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Status case: court refuses to grant AG costs

Delivers judgment: Puisne Judge Stephen Hellman

A man who launched and abandoned a legal action against the Government will not have to pay for the Attorney-General’s legal bills, according to a recent court ruling.

Martin Holman sued the Government after he and his wife were forced to leave the Island in 1976 after immigration authorities made representations that he was not Bermudian and was not allowed to live on the Island without a permit.

He and his wife later moved to the UK, where they had two children.

However, in 1997 immigration authorities acknowledged that Mr Holman has always had Bermudian status, and in 2001 they acknowledged that his children also had status.

Mr Holman and his family subsequently sought constitutional damage for the loss of opportunity to live in Bermuda during the “lost” years where his and his children’s status were not recognised, along with their distress. While the matter was set to go before the Supreme Court on April 16 this year, a day before the hearing the family issued a summons to discontinue the action.

In his judgment, Puisne Judge Stephen Hellman wrote that he granted the application to discontinue the matter, but did not issue a decision on costs.

“The defendant argued that, notwithstanding that the action had not got very far, he had incurred more than minimal costs defending it and that part of these should be borne by the plaintiffs.

“The defendant sought an order for costs in the sum of $8,000, of which $3,000 was for the costs of the application for costs, although assuming a market rate his actual costs would have been substantially more.”

Mr Justice Hellman wrote that according to the Constitution, the applicant should not be ordered to pay the respondents or any other party’s costs unless the court is satisfied that the applicant had acted unreasonably.

“Thus if the applicant is unsuccessful each party will normally bear their own costs,” he wrote. “However if the applicant is successful then the respondent will normally be ordered to pay the applicant’s costs.”

In the present case, Mr Justice Hellman said he was not satisfied that Mr Holman and his family had acted unreasonably in the application or the conduct of their case.

“Their constitutional and purported Magna Carta rights were arguably engaged,” he said. “Judicial review, which was in its infancy during the 1970s, would not have been an apt remedy as it does not give rise to damages; and the mischief complained of, namely the non-recognition of Bermudian status and de facto exclusion from Bermuda, is better captured by a public than a private law action.

“Claims under the Constitution and, if applicable, Magna Carta are not subject to a time bar. As to the merits of the claims, I cannot say that they would have been bound to fail. As to the conduct of the action, the summons for leave to discontinue was filed at an early stage.

“Although the defendant was the successful party in this action he has not been awarded his costs. Moreover, the principles applicable to the award of costs in constitutional cases in Bermuda were unclear. I have therefore made no order as to the costs of the costs hearing, notwithstanding that at that hearing the successful parties were the plaintiffs.”