[2022] SC (Bda) 79 Civ, 22 October 2022 In The Supreme Court of Bermuda

CIVIL JURISDICTION

2021: No. 29

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

AND IN THE MATTER OF THE COMMISIONS OF INQUIRY ACT

1935

BETWEEN:

(1) RAYMOND DAVIS

(2) MYRON ADWIN PIPER

Applicants -and-

(3) THE PREMIER OF BERMUDA E. DAVID. G. BURT

(4) COMMISSION OF INQUIRY INTO HISTORIC LOSSES OF LAND IN

BERMUDA

Respondents Before: Assistant Justice David Hugh Southey KC Appearances: Mr. Raymond Davis and Mr. Myron Piper Applicants in person Ms. Lauren Sadler-Best for the First Respondent Mr. Delroy Duncan KC and Mr. Ryan Hawthorne for the Second Respondent Date of Hearing: 21 October 2022 Date of Judgment: 22 October 2022

Introduction On 5 August 2022 I delivered a judgment allowing, in part, the judicial review claim brought by Mr Davis. I dismissed the claim of Mr Piper. That judgment dated 5 August 2022 should be read with this judgment. I will not repeat that judgment. I merely record that in essence I concluded that: a. The terms of reference establishing the Commission of Inquiry were not unlawful. b. However, the Commission of Inquiry misinterpreted the terms of reference. c. That misinterpretation was material on the facts of Mr Davis's case but not on the facts of Mr Piper's case. 2. This judgment follows a hearing that was listed to determine consequential matters. I thank all parties for the diligence that they have shown in providing me with helpful written and oral submissions. Substantial relief The Form 86A states, so far as is material, that the following relief is sought: "Relief#2: A Declaration that the Commission is ultra vires Section 1(1) of the Act by way of the exercise of an absolute discretion due to a lack of proper specificity in the appointed Terms of Reference set by the Premier; and/or that the Commission is ultra vires Section 6 of the Act by way of their decision to restrict the ambit of the Premier's Terms of Reference. Relief #3: Alternatively, a Declaration on the meaning of the term "other ... irregular means"; and what "individuals" and "corporate bodies" are meant to be covered in the Commission's Terms of Reference." It appears to me that my conclusion that the terms of reference establishing the Commission of Inquiry were not unlawful means that there is no basis for declaring that the Commission of Inquiry is ultra vires. It made a legal misdirection but that does not undermine its vires. Indeed, following the delivery of my judgment, I did not understand Mr Davis to be pressing for a 2

declaration that the Commission was ultra vires. For these reasons I decline to make a declaration in terms reflecting what is said to be 'Relief#2' in the Form 86A. Turning to 'Relief#3', the starting point is to note that I only concluded that the Commission of Inquiry's misdirection was material on the facts of Mr Davis's case. The Commission of Inquiry points out that before I could make an order for relief that has implications for any other case, I would need to consider whether the error of law that I identified in my judgment was material on the facts of those other cases. That reflects the approach that I adopted in this case, which was to determine whether the misdirection I found was material in the case of Mr Davis and Mr Piper. The Commission argues that I cannot find materiality as I have not received any evidence regarding the other cases or heard submissions about them. I accept these submissions of the Commission of Inquiry. I also accept the submission of the Commission of Inquiry that the judgment in R (Majera) v Secretary of State for the Home Department [2021] UKSC 46 demonstrates that I need to be cautious before ordering relief that has implications for 3rà parties. In my opinion these matters demonstrate that I must be cautious to ensure that I only order relief that reflects the limited illegality found and, in particular, the fact that I have only found material illegality on the facts of Mr Davis's case alone. The Commission of Inquiry has proposed a declaration in the following terms: "The Commission of Inquiry into Historic Losses of Land in Bermuda unlawfully excluded Mr. Davis' Bermuda Housing Corporation and Bank of Bermuda claims from the Terms of Reference in the Official Gazette dated 1 November 2019 by requiring the loss of land to be the result of some "systemic" issue and by excluding them as being "commercial disputes". " It appears to me that the proposed declaration reflects the terms of my judgment. Mr Davis did not suggest that this declaration failed to reflect the terms of my judgment. The proposed declaration also appears to me to reflect the spirit of 'Relief #3' as it seeks to specify the illegality found. As a 3

consequence, it appears to me that I should make the declaration proposed by the Commission of Inquiry. In his written submissions, Mr Davis seeks the appointment of a new Commission of Inquiry. That is not relief sought in the Form 86A. In oral submissions Mr Davis expressed concern that no action would be taken following the making of a declaration. He said that there was no respect for the law. He explained that that is why he sought coercive relief. In my opinion it should not be thought that a declaration is a limited benefit. In Craig v Her Majesty's Advocate [2022] 1 WLR 1270 it was held that: "The Government's compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts. The court's willingness to forbear from making coercive orders against the Government, and to make declaratory orders instead, reflects that trust. But trust depends on the Government's compliance with declaratory orders in the absence of coercion. In other words, it is because ours is a society governed by the rule of law, where the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy. " [46] This demonstrates how state bodies can be expected to respect declarations and act on them. How the Commission of Inquiry (and other public authorities) should act in response to the declaration is, at least initially, a matter for relevant public authorities. Craig implies that courts can provide relief if the response is unlawful because it makes clear that public authorities are expected to comply with the law. However, at present I have no reason to believe that my declaration will not be respected. To the contrary, as Craig demonstrates, I can expect compliance with the law. For these reasons I decline to provide any relief beyond the declaration proposed by the Commission of Inquiry. 4

Damages

10. Mr Davis seeks damages for a loss of opportunity. It appears to me that there is no basis for making such an award: a. It is trite law that a breach of public law does not automatically result in an award of damages. As Baroness Hale stated in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Afjairs [2005] UKHL 57 at [96]: "Our law does not recognise a right to claim damages for losses caused by unlawful administrative actions." It needs to be established that there is some basis for claiming damages in tort. None has been identified and I cannot see one. When Mr Davis was asked by me during oral submissions what tort could be relied upon, he argued that there is a 'breach of public contract'. He also argued that the Commission of Inquiry reached an illegal conclusion and that that was a tort because he suffered a harm through the actions of the Commission. As far as I am aware, there is no basis for claiming a contract existed. Further, even if loss was suffered, the principle in Quark demonstrates that there was no basis for claiming damages. These matters mean that I am satisfied that there is no basis to claim damages on the facts of this case. b. In reaching the conclusion above, I have considered whether a claim could be made for breach of statutory duty. The statute in issue would be the Commissions of Inquiry Act 1935. The problem with that argument is that I can see nothing that indicates that the 1935 Act was intended to give rise to a right to claim damages. The objectives of the 1935 Act were and are very different. They were to ensure independent and effective reviews of matters of public concern. c. Further, I have only concluded that the Commission of Inquiry misdirected itself and should have considered Mr Davis's case on the basis of the correct interpretation of the law. I have no way of knowing what would have happened had the Commission correctly interpreted the law. It is possible that the Commission of Inquiry 5

would have concluded that Mr Davis's case was outside the terms of reference or had no merits. Even if the Commission of Inquiry had concluded that Mr Davis had been the victim of historic injustice, that would not have resulted in an award of damages. That appears to me to mean that there is no basis for me concluding that any illegality caused loss. After submissions had closed, Mr Davis sought to make further written submissions regarding this matter. I declined to permit this both because it would have been unfair to the Commission for further submissions to be made at that stage and because the absence of a tort meant that the Mr Davis would fail in any event even if he could establish causation. However, I am satisfied on the information before me that causation cannot be established. d. The relief that I have ordered may result in the matter being re- considered by the Commission of Inquiry. I have already noted that consideration will need to be given to the declaration by public authorities. I have no idea what the outcome of that consideration will be. However, it again means that there is no basis for concluding that loss was suffered. It may be that action is taken that means no loss has been suffered. Costs Previous costs order

11. I have previously made a costs order in favour of the Respondents following failed applications made by the Applicants. No party has applied to set that order aside. My conclusions below are not intended to have implications for my previous costs order. Potential stay 12. It has been suggested in writing but not orally by the second Respondent that the issue of costs should be stayed until the Court of Appeal considers appeals in relation to my judgment regarding the merits. I can see no basis for a stay of my determination of this issue. The Court of Appeal will potentially be assisted by having my conclusions regarding all issues. Even if the Court of 6

Appeal does not find this judgment to be of assistance, it will potentially be a waste of resources to have me consider these matters after the Court of Appeal consider them. That will potentially result in a second appeal. Law 13. As is well-known, order IA/1(1) of the Rules of the Supreme Court 1985 (GN 470/1985) sets out the overriding objective. It provides that: "These Rules shall have the overriding objective of enabling the court to deal with cases justly." It appears to me that this principle is important in this case. For reasons I will come to, it appears to me that there is a real risk of injustice if I adopt the submissions of the Respondents. 14. Order 62/3(3) of the Rules of the Supreme Court 1985 (GN 470/1985) (*order 62/3(3)') provides that: "If the Court in the exercise of its discretion sees fit to make any order as to the costs of any proceedings, the Court shall order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs. " The language of order 62/3(3) suggests that the Court has a broad discretion to award costs. However, I accept, as submitted by the Respondents, that the discretion needs to be exercised judicially and in accordance with principle.

15. In Binns and others v Burrows [2012] Bda LR 3 it was held that a court considering a costs application should: "i. determine which party has in common sense or "real life" terms succeeded; ii. award the successful party its/his costs; and ii. consider whether those costs should be proportionately reduced because e.g. they were unreasonably incurred or there is some other compelling reason to depart from the usual rule that costs follow the event." [6] [Emphasis added] 7

16. 17. 18. In Kentucky Fried Chicken (Bermuda) Ltd v Minister of Economy Trade and Industry [2013] Bda LR 34 Kawaley CJ applied these principles to a case of judicial review [20]. In R (Johnson) v Secretary of State for Work and Pensions [2019] EWHC 3631 (Admin) it was held that: "... if the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. In a pithy remark, with which we would respectfully agree, 'It is a fortunate litigant who wins on every point. '" [26] In Irvine v Commissioner of Police for the Metropolis [2005] EWCA Civ 129 the Court of Appeal held that: "In a Bullock order the Claimant would be ordered to pay the successful Defendants' costs, but the court would give liberty to the Claimant to include those costs in the costs of the action recoverable by the Claimant from the unsuccessful Defendant. In a Sanderson order the court would order that the unsuccessful Defendant pay the costs of the successful Defendants directly. [1] The jurisdiction is a useful one. It is designed to avoid the injustice that when a Claimant does not know which of two or more Defendants should be sued for a wrong done to the Claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful Defendant eroded or eliminated by the order for costs against the Claimant in respect of his action against the successful Defendant or Defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the Defendant against whom the claim has succeeded, to be made liable not only for the Claimant's costs of the action against that Defendant, but also the costs of the other Defendants whom the Claimant has 8

chosen to join but against whom the Claimant has failed." [22] [Emphasis added]

19. It appears to me that there are several points that can be made about the judgment in Irvine: a. What was in issue in Irvine was Bullock and Sanderson orders. These essentially enable a successful plaintiff to claim his/her costs as well as the costs of another party that they would otherwise be liable for. b. The basis for making Bullock and Sanderson orders is the need to avoid potential injustice when a party has succeeded against one of two or more respondents.

20. In Lisa SA v Leamington Reinsurance Company Ltd and another, unreported, 17 October 2008 Kawaley J concluded that Bullock and Sanderson orders can be made in Bermuda. However, he also indicated that such costs orders were 'exceptional'. 21. In Minister of Home Affairs v Bermuda Industrial Union [2016] Bda LR 32 Kawaley CJ held that: "... the central object of the costs rules is to impose a discipline on civil proceedings which would be wholly lacking if the Court was not obliged to apply the costs rules in a predictable manner. That discipline essentially operates so as to reward meritorious applications and punish both unmeritorious applications and unreasonable conduct in the course of litigation." [5] 22. Order 62/18 of the Rules of the Supreme Court 1985 (GN 470/1985) (*order 62/18') governs the taxation of the costs of litigants in person. It provides that: "(1) Subject to the provisions of this rule, on any taxation of the costs of a litigant in person there may be allowed such costs as would have been allowed if the work and disbursements to which the costs relate had been done or made by an attorney on the 9

litigant's behalf together with any payments reasonably made by him for legal advice relating to the conduct of or the issues raised by the proceedings. (2) The amount allowed in respect of any item shall be such sum as the Registrar thinks fit but not exceeding, except in the case of a disbursement, two-thirds of the sum which in the opinion of the Registrar would have been allowed in respect of that item if the litigant had been represented by an attorney. (3) Where it appears to the Registrar that the litigant has not suffered any pecuniary loss in doing any item of work to which the costs relate, he shall be allowed in respect of the time reasonably spent by him on that item not more than $50.00 per hour." [Emphasis added]

23. It appears to me that the emphasised words make clear that it is anticipated that the costs of a litigant in person will be taxed by the Registrar. Mr Davis initially disputed this. However, having reviewed his position, he no longer appeared to dispute this. Submissions of the parties 24. I have summarised the extensive submissions of the parties. Inevitably I have not set out every point made by the parties. A failure to refer to a matter raised in oral or written submission does not mean that I have not considered it.

25. Mr Davis seeks a number of disbursements associated with his attendance. He also seeks legal costs at the rate of 2/3 of those payable to lawyers. 26. The first Respondent seeks his costs from both Applicants. He argues that he succeeded with his defence of this claim. There is no reason to depart from the general rule that the loser pays. It is said in support of that argument that the applications for judicial review brought by the Applicants sought private benefit and so the issues that arise in public interest cases do not arise in this case. Both Applicants argue that there was a public interest in holding the 10

Commission of Inquiry to account. Both also argue that they were substantially successful.

27. The second Respondent does not object as a matter of principle to the payment of Mr Davis's costs. Objection is raised to a number of items claimed

28. The second Respondent seeks its costs against Mr Piper to the extent that relate to his claim and his involvement in proceedings. Mr Piper argues that he should not be liable for costs. Again he argues that the claim was brought in the public interest. Conclusions

29. I have already indicated that it appears to me that the terms of order 62/18 mean that the costs of a litigant in person should be taxed by the Registrar. That means that I should not rule on whether items of cost are properly claimed by Mr Davis (or any other party). They are matters for the Registrar to consider following taxation. However, it should be noted that the terms of order 62/18 mean that it would appear inevitable that any costs recovered Mr Davis will be less than those he would have recovered if he had instructed lawyers. That is because the limits of 2/3 of a lawyer's fees or $50 per hour are less than would be awarded to a lawyer. I will explain why I believe that is relevant below. 30. Starting with Mr Davis's case, it is clear that Mr Davis succeeded in demonstrating that the Commission of Inquiry had erred in law. However, he failed to demonstrate that the Premier had erred in law. 31. In my opinion there is a relationship between the ground that succeeded against the Commission of Inquiry and the grounds that failed against the Premier. 32. When I granted leave, I commented that: 11

"[Ground 3] seems to me to be the natural corollary of grounds 1 and 2. That is because one of the points relied upon in grounds I and 2 is that the commission had to define effectively their own terms of reference on the basis that the terms of reference were excessively broad. One answer to that may be that in fact the terms of reference were properly intended to be broad and that the Commission acted unlawfully by seeking to narrow them. So in light of that it appears to me that my proposed amended ground 3 is one that should be before the Court at the substantive hearing. " [11] That analysis reflects the approach that I adopted in my judgment allowing the application for judicial review. I first considered the interpretation of the terms of reference ([113] - [118]). Having determined the meaning of the terms of reference, I then considered whether they were lawful [119]. Having concluded that the terms of reference were not unlawful, I then considered whether the Commission of Inquiry's application of the terms of reference was lawful (120] - [122]). I found that there was a misdirection. Finally, I considered the materiality of the error of law that I found ([123] - [126]). The reason that I have set out the structure of my judgment is that it demonstrates how the starting point for the determination of all issues was the interpretation of the terms of reference. That was a common issue that needed to be determined before the grounds could be considered. The correct interpretation of the grounds was not straightforward but was key. 33. In light of the matters above, it appears to me that Mr Davis achieved a significant degree of success. He demonstrated illegality in the application of the terms of reference. He didn't demonstrate that the terms of reference were unlawful. However, much of the argument necessary to demonstrate that the terms of reference were unlawfully applied was also the basis of the argument that the terms of reference were unlawful. When the structure of my judgment is analysed, it appears to me that large parts of the judgment accepted arguments put by Mr Davis. 12

34. Had there been a single defendant in this matter, it appears to me that Mr Davis would have been entitled to a very substantial proportion of his costs. Indeed, the approach in Johnson suggests that he may have been entitled to all of his costs. I accept that the Johnson approach cannot be applied where an applicant succeeds against 1 of 2 parties. The party that successfully defended the claim brought against them is entitled to some or all of their costs. However, consideration of what would have happened had there been a single defendant appears to me to be of some relevance as it is an indication of the degree of success achieved. 35. In light of the matters above, it appears to me that there is a real danger in looking at this series of costs applications in isolation. 36. If I simply were to apply the loser pays rule, the Premier would obtain costs from Mr Davis and Mr Davis would obtain his costs from the Commission of Inquiry. Had Mr Davis been legally represented, that would unlikely to have been a problem. Although my conclusions above about the role of the Registrar means that I cannot be certain about the net effect of orders in favour of the Premier and Mr Davis following taxation, it appears unlikely that Mr Davis would have been required to pay more to the Respondents than he received from them. There is no reason to believe that his costs would have been less than those of the Premier.

37. However, because Mr Davis is a litigant in person he is likely to be out of pocket if the Premier obtains his costs from Mr Davis. I have already noted that the terms of order 62/18 mean that a litigant in person cannot achieve anything like the costs that a represented party can obtain. Although I accept again that the role of the Registrar means that I cannot be certain about the net effect of orders in favour of the Premier and Mr Davis, the limitations upon claims for costs by litigants in person seem highly likely to mean that Mr Davis would be out of pocket. If that were to happen, that would appear to me to be unjust in circumstances in which, as I have already noted, Mr Davis has achieved a substantial degree of success. 13

38. When considering the issues identified above and how they should impact on costs, the starting point is that the costs regime is needed to impose discipline upon litigation (Bermuda Industrial Union). That means that meritless applications should be deterred. However, a corollary of this is that meritorious applications should not be deterred. The constitutional right of access to the courts is inherent in the rule of law (R (UNISON) v Lord Chancellor (Nos 1 and 2) [2020] AC 869 at [66]). It appears to me that Mr Davis is correct to say that parties with meritorious claims will potentially be deterred from bringing them if he was to be out of pocket despite a substantial degree of success. Equally, the need for discipline means that public authorities should be deterred from running legally erroneous defences.

39. I accept that this is not a situation where it is necessary to make Bullock and Sanderson orders. Such an order would essentially enable Mr Davis to recover his full costs. I have already indicated that Mr Davis may well not have been able to recover his full costs had he been legally represented. That is because any order should reflect his failure against the Premier. My concern is that Mr Davis should not be required to be out of pocket to the Respondents. It would have been unlikely that he would have been out of pocket if he was legally represented. It appears to me that the objective of avoiding Mr Davis being out of pocket can be achieved by ordering that the Commission of Inquiry pay the Premier's costs and there be no other order for costs. 40. It appears to me that the approach suggested in the paragraph above is open to me in light of the following matters: a. As already indicated, it appears to me that the terms of order 62/3(3) are broad enough to allow me to do justice to Mr Davis. It appears to me that the key point established by Irvine is that the equivalent English rule is broad enough to permit unusual orders where that is necessary to do justice. It should be noted that Binns establishes that normally costs rules can be departed from when there is a compelling reason. The need to do justice to the parties must be a compelling reason in light of the overriding objective. 14

b. I accept that Lisa SA makes it clear that Bullock and Sanderson orders should be exceptional. Although I have already concluded that the order I will make is not technically a Bullock and Sanderson order, it appears to me that I should still be very cautious before making the order I will make. I accept the submission of the Respondents that it is important that costs orders are made in a predictable manner. However, as far as I am aware, there is no judgment that has considered the potential injustice that I have identified. The circumstances would appear to be unusual. The absence of a precedent means that I need to do my best to achieve justice applying principles identified from the judgments cited earlier.

c. One reason why I need to be cautious is that there is a risk that the Commission of Inquiry will be out of pocket (a concern identified by the English Court of Appeal in the context of Bullock and Sanderson orders). In principle the Premier's costs may be higher than those of Mr Davis. I obviously cannot know whether the Commission of Inquiry will be out of pocket because I am not taxing the relevant bills. However, it appears to me that the significance of that is limited. It appears to me that there is little reason to believe that the Premier's costs would be greater than those that would have been incurred had Mr Davis been legally represented.

d. As already noted, an objective of the costs regime is that it is intended to impose a discipline on the parties. That means that if I am correct to have concluded that the Commission of Inquiry made a material misdirection, much or all of this litigation could have been avoided by the Commission settling the claim. That supports my approach. It means that it might be said that the Commission caused this litigation. It appears to me that it cannot be said that Mr Davis acted unreasonably when he applied for a judicial review of the Premier's decision to establish the Commission of Inquiry. As already indicated, there is an overlap between the challenge to the Premier and that to the Commission of Inquiry. It may not have been clear 15

who was the correct Respondent. It is relevant that in my judgment I found that: "The terms of reference are drafted in a manner that is far from perfect. As noted below, it appears that the natural meaning of the terms of reference would go far wider than intended and would be unworkable. That, however, does not necessarily mean that they are flawed." [118(a)] f. I have considered the submissions of the Respondents. They essentially argued that the importance of the loser pays rule found in order 62/3(3) means that I should apply that rule even if it appeared that injustice to Mr Davis might result. It appears to me that cannot be right. Ultimately, it appears to me that I do have to exercise my discretion in a manner intended to achieve justice. That I have attempted to do. g. One matter that has troubled me when reviewing the submissions of the parties (even though it was not raised by them) is whether the order I intend to make will actually mean that Mr Davis is better off than a litigant who incurs the fees of a lawyer. The application of the loser pays rule in a case where there is more than one Respondent is likely to mean that the Applicant will not recover their full legal fees and will be out of pocket in that way. I have concluded that is not a reason why I should apply the usual loser pays rule. Had Mr Davis instructed a lawyer to represent him, he would have been liable for their costs. Mr Davis chose not to instruct a lawyer (presumably in part to limit his costs). However, he will still be liable for costs he incurred such as photocopying. As a consequence, like a person in his position who instructed a lawyer, he will be out pocket to the extent that he incurred costs. He will not be out of pocket to other parties. 41. In light of the matters above, I order that the Commission of Inquiry pay the costs of the Premier resulting from his defence of this application for judicial 16

review, to be taxed on a standard basis if not agreed. I will hear submissions about the precise terms of the order if necessary.

42. It appears to me that the issues raised in the case of Mr Piper are far more straightforward. To the extent that he sought to advance arguments in addition to those raised by Mr Davis, those arguments failed. That suggests that the starting point is that Mr Piper should pay the costs of the Respondents resulting from the defence of those additional matters raised by Mr Piper.

43. Mr Piper argues that my costs order should reflect the fact that his arguments succeeded in material respects. It appears to me that the arguments that succeeded were essentially those that caused me to find in favour of Mr Davis. It appears to me that that success can be accounted for by ordering that Mr Piper is simply liable for the additional costs caused by his participation. 44. Mr Piper also argues that the costs order should reflect what he says is the public interest in this litigation being brought. In this case, I refused to make a protective costs order. While I do not think that the refusal of a protective costs order should inevitably prevent the public interest justifying a departure from the general rule that the loser pays, in this case I see no reason why there should be a departure from the general rule. It appears to me that this case was ultimately about whether the Commission of Inquiry made material a misdirection in the specific cases of the Applicants. That was an issue that was mainly or exclusively of interest to the Applicants. Dated this 24th day of October 2022

BERMUDA

DAVID HUGH SOUTHEY KC

ASSISTANT JUSTICE

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