Re, St. Kitts-Nevis Trades and Labour Union

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Williams, J.
• Judgment Date: 24 July 1987
• Neutral Citation: KN 1987 HC 1
• Docket Number: No. 15 of 1985
• Date: 24 July 1987

High Court

Williams, J.

No. 15 of 1985

Re, St. Kitts-Nevis Trades and Labour Union

Appearances:

Fitzroy Bryant for the applicant.

Terrence Byron and Hugh Rawlins for the respondent.

Practice and procedure - Costs — Application for mandamus to enforce payment of costs by Attorney General — Crown Proceedings Act, Cap. 22, section 21 — Held: Attorney General owes no duty under Statute to applicant.

Williams, J.

1 In a judgment dated the 2nd day of May, 1980, The High Court awarded costs against the Attorney General of St. Christopher and Nevis in favour of the applicant in Civil Suit No. 40 of 1980 to be taxed and certified fit for two counsel. In a Certificate of Taxation issued on the 9th day of August, 1982, the Taxing Officer certified that the costs to the applicant in the said suit had been allowed at $5,170.74.

2 In a judgment dated the 22nd day of September, 1981, The Court of Appeal awarded costs against the Attorney General of St. Christopher and Nevis in favour of the applicant in Civil Appeal No. 1 of 1980 and in Civil Suit No. 40 of 1980 to be taxed and certified fit for two counsel. In a certificate of taxation issued on the 9th day of August, 1982, the Taxing Officer certified that the costs of the applicant in Civil Appeal No. 1 of 1980 had been taxed and allowed at $8,244.32.

3 The respective Certificates of Taxation mare duly served on the Attorney General on the 12th August, 1982. By letter dated 27th September, 1982, the applicant's Solicitor wrote to the Attorney General requesting payment of the said costs. There was no response and a further letter was sent to the Attorney General dated the 20th January, 1983, requesting payment of the said costs. By letter dated 3rd February, 1983, the Attorney General replied that the matter was still receiving consideration.

4 By letter dated 12th May, 1983, the applicant's Solicitor wrote to His Excellency The Governor requesting his assistance in obtaining payment of the said costs. The Governor replied by letter dated 17th May, 1983, that he would discuss the matter with the Attorney General. The applicant did not received the said sums awarded as costs or any part thereof, and on the 14th May, 1985, filed an ex parte application for leave to apply for an Order of Mandamus. The said application was heard and leave was granted on the 3rd June, 1985. Consequent upon the granting of leave a Notice of Originating Motion was filed on 6th June, 1985. The requisite statement and affidavit in accordance with Order 44 was filed.

5 The relief sought is an Order of Mandamus directed to the Attorney General requiring him to pay to the applicant or to the applicant's Solicitor in accordance with section 21 of the Crown Proceedings Act Cap. 22 the amounts appearing in the respective Certificates of Taxation. The grounds upon which the said relief is sought is as follows:–

• “(1) That the Attorney General refused an application duly made to him on the 27th day of September, 1982, and on the 20th day of January, 1983, by the applicant to pay to the applicant or to its Solicitor the amounts appearing to be due by the aforesaid Certificate of Taxation issued on the 9th day of August, 1982.

• (2) That by virtue of section 21 of the Crown Proceedings Act aforesaid the Attorney General is under a legal obligation to the applicant to make the payments.

• (3) That there is no other legal remedy for enforcing the specific legal right of the applicant.”

6 Counsel for the applicant submitted that in accordance with section 13 (2) of Cap. 22 the proceedings ought properly to be instituted against the Attorney General and that section 17 of the aforesaid law provides for the awarding of costs by the court against the Crown. He further submitted that section 21 and the subsections thereto provides for the procedure to be followed in obtaining payment of such costs from the Crown; and he contended that it places a statutory duty on the Attorney General to pay such costs. In support of his argument that a public duty was placed on the Attorney General to pay such costs counsel relied on a passage from Halsbury's Laws of England, 4th Edition, Volume 1, paragraph 100 under the rubric “public duties by government officials” which reads as follows:–

“If public officials or public bodies fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed. In accordance with this principle a mandamus will issue to government officials in their capacity as public officers exercising executive duties which affect the right of private persons.”

7 From the said Volume of Halsbury counsel made reference to paragraph 110, headed, Public Offices and Duties in respect of which Mandamus will not lie — Mandamus against the Crown and Crown Servants which reads as follows:–

“As no court can compel the Sovereign to perform any duty, no order of mandamus will lie to the Crown where it Is sought to establish a right against the Crown the appropriate procedure is by way of proceedings brought in accordance with the Crown Proceedings Act 1947. The order will not lie against a Secretary of State in his capacity as an agent for the Crown; for in that capacity he is responsible to the Crown alone and is under no legal duty towards a subject. He is acting in such a capacity when carrying out the provisions of a royal warrant.

Similarly all other persons acting essentially in their capacity as servants of the Crown are exempt from control by the court by means of the order of mandamus, and no order of mandamus can accordingly issue against them to do any act within the scope of the duties discharged by them on behalf of the Crown. Where, however, government officials have been constituted agents for carrying out particular duties in relation to subjects, whether by royal charter, statute or common law, so that they are under a legal obligation towards those subjects, an order of mandamus will lie for the enforcement of the duties. This remedy is expressly preserved by the Crown Proceedings Act 1947.”

8 Counsel draw the court's attention to the conditions precedent to the issue of Mandamus in the said volume of Halsbury at paragraphs 120 — 126, namely:

• (a) Legal right or substantial interest

• (b) Duties must be public

• (c) Right or substantial interest must be in applicant

• (d) Application must be made in good faith

• (e) Demand for performance must precede application

• (f) Possibility of effective enforcement and

• (g) No other legal remedy.

9 Counsel contended that the applicant's case fell squarely within these requirements and that same had been met. Counsel argued...