AXIS International Ltd v The Civil Aviation Authority of the Cayman Islands (CAACI)
| Jurisdiction | Cayman Islands |
| Judge | Anthony Smellie |
| Judgment Date | 06 November 2014 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 56 OF 2012 |
THE HON. Anthony Smellie, CHIEF JUSTICE
CAUSE NO. 56 OF 2012
THE GRAND COURT OF THE CAYMAN ISLANDS
Cost of Judicial Review proceedings — whether regulated party entitled to costs although the regulator is the primary respondent
Mr. Brook-Smith (appearing via Skype video link) instructed by Ms. Kirsten Houghton of Campbells for the Plaintiff
Mr. Lowe QC instructed by Mr. George Giglioli for the 2 nd Defendant
The 1 st Defendant not appearing or being represented.
In this matter Judicial Review proceedings were taken by the Plaintiff Axis against the decision of the CAACI by which the CAACI granted certification for the operation of a heliport by the second defendant CIHL.
At first instance Axis was successful but the decision of this Court was set aside on appeal at the instance both of the CAACI and CIHL.
The declarations by this Court that the certification of the heliport was Wednesbury unreasonable and that the heliport was unsafe, were overruled.
The CAACI and CIHL were both successful in their application for costs of the appeal and the CAACI was further awarded its costs of the entire proceedings, including at first instance. However, on the basis that Axis wished to object to an award of costs to CIHL in respect of the proceedings, the Court of Appeal ordered that such arguments be taken before this Court, granted CIHL's costs of the appeal only and adjourned the matter of the costs of the first instance proceedings to this Court.
Hence this application.
On behalf of CIHL, the primary thrust of Mr. Lowe QC's argument is, of course, that it is for the unsuccessful party to show that some different approach other than the usual that costs follow the event (and so will be awarded to the successful party), should be adopted on the facts of the particular case. This is trite principle but recent authority to that effect was nonetheless cited: R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 per Dyson J. at p356–6 as approved by Clarke LJ in Regina (Davey) Aylesbury Vale District Council v Practice Notes [2008] 1 WLR 878.
Here Mr. Brook-Smith QC says that a different approach should indeed be taken by analogy with high judicial authority that has been developed in the case law on cost awards in relation to planning applications.
The apogee of the case authorities on this point is that to be found in the House of Lords' decision in Bolton v Sec. of State for the Environment [1995] 1 WLR 1176.
In Bolton, their Lordships were concerned to provide guidance on the question of the appointment of the award of costs for multiple representation in planning appeals coming before the Courts and especially those which proceed all the way up to the House of Lords itself. They felt it desirable to say something about such cases where all too often numerous parties were being represented, including often by leading counsel, yet there was no significant difference between the arguments of those who argued for the Secretary of State (who decided planning matters) and those who opposed his decision.
That was notably often the case where a decision of the Secretary of State in favour of the developer was challenged by the Local Authority, and the Secretary of State successfully defended his decision.
The practice which had developed of regarding the developer as having a separate interest which he was entitled to protect and so entitled to incur significant costs on appeal at the Local Authority's expense, was doubted by their Lordships. They proceeded to lay down the proper approach in such cases and at p. 1178 para E-H of the reported judgment, the following passages appear, those which, by analogy with a planning case, I am urged by Mr. Brook-Smith to adopt here by concluding that CIHL should not be granted a separate award of costs when the CAACI has been granted its costs:
“What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported.
(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court. In so far as the Court of Appeal in the Wychavon District Council case may have encouraged or sanctioned such a course, I would respectfully disagree.
(2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of...
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