Taione v Pohiva [2006] TOSC 23; CV 374 2004 (22 June 2006)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY

NO CV 374/2004

BETWEEN:

ALAN FISHER TAIONE
First Plaintiff

AND:

LALI MEDIA GROUP LIMITED,
LALI MEDIA LIMITED and
MATENI TAPUELUELU
Second Plaintiffs

AND:

PO’OI POHIVA
Third Plaintiff

AND:

‘AKILISI POHIVA and others
Fourth Plaintiffs

AND:

THE KINGDOM OF TONGA
Defendant

BEFORE THE HON CHIEF JUSTICE WEBSTER

Decision given at Nuku’alofa on 22 June 2006.

Counsel for Plaintiffs: Dr R E Harrison QC
Counsel for Defendant: Mr Paul Radich; Ms Jessica Hodgson & Mr ‘Aminiasi Kefu

Preliminary

The principal decision in this case, given on 8 October 2004, stated in relation to costs:

Costs

As neither side has been entirely successful, but each side has been partially successful in their claims and defence respectively, I shall meantime make no order as to costs, but I shall leave it open to the parties to make further submissions on costs if they wish, either orally or in writing.

By Memorandum dated 29 April 2005, accompanied by a Bill of Costs for Taxation Purposes, and filed with the Court on 24 June 2005, the Plaintiffs’ Counsel sought full costs. This application was opposed by the Defendant’s Counsel by Memorandum dated 24 May 2005, filed with the Court on 25 May 2005.

Subsequent Memoranda were filed by Plaintiffs’ Counsel on 22 July and 3 November 2005 and 16 May 2006, but it was not until Defendant’s Counsel copied to me by e-mail for information his Memorandum of 26 May 2006 that all these papers came before me. Plaintiff’s Counsel replied to that by Memorandum of 1 June 2006.

On further enquiry, very regrettably I discovered that all the correspondence had been held in a pending file and not brought to me because the principal file could not be found (ironically it was in my room). I have apologised to Counsel and the parties on behalf of the Court for the delay caused by this failure in commonsense and efficiency.

Counsel have agreed that in these circumstances I should give my decision on costs on the Memoranda filed without an oral hearing.

Applicable law

The power of the Supreme Court to award costs is contained in section 15 of the Supreme Court Act (Cap 10):

Costs.

15. In every action the costs of the whole action of each particular proceeding therein and the costs of every proceeding in the court shall be in the discretion of the court as regards the person by whom they shall be paid:

Provided always that the court shall not order the successful party in an action to pay to the unsuccessful party the costs of the whole action but the court may order the successful party notwithstanding his success in the action to pay the costs of any particular proceedings therein.

The Rules of Court also provide:

ORDER 29: COSTS

Rule 1.

This Order applies whenever the Court is authorized to determine the amount of costs payable by any person.

Rule 2.

If the Court makes any order for costs at the conclusion of any trial or hearing in chambers it shall if possible forthwith assess the amount of costs payable under such order.

Rule 3.

(1) Where the Court is unable to assess costs under rule 2 such costs shall be taxed in accordance with this rule.

(2) The party entitled to costs shall within 28 days after the date of the order for costs lodge with the Court a bill of costs showing brief details of, and the sums claimed in respect of:

(a) the amount of time spent in preparation of pleadings and general preparation for trial;
(b) the amount of time spent in court;
(c) counsel’s fees; and
(d) any other disbursements.

(3) ......

Rule 4.

(1) (i) This paragraph applies to costs payable by one party to another under an order in civil proceedings.

(ii) There shall be allowed all such costs, charges and expenses as are reasonably necessary or proper for the attainment of justice or for maintaining or defending the rights of any party.

(iii) Unless there are exceptional circumstances there shall not be allowed:

(a) any costs in respect of work done prematurely and not subsequently proving of use;

(b) any costs incurred or increased as a result of negligence, mistake, or over-caution;

(c) any unusual expense.

(2) (i) This paragraph applies to costs payable by a client to a lawyer.

(ii) There shall be allowed all such costs, charges and expenses as were incurred with the express or implied approval of the client.

(iii) Unless there are exceptional circumstances there shall not be allowed:

(a) any costs incurred or increased as a result of negligence, mistake, or over-caution:

(b) any unusual expense, unless the lawyer obtained the express approval of his client to such expense before it was incurred.

Halsbury’s Laws (4th Ed) Vol 37 states in relation to the exercise of the Court's discretion to award costs that in general costs are in the discretion of the Court, which has full power to determine by whom and to what extent they are to be paid, although there are a number of limitations on the exercise of this discretion. Where costs are in the discretion of the Court, a party has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them: Donald Campbell & Co Ltd v Pollak [1927] AC 732,811 (HL), [1927] All ER Rep 1,41 per Lord Cave LC. (Para 714)

This discretion must be exercised judicially; it must not be exercised arbitrarily but in accordance with reason and justice [Ottway v Jones [1955] 2 All ER 585, [1955] 1 WLR 706 (CA)], and the judge ought not to exercise it against the successful party except for some reason connected with the case [Campbell v Pollak]. However, when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, there is no ground for appeal [Campbell v Pollak], even where the judge has given leave. (Halsbury Para 714)

Although in general the Court has a discretion as to costs, no party is entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court. If in the exercise of its discretion the Court sees fit to make any order as to costs, then, subject to the rules relating to costs, the Court must order the costs to follow the event, except where 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. (Halsbury Para 716)

On the principle that costs follow the event there is such a settled practice that a successful party should receive his costs that it is necessary for the unsuccessful party to show some ground for the Court to exercise its discretion to refuse an order which would give them to him, and the question whether the ground is sufficient is entirely for the judge at the trial [Campbell v Pollak; Ottway v Jones], and if he has exercised his discretion on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the trial, on appeal the Court may not intervene even if it deems his reasons insufficient [Campbell v Pollak]. (Halsbury Para 717)

In the exercise of the Court’s discretion, a successful plaintiff may be deprived of part or all of his costs, or may be ordered to pay the costs of the defendant or part of them; and a successful defendant may be deprived of part or all of his costs. (Halsbury Para 717)

In Ritter v Godfrey [1920] 2 KB 47 (CA); [1918-19] All ER Rep 714, quoted with approval in Campbell v Pollak, Lord Sterndale MR said at 52-53, 721:

'... there is such a settled practice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them to him. The discretion must be judicially exercised, and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial. If, however, there be any grounds, the question of whether they are sufficient is entirely for the judge at the trial, and this Court cannot interfere with his discretion.

......

One other consideration applies to these cases. The principle as to the exercise of discretion is the same in the case of plaintiffs and defendants, but it is clear that considerations sufficient to justify a refusal of costs to a plaintiff are not necessarily sufficient in the case of a defendant, for the former initiates the litigation while the latter is brought into it against his will.

Speaking generally, I think it may be said that, in order to justify an order refusing a defendant his costs, he must be shown to have been guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought.'

In Campbell v Pollak Viscount Cave LC also said at 811-2, 41:

'... it appears to me that the true view is substantially that taken by Lord Sterndale in ... his judgment in Ritter v. Godfrey, although I would express it in somewhat different language. A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the Court awards them to him, and the Court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if - to put a hypothesis which in our Courts would never in fact be realized - a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or (to quote a familiar illustration) to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge, deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that a Court of Appeal, although it may deem his reasons insufficient and may disagree with his conclusion, is prohibited by the statute from entertaining an appeal from it.'

In relation to the discretion of the Court in awarding costs, in Higgins v L Higgins & Co [1916] 1 KB 640 (CA) Bankes LJ said about the exercise of that discretion at 643:

'... the discretion is fettered by a well-accepted rule which was stated by Lord Halsbury in Civil Service Co-operative Society v General Steam Navigation Co ([1903] UKLawRpKQB 174; [1903] 2 KB 756,765) in these words:

'No doubt, where a judge has exercised his discretion upon certain materials which are before him, it may not be, and I think is not, within the power of the Court of Appeal to overrule that exercise of discretion. But the necessary hypothesis of the existence of materials upon which the discretion can be exercised must be satisfied.'

This rule has been construed in that case .. [and others] .. as equivalent to saying that the Court has no right to deprive a successful defendant of his costs unless he has done some wrongful act which concerns the plaintiff or the rights in respect of which the plaintiff is suing.

No general rule therefore can be laid down as to the duty of a judge where, as here, the plaintiff fails in establishing all that he has asked for, or indeed anything that he did ask for in his original application, but is allowed something very different from what he asked for but which is none the less very valuable to him.

Every case must depend upon its own circumstances, but it is sufficient to say that it is very difficult to see how an order can be justified under the rule above laid down unless there is either some ground for saying that the plaintiff did succeed, and the defendant did fail, upon some issue raised upon the proceedings, or that there is some evidence that the plaintiff could not have obtained the declaration of liability without instituting proceedings for arbitration. If evidence was forthcoming upon this last point it would be difficult to say that an arbitrator could not exercise his discretion in favour of the plaintiff on the ground that though in form the application might not have succeeded, yet in substance it really had, and that an amendment, if asked for and granted, would have put the applicant technically in the right.'

Although that related to an arbitration, I do not consider that the principles are different for a case in court.

More recently in Ottway v Jones [1955] 2 All ER 585 (CA), referred to in Halsbury, Sir Raymond Evershed MR said at 589:

'In determining that matter the court has to exercise a discretion, the character of which has been laid down in language often cited from the judgment of Lord Greene MR in Cumming v Danson ( [1942] 2 All ER 653 (CA)). Lord Greene MR said (at p 655):

'... the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive ...''

In a more recent case referred to in Halsbury (para 717 n 2), Sachs LJ states in Knight v Clifton [1971] 2 All ER 378,389 (CA):

'... when considering whether a successful defendant may be ordered to pay costs, it becomes manifest that what is involved when making a decision on an application for costs in such an event is a judicial discretion. That judicial discretion is of a type which was closely examined in Campbell v Pollak. In that case is to be found an exposition not only of the nature of the discretion but also of the extent of the powers of an appellate court to review its exercise. In a key passage in the much cited speech of Viscount Cave LC, he said [at 809, 40] [quoting Lord Sterndale MR from Ritter v Godfrey]:

'... there is such a settled practice of the Courts ...'

And in the later passage Lord Cave LC said [at 812, 41] [quoting Lord Cave VC from Campbell v Pollak]:

'But when a judge, deliberately intending to exercise his discretionary powers, ...'

Sachs LJ went on to say, at 390:

'It is, of course, impossible as well as undesirable to attempt to define what constitutes a strong or exceptional case, but to my mind it can include occasional rare cases in which the conduct of the defendant has brought about the proceeding or in which his conduct causes its continuance or in which he escapes the normal consequences of his blameworthy conduct by reason of some unexpected matter which he knew but which the plaintiff could not know. After giving every weight both to the fact that the defendant has succeeded after being brought to court by a plaintiff who has not secured any relief and to the settled practice of the courts in ordinary cases, it may yet be that in justice the former should bear the costs. Moreover, in assessing whether the material before the court entitles it to make an exceptional order it is necessary to recognise that the approach needed nowadays is one in which decisions made in the days when judges were influenced either by the jurisdiction decisions or by other fettering decisions that preceded Campbell v Pollak may prove at best to be of modest assistance, even if not misleading. In practice the borderline between cases where a court may order that a wholly successful defendant is not to be paid any costs and those where it may order him to pay the plaintiff's costs may prove difficult to define - if indeed it exists. It may well simply depend on a question of the degree of weight to be given to the relevant facts.'

Of relevance in this case, in recent years there were also general observations on the nature of costs in the Australian case of Cachia v Hanes (1994) 179 CLR 403,410, where it was said:

'It has not been doubted since 1278, when the Statute of Gloucester (1278 (UK) 6 Edw I c 1) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, 'but not to the costs and expences of his travell and losse of time''.
(P 410-411)

In another Australian case, Walton v McBride [1995] NSWSC 17; (1995) 36 NSWLR 440,449 (CA), it was stated:

'The power to award costs in common law countries is ancient. ... The word 'costs' must be read in the context of the legislation here in question (as of legislation empowering other tribunals). It must be read against the backdrop of the provisions authorizing orders for the payment of costs by the courts. As Cachia v Hanes in the High Court and in this Court demonstrates, that power is severely limited. From its earliest days in the Statute of Gloucester it was 'never intended to be a comprehensive compensation for any loss suffered by a litigant': see Cachia (at 410). ... Cachia (at 416);'

(P 449 E)

In his submissions, Plaintiffs’ Counsel referred to Minister of Immigration v Udompun [2005] NZ CA 128, in particular the view of the majority at para [186]:

'[186] In our view, the Judge was not wrong in principle to award indemnity costs, even though not all of Mrs Udompun’s claims succeeded before him. In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bringing BORA [Bill of Rights Act] claims. This would clearly have the result of weakening BORA protections. Indemnity costs could also, in suitable cases, be seen as necessary for a proper vindication of the right. This does not mean, however, that indemnity costs are to be awarded as a matter of course in BORA cases.'

The Court of Appeal went on to say that, if they had upheld the view of the Judge as to the extent of the breaches, they would have considered indemnity costs to have been appropriately awarded, as the breaches found were sufficiently comprehensive to justify the award. However they did not take the same view of the extent of the breaches as the Judge did. (para [187])

The Plaintiffs’ Counsel also referred to the dissenting judgment in Udompun of Hammond J at paras [219] – [225], where he stated:

'[224] There is some indication in the case law that, although, generally speaking, to date Courts have tended to assert that merely because litigation is of a 'public interest' or 'test case' variety that is not a licence to depart from the 'usual' regime for costs, where there is a government (or government agency) involved in a case involving fundamental human rights, that may be a circumstance to alter the usual exercise of a costs discretion: see Ahnee v Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305,1315 (PC) per Lord Steyn; Nouredine v Minister for Immigration and Multicultural Affairs [1999] FCA 1130; (1999) 91 FCR 138,145 [per Burchett J].'

Hammond J had earlier said in Udompun:

'[207] In Manga v Attorney-General [2000] 2 NZLR 65, I had occasion to say:

Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not 'just' private: they have overarching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner-takes-all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction (at 81-82).'

In Manga at paras [119] – [132] Hammond J also entered into a detailed consideration of public law remedies, although that is not strictly relevant to this issue of costs.

Although they deal with cases of unsuccessful parties in public law cases, the two cases referred to by Hammond J can be adequately cited by reference to what was said by Burchett J in Nouredine v Minister for Immigration & Multicultural Affairs [1999] FCA 1130; (1999) 91 FCR 138,145:

'16 The application of each applicant must fail. However, in each case I have found there was real ground to question the decision. The rights under the Convention are very important rights, and they concern matters of grave significance to individuals. What was said by the Privy Council, of rights concerning the maintenance of fair and effective administration of justice, in Ahnee v Director of Public Prosecutions [1999] UKPC 11; [1999] 2 WLR 1305,1315 (PC) is also applicable here. Their Lordships said:

'Given that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs.'

It seems to me that, equally, Australia having entered into a solemn international covenant, persons claiming rights traceable to that covenant should not be discouraged from making bona fide resort to the means offered by Australia for the determination of their rights under the Convention. See also Shelton v Repatriation Commission [1999] FCA 181; (1999) 85 FCR 587,590. Accordingly, there will be no order as to costs.'

As a Privy Council decision, Ahnee is of particular weight.
Grounds of decision

The Plaintiffs' Counsel sought leave if necessary to file out of time this application for costs under Order 29, and the Defendant's Counsel objected to leave being granted. But Order 29 Rule 3(2) imposing a time limit of 28 days only comes into play under Rule 3(1) in relation to taxation where the Court makes an order for costs under Rule 2 but is unable to assess them. That is not the position in this case, as the Court did not make an order for costs, as the whole question of costs was postponed when the Court gave its substantive decision on the merits of the case, as shown by the use of the word 'meantime'. I should perhaps have set a time limit for any subsequent applications, but I did not do so. So I do not consider that leave is necessary for the Plaintiffs to apply for costs and I do not accept the objection for the Defendant.

The Plaintiffs' Counsel sought to revisit the categorisation in the principal decision 'as neither side has been entirely successful, but each side has been partially successful in their claims and defence respectively', but I do not consider that that is open for review. That was my clear view at that time, after I had spent almost all of the preceding month considering the decision. If the Plaintiffs' Counsel wanted to appeal that, he should have done so within the appeal period, which expired long before he made this application. However what I always had in mind was that I can now consider how that categorisation affects the decision on whether or not to award costs, especially in light of a full study of all the legal authorities.

I am unable to accept as relevant to the issue of costs in the court of first instance the submission for the Defendant that if the Plaintiffs had made their application for costs timeously it was likely to have affected its decision on whether or not to appeal the principal decision. That is not a matter within my knowledge in the progress of the case. In any event it seems much more likely in this very important case that the decision on whether or not to appeal was taken on grounds of policy rather than simply monetary issues of costs.

It also has to be borne in mind that, if my memory and my notes serve me correctly, there were no submissions at all on costs at the oral hearing, far less detailed submissions.

So while I deprecate the delay by Plaintiffs' Counsel of 6 - 8 months in claiming costs (and I do not accept that the reasons he gave for that are sufficient to justify the delay, especially as in my view the submission at that time of a bill of costs for taxation and reference to consequent taxation issues was premature), I do not consider that that should preclude consideration of the Plaintiffs' application, especially in such an important matter. The key word in that paragraph in the principal decision is 'meantime', and the ruling at that time was a means of holding open the position of costs without further delaying the substantive decision on the merits, where the costs situation appeared not to be straightforward.

I believe then that it is important to cast my mind back to the circumstances at the time of the hearing in September 2004 and to the outcome of the case, which it must be remembered affected not only the Plaintiffs, but the people of Tonga as a whole. The principal focus of the case was about the constitutional right of freedom of expression and the resultant decision:

- struck down part of an amendment to clause 7 of the Constitution which had sought to redress a previous Court of Appeal decision on media freedom;

- declared void as unconstitutional 2 statutes which seriously restricted freedom of expression in the media; and

- modified or clarified another amendment adding clause 103A to the Constitution, which purported to restrict the remedy for a breach of the Constitution to declaratory relief only, ie so that damages could not be awarded for that.

That is a paraphrase of the outcome of the case, but in relation to its importance I refer to the terms of the decision itself, where the principal issue was set out at the foot of page 3 as:

'The principal and first issue in this case, although by no means the only issue, is whether the purported amendment of Clause 7 of the Constitution of Tonga by the Act of Constitution of Tonga (Amendment) Act 2003 [the Constitution Amendment Act] is valid.'

and I also refer to passages in similar terms on pages 34 (relating to the finding that parts of the amendments to clause 7 were void) and 41 (relating to the finding that the 2 statutes were void):

'I very much regret having to make such a finding in relation to an amendment to the Constitution which has had the approval of the Legislative Assembly, the Cabinet, the Privy Council and His Majesty The King, but it is the clear duty of this Court under the Constitution to do so and thus to uphold the Constitution as it stands.'

There can be no doubt about the importance of this case at the time of the hearing.

Both sides approached the issues on the interpretation and application of clause 7 of the Constitution in this case, not on the basis on which the Court came to its findings (apart from the finding that the 2 statutes were void), but on an all or nothing basis, eg at page 11:

'Mr Radich for the defendant referred in his submissions to Parliamentary sovereignty, but I do not think that is the correct expression in Tonga, given the role played by HM The King in making legislation, as set out in Clause 56:'

at page 14:

'The main thrust of the submissions by Mr Radich for the defendant was that the legislature is supreme and can amend the Constitution if and as it so wishes - but that is not the complete picture for Tonga.'

and at page 21:

'I was unable to accept the submissions by Dr Harrison for the plaintiffs that due to the entrenching provisions of Clauses 7 and 79 the amendments to Clause 7 were in effect automatically void on an all or nothing basis.'

although the Plaintiffs' case on the validity of the 2 statutes was also argued on an alternative basis, ie on clause 7 of the Constitution both as unamended and amended.

That all or nothing approach by both sides is therefore a factor which I have to consider in applying my discretion to the issue of costs.

So I accept that overall the Plaintiffs were largely, but not entirely, successful in the case and got something valuable to them which they would not have got without the proceedings; and that correspondingly the Defendant was mostly, but not entirely, unsuccessful in its defence. But on my recollection of the defence, I regret that I cannot accept from the submissions to me at the oral hearing that the Defendant in any way, even as a fallback position, gave an indication that it was aiming for or would find acceptable a modified or restricted power for the Legislative Assembly to amend the Constitution, as put forward in its submissions of 26 May 2006. This case concerned an important matter of constitutional law and bona fide resort by the Plaintiffs to rights under the Constitution, which ought not to be discouraged. So, applying my discretion and taking into account as persuasive the reasoning set out in Higgins, Udompun, and Ahnee I should consider awarding the Plaintiffs their full costs, though there may be some reasons for departing from the normal practice of costs wholly following the event.

I also consider that the part of the case dealing with the validity of clause 103A of the Constitution is a relevant factor in the question of costs. The Plaintiffs’ claim was that that clause was invalid, but it was not accompanied by any claim for damages, so it was never really likely for it to be possible for the Court to grant what was sought, and the actual finding by the Court was a qualified one. And, apart from the fact that clause 103A had been enacted in the same Constitution Amendment Act as the purported amendments to clause 7, I always viewed this claim as akin to a freestanding claim not entirely related to the other claims in this case. At pages 43-44 of the decision I said:

'... the Court of Appeal deliberately declined to take up the matter in Edwards v Pohiva (Cross-Appeal) [2003] TOCA 8:

'Dr Harrison submits that this court has not previously considered the question whether the Constitution of Tonga gives rise to a separate cause of action for damages or compensation for a proved breach of a constitutional provision. However, he also accepts that, if the court rejects the appeal on other grounds, it will not be necessary to decide whether there is a separate right of action for breach of the Constitution.

That is now the position. The appeal having otherwise failed, we do not propose to deal with this submission in what would necessarily be an obiter finding. It is preferable that this issue be determined in a case where the decision will be determinative.''

'However, referring back to Edwards v Pohiva, any decision in this case as to whether there is such a right to constitutional damages in Tonga would be obiter, as the plaintiffs simply seek a declaration and not damages or any other remedy; and in addition it could be said that it was not fully argued before the Court. Certainly the cases referred to in Baigent's Case were not subject to detailed submissions. So I find myself in the same position as the Court of Appeal in Edwards v Pohiva and consider that it is not appropriate to make any kind of definitive ruling on the issue, but for the purposes of consideration of the consistency of Clause 103A with the Constitution as a whole, taking into account all the authority cited above I shall proceed on the basis that it may be possible for this Court to award constitutional damages in an appropriate case.'

Against that I found that the Defendant started from an untenable position (at page 43):

'However Mr Radich for the defendant submitted orally that the term 'declaratory relief' included the prerogative orders. If the Government is prepared to honour that submission in all cases in which it is concerned, that is well and good, but I regret that I cannot accept that as a matter of law prerogative orders are properly included within the term 'declaratory relief'.'

For all those reasons it was not possible to reach a full view on Clause 103A because it could not be argued fully, so perforce the decision of the Court about its validity had to be very much a qualified decision (see page 45):

'I therefore find in terms of Clause 82 that Clause 103A is void to the extent that it is inconsistent with the law of liberty in the Constitution (ie the relevant provisions of the declaration of rights in Part I of the Constitution, in particular Clause 7, which was the subject of this case) and any consequent right to constitutional damages under the Constitution.'

As I have already mentioned, I considered at the time of the principal decision that this was not a case for a simple award of costs to the Plaintiffs, and on the basis of all these factors and references I still consider that is the correct position.

In relation to clause 7, while the Plaintiffs did not achieve all they set out to achieve, ie a decision that all the amendments were completely invalid, I am very conscious of what was said in Higgins and that the Plaintiffs could not have obtained the result they did obtain without bringing the action. I am also fully aware of the great importance of this case, even in hindsight. Thus in respect of the clause 7 case I consider that, other things being equal, the Plaintiffs should have their costs.

However I consider that the position is different in relation to the clause 103A case, where the Plaintiffs only achieved a very qualified result. As mentioned above, I always viewed this as akin to a freestanding claim, and in relation to it alone I would have exercised my discretion not to make any order as to costs – ie each side would have to bear their own costs.

It is difficult to be exact, but in relation to time and effort my best estimate is that the clause 103A claim took up about 10%, looking at the comparative lengths of the relevant passages in the submissions and the decision.

So overall, taking into account all relevant circumstances at the date of the hearing and exercising my discretion in a broad, common-sense way as a man of the world, and coming to a conclusion giving such weight as I think right to the various factors in the situation, I consider that, in order to reflect the factor of the clause 103A claim, the Plaintiffs’ claim for costs should be reduced by 10%. Such a reduction would also reflect a view I had during the oral hearing that the submissions by the Plaintiffs' Counsel were excessively lengthy, particularly in his reply on the final day to the submissions for the Defendant, when his oral submissions appeared to be being drawn out unnecessarily. In the words of Order 29 Rule 4(1)(iii)(b) and 4(2)(iii)(b) it appeared to me that costs incurred in those respects were 'as a result of ... over-caution'.

But, notwithstanding that reduction, due to the overall nature of this case and its great significance to the people of Tonga as a whole, I find persuasive the view of the New Zealand Court of Appeal in Udompun and consider that, for a proper vindication of the Plaintiffs’ rights, the correct measure for the costs I am awarding is indemnity costs (ie costs between the lawyer and his client), although it must be borne in mind that, as referred to in Cachia v Hanes, even indemnity costs do not purport to cover all the costs of a party.

For the same reason, even although I accept that the Defendant was partially successful in its defence, as neither the amendments to clause 7 nor the new clause 103A were found to be completely invalid, for the reasons referred to in Ahnee, Nouredine, Manga and Udompun, as the real substance of this case concerned extremely important matters of constitutional law and freedom of expression, and that bona fide resort to rights under the Constitution ought not to be discouraged, I should make no order in favour of the Defendant as to any proportion of its costs.

The Defendant’s Counsel appears to accept the hourly rate of T$400 proposed to be used by the Plaintiffs' Counsel, so I accept that as a proper hourly rate for this most important case. Otherwise I make no decision as to taxation matters, except to say that I do not believe that previous precedents should be departed from.

For all these reasons the Court awards the Plaintiffs 90% of their costs on an indemnity basis, as agreed between the parties or taxed.

22 June 2006

R M Webster MBE
Chief Justice