Friday, 17 January 2014

Law report - costs in judicial review

The Corporation of Hamilton v The Ombudsman for Bermuda [2014] SC (Bda) 1 Civ

The Corporation had been unsuccessful in its contested application to seek leave to commence judicial review proceedings. The Ombudsman sought her costs of the leave application.

The Ombudsman was seeking her costs in connection with the leave application. Justice Hellman noted that previous Bermudian cases on costs in these circumstances did not appear to have been fully argued and did not refer to relevant authorities such as Mount Cook Land Ltd v Westminster City Council  [2004] CP Rep 12, which is that costs should not be awarded on unsuccessful leave applications other than exceptionally.

However, the judge pointed to exceptional circumstances in this case: the Ombudsman had a constitutional duty to publish her report on the Corporation as soon as she was able. It was reasonable for her to be actively involved in the leave application from the earliest stage in order to pre-empt any court order which might prevent her from publishing her report (at [26]). Furthermore, the Corporation had delayed in applying for leave anyway, and it was relevant for the Ombudsman to raise this delay point at the earliest opportunity (at [27]).

The decision is also notable for pointing to the possibility of interim awards on account of costs (at [53]) on the basis that if the successful party is ultimately found to be entitled to a lesser sum she must refund the difference. This is a potentially useful device for obtaining swift payment of costs in litigation, otherwise costs can take many months after the case itself to be resolved.

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