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Sanatan Dharma Maha Sobha v Attorney General of

Trinidad and Tobago

Id. vLex Justis VLEX-792765261

Link: https://justis.vlex.com/#vid/sanatan-dharma-maha-sobha-792765261

Text

High Court

Ventour, J.

01972 of 2006

Sanatan Dharma Maha Sobha

and
Attorney General of Trinidad and Tobago

Appearances:

Mr. A. Ramlogan and Mr. S. Ramanan for the claimant.

Mr. S. Hosein SC and Mr. A. Rahaman instructed by Mr. Bhimsingh for the defendant.

Civil practice and procedure - Costs — Constitutional motion withdrawn by claimant — Whether
claimant ought to pay the defendant's costs in light of the withdrawal.

Ventour, J.

24th January 2008, Attorney at Law for the claimant sought leave of this Court to withdraw the
Constitutional Motion filed by the claimant on 12th July 2006. Leave was granted. Unfortunately,
there was no agreement between the parties on the issue of costs. As a consequence, the Court
had to decide the issue and after hearing arguments and submissions from both sides, this Court
ordered the claimant to pay 75% of the defendant's costs to be assessed.

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Counsel for the claimant, however, did submit that the defendant should be ordered to pay the
claimant's costs. He argued that it would be unfair, harsh and oppressive in all the circumstances
to have the claimant pay the defendant's cost as a result of the withdrawal of the Motion. He
based his arguments on two grounds:

(1) Firstly, he argued that the defendant consistently breached the directions given by the
Court with respect to the filing of affidavits and that the breach resulted in unnecessary case
management conferences which could have been avoided had there been compliance.

(2) Secondly, he contended that the defendant failed to comply with the pre-action protocol
practice direction by not providing sufficient information to the claimant's letter before
action.

Counsel for the defendant did not agree with the submissions made by counsel for the claimant.
In fact, he conceded that the only cost for which the defendant ought to be held liable is the cost
occasioned by the case management conference (CMC) held on the 24th January 2008. The
records would show however, that several applications for adjournments were made (and,
incidentally, were granted) on behalf of the defendant in order to file affidavits in opposition to the
Motion filed by the claimant.

With respect to the alleged failure of the defendant to provide the claimant with sufficient
information upon receipt of the claimant's letter before action in accordance with the pre-action
Protocol Direction, the defendant contended that the claimant was already in possession of the
information through the affidavit of Mr. John Arnold, which was filed on 7th February 2006. Mr.
Arnold is the Special Event Coordinator of the Division of Tourism in the Tobago House of
Assembly.

The principle governing costs

Given the arguments advanced on behalf of the respective parties, this Court had to exercise its
discretion in a manner that is fair and just to the parties. The general rule is that cost follows the
event. The party who turns out to have unjustifiably, either brought another party before the Court,
or given another party cause to have recourse to the Court, to obtain his right, is required
generally, to compensate that other party in costs. See the judgment of Buckley, L.J. in the case
of Scherer v. Counting Instruments Ltd. [1986] 1 W.L.R. 615 at pg. 621.

Notwithstanding the general rule, the Court has an unfettered discretion in deciding who should
be made to pay the cost of an action. That discretion is not one to be exercised arbitrarily or
whimsically; it must be exercised judicially, that is to say, in accordance with established
principles and in relation to the facts of the particular case. According to the Civil Proceedings
Rules 1998 (the CPR) the Court, in exercising its discretion on the question of cost, may take into
consideration the conduct of the parties before as well as, during the proceedings, and in
particular, the extent to which the parties comply with any relevant pre-action protocol. See CPR
66.6.

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When the CMC came up for hearing on 24th January, 2008 counsel for the claimant sought leave
of the Court to withdraw the motion filed on behalf of the claimant on 12th July, 2006. Reference
was made to the Notice of Discontinuance filed on 24th January, 2008. Accordingly, leave was
granted. It is to be noted that discontinuance of proceedings is governed by the CPR and in
particular, Rule 38.6 (1) states as follows:

“Unless the Court orders otherwise, the claimant who discontinues is liable for the cost which a
defendant, against whom he discontinues, incurred on or before the date on which notice of
discontinuance was served on him.” Emphasis added.

Having regard to the very wide discretion given to the Court by CPR 38.6 (1) this Court had to
decide whether, in all the circumstances of the case and in particular, the conduct of the parties
before and during the proceedings, this Court should order “otherwise”, that is, depart from the
normal rule.

Counsel for the claimant sought to persuade the Court that in the proper exercise of its discretion,
the Court should order “otherwise” and direct the defendant to pay the claimant's cost,
notwithstanding the fact that the claimant had sought and obtained the order for discontinuance
of the proceedings.

10 The authorities have shown that if the Court is to depart from the general rule, then there must be
“good reason” for so doing. In the case of Walker v. Walker [2006] 1 All ER 272 the Court of
Appeal reversed the decision of the judge, who in the exercise of his discretion under the CPR
38.6 departed from the general rule in granting the liquidator's application that the proceedings
be discontinued with no order as to costs. The Court of Appeal found that the judge's exercise of
his discretion was flawed because on the facts before the Court, there was no “good reason” to
depart from the general rule. The mere fact that the liquidator had come alive, at the late stage, to
the commercial effect of factors which had been there from the outset and which, if properly
evaluated, could have led to a decision at the outset that the proceedings were not worth
pursuing, was not a “good reason” to depart from the general rule on cost.

Pre-action Protocol

11 In the instant case, counsel for the claimant argued that in compliance with the Pre-action
Protocol Practice Direction the claimants Attorney at Law wrote a letter before action dated 12th
April 2006 and that in reply, Mr. John Arnold, from the Department of Tourism in the Tobago
House of Assembly (THA), gave a very terse response by letter dated 24th April 2006. Counsel
submitted that Mr. Arnold's response was in breach of the Practice Direction because it did not
address the issues raised in the claimant's pre-action letter.

12 I think it is important to determine the issues raised in the claimant's letter before action. In that
letter, the claimant accused the Division of Tourism of the THA of having recently spent over 2
million dollars to host the Tobago Gospel Festival. The letter alleges that the exercise “promoted

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the teaching, music scriptures and tenets of Christianity through the medium of song”. The letter
further states that as a public authority, the THA is bound by sections 4(b) and (d) of the
Constitution to afford equal treatment to all citizens. The claimant concludes that the failure of the
THA to establish the Sanatan Maha Saba's (SDMS) application for similar sponsorship is
discriminatory and unconstitutional.

13 In his reply of 24th April 2006, Mr. Arnold referred (not to the claimant's letter of 12th April 2006)
to an earlier letter of March 21, 2006 signed by Mr. Satnarayan Maharaj, Secretary General of the
SDMS. The letter of 24th April 2006 states:

“Dear Sir,

In reference to your letter dated 21st March 2006, please note the following:

I am employed as an Event Coordinator of the department of Tourism, Tobago House

of Assembly;

I do not make policy decisions.

Your request should be forwarded to the correct channel of the policy makers.

Please be guided accordingly.

Yours truly,

Sgd.

John Arnold,

Event Coordinator.

Department of Tourism,

Tobago House of Assembly.”

14 Clearly, the response of the defendant to the letter before action does not address the issues
raised in the letter of 12th April 2006 nor that of 21st March 2006 (the latter was not considered to
be a letter before action) as contended by counsel for the claimant. It is important to note that
several other letters were subsequently written on the claimant's behalf and were addressed, not
only to Mr. John Arnold as Event Coordinator of the Tourism Division of the Tobago House of
Assembly, but also to the Chief Secretary, Mr. Orville London. The only response received by the
claimant was that of Mr. Arnold, the contents of which are quoted in full above.

15 The penultimate paragraph of the final letter sent by the claimant dated 8th June 2006 and
addressed to Mr. Orville London is also referred to as a letter before action and it accuses the
THA of “bias action in hosting the Christian Gospel Festival while refusing similar treatment to
the SMDS amounts to unlawful inequality of treatment that is actionable.”

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16 In view of the above, counsel for the claimant has submitted (see paragraph 20 of page 11 of the
written submissions filed on 30th January 2008) as follows: “Had the claimant been informed of
the rationale behind the THA's decision to host the International Gospel Festival and its present
position not to host Festivals of a similar nature in the future, it might not have been advised to file
this claim. Indeed it might not have sought legal advice at all.”

17 In making the submission, counsel for the claimant is relying to a large extent, upon the contents
of the affidavit of Mr. Neil Wilson, the Secretary of Tourism in the Tobago House of Assembly.
That affidavit was filed on 6th September 2007. Counsel expressed the view that “the detailed
explanation given in Mr. Wilson's affidavit should have been given in response to the claimant's
pre-action letter.” The “detailed explanation” given by Mr. Wilson was captured in twenty-eight
paragraphs of the said affidavit.

18 On the other hand, counsel for the defendant argued that Mr. Wilson's “detailed explanation” was
in fact paraphrased and communicated to the claimant by the affidavit of Mr. John Arnold which
was filed in response to an order of the Court made in earlier proceedings under the Freedom of
Information Act. In Mr. Arnold's affidavit which was filed on 7th February 2006 the deponent did
provide the information sought on behalf of the claimant with respect to the hosting of the Tobago
International Gospel Festival.

19 Mr. Arnold did depose in the said affidavit (see paragraph 8 thereof) to the fact that the THA was
not using State funds to promote Christianity and that the Gospel Festival was among a number
of initiatives of the Division of Tourism in the THA to enrich the Tourism Trust of the Island of
Tobago. He stressed that the Festival had nothing to do with religion and that it was designed to
target a niche of American Tourists whom the THA was of the view were potential tourists in a
similar vein as the now famous Tobago Jazz Festival.

20 I have little doubt that what was said by Mr. Arnold in his affidavit of 7th February 2006 was also
expressed by Mr. Wilson (in more detail of course) in his affidavit of 6th September 2007. It
appears though, that Mr. Arnold is a man of fewer words than Mr. Wilson, as illustrated in his (Mr.
Arnold) very brief response to the claimant's letter before action referred to earlier. The question
however, remains, did the THA convey to the claimant the rationale behind the THA's decision to
host the International Gospel Festival prior to the filing of the affidavit of Mr. Wilson on 6th
September 2007.

21 If the answer to that question is in the affirmative, then the question that follows inevitably is,
“why then was the Claim filed ?”, if, as counsel for the claimant argued, the claim would not have
been filed if the claimant was informed at the pre-action stage of the rationale of the THA's
decision to host the Festival. Would it have made a difference if the THA had indicated to the
claimant that they (the THA) had no intention of hosting festivals of a similar nature in the future?

22 In considering the latter question, one has to bear in mind the relief sought by the claimant in the
Fixed Date Claim Form filed on 12th July 2006. In the action, the claimant sought, inter alia:
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(a) A declaration that the claimant's right to equality of treatment from a public
authority in the exercise of its functions enshrined in section 4(d) of the Constitution
has been violated and/or breached by the actions and/ or conduct of the THA.

23 Clearly, the THA was being accused of practising discrimination and/or bias against the
claimant. The fact that the THA had no intentions of hosting festivals of a similar nature in the
future could not be a relevant factor for consideration, in light of the allegation made of unequal
treatment contrary to the provisions of the Constitution.

24 Having said that, this Court must be careful, on an application to discontinue, not to attempt to
come to any decision on whether or not the claimant's action would have succeeded. In fact, I
must make it abundantly clear that this Court is not questioning the merits of the claimant's action.
The facts of the case had to be considered in order to determine whether there was a “good
reason” for this Court to depart from the general rule as to costs in light of the claimant's decision
to discontinue the action against the defendant.

25 The fact that the claimant had in its possession, information on the rationale behind the THA's
decision to host the Festival prior to the filing of the Motion, does not, in my respectful view,
discharge the defendant from the responsibility under the Pre-action Protocol Practice Direction.
At the very least, reference could have been made to the affidavit of Mr. John Arnold in the
defendant's reply to the letter before action.

26 The Pre-action Protocol which was gazetted on Wednesday 25th November 2005 mandates
parties to litigation to comply with the Practice Direction. It has been recognised that compliance
with the Pre-action Protocol would go a long way in avoiding unnecessary litigation, thereby
saving cost. But the Courts are given a discretion in deciding whether and to what extent the
failure to comply with the Protocol Practice Direction ought to impact on any order for cost that the
Court may make in the proceedings.

Case Management Conferences

27 Complaints have been raised by counsel for the claimant about the conduct of the defendant, not
only before the claim was filed, but also during the conduct of Case Management Conferences.

28 The first CMC which was fixed for hearing on the 28th September 2006 was adjourned to 14th
November 2006 to allow the defendant time to file affidavits in reply to those filed by the claimant.
On 14th November 2006 the Court again adjourned the CMC to the 28th February 2007 on an
application by counsel for the defendant for an extension of time for filing an affidavit in
opposition to the claimant's affidavit.

29 At the third CMC held on 28th February 2007 counsel for the defendant sought leave of the Court

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to file two further affidavits, an indulgence which the Court granted on condition that those
affidavits were to be filed and served on or before 23rd March 2007, failing which the defendant
was to pay the cost of the day. On that very day, hearing of the Motion was fixed for the 10th, 11th
and 14th April 2008. A further CMC was fixed for 11th October 2007 but that hearing was re-
scheduled to 4th October 2007 because the Court would have been embarrassed on 11th
October 2007.

30 On 4th October 2007, the defendant failed to appear and the Court learnt that the affidavits which
were ordered to be filed and served on or before 23rd March 2007 were not done. Therefore, the
Order for costs made on 28th February 2007 stood. The matter was then adjourned to 24th
January 2008 on which date counsel for the claimant sought leave of the Court to discontinue the
action.

31 Counsel for the defendant conceded that an Order for cost ought properly to be made against the
defendant for the hearing on 28th February 2008 but not for the hearing held on 4th October 2007
on the basis that the defendant was not notified of the change of dates. The official records have
shown however, that written notice of the change of date of hearing was actually served on the
defendant, yet the defendant failed to appear.

Conclusion

32 In the final analysis, this Court took the view that the conduct of the defendant before action and
also during the Case Management Conferences was not in keeping with the standard expected
of a litigant in Court proceedings.

33 However, the question which this Court deliberated upon was whether the claimant had
advanced any “good reason” to persuade the Court to depart from the general rule on the issue of
cost. In my view I don't think it did. The affidavit evidence of Mr. Wilson did not provide the
claimant with any new information as to the rationale for the THA's decision to host the
International Gospel Festival. The information was in the claimant's possession since February
2006, that is, prior to the filing of the Motion. I have found however, that the defendant's response
to the claimant's letter before action was unsatisfactory and in breach of the Protocol Practice
Direction.

34 I dismissed as being irrelevant to the decision to discontinue the claim, the fact that the THA had
taken the decision not to host festivals of a similar nature in the future. It stands to reason that
there were no material changes of circumstances disclosed by the claimant to justify the decision
to discontinue the action. It would therefore be unjust for this Court to have ordered the defendant
to pay costs to the claimant as counsel had submitted. It is in those circumstances that this Court
made the order for costs that it did.

Sebastian Ventour,

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Judge.

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