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

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