued the case af­ter then be­fore with­draw­ing it. 

"Hav­ing re­gard to the un­doubt­ed mer­it for a larg­er sec­tion of the pop­u­la­tion and the im­por­tance of main­tain­ing the rule of law and not sub­vert­ing the au­thor­i­ty of du­ly ap­point­ed ser­vice com­mis­sions it would have been dis­pro­por­tion­ate to re­ward Mr Jo­gee for the first pe­ri­od and claw it back by an ad­verse costs or­der in the sec­ond pe­ri­od," he said. 

"The neu­tral­i­ty of a no or­der as to costs for the sec­ond pe­ri­od holds in the bal­ance the le­git­i­ma­cy of the sub­stan­tive claim and the un­rea­son­able pur­suit af­ter se­cur­ing a prac­ti­cal­ly suc­cess­ful out­come," he added. 

De Sil­va and Jo­gee were rep­re­sent­ed by Anand Ram­lo­gan, SC,  Jayan­ti Lutch­me­di­al, Kent Sam­lal, Vishaal Siewsaran, Natasha Bis­ram, Jared Ja­groo, and Ganesh Sa­roop, of Free­dom Law Cham­bers. 

The JSLC was rep­re­sent­ed by Rus­sell Mar­tineau, SC, Tama­ra Toolsie, Melis­sa Pa­poon­s­ingh, and Vin­cent Jar­dine. 

The Cab­i­net was rep­re­sent­ed by Kiel Tak­lals­ingh.