Singh v Public Service Commission

An appellate court deciding a costs appeal should ordinarily respect the lower court’s evaluative discretion. It may intervene for an error of law or principle, or where no reasonable court applying the correct principles could have reached the decision.

Under a pre-action protocol, the court must assess non-compliance, its causal effect on unnecessary proceedings or costs, and whether an award would place the innocent party no worse off. A usual practice of making no order for costs on an ex parte leave application is only a starting point. Serious protocol non-compliance may justify costs even where the application is withdrawn and substantive judicial review proceedings never begin.

Mr Singh sought documents from the Public Service Commission under the Freedom of Information Act. After the Commission failed to provide a sufficiently detailed response, he sent a pre-action protocol letter threatening judicial review. He later applied for permission to bring judicial review proceedings, but withdrew the application after receiving a response that satisfied him in part.

Charles J initially awarded him TT$7,500 costs ex parte, but later set that order aside and made no order as to costs. The Court of Appeal dismissed his appeal. The central issue before the Board was whether the Commission’s failure to comply with the applicable pre-action protocol justified restoring the costs order.

Appeal allowed. Lord Briggs, giving the judgment of the Board, restored the original order awarding Mr Singh TT$7,500 costs of his application for permission to apply for judicial review.

1. Appellate restraint. The Board endorsed the caution stated in Fourie v Le Roux [2007] 1 WLR 320. An appellate court, particularly on a second appeal, should not interfere with an evaluative costs decision merely because it would have reached a different conclusion. Intervention is justified for an error of law or principle, or where no reasonable court applying the law correctly could have reached the decision. The fact that the appeal concerns costs is an additional reason for restraint, but not a jurisdictional bar.
2. Required costs analysis. The pre-action protocol regime under the Civil Proceedings Rules 1998 and the PAP PD did not make a costs sanction automatic. The court had to decide whether there was non-compliance, whether it caused proceedings or costs which might otherwise have been avoided, whether Mr Singh was the innocent party, and whether an award would place him no worse off than compliance would have done. The final decision remained discretionary.
3. Protocol compliance. The administrative-orders protocol required a reasoned response in the standard format. If a full response could not be given in time, the respondent had to send an interim reply, seek a reasonable extension and explain the need for it. The Commission’s reply merely stated that the matter would be finalised. It neither gave the required decision and reasons nor sought an explained extension. The Board did not decide whether section 15 of the Freedom of Information Act imposed an absolute 30-day limit.
4. Application and disposition. The non-compliance probably caused an otherwise unnecessary leave application and costs. There was jurisdiction to award costs of that withdrawn application even though substantive judicial review proceedings were never commenced. The usual practice of making no order for costs was only a starting point. The Court of Appeal erred in principle by failing to undertake the required analysis, so the Board exercised the discretion afresh and restored the costs order.

1. Privy Council — The appeal was allowed and the original order awarding TT$7,500 costs was restored: [2019] UKPC 18.
2. Court of Appeal of the Republic of Trinidad and Tobago — The appeal from Charles J was dismissed. The court upheld the setting aside of the ex parte costs order and made no order for costs.
3. Charles J — An ex parte order awarding TT$7,500 costs was later set aside at an inter partes hearing, with no order as to costs.