IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 17/99

Secretary of Fisheries

v

Lanivia

Ward CJ, Burchett and Tompkins JJ 
21 July 1999; 23 July 1999 

Practice and procedure — costs — should be paid by unsuccessful party 
Costs — borne as being in ordinary course of business — should be paid by unsuccessful party 

The appellant was the first of two defendants in an application by the respondents for leave to apply for judicial review out of time. The learned judge refused the application on the ground that no sufficient case of a breach of natural justice had been shown in the decision of the appellant to with-hold a fishing licence for 1998. He then continued to hold that costs were awarded in favour of the second defendant, to be agreed or taxed. The first defendant was expected to carry its costs in the case in the ordinary course of its business. The first defendant appealed the decision that he should not have his costs paid by the unsuccessful party. 

Held: 

1. The fundamental principles relating to costs were that costs were in the discretion of the Court and costs normally follow the event. 

2. Sometimes in cases of judicial review, a point of law is involved that is of sufficient public importance for the court to exercise its discretion not to order the unsuccessful party to pay the costs. That was not the case here and the judge did not suggest it was. Although the action was brought in administrative law it was effectively little more than a claim in private law and there was no reason to interfere with the usual practice. 

3. The appeal was allowed. The order that the first defendant should carry its own costs was set aside and substituted with an order that the first defendant’s costs should be paid by the plaintiffs to be taxed if not agreed. The plaintiffs must also pay the costs of the appeal. 

Cases considered: 
Donald Campbell and Co Ltd v Pollak [1927] AC 732 
Ottway v Jones [1955] 2 All ER 585; [1955] 1 WLR 706 
Ritter v Godfrey [1920] 2 KB 47; [1918-19] All ER Rep 714 
Scherer v Counting Instruments Ltd [1986] 2 All ER 529; [1986] 1 WLR 615 

Statutes considered: 
Supreme Court Act CAP 10 

Rules of Court considered: 
Supreme Court Rules 1991 

Counsel for appellant: Mr Kefu 
Counsel for respondents: Mr Tu’utafaiva 

Judgment

The appellant was the first of two defendants in an application by the respondents for leave to apply for judicial review out of time. 

The learned judge refused the application on the ground that no sufficient case of a breach of natural justice had been shown in the decision of the appellant to with-hold a fishing licence for 1998. He then continued: 

“Costs in the present application are awarded in favour of the second defendant, to be agreed or taxed. I expect the first defendant to carry its costs in the case in the ordinary course of its business.” 

This appeal is against that order that the appellant should not have his costs paid by the unsuccessful party. 

The fundamental principle that costs are in the discretion of the Court has been enacted as section 15 of the Supreme Court Act CAP 10, and the proviso to that section is clearly based on the equally fundamental provision that costs normally follow the event. 

Our Supreme Court Rules give no further guidance on the general principles upon which costs may be ordered and the court has followed the practice in England. What, then, are the principles upon which a judge may exercise his discretion to order costs other than in accordance with the general principle that they should follow the event? The position was explained by Atkin LJ in Ritter v Godfrey[1920] 2 KB 47 at 60; [1918-19] All ER Rep 714: 

“… as the discretion is only to be exercised where there are materials upon which to exercise it, it seems important to ascertain the principles upon which a judge is to discern whether the necessary materials exist. In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or the conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains.” 

These principles have been restated many times. Whilst expressing his reservation about the use of the word “must” in the second sentence of the passage quoted above, Viscount Cave LC, in Donald Campbell and Co Ltd v Pollak [1927] AC 732 at 811 points out that the discretion, like any other discretion, must be exercised judicially and ought not to be exercised against the successful party except for some reason connected with the case. More recently Buckley LJ in Scherer v Counting Instruments Ltd [1986] 2 All ER 529; [1986] 1 WLR 615 at 621 and 622 set out in some detail the principles upon which a court may exercise the discretion. 

In the present case Mr Tu’utafaiva suggests that the conduct of the appellant in his decision over the fishing licences generally added to the litigation. We do not agree that is the case here. 

It should be remembered that this was an application for leave to seek judicial review out of time. That was the cause of action. In Ottway v Jones [1955] 2 All ER 585 at 591; [1955] 1 WLR 706 Parker LJ pointed out once again that: 

“… the discretion cannot be exercised arbitrarily; it must be exercised judicially and on fixed principles dictated by reason and justice. One starts with this, that, as a general principle, costs follow the event and the successful party is entitled to be paid his costs unless there are special grounds to order otherwise and those grounds, it is well settled, must be grounds connected with the cause of action.” 

The facts raised by Mr Tu’utafaiva are not matters connected with the cause of action here which, as we have pointed out, was an application for leave to apply for judicial review of the appellant’s decision. 

In that action the judge had found against the respondents. There was no qualifying matter and the appellant should normally have had his costs. The learned judge gave only one reason for not following the usual rule, namely that the appellant should carry the costs in the normal run of its business. That is not a ground arising out of the cause of action and neither does it follow any principle of costs. 

Sometimes in cases of judicial review, a point of law is involved that is of sufficient public importance for the court to exercise its discretion not to order the unsuccessful party to pay the costs. That is not the case here and the judge did not suggest it was. Although the action was brought in administrative law it is effectively little more than a claim in private law and we see no reason to interfere with the usual practice. 

The appeal is allowed. The order that the first defendant should carry its own costs is set aside and we order instead that the first defendant’s costs shall be paid by the plaintiffs to be taxed if not agreed. They must also pay the costs of this appeal.