John Gordon Hewitt Petitioner v Tara Rivers1 1st Respondent Delano Solomon (Returning Officer) 2nd Respondent Attorney General for The Cayman Islands 3rd Respondent

JurisdictionCayman Islands
JudgeThe Hon. Anthony Smellie
Judgment Date13 March 2015
Judgment citation (vLex)[2015] CIGC J0313-1
Docket NumberCAUSE NO. 198 OF 2013
CourtGrand Court (Cayman Islands)
Date13 March 2015

And in the Matter of an Election for the Electoral District of West Bay Held on the 22nd Day of May 2013

John Gordon Hewitt
Tara Rivers1
1st Respondent
Delano Solomon (Returning Officer)
2nd Respondent
Attorney General for The Cayman Islands
3rd Respondent
[2015] CIGC J0313-1

The Hon. Anthony Smellie, CHIEF JUSTICE


CAUSE NO. 198 OF 2013

On 9th August 2013 judgment was delivered in this matter dismissing the Election Petition and holding in favour of the 1st Respondent that her election as a member of the Legislative Assembly for the District of West Bay is valid. At the time of delivery of judgment, the question of the costs of the Petition was reserved, the Court expressing the hope that the question would not be pressed because of the obvious public interest in the issues taken up in the Petition. The 1st Respondent now seeks an order for her costs nonetheless, relying upon the principle that the costs should follow the event of the outcome of the Petition. The costs are quite significant in amount and so she says it would neither be fair nor appropriate that she should be required to bear them herself when they have been incurred because of the wrongful challenge to her election by the Petitioner who was acting not purely in the public interest, but also in the personal interest of his wife, who was her closest rival at the elections.

Functus Officio

On behalf of the Petitioner, Mr McField first of all submits that I have no jurisdiction to award costs because I am Functus Officio. This he says came about at the moment that I delivered judgment on 9th August 2013 without making an express order for the costs of the Petition. He puts his argument in this way:-

13. ‘The principle of Functus Officio derives from the Court of Appeal case ST NAZARINE (sic) CO (1879) 12 CH D.88. In ST NAZARINE (sic) the Court of Appeal heard that the Court has no Jurisdiction to re-open or amend a final Decision except for:1

  • 1) Error in drawing up Judgment, and,

  • 2) Error in expressing the manifest intention of the Court

14. In this case the principle of Functus Officio applies on the statutory basis of finality of the proceedings.

15. There was and is no error by the Hon. Chief Justice in drawing up his determination; and, the Hon. Chief Justice made no error in expressing the manifest intention of his Court.’

From my reading of the case relied upon –In Re St Nazarene Company (proper citation)- it stands for the trite proposition that there can be no appeal at all to the Judge of first instance against any decision, either of his predecessor (High Court judge) or of the Appeal Court (per Jessel MR at 99–100).

The case thus stands for the principle that there shall be finality in the decision-making process of the Court. It must therefore be accepted, as a general rule, that the Court has no power under any application in an action, to allow or vary a judgment after it has been entered, or an order after it is drawn up, except so far as is necessary to correct errors in expressing the intention of the Court:In Re St Nazarene Company (above); Kelsey v Donne [1912] 2 K.B 482 and the Notes to the Rules of the Supreme Court (‘RSC’) 1999 Ed. paragraph 20/11/7; and the other cases cited there. At the same paragraph of the RSC the several exceptions to that general rule are also cited. However, to my mind, the question at hand is better addressed by reference to the dictum of Marton J. in Re V.G.M. Holdings Ltd [1941] 3 All E.R. 417 [1941] 3 All E.R. 417 (Ch. D.), which is well summarized in the headnote:

‘Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay. The only means of obtaining any variation is to appeal to a higher tribunal.’

And there is an additional editorial note to the headnote:

‘This is a practice point. It is well-settled that the court can vary any order before it is passed and entered. After it has been passed and entered, the court is functus officio, and can make no variation itself Any variation which may be made must be made by a court of appellate jurisdiction.

This ‘well-settled’ point of practice is that which Mr McField seeks to rely upon and given the line of cases discussed above, must indeed be recognised as settled law. But the answer to the objection raised by Mr. McField must therefore lie in the fact that upon delivering judgment on 9th August 2013, I reserved the question of costs. No final order as to costs was ‘passed and entered’.

I therefore hold that I have jurisdiction to make an award of costs in relation to the Petition and this was in fact already expressed to be the case in a directions order of 2nd May 2014 setting this very matter down for determination in these terms (inter alia):

1 This Court has jurisdiction to determine the issue for costs and is not (as raised by the Petitioner in correspondence) functus officio; ‘

In effect therefore, the foregoing are my reasons for that order of 2nd May 2014.

The extent of the jurisdiction

A further question of jurisdiction is raised by Mr. McField on behalf of the Petitioner. He relies on Section 86(b) and (c) of the Elections Law which expressly require a petitioner to provide the amount of CI$3,000.00 as ‘security for payment of all costs, charges and expenses that may become payable by the petitioner’ to persons including:

  • ‘(ii) the member whose election or return is complained of; or

  • (iii) any other person named as a respondent in the petition.’

Mr. McField submits that this is meant to be an exclusive and comprehensive provision and that my jurisdiction is therefore curtailed; that I can make no award of costs beyond that sum of security in the amount of CI$3000.

That argument would however, overlook section 90 of the Elections Law which also expressly confers on a Judge presiding over an Election Petition‘the same powers, jurisdiction and authority ….. as nearly as the circumstances admit, as in the trial of a civil action in the Grand Court…..’.

Functus Officio
The extent of the jurisdiction

I am satisfied, on the basis of section 9 and for the reasons which follow, that in providing for security for costs, the Elections Law (2009 Revision) in section 86(b), is not intended to exclude the general costs jurisdiction vested by the Judicature Law (2013 Revision) and the Grand Court Rules (1995 Revision). Rather,‘security’ means, as the word implies in this as in any other context of civil litigation, a reasonable provision for costs, which at a minimum, will be available to the successful party. This form of security has never been regarded as the same thing as a provision for full standard costs, let alone a provision for full indemnity costs. It is a provision aimed at allowing the courts to ensure that at minimum the amount as prescribed (or ordered) is available to meet the costs of the successful respondent. And where, as here, the statute prescribes an amount for security for costs, it can only sensibly be regarded as doing so from the point of view of what the legislature thought reasonable at the time of passage...

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