Michael Paul Chen-Young (as Executor of the Estate of Paul Chen-Young (Deceased)) and others v Eagle Merchant Bank Jamaica Ltd and others (Jamaica)

The third-party costs jurisdiction is not an appropriate vehicle for obtaining constitutional redress from the State for a denial of access to justice. It concerns costs liability of non-parties who become involved in litigation in a way that makes liability just, such as funders, intermeddlers or persons with a real interest in the outcome. A failure to fulfil a constitutional guarantee does not alone bring the State within that jurisdiction. Whether an appellate court should hear an original constitutional-redress application is ordinarily a question of appropriate forum and discretion. Where the claim is novel and raises important issues of responsibility, causation and wider constitutional significance, it should first be determined by the Supreme Court.

The appellants had incurred costs in an abortive appeal in Jamaica. The appeal had been heard in 2013, but judgment was delivered in 2017 after the judges had reached mandatory retirement age and had not obtained permission under section 106(2) of the Constitution of Jamaica. A differently constituted Court of Appeal declared the judgment void and ordered a rehearing. It refused a third-party costs order against the Attorney General and held that constitutional redress should be pursued by a fresh claim in the Supreme Court. The Privy Council considered the proper use of the third-party costs jurisdiction, the appropriate forum for an original constitutional-redress application, and whether the costs thrown away could themselves be awarded as redress.

1. The appeal was dismissed. The finding that the 2017 judgment was void was not under appeal. The remaining questions concerned costs and the route to constitutional redress.

2. Two distinct costs parcels had to be separated. The Attorney General was a party to the motion seeking a rehearing and a declaration of nullity, but was not a party to the 2013 appeal. There was no proper basis for awarding the motion costs against him: he did not oppose the rehearing or nullity application and succeeded in resisting both constitutional redress and a third-party costs order.

3. Although Civil Procedure Rules 1998 rule 64.9 supplied a procedure for a third-party costs order, that jurisdiction was not an appropriate means of pursuing what was in substance constitutional redress. Its purpose was to impose costs liability on a non-party whose involvement in litigation made that result just. The constitutional failure relied on did not fairly bring the State within that jurisdiction. The summary costs procedure was also unsuitable for determining the constitutional issues.

4. The question whether the Court of Appeal could grant redress on an original application made while it was otherwise engaged with the appeal was better treated as one of discretion concerning the appropriate forum, rather than as a rigid question of jurisdiction. The authorities relied on by the appellants, Bowe v R [2006] UKPC 10 and Silly Creek Estate and Marina Co Ltd v Attorney General [2021] UKPC 9, arose in materially different procedural circumstances.

5. The Supreme Court was the appropriate first-instance forum. The application was novel and could raise important questions concerning State responsibility, causation and judicial independence, with possible wider repercussions. Local determination at first instance would give the Court of Appeal the benefit of a first-instance judgment if the matter were appealed. The Board therefore declined to decide entitlement to constitutional redress or quantum. Those issues could proceed separately from the rehearing of the substantive appeal.

• Privy Council: appeal dismissed; the Board advised accordingly. [2022] UKPC 30
• Court of Appeal of Jamaica: in April 2018, a differently constituted court declared the December 2017 judgment void and directed a rehearing. It rejected the proposed third-party costs order and required constitutional redress to be pursued in the Supreme Court.
• Supreme Court of Jamaica: original proceedings resulted in a judgment handed down in May 2006, against which the appeal was brought.