Gibson v Woodside and Brown (returning Officer)
| Jurisdiction | Bahamas |
| Judge | Allen, SR. J.,Isaacs, J. |
| Judgment Date | 18 December 2008 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 746 of 2007 |
| Date | 18 December 2008 |
Supreme Court
Allen, Sr. J.; Isaacs, J.
746 of 2007
Mr. Philip Davis with Ms. Tamara Saunders and Ms. Adderley for the petitioner.
Mr. Michael Barnett with Mr. Michael Scott, Mr. Randol Dorsett and Mr. Michael Foulkes for the first respondent.
Ms. Dawn Lewis with Mrs. Kayla Green-Smith for the second respondent.
Costs - Election proceedings — Whether court should depart from the rule of costs following the event.
On 18 January 2008, this Court found the vote cast by each of one hundred and ten persons in the Pinewood Constituency (hereinafter “Pinewood”) was not lawfully cast. As a result, a scrutiny was ordered on 21 January 2008, after which, the first respondent was declared the winner of the Pinewood election by forty-nine votes.
The question of who should bear the costs of the proceedings was subsequently argued by the parties, and it is that issue which this ruling seeks to address.
The petitioner argues that the costs in this case should not automatically follow the event and that the Court, in exercising its wide discretion to award costs, should have regard to how much of the petition was proved, how many of the challenges failed, the behaviour of the parties and the finding that there were egregious failures by the Parliamentary Registrar.
Counsel for the petitioner pointed to a number of circumstances, peculiar to this case, which he submits the Court should take into account in exercising its discretion:
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(i) the petitioner proved her case in that the Court found that 110 votes were unlawfully cast and she became entitled to a scrutiny;
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(ii) the finding by the Court of egregious failures in the system and the finding that the Parliamentary Registrar failed to assure the integrity of the register;
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(iii) the fact that 3% of the votes cast in Pinewood were found to be unlawful, more than in any previous election court proceedings;
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(iv) the use of the FNM website to attempt to prejudice the case;
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(v) the statement by the Attorney General suggesting that the petitioner was responsible for the increase in crime as the Court was unable to hear criminal matters;
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(vi) the publication in the press by the first respondent of a list of challenged voters which intimidated witnesses;
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(vii) the first respondent knew that certain voters did not live within the Pinewood constituency, yet resisted the Court's urging to agree the voters he knew did not live in Pinewood;
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(viii) the first respondent refused to admit facts when served with a notice to do so;
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(ix) the first respondent's insistence that the petitioner be put to strict proof because he did not wish to be seen to be agreeing to the disenfranchisement of voters;
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(x) the behaviour of the first respondent increased the costs of the proceedings in that in refusing to admit facts he knew to be true, the petitioner was obliged to summon voters to give the same evidence the first respondent could have and ought to have admitted;
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(xi) the petitioner attempted to save costs by engaging a private investigator and surveyor.
The petitioner asks the Court to make one of two orders as to costs to meet the justice of the case:
- Costs should be apportioned between the parties as follows: a. the first respondent should pay the costs relating to those disallowed voters in the notice to admit facts; b. the Parliamentary Registrar should pay the costs of those disallowed voters not in the notice to admit facts; c. the petitioner should pay the costs relating to the voters not disallowed; or 2. Each party should bear his or her own costs.
The first respondent charges that the petition was based on one ground and one only and that was that the petitioner had the majority of lawful votes because persons who voted were not ordinarily resident in Pinewood during the relevant period. He submitted that the petitioner failed to show she had the majority of lawful votes and therefore costs should follow the event and he should have his costs certified fit for three counsel.
The first respondent urged the Court to follow the decisions of previous Courts in Butler v Grimes and Ferguson v Gray in which costs were awarded against the unsuccessful petitioner. He submits that the facts, for example, in Ferguson v Gray and the facts in this case were indistinguishable.
The second respondent also asks for the petitioner to pay his costs saying that there were no allegations against any election officials and in particular no findings were made against him. He asked that no negative inferences that would militate against an award of costs to him ought to be made against the Parliamentary Registrar and that notwithstanding the finding of a system failure the result of the election was not affected, moreover that the Parliamentary Registrar was not made a party to the proceedings.
The Bahamas Court of Appeal in Butler v Grimes [1994] BHS J No. 116, considered whether the Election Court had power to award costs. In this regard, Campbell, J.A. said at paragraph 18: “An Election Court has no doubt by the plain words of section 75(3) similar power, like the Supreme Court to award costs against an unsuccessful petitioner in favour of a respondent”. And Smith, J.A. said at paragraph 54 of the judgment: “In my judgment, an Election Court is empowered to award costs in proceedings before the Court and these costs may be taxed and the taxation reviewed by the same authority and procedure as costs may be taxed and the taxation reviewed in civil proceedings in the Supreme Court.”
Section 83 of the Parliamentary Elections Act (hereinafter “the Act”), contains the only provisions which speak to the award of costs in election court proceedings. Paragraph (2) of that section provides for the provision of security by a petitioner for “all costs, charges and expenses which may become payable by him to any witness summoned by him or to any respondent…” Paragraph (7) provides for payment by the petitioner of the respondent's costs where the petition is dismissed.
Section 80(3) of the Act provides:
“An Election Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority as the Supreme Court at the trial of a civil cause without a jury, and shall be a court of record.”
Rule 3 of the Parliamentary Elections Rules makes the practice and procedure of the Supreme Court applicable to all proceedings before an Election Court as if they were civil proceedings before the Supreme Court on its Common Law Side, subject to the Constitution and the Act.
Section 30 of the Supreme Court Act provides that subject to that Act and to rules of court, the costs of and incidental to proceedings of the Supreme Court shall be in the discretion of the Supreme Court and that the court shall have full power to determine by whom and to what extent the costs are to be paid. Further,...
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