Bimini Blue Coalition Ltd v Christie et Al

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeAllen, P.,Allen, J.,Conteh, J.A.,Adderley, J.A.
Docket NumberSCCiv App Side No. 35 of 2014
Date18 July 2014

Court of Appeal

Allen, P.; Conteh, J.A.; Adderley, J.A.

SCCiv App Side No. 35 of 2014

Bimini Blue Coalition Limited
and
Christie et al
Appearances:

Ms. Courtney Pearce counsel for the appellant/applicant.

Mr. David Higgins with Mr. Gary Francis and Ms. Melissa Wright counsel for the First to Third respondents.

Mr. Brian Moree Q.C., with Mrs. Nicole Sutherland King counsel for the Fourth to Seventh respondents.

Judicial Review - Security for cost — Conservatory order — Costs — Access to justice — Trial judge granted the respondents security cost — Whether the quantum awarded appropriate in all the circumstances.

Held:– appeal allowed, quantum ordered by the learned trial judge set aside, global sum of $315,000.00 as security for costs ordered, security to be paid within 30 days of the date of this judgment, costs of the conservatory order proceedings are split between the appellant and respondents

Allen, P.

PER Estimating the quantum to be awarded for security for costs is not an exact science. Having regard to the difference between the figures asked of the trial and the figures presented in the estimated Bills of Costs filed in this Court, the appellant's observations on the draft Bills, the general principles detailed in the case law, the nature of the appellant's case and the conduct of the case by the appellants thus far, estimate that the appropriate award is a global quantum of $315,000.00; being made up of $100,000.00 for the government's costs and $215,000 for the developers' costs.

In relation to the appropriate Costs order in the Conservatory matter, we set aside the order of the learned trial judge and order that the following costs are the appellant's, to be taxed if not agreed: 1. preparation of and appearance before the Court of Appeal on the 16th & 19th May 2014. 2. preparation of and appearance before the Privy Council on the 22nd & 23rd of May 2014. The following costs are the respondents to be taxed if not agreed: 1. preparation of and appearance before Justice Longley from the 26th May, 2014 — 30th May, 2014. 2. preparation of and appearance before the Court of Appeal on the 2nd, 4th, 5th and 11th of June 2014.

PER Adderley, J.A.

As correctly observed obiter by Nelson CCJA in Knox v. Deane and others [2012] CCJ 4 at [42] “…Security for costs is an important derogation from the principle of access to justice.” No issue of locus standi having been raised by the respondents, the appellant has accessed the system, and having done so is subject to the rules and principles governing the determination of quantum of security. In accordance with principle a balance must be struck between the quantum being oppressive so as to stifle the appellant's claims, and not allowing the impecunious appellant to put unfair pressure on the Developers, a prosperous company.

To be considered for relief from granting security for costs the issue raised must be a point of law of public importance, and the effect of making the order would be to prevent the point of law in question being decided. While, like most environmental matters raised by judicial review, this case may be of public importance and has an element of public interest, it does not raise any points of law of general public importance. The issues raised are issues of construction of statutes based on the facts of this case, and there is no claim that any statutes are ambiguous and need special interpretation to guide the public generally in the future. Therefore, I would not exercise my discretion to grant a nominal quantum for security as this would in effect derogate from the security itself already ordered.

The Court has no basis upon which it should bifurcate the security for costs order as between the Government respondents and the Developers. Having regard to all the circumstances and the authorities, and working on the current practice of taking ?rds of the estimated party and party costs as an estimate of what is required to indemnify the respondents against their party and party costs, I agree with the estimate of a global sum of $315,000.00 being made up of $215,000.00 in respect of the Developer's costs and $100,000.00 in respect of the Government respondents costs. This works out to approximately 50% of the solicitor/own clients costs in the projected draft Bills reduced by one third.

AUTHORITIES APPLIED

Bolton Metropolitan District Council and others v. Secretary of State for the Environment [1996] 1 All E.R.

In re Eastwood, decd. Lloyds Bank Ltd. v. Eastwood and ors [1975] 1 Ch (CA)Keary Developments v. Tarmac [1995] 3 All E.R.534

Knox v. Deane and others [2012] CCJ 4

AUTHORITIES MENTIONED

Harbour Lobster Fish Co. v. AG [1998 BHS J. No. 15] ,

Illawarra Residents for Responsible Mining Inc. v. Gujarat NRE Coking Coal Limited [2012] N.S.W.L.E.C. 259

Pointes Protection Association v. Sault Ste, Marie Region Conservation Authority 2013 ONSCV 5323

Allen, J.
1

This is an appeal against the decision of learned senior justice Hartman Longley given on December 19th, 2013 granting to the 1st — 3rd respondents security for costs in the amount of $250,000.00 and to the 4th — 7th respondents security for costs in the amount of $400,000.00. Justice Longley further ordered that should the appellant fail to pay the stipulated sums within 21 days the respondents were at liberty to apply to the Court for an order dismissing the action. Leave to appeal the decision was granted by the learned judge.

2

The appellant did not file the requisite Notice of Appeal Motion in time and attempted unsuccessfully to gain an extension of time from the learned trial judge. In late February 2014, this Court granted the appellant leave to appeal against the quantum award of $650,000 only.

3

By way of an amended Notice of Appeal the appellant claimed the following re: the government:

  • “2. the sum of $250,000.00 ordered by the learned Senior Judge in favour of the Government respondents was excessive and irrational for the following reasons:

  • a. The office of the Attorney General is not a private legal practice. The Attorney General is representing the Government respondents in their official capacities. This is not a case where the Government respondents have, or the Attorney General (acting on their behalf) has instructed private legal counsel. Accordingly, the Government respondents are under no obligation nor are they liable to pay any costs (including disbursements) for the services rendered by the Attorney General in defending the Judicial Review Action on their respective behalf.

  • b. In addition, the attorneys in the office of the Attorney General are remunerated by way of salary, payment of which is unaffected by the existence of and the Attorney General's participation in the Judicial Review Action.

  • c. The sum ordered as security for the Government respondents' costs therefore exceeds the amount they would otherwise be entitled to receive by way of security for costs.”

4

In relation to the developers the appellant claimed the following:

  • “The sum of $400,000.00 ordered by the learned Senior judge in favour of the Developers was oppressive, arbitrary, excessive and irrational for the following reasons:

  • a. The developers are no longer a necessary party to the judicial review proceedings and as such any costs incurred by them lay at their own feet

  • b. the defence to the judicial review action is capable of being adequately dealt with by the Government respondents [as] the interests of the Government respondents and the Developers are aligned.

  • c. the learned judge erred in concluding that the directors members and supporters of the appellant should be prepared or able to raise the sum of $650,000 in the time allowed.

  • d. the learned judge erred by not giving proper weight to; 1. the appellant's prospect of success and 2. the fact that the proceedings raise issues of such gravity and importance that they transcend the private interest of the parties before the Court”

5

The appellant claimed, in relation to both awards, that the amounts awarded were not in accordance with the scale of fees generally awarded in the Supreme Court, the amounts awarded were not supported by any evidence; neither were they calculated on a party to party basis. It was further posited by the appellant that the learned trial judge failed to give adequate weight to the point that the substantial amount of the orders was highly likely to have the effect of preventing the appellant's judicial review application from proceeding; thereby preventing the ventilation of their concerns and sets a precedent for access to the Courts to be denied in future cases brought in the public interest.

6

In response to the appellant's claims the developers assert the following:–

1
    The appellant cannot arbitrarily decide that a named defendant is no longer necessary to the case. At this stage in the proceedings, and in accordance with Order 21 r. 3 of the Rules of the Supreme Court, the appellant would require the leave of the Court to withdraw its case against the developers. This leave is unlikely to be granted as the outcome of the judicial review proceedings directly affects the proprietary and pecuniary interests of the developers. Further, they posit, it is their right in accordance with Order 53 r. 9 of the Rules of the Supreme Court to be heard by the learned trial judge. 2. The learned trial judge properly directed himself as to the relevant factors to be taken into account when determining the appropriate quantum. 3. There is no principle that the presentment of a draft bill of costs is a prerequisite to the Court exercising its discretion to order a sum to be paid as security for a defendant's costs. The grant of and the amount of security for costs is a matter for the exercise of judicial discretion. In order for an...

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