REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF...
Transcript of REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No. CV2015-02799
Claim No. CV 2015-3725
IN THE MATTER OF AN APPLICATION BY BS (by his kin and Next of Friend KM), FOR AN
ADMINISTRATIVE ORDER UNDER PART 56 OF THE CIVIL PROCEEDINGS RULES 1998
AND
IN THE MATTER OF SECTION 4 AND 5 OF THE CONSTITUTION OF THE REPUBLIC OF
TRINIDAD AND TOBAGO ACT NO. 4 OF 1976
AND
IN THE MATTER OF THE DECISION OF HER WORSHIP MAGISTRATE MARCIA AYERS-
CAESAR DATED THE 29TH DAY OF JULY 2015 TO REMAND THE CLAIMANT TO THE YOUTH
TRAINING CENTRE, GOLDEN GROVE, AROUCA
AND
IN THE MATTER OF AN APPLICATION FOR REDRESS IN ACCORDANCE WITH SECTION 14
OF THE CONSTITUTION BY BS (by his kin Next of Friend KM) A CITIZEN OF THE REPUBLIC
OF TRINIDAD AND TOBAGO ALLEGING THAT CERTAIN PROVISIONS OF THE SAID
CONSTITUTION HAVE BEEN CONTRAVENED AND ARE BEING CONTRAVENED IN
RELATION TO HIM
BETWEEN
BS
(By his kin and Next of Friend KM)
Claimant
AND
HER WORSHIP MAGISTRATE MARCIA AYERS-CAESAR
First Defendant
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Second Defendant
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Claim No. CV2015-02944
IN THE MATTER OF AN APPLICATION BY
SS (by her kin and Next of Friend KM), FOR AN ADMINISTRATIVE ORDER UNDER PART 56 OF
THE CIVIL PROCEEDINGS RULES 1998
AND
IN THE MATTER OF SECTION 4 AND 5 OF THE CONSTITUTION OF THE REPUBLIC OF
TRINIDAD AND TOBAGO ACT NO. 4 OF 1976.
AND
IN THE MATTER OF THE ACTIONS, POLICY PROCEDURE AND PRACTICE OF THE
COMMISSIONER OF PRISONS, HIS OFFICERS, SERVANTS AND/OR AGENTS BEING
OFFICERS, SERVANTS AND/OR AGENTS OF THE STATE OF THE REPUBLIC OF TRINIDAD
AND TOBAGO IN DETAINING THE CLAIMANT AT THE ADULT WOMEN’S PRISON GOLDEN
GROVE, AROUCA
AND
IN THE MATTER OF AN APPLICATION BY SS (by her kin and Next of Friend KM), A CITIZEN
OF THE REPUBLIC OF TRINIDAD AND TOBAGO ALLEGING THAT CERTAIN PROVISIONS
OF THE SAID CONSTITUTION HAVE BEEN CONTRAVENED AND ARE BEING
CONTRAVENED IN RELATION TO HER FOR REDRESS IN ACCORDANCE WITH SECTION
14 OF THE CONSTITUTION.
BETWEEN
SS
(By her kin and Next of Friend KM)
Claimant
AND
HER WORSHIP MAGISTRATE MARCIA AYERS-CAESAR
First Defendant
STERLING STEWART
THE COMMISSIONER OF PRISONS
Second Defendant
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Third Defendant
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Before the Honourable Justice V Kokaram
Date of delivery: Thursday 6th April 2017
Appearances:
Mr. Anand Ramlogan SC leads Mr. Gerald Ramdeen instructed by Mr. Darryl Heeralal
and Ms. Jayanti Lutchmedial Junior Counsel for the Claimant
Mr. Douglas Mendes SC leads Mr. Karel Douglas instructed by Ms. Kendra Mark for the
First Defendant in CV2015-02799 and CV2015-02944
Ms. Deborah Peake SC leads Ms. Tamara Maharajh and Mrs. Maria Belmar instructed by
Ms. Amrita Ramsook for the Second Defendant in CV 2015-02799 and CV2015-03725
Mrs. Deborah Peake SC leads Ms. Josefina Baptiste, Ms. Cherise Nixon and Ms. Elena Da
Silva instructed by Ms. Jenna Gajdhar for the Second and Third Defendants in CV2015-
02944
JUDGMENT ON COSTS
1. This is a judgment which deals with the issue of determining the liability for costs where the
Claimants, BS and SS, were successful in obtaining relief in their claim for judicial review
and constitutional law proceedings. The facts and reasons on the substantive claims are set
out in the judgment dated 24th May, 2016.1 The two main issues to be determined in the
aftermath of that judgment are which party in those proceedings is liable to pay costs and the
quantification of these costs.
2. It is now uncontroversial that the costs to be recovered in these proceedings are assessed
costs. See rules 56.14(5) and 67.12 of the Civil Proceeding Rules 1998 (as amended) (CPR)
and Nizam Mohammed v Attorney General of Trinidad and Tobago CV2011- 04918.
The parties recognise that the starting point in determining the liability to pay a party’s costs
is that costs should follow the event2 and so “to the victor goes the spoils”. However, equally
the parties accept that the Court retains a wide discretion in making its award. Such a wide
1 For convenience I deal with the incidence of costs in proceedings CV2015-3725, CV2015-02799 and CV2015-
02944. 2 Rule 66.6 (1) of the CPR provides:
66.6 (1) If the court, including the Court of Appeal, decides to make an order about the costs of any
proceedings, the general rule is that it must order the unsuccessful party to pay the costs of the successful
party.
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discretion is buttressed by rule 66.6 CPR. Importantly in this case, even though the Claimants
were in the main successful in their claims, the Court is entitled to have regard to “all the
circumstances” in determining whether to depart from the general rule and to either deprive
the successful party of all or part of its costs. Rule 66.6(3) CPR sets out the various options
for the Court in awarding to the successful party a proportion only of his costs even though
he is the victor and in those cases “to the victor goes some of the spoils”.
3. In this case the Claimants contend that there is no reason to depart from the general rule that
costs should follow the event. The Attorney General and Commissioner of Prisons have
however argued that in examining all the circumstances, the Court should take into account
the following: (a) that the issues raised were genuine, important matters of public interest
where the relief went beyond the interests of the parties, (b) that the Claimants failed to
comply with the Pre-Action Protocols set out in the Practice Direction dated 15th November
2005 and (c) that the Claimants were not entirely successful in the pursuit of all of their
relief. In those circumstances the Court should depart from the general rule and award no
order as to costs or to award a percentage only of the Claimants’ costs of 50%.
4. The Chief Magistrate has submitted that the main factor to be considered in determining any
award of costs in this matter was its conduct in adopting a neutral position. In those
circumstances the general rule in public law proceedings would be that there will be no order
as to costs.
5. In my view this is a fitting case to depart from the general rule and to award the Claimants
50% of their assessed costs as against the Attorney General and no order as to costs as
against the Chief Magistrate and the Commissioner of Prisons for the reasons set out in this
judgment.
Wide Discretion
6. The Court retains a wide discretion in determining by whom and to what extent the costs of
an action are to be paid. See Rule 66.6 CPR and Caribbean Civil Court Practice 2011 note
29.8. In Scherer and Another v Counting Instruments Ltd [1986] 1 WLR 615 the Court
of Appeal considered the following principles in exercising its discretion on costs:
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“(a) The normal rule is that costs follow the event. The party who turns out to have
unjustifiably either brought another party before the court, or given another party
cause to have recourse to the court to obtain his rights, is required to recompense
that other party in costs: but
(b) The Judge has, under the Senior Courts Act 1981, s.51,3 an unlimited discretion to
make what order as to costs he considers that the justice of the case requires.
(c) Consequently a successful party has a reasonable expectation of obtaining an
order for his costs to be paid by the opposing party, but has no right to such an
order, for it depends upon the exercise of the Court’s discretion.
(d) This discretion is not one to be exercised arbitrarily; it must be exercised
judicially, that is to say, in accordance with established principles and in relation
to the facts of the case.
(e) The discretion cannot be well exercised unless there are relevant grounds for its
exercise, for its exercise without grounds cannot be a proper exercise of the
judge’s function.
(f) The grounds must be connected with the case. This may extend to any matter
relating to the litigation, but no further. In relation to an interim application, ‘the
case’ is restricted to the application, and does not extend to the whole of the
proceedings (see Hall v Rover Financial Services (GB) Ltd [2002] EWCA Civ
1514, The Times, 8 November 2002).
(g) If a party invokes the jurisdiction of the Court to grant him some discretionary
relief and establishes the basic grounds therefor, but the relief sought is denied in
the exercise of discretion, as in Dutton v Spink and Beeching (Sales) Ltd [1977] 1
All ER 287 and Ottway v Jones [1955] 1 WLR 706, the opposing party may
properly be ordered to pay his costs. But where the party who invokes the Court’s
jurisdiction wholly fails to establish one or more of the ingredients necessary to
entitle him to the relief claimed, whether discretionary or not, it is difficult to
envisage a ground on which the opposing party could properly be ordered to pay
his costs.”
3 (Sec 9 (1) Supreme Court of Judicature Act Chap 4:01).
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In Johnsey Estates Ltd v Secretary for State for the Environment Transport and the
Regions [2001] EWCA Civ 535 the Court also observed that it can adopt an “issue based
approach” where a party has been successful in relation to some issues and unsuccessful on
others. The Court is also entitled to take into account that a party which has behaved
unreasonably in relation to the litigation may be deprived of some or all of its costs.
7. The general rule that “costs follow the event” is now a mere starting point from which the
Court can depart for justifiable reasons. Sharma CJ observed in the foreword to the CPR:
“It is no longer the case that “the winner” or “the successful party” on the case as a whole
would be entitled to recover all his litigation costs from “the loser” or “the unsuccessful
party”. The court must now have regard to, among other things, the conduct of the parties
and the extent to which each party has succeeded in his claim or defence—the issue-
based approach. The court may, in the exercise of its discretion, order a successful party
to pay all or part of the costs of an unsuccessful party: [CPR Part 66.6].”
8. Rule 66.6(4)(5)(6) codifies these principles. It provides guidance for the Court, and creates
more consistency in the exercise of the Court’s discretion:
Rule 66.6 provides:
66.6(4) In deciding who should be liable to pay costs the court must have regard to all the
circumstances.
66.6 (5) In particular it must have regard to—
(a) the conduct of the parties;
(b) whether a party has succeeded on particular issues, even if he has not been
successful in the whole of the proceedings;
(c) whether it was reasonable for a party—
(i) to pursue a particular allegation; and/or
(ii) to raise a particular issue;
(d) the manner in which a party has pursued—
(i) his case;
(ii) a particular allegation; or
(iii) a particular issue;
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(e) whether a claimant who has won his claim caused the proceedings to be
defended by claiming an unreasonable sum; and
(f) whether the claimant gave reasonable notice of his intention to issue a claim.
Rule 66.6 (6) provides:
(6) The conduct of the parties includes—
(a) conduct before, as well as during, the proceedings, and in particular the extent
to which the parties complied with any relevant pre-action protocol; and
(b) whether either or both parties refuse unreasonably to try an alternative dispute
resolution procedure.
9. The Court can ascribe the relevant weight it may place on these considerations. However,
these principles of course are not meant to fetter the Courts wide discretion or limit the
legitimate considerations connected with the litigation which can impact on the Court’s
overall determination of the appropriate costs order that the justice of the case requires and
which furthers the overriding objective.
10. In departing from the general rule that “costs follow the event” the Court is also equipped
with options such as in rule 66.6.(3) CPR that a party can pay only a specified proportion of
another party’s costs, or costs from or up to a certain date only; or relating only to a certain
distinct part of the proceedings.
11. Exercising this wide discretion in considering “all the circumstances” on the issue of costs
calls then for the Court to take a fresh panoramic view of the landscape of the litigation after
the dust is settled post judgment. Rule 66.6(5)(6) CPR conveniently describe what I consider
to be three main signposts when the Court reviews the litigation landscape: the conduct of the
parties, success on issues and reasonableness of party’s actions in the litigation.
12. Rules 66.6 (5) (a) (d) and (6) CPR can all be conveniently treated as the conduct of the
parties or the manner in which a party pursued the litigation. Rules 66.6 (b), (c), (d), (e), (f)
CPR call for an examination of the reasonableness of the party’s action in pursuing
allegations or issues or the litigation. Rule 66.6(5) (b) CPR calls for an overview of the
ultimate winner and invites the Court to adopt an “issue-based” approach in making such a
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determination. See para 68.12 of Blackstone’s Civil Practice and Caribbean Civil Court
Practice note 29.10.4
13. In considering a “success on issues” approach the Court takes into account the reality of the
litigation and adopts a critical view of the main issues which were pursued and which
ultimately succeeded or failed. In the Antonelli v Allen [2001] Lloyd’s Rep PN 487
Neuberger J stated:
“In the present case, I have no doubt that an order for costs should be made in favour of
Mr. Kandler. He did fail on some issues, as I have indicated, but I do not think those
points were unreasonable points; they were arguable and merited careful consideration…
I think this is probably one of those cases where, before the access to justice regime and
the CPR, I would, on the basis of the Elgindata No. 2 probably have awarded Mr.
Kandler, all his costs but in the light of the critical approach that the court now takes I
think it is right to deprive him of some of his costs. I have come to the conclusion that
Mr. Kandler should get three-quarters of his costs from Mrs. Antonelli, docking a quarter
to take into account the factors I have mentioned, in light of the two issues on which he
was unsuccessful.”
14. Some useful principles in the approach to considering “success on issues” can be summarised
as follows:
(a) The courts are likely to concentrate on whether a party was successful on an issue not
the reasonableness of raising the issue in the first place (AEI Rediffusion Music Ltd v
Phonographic Performance Ltd [1999] 1 WLR 1507; Stocznia Gdanska SA v Lativan
Shipping Co. (No. 2) [1993] 3 All ER 822).
(b) A party which abandons issues, either prior to, or during, a trial, may be taken to have
lost on those issues, which may be reflected in the order as to costs (English v Emery
Reimbold and Strick Ltd [2002] EWCA Civ 605, 1 WLR 2409; Carver v
Hammersmith and Queen Charlotte’s Health Authority (2000) LTL 7/3/2001).
4 Notably, it was recommended by Mr Greenslade in “Judicial Sector Reform Project: Review of Civil Procedure”
that in awarding costs, “the Court should be required to take into account factors other than success.”
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(c) There will often be an overlap in the evidence relating to issues upon which a party is
successful and those upon which it fails. This has to be taken into account. In such
circumstances it may be appropriate to award the successful party a proportion of its
costs taking into account the fact that the paying party will have to pay its lawyers for
the entire costs of the proceedings (Liverpool City Council v Rosemary Chavasse Ltd
(1999) LTL 19/8/99, in which the court discounted the successfully party’s costs to
75 per cent).
(d) The award of costs to the successful party may be tempered by the manner in which it
took the points, hence late amendment may lead to the loss of some or all of the costs
up to the point of amendment and, in extreme cases, the award of the costs of the
claim up to amendment against the successful party (for example, Antonelli v Allen
(2000) The Times, 8 December 2000).
(e) Whether the issues on which the successful party lost materially contributed to the
costs of the proceedings. If they had a negligible impact on overall costs, it may be
appropriate to award the successful party all its costs (Fleming v Chief Constable of
Sussex [2004] EWCA Civ, 643, LTL 5/5/2004).
(f) It is not an argument that the party with overall success had to take certain bad points
in order to obtain ATE insurance (Kew v Bettamix Ltd [2006] EWCA Civ 1535,
[2007] PIQR P210).
(g) Where it is clear there has been partial success, but (as happens sometimes when
costs are reconsidered on appeal) there is inadequate material on which to decide on
an apportionment, no order as to costs may be the appropriate order (Hackney London
Borough Council v Campbell [2005] EWCA Civ v613, LTL 28/4/2005).
(h) The Court when deciding costs when a successful party has lost an issue will look at
how reasonable it was for the party to have included the issue in their case.
(i) It needs to be shown that the issue which has been lost was important in relation to
the other issues in the case which were won and supported those issues.
(j) Ultimately the Judge will exercise his discretion when deciding a costs issue.
See Blackstone’s Civil Practice 2014 para 68.12.
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15. Of course implicit in the exercise of this discretion is the overriding objective and to arrive at
an order which deals with the case justly and which fulfils the principles of equality,
economy and proportionality. Importantly, proportionality also requires dealing with cases
which are proportionate to the “importance of the case, complexity of the issues and the
financial position of each party”. Rochamel Construction v National Insurance
Corporation St. Lucia Civil Appeal No 10 of 2003 classically underscored the impact of the
overriding objective in exercising a discretion in the award of costs:
“Dealing justly with cases includes ensuring that the parties are on an equal footing that
expense is saved, that cases are dealt with proportionately to the amount of money
involved, the importance of the case, the complexity of the issues and the financial
position of each part, that the matter is dealt with expeditiously and fairly and that an
appropriate share of the Court’s resources is allotted to it while taking into account the
need to allot resources to other cases.”5
16. The considerations that I have taken into account in arriving at the appropriate costs orders in
these cases are: (a) the nature of the proceedings, (b) the issues upon which the Claimants
were ultimately successful and (c) the conduct of the parties.
The Chief Magistrate
17. This case highlighted one of the difficulties faced by the magistracy in making orders
remanding youth “in trouble with the law” to a “community residence”. The orders that were
the subject of review remanded a child to an adult prison in the case of SS and to the YTC in
the case of BS, which are not “community residences” under the “Children’s Legislation”.
The case itself raised matters of public importance and genuine guidance was needed to
determine the fate of children who were in trouble with the law. Fordham in Judicial Review
Handbook 6th ed called for a bold re-examination of public law costs principles where
matters of genuine public interest were raised. In those cases even if the Claimants had failed
in this case the Court would have been hard pressed to make a full or any order for costs
against it. See paragraph 18.3.2 Judicial Review Handbook, Michael Fordham QC, 6th
Edition. See also note 29.80 Caribbean Civil Court Practice 2011.
5 Per Sir Dennis Byron.
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18. The Chief Magistrate adopted an imminently reasonable approach in this litigation by
adopting a neutral position. There was no attempt whatsoever by the Chief Magistrate to
advocate actively in defence of those orders. Indeed the evidence demonstrated the Chief
Magistrate’s awareness of the legislation but the lack of information as to whether any
community residence existed to which the children could have been remanded. I accept this
Defendant’s submission that the Chief Magistrate was caught in the paradox created by the
passage of the legislation enacted without the requisite executive action to create the
necessary infrastructure.
19. This Defendant in my view consistently adopted a neutral position in these proceedings
lending assistance to the Court where it can in resolving the issues raised in these
proceedings. Importantly, it did not advance the argument that the adult prison qualified as a
community residence under the Children’s legislation.6 The general trend of authority on the
award of costs against inferior courts and Magistrates is that no order as to costs would be
made where it appeared in the proceedings to assist the Court neutrally on matters such as
jurisdiction, procedure or specialist case law. Nor would any such issue arise where there is
no issue as to unreasonable conduct, elementary errors of law, serious failures and flagrant
disregard to elementary principles. If such elements existed it would constitute “exceptional
circumstances” to depart from this general practice. See R (Davies v Birmingham Deputy
Coroner) [2004] EWCA 207 [2004] 1 WLR 2739 and para 18.1.12 Judicial Review
Handbook, Michael Fordham QC, 6th Edition.
The Commissioner of Prisons
20. For the same reason of the public importance of the matter and the nature of the relief sought
I would not think an award of costs against the Commissioner of Prisons is just. The
Commissioner of Prisons was represented by attorneys who also represented the Attorney
General. However it can be culled from the submissions that the Commissioner of Prisons
was equally as the Chief Magistrate in a paradox. Faced with a lawful order on its face by the
Chief Magistrate he had no other alternative but to accommodate the children at the YTC and
6 Section 2 of the Children’s Community Residences, Foster Homes and Nurseries Act No. 65 of 2000 which states:
2. In this Act— “Authority” means the Children’s Authority established under the Children’s Authority
Act;
“community residence” means a children’s Home or rehabilitation centre and includes industrial schools
and orphanages referred to in the Children’s Act.
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adult prison, places of detention which the children were to be detained until the Court in this
action put that right. I gather nothing from his evidence to suggest any act of malice or
deliberate ill treatment of the children under their care. The findings of my judgment
demonstrates that ultimately all the actors in the system were trying to remedy the obvious
administrative conundrum caused by the lack of facilities. A matter which falls for the
Attorney General to answer.
21. In his case I also order no order as to costs.
The Attorney General
22. In the case of the Attorney General however, I have taken into account (a) the public
importance of this litigation, (b) the fact that the Claimants were not successful in the pursuit
of a main underpinning of the litigation to secure the Claimants’ release and (c) importantly
the Claimants and Attorney General’s conduct in these proceedings.
23. I have already explained the public importance of this case and it is an equally compelling
factor in exercising my discretion in departing from the general rule.
24. Examining the issues raised for consideration it is true that the Claimants have succeeded on
the main issues for which they deserve their reward in costs. The Claimants obtained
declaratory relief to quash the warrants and the Chief Magistrate’s decision, orders that the
actions of the Attorney General were in breach of sec 4 (a), (b) s5(2)(e) of the Constitution
and damages. It would be an unfair exercise of the Court’s discretion to place undue
emphasis on the importance of this matter to deprive the Claimants of their costs entirely.
However a major underpinning in this litigation which fuelled the anxiety and adversarialism
of the proceeding was the Claimants’ desire to secure their release. Indeed this was a major
issue raised which occupied a significant portion of resources in this case that the Claimants
were entitled to be released and/or be granted bail in light of the breaches of their rights
under the Constitution. Such an allegation was not forthrightly raised initially but emerged as
the case developed and was articulated by a side wind in the skeleton arguments of the
Claimants. The Claimants did not succeed on what one can reasonably considered to be a
very important objective for the Claimants in this litigation.
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25. In terms of conduct I have weighed in the balance the Attorney General’s insistence that an
adult prison was a “community residence” and the pre-action conduct of the Claimants. It
was unreasonable in my view for the Attorney General to have insisted on pursuing such an
issue and it would have been better off abandoned. However one can understand given the
general uncertainty with the legislation why the Attorney General may have felt compelled
to take the point, but such hardened positions could have been discussed and resolved in
active pre-action conferences which the Pre-Action Protocols are designed to encourage.
Unfortunately no such conference occurred due entirely to the fault of the Claimants in
deliberately disregarding the Pre-Action Protocol.
26. The Courts have become growingly less tolerant with breaches or non-compliance with the
pre-action protocols.7 A disregard of what are clearly salutary principles of “best practice” in
the orderly conduct of civil litigation must be taken seriously. The pre-action protocol is not
to be considered as window dressing to civil litigation but in reality a core feature of the
revolution in civil practice of conducting litigation not by ambush, but by striving for
equality of arms and a focus on the overriding objective. When parties ignore, for no good
reason, a pre-action protocol they do so at their peril. This applies equally to public law
matters as with any other matter which falls under the pre-action protocol. Under the pre-
action protocol the Claimants must consider whether compliance with the protocol is
appropriate. However, one cannot and must not make any unfounded assumptions that
issuing a pre-action protocol letter, against the State would be an act of futility. If there is no
response to a pre-action letter the Court is entitled to take that into account and deal with the
offending party accordingly. It is hoped that only after a less tolerant attitude by the Court is
adopted with non-compliance with the pre-action protocols that these pages in our CPR will
no longer be ignored but recognised as fulfilling a critical role to achieving the overriding
objective albeit even before an action is launched.
27. It is accepted that the Claimants in this case failed to comply with the pre-action protocol. It
is true that the Defendants, the Attorney General in the main adopted an adversarial approach
7 Ruby Thompson-Boddie, Lenore Harris v The Cabinet of T&T and the Attorney General of T&T
CV2011/2027; Dennis Graham v Police Service Commission and Ministry of National Security CV2007-
00828; The Organisation of Small Contractors v The Ministry of Works and Transport CIV APP. CA P 251 &
P 252/2016.
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in this litigation. It is possible that had a pre-action protocol letter been issued an adversarial
response may have been provoked. It is equally true that the issues raised in this case were
important matters requiring a Court’s determination. However these matters do not detract
from the importance of compliance with the pre-action protocols. No party ought to be given
a “get out of jail” card by peering into their own crystal ball to conclude by their own
perceptions of anticipated conduct of another party, to deprive that party of the opportunity to
meaningfully interact under the cover and guidance of the relevant pre-action protocol. I feel
compelled in the circumstances of this case to make a few comments about the importance of
this aspect of pre-action conduct and how critical it can play a role in not only this case but
all cases that fall under the pre-action protocols.
The Purpose of Pre-Action Protocols
28. I consider pre-action protocol as establishing the 3 building blocks of best practice to effect a
change in the culture of civil litigation. These are:
i. To encourage the exchange of early and full information about the prospective
legal claim;
ii. To enable parties to avoid litigation by agreeing a settlement of the claim
before the commencement of proceedings; and
iii. To support the efficient management of proceedings under the CPR where
litigation cannot be avoided.8
29. Information exchange, settlement discussions and efficiency in the management of litigation
are fundamental pillars of the new civil practice. Sharma CJ in his foreword to the CPR
bemoaned the fact that the previous system encouraged an adversarial culture which often
degenerated into an environment in which the litigation process was seen as a virtual
battlefield rather than the arena for the peaceable resolution of disputes. The pre-action
protocol represents the first shift in the culture from adversarial to collaborative.9
8 Paragraph 1.4 of the Pre-action Protocols. 9 “The CPR introduced a new landscape of civil litigation which, in essence, is a new civil procedural code
governing the civil justice system. This new procedural code is a radical departure from what obtains under the 1975
Rules. It is underpinned by the Overriding Objective in Part 1 which imposes an obligation on the courts to “deal
with all cases justly” and which embodies the principles of equality, economy, proportionality, expedition and
procedural fairness, all of which are fundamental to an effective contemporary system of justice.”
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30. It is therefore logical that if civil litigation was being reformed to give effect to the
overriding objective, that parties must now think constructively about their cases, organise
comprehensive case plans and as far as possible collaborate rather than rush headfirst into
litigation with blinders or blindfolds on.
31. These objectives of the pre-action protocols were in fact birthed from the considerations of
Mr. Greenslade where he stated that the pre-action protocols was to ensure early and
sufficient notification of potential claims.10 Lord Woolf in his celebrated “Access to Justice”
report, also highlighted the purpose and importance of the use of pre-action protocols. “Pre-
action protocols will be an important part of the new system. They are not intended to
provide a comprehensive code for all pre-litigation behaviour but will deal with specific
problems in specific areas. They will set out codes of sensible practice which parties are
expected to follow when they are faced with the prospect of litigation in an area to which the
protocol applies. Protocols will make it easier for parties to obtain the information they need,
by the use of standard forms and questionnaire where possible. This will be assisted by wider
powers for the Courts to order pre-action disclosure.”11
32. Lord Woolf further recommended that:
“Unreasonable failure by either party to comply with the relevant protocol should be
taken into account by the Court, for example, in the allocation of costs or in considering
any application for an extension of the timetable.”12
33. The pre-action protocols aim not only to enable parties to settle their disputes without the
need to start proceedings but in the event that proceedings cannot be avoided, to support the
efficient management of the matter by the Court.13 To think of pre-action protocol letters as
solely focused on settlement misses the mark on the other equally important objectives of
information exchange and managing the litigation efficiently. See Practice Direction para 2,
3, 4.
34. Paragraph 2.1 of the Practice directions state that “The Court will expect all parties to have
complied in substance with the terms of an approved protocol. If the proceedings are issued
10 Judicial Sector Reform Project: Review of Civil Procedure by Dick Greenslade, Chapter 6, page 45. 11 Lord Woolf’s “Access to Justice” Section III, chapter 10, paragraph 6, page 108. 12 Ibid, paragraph 17, page 111. 13 Blackstone Civil Practice 2015, Chapter 8, paragraph 8.2, page 130.
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the Court may take into account the failure of any party to comply with a pre-action protocol
when deciding whether or not to make an order under Part 26 (Powers of the Court) or Part
66 (Costs- General). Conceptually, sanctions, beyond costs orders can be imposed when
there has been non-compliance with the pre-action protocols such as striking out a claim
under rule 26.2(1)(a).14 Further, the Court expects the parties to comply as far as is
reasonably possible with the terms of the approved protocol.15 In Dennis Graham v Police
Service Commission and Ministry of National Security CV2007-00828, Justice
Pemberton in her interpretation of Paragraph 2.1 noted that “To this I attach the meaning that
the Court may take the non-compliance with a protocol to decide whether to award costs or
not or to make a reduced order for costs.”16
35. Dennis Graham was cited with approval in Ken Charles et al v The Commissioner of
Police CV2009-04403 where the Court also noted that the Applicant’s failure to properly
comply with the pre-action protocols did not assist the Claimant in succeeding with the
application.
36. In The Organisation of Small Contractors v The Ministry of Works and Transport CIV
APP. CA P 251 & P 252/2016, the Appellants contended that because the Respondents were
in breach of the Freedom of Information Act Chap 22:02 there was no requirement for the
issue of the pre-action protocol letter. As such, it was their contention that the Order of the
trial judge was wrong, who in the exercise of his discretion ordered that there be no order as
to costs on the basis that there was no pre-action protocol letter written. Mendonca JA
disagreed. In his oral decision, he stated:
“We think what the Act says is that it gives the Authority a period of time to respond to
the request but the rules regulate how you come to court and what are the protocols to do
so. And the pre-action protocol is clear; it’s that you should first issue this letter, unless
the circumstances do not allow you to do that, so as to prevent the matter, if possible,
14 Ibid, paragraph 8.3, page 131. 15 Paragraph 2.3 of the Practice Directions. 16 Dennis Graham v Police Service Commission and Ministry of National Security CV2007-00828, paragraph
14 page 5.
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coming to court at all, and that you follow that protocol. They exist together and I think
that is clear by looking at it.”17
37. In Kupeli v Atlasjet [2016] EWHC 1478 (QB) a case concerning group litigation in which
there were three categories of claims, each with a distinct number of costs. In considering the
percentage of the costs order, the Learned Judge, Whipple J, considered the Claimant’s
complaints of the defendant’s conduct throughout the case, including the Defendant’s failure
to answer a pre-action protocol letter and ultimately ruled that the Defendant should pay 33%
of the Claimant’s reasonable costs on the standard basis. In Nelson's Yard Management
Company and Others v Ezrefula [2013] EWCA Civ 235 the Defendant excavated on his
land close to the retaining wall and foundations of the properties of the Claimants at Nelson’s
yard. When the work stopped, the Claimants wrote to the Defendant four times but received
no response. Beaston LJ noted that the Defendant’s failure to respond to the four pre-action
protocols given the “reasonableness of the Claimant’s perception of the danger to their wall
and foundations” was unreasonable conduct and meant that the Claimants had little choice
but to institute proceedings.18
38. As a reflection of paragraph 2.1, in the Pre-Action Protocol for Administrative Orders19
paragraph 1.5 provides that “All the Claimants will need to satisfy themselves whether they
should follow the protocol, depending upon the circumstances of his or her case. Where the
use of the protocol is appropriate, the Court will normally expect all parties to have complied
with it and will take into account compliance or non-compliance when making orders for
costs.” Appendix D of the Practice Direction provides that Claimants are required to satisfy
themselves that they should follow the protocol depending on the circumstances of the case
and the protocol will not be appropriate when the Defendant does not have the legal power to
change the decision being challenged. The benefits of issuing a pre-action letter where a
defendant does not have a legal power to change its decision was discussed in Judicial
Review Principles and Procedure 1st Ed 2013, Auburn, paragraph 25.15. That being said,
17 The Organisation of Small Contractors v The Ministry of Works and Transport CIV APP. CA P 251 & P
252/2016, page 4. 18 Nelson's Yard Management Company and Others v Ezrefula [2013] EWCA Civ 235, paragraph 44 and 45. 19 Appendix D of the Practice Directions.
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no advance notice of this claim was given to the Chief Magistrate who made the order and as
she pointed out in her evidence no issue was taken before her as to the legality of her orders.
39. There are of course exceptions to complying strictly with the pre-action protocols in the
event where the claim is urgent, where the period of limitation is about to expire or where
there are sufficient reasons for non-compliance with the pre-action protocols provided that
the reasons are set out in the claim form and the statement of case.20 None of these reasons
give credence to the view that non-compliance is justified if it would not cause prejudice to
the opposing party, if the Claimant anticipates a negative response would be received or the
matter is too important a matter in the public interest to comply with the Pre-Action
Protocol.21
40. In the Jackson ADR Handbook22 although Lord Jackson emphasises that pre-action
obligations should be proportionate to each case, he observed that the core requirements of
pre-action activity are:
An exchange of letters setting out sufficient details of the matter. These letters
cannot formally fetter what might be contained in a later statement of case, but a
major deviation that could not reasonably be explained might attract a costs
sanction;
Encouraging the parties to exchange sufficient information about the matter in
dispute to enable them to understand each other’s position, and make informed
decisions about settlement and how to proceed. Each party should list ‘essential
documents’, and identify other ‘relevant documents’, with copies of relevant
documents being exchanged, or a reason given for why this will not happen. It is
for the parties to define what they see as the key documents, but the use of the
word ‘relevant’ means that potentially any document that might be subject to
disclosure might be identified, though proportionate cost is relevant;
20 Paragraph 2.2 of the Practice Directions. 21 The framers of the practice direction identified four (4) specific practice areas where the discretion would apply
and these are:
(i) Claims for a specific sum of money;
(ii) Road Traffic accident and personal injury claims;
(iii) Defamation; and
(iv) Administrative Orders. 22 The Jackson ADR Handbook 1st ed by Susan Blake, Julie Browne & Stuart Sime.
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That the parties should consider whether some form of ADR process might enable
them to settle the matter, and options such as negotiation, mediation or early
neutral evaluation are expressly suggested.23
41. Unfortunately, this is a case where there was a missed opportunity to follow the protocols,
calmly exchange information or meet to discuss options for settlement or to plan the
litigation efficiently.
No Pre-Action Activity
42. The Claimants’ excuse for not engaging the Pre-Action Protocols were as follows: (a) the
onus is on the Defendant to demonstrate how the failure would have impacted the litigation;
(b) there was no prejudice to the Defendant; (c) it would not have changed the adversarial
nature of proceedings; (d) the matter challenged decisions of the Chief Magistrate and
required litigation and could not be negotiated.
43. In my view, the Practice Direction does not place such an onus on any party. The fact that
there is a failure to conform to a pre-action protocol is a matter which must be taken into
account in assessing the party’s conduct. See Rule 66.6(5) and (6) CPR. Equally it is no
answer to failing to conform to the pre-action protocol by claiming that there was no
prejudice to the Defendants or the proceedings would not have been affected or that the
adversarial approach would not have changed. However, the following salient aspects of the
case are important and which demonstrates how important the pre-action protocol process
could have been.
44. First the parties at the first hearing in BS were not sure where BS was accommodated
whether in St. Michael’s, YTC or St. Michael’s/YTC. The information concerning the
concept “St. Michael’s/YTC” could have been shared in pre-action exchanges which would
have led to a more focused argument in the litigation. Second, information concerning BS’s
and SS’s care, plans and needs would have been the subject of information exchange. Third,
the relief sought in SS’s case seeking an order that the State take steps to establish temporary
rehabilitation centres would have been unnecessary if at the pre-action stage the Defendant
had shared with the Claimants the information that steps were being taken to create
23 Paragraph 8.14.
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community residences. Fourth, importantly, the interests of children were at stake and the
pre-action protocols would have given the parties the opportunity to meaningfully deal with
that issue. Fifth, the Claimants’ case also “evolved” as the case progressed no doubt with
information exchange and careful planning under pre-action protocol that could have been
avoided.
45. Further the Court engaged with the parties collaboratively at the first hearing in preliminary
discussions to explore whether the parties could adopt a certain course in the matter. The
discussions were matters which should properly be a feature in pre-action activity and the
Court embarked admittedly on an interventionalist approach in the best interest of the child
which became the subject of comment in Re an application by S.S ( by her kin and next
friend Karen Mohammed) v Ayers Caesar, Marcia Magistrate et al C.A CIV. S.
244/2015.
Conclusion:
46. The Court was assisted tremendously by Senior Counsel for all parties in these cases. There
is a place for adversarialism. However these observations on pre action conduct I hope
should take the sting out of the type of adversarial conduct which loses focus on the
overriding objective and to usher parties into a more collaborative, solutions focused, and
efficient approach to litigation even before the claim has been filed.
47. Taking into account all the circumstances as set out above the Claimants will be awarded half
of their assessed costs.
48. It is hereby ordered that the Attorney General in both proceedings do pay to the Claimants
50% of their assessed costs.
49. The parties are granted leave to appeal this order.
Vasheist Kokaram
Judge