Fitz-Patrick Grant v Herbert, Benjamin and Rogers

• Jurisdiction: Saint Kitts and Nevis
• Judge: Webster JA,Chong JA,Tyrone Chong,Michel JA
• Judgment Date: 14 July 2017
• Neutral Citation: KN 2017 CA 1
• Docket Number: SKBHCVAP2012/0001
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 14 July 2017

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Tyrone Chong, QC Justice of Appeal [Ag.]

SKBHCVAP2012/0001

Between:

Lindsay Fitz-Patrick Grant

Appellant

and

[1] Rupert Herbert

[2] Leroy Benjamin

[3] Wentford Rogers

Respondents

Appearances:

Ms. Marguerite Foreman with her, Ms. Teshari A. J. John-Sargeant for the Appellant

Ms. Angelina Gracy Sookoo for the 1^st Respondent

Election petition appeal - Quantification of costs of election petitions — Court of Appeal ordering costs to be quantified — Whether Civil Procedure Rules 2000 in particular Parts 64 and 65 apply to calculation of costs of election petitions — Whether learned judge erred in calculating election petition costs pursuant to inherent jurisdiction as opposed to Parts 64 and 65 of the Civil Procedure Rules 2000 — Whether costs awarded by learned judge unreasonable or excessive

The appellant brought an unsuccessful election petition against the respondents. In dismissing the election petition, the trial judge made no order as to costs. The respondents appealed the learned judge's order denying them their costs. The Court of Appeal allowed the appeals and ordered the appellant to pay the respondents' costs of the appeals and in the court below and that such costs be quantified (the “Consolidated Appeals”). In undertaking the quantification of costs, the learned judge ruled that the rules in the Civil Procedure Rules 2000 as amended (the “CPR”), did not apply to election petitions. The quantification of costs was then undertaken by the learned judge under the court's inherent jurisdiction.

The appellant, dissatisfied with this decision, appealed. The appellant argued that the learned judge erred in failing to undertake the quantification of costs in accordance with the prescribed costs regime set out in Parts 64 and 65 of the CPR as directed by Barrow JA. The first respondent argued that the learned judge was correct in quantifying costs under the court's inherent jurisdiction as the CPR did not apply to election petitions. The appellant also argued that the quantum of costs awarded by the learned judge was unreasonable and excessive in the circumstances. Prior to the hearing of the appeal, the appellant entered into a settlement agreement with the second and third respondents and continued with the appeal against the first respondent only.

Held:

dismissing the appeal; affirming the learned judge's award of costs in the lower court; and awarding the respondent costs of the appeal, such costs to be assessed, if not agreed within 21 days of the date of this order, that:

Per Webster JA [Ag.], Chong JA [Ag.]:

• 1. The general rule is that the High Court's jurisdiction to deal with election petitions is a statutory jurisdiction that is separate and distinct from the Supreme Court's ordinary civil jurisdiction.

  Theberge and another v Philippe Laudry [1876] 2 AC 106 applied; Devan Nair v Yong Kuan Teik [1967] 2 WLR 846 applied; and Patterson v Solomon [1960] AC 579 considered.

• 2. There is no legislation in St. Kitts and Nevis incorporating either the CPR generally or the costs regime in Parts 64 and 65 and therefore it does not apply to election petition cases. Section 100 of the National Assembly Elections Act is in very general terms and does not have the effect of incorporating the CPR into election court proceedings.

  Section 100 of National Assembly Elections Act, Cap.1.62, Revised Laws of Saint Christopher and Nevis 2009 applied.

• 3. When the Court of Appeal in St Christopher and Nevis hears appeals from the High Court in election proceedings, it occupies a unique position in the court's hierarchy in that it is the final Court of Appeal. Section 36(1) of the Constitution vests the jurisdiction to hear and determine cases relating to the election of members of the National Assembly in the High Court and subsections (6) and (7) deal with appeals from decisions of the High Court in election cases. The effect of subsections (6) and (7) is that there is a right of appeal to the Court of Appeal from final decisions of the High Court in election cases, and importantly for the purposes of this appeal, there is no right of appeal from decisions of the Court of Appeal to Her Majesty in Council. The Court of Appeal is the final court in election proceedings. This affects the principle of stare decisis and how this Court should deal with its previous decisions.

  Section 36(1) of the Constitution of Saint Christopher and Nevis, Cap.1.01, Revised Laws of Saint Christopher and Nevis 2009 applied.

• 4. The decision of this Court in the Consolidated Appeals that the costs regime in the CPR applies to the costs of election petition proceedings is contrary to cases in the High Court, Court of Appeal and the Privy Council and is plainly wrong. It has not been followed by any other court and if it is overruled it will not affect the rights of persons not connected to the case.

  Leroy Benjamin et al v Lindsay Fitzpatrick Grant SKBHCVAP2006/009/0111 (delivered on 15th July 2011, unreported) and Leroy Benjamin et al v Eugene Hamilton SKBHCVAP2006/0012 (delivered on 15th July 2011, unreported) overruled; Ezechiel Joseph v Alvina Reynolds and Lenard “Spider”Montoute v Emma Hippolyte SLUHCVAP2012/0014 (delivered 31st July 2012, unreported) followed; and Ronald Green v Maynard Joseph and Peter Saint Jean v Roosevelt Skerrit DOMHCVAP2012/0001 (delivered 11th March 2013, unreported) followed.

• 5. On the very special facts of this case, this Court, as the final court, should not set aside the learned judge's decision when it has found that he applied the correct legal principles, and by doing so avoided a manifest injustice to the 1st respondent. This is not a case of “falsifying history” as suggested by Lord Lloyd in the Kleinworth Benson case, but of overruling an incorrect decision of this Court in and upholding the correct decision of the trial judge. The 1st respondent should have the benefit of an order from this Court allowing him to recover his costs quantified in accordance with the law as this Court has found it and not on the basis of incorrect procedures resulting in an award that is less than two per cent of what the trial judge found to be his reasonable costs.

  Kleinworth Benson Ltd. v Lincoln City Council [1998] 4 All ER 513 distinguished; and Davis v Johnson [1978] 1 All ER 1132 applied.

• 6. The learned trial judge erred in finding that the decision in the Consolidated Appeals was overruled sub silentio in Jacqui Quinn-Leandro v Dean Jonas.1 The learned trial judge appears to have used the phrase ‘sub silentio’ to mean that the court in Quinn-Leandro, in reaching a decision that was inconsistent with the decision in the Consolidated Appeals, implicitly overruled the decision in the Consolidated Appeals. While this meaning and use of the sub silentio principle appears to be consistently employed in the United States, it has not been similarly applied in the English or Commonwealth courts. This Court is not aware of any decision in which the phrase sub silentio has been used in the context of overruling a previous decision. There is no need to extend the meaning of the sub silentio principle to apply to this situation.

  Haywood v R [2016] 4 LRC 101 considered; Baker v R [1975] 3 All ER 55 considered; Barrs v Bethel [1982] 1 All ER 106 considered.

• 7. It was within the learned judge's discretion to accept the fee notes produced by counsel without receipts and there is no basis for interfering with the exercise of his discretion in accepting them. Further, the learned judge did not restrict his finding of reasonableness to the fee notes but rather, he made specific findings of fact relating to the complexity of the matter, the duration of the court proceedings as well as the absence of pleadings by the appellant in relation to the bills of costs. The learned judge was satisfied that this was a sufficiently important, long and complex case to justify instructing senior and junior counsel and there is no basis for this Court to interfere with his decision.

  Per Michel JA, dissenting:

• 8. Even if the CPR does not apply to the conduct of election petition proceedings generally, and even if the costs regime under the CPR is not applicable to the determination and quantification of costs in election petition cases, and even if costs in these cases are to be determined in accordance with the inherent jurisdiction of the court, it is open to the court to choose its mechanism for determining the costs to be awarded. The court may, in its discretion, choose to ask the party entitled to costs to prepare and submit a bill of costs, which the court can use in assessing the costs to be awarded, or the court may choose to use — not by dictation but by discretion — the costs regime contained in the CPR. In this way, even if the costs regime under the CPR is not applied to election petition cases as a matter of course, it can yet be applied by way of the exercise by the court of judicial discretion in accordance with its inherent jurisdiction.

• 9. There is no doctrine or principle that I am aware of that would permit a judge of an inferior court to disregard not merely a decision of a superior court, but a virtual directive of that court to the inferior court, and instead to make and act upon his own independent and contrary decision.

• 10. A lower court cannot choose to disregard what in essence is a directive to it by a superior court and to make its own determination contrary to the directive of the superior court, and this Court should not countenance such disregard, far less legitimise it by overturning the decision of the superior court in line with the lower court's decision. This Court is free to criticise a previous decision of the Court in its determination of the costs...