IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 315 OF 1997
IN THE MATTER OF THE PROCEEDS OF CRIMINAL CONDUCT LAW 7 1996 8
AND
IN THE MATTER OF THE MUTUAL LEGAL ASSISTANCE
(UNITED STATES OF AMERICA) LAW 1986
AND 16
IN THE MATTER OF WILLIAM J. McCORKLE ET AL 18
Before Harre CJ 20 21
RULING 23
Section 24 of the Judicature Law (1995 Revision) is the primary source of the power 25 of the Grand Court to award costs. In respect of costs or charges other than court fees 26 payable under the Judicature Law or any rule which may be requisite to obtain 27 judgment (the award of which in favour of any party recovering judgment against 28 another is mandatory) the court has a discretion, subject to law, to award costs to a 29 successful litigant. I know of no other Law or rule which is relevant to the exercise of 30 this discretion. The discretion is a wide one, and the practice that costs follow the 31 event has not hardened into a rule.
This case raised a matter of great public importance. It was the first case where wide 34 issues as to the interpretation of the Proceeds of Criminal Conduct Law 1996 fell to be 35 considered. The Attorney General had conduct of the case pursuant to a request under 1 the Mutual Legal Assistance Treaty with the United States of America and a 2 certificate by the Cayman Authority. The Authority is a judge, acting in an 3 administrative capacity. The Attorney General was giving affect to an obligation 4 imposed upon him and did so in an entirely proper manner. It would be wrong that he 5 should be penalised in costs. He was in this case as a public official performing a 6 public duty, and not for any reason for personal gain.
Mr. and Mrs. McCorkle were wholly successful in their application. That they did not 9 succeed on every argument which they advanced is not in itself a ground for a refusal 10 to award costs. However, a number of precedents where no order for costs in favour 11 of a successful litigant was made were brought to my attention. They could in the 12 nature of things provide no more than analogies but they were forceful ones, and I 13 mention them by name for the convenience of those who may come after me in 14 considering such issues and in recognition of the diligence of counsel. They were - 15
Liversidge v. Sir John Anderson [1942] AC 206; 17 New Zealand Maori Council v. Attorney-General of New Zealand [1994] 1 AC 466;
R v. Metropolitan Police Commissioner ex p Blackburn (No. 3) 19 [1973] 1 QB 241;
R v. Sec. of State for the Environment ex p Shelter [1997]COD 49;
Finsbury Bank & Trust Company v. Attorney General of the Cayman Islands 6th December 1996 a decision of the Cayman Islands Court of Appeal. 22
24
All these analogies, which I apply fortified by the view of Lord Woolf in his 1996
Report entitled Access of Justice that the Court should have a discretion not to order 28 an unsuccessful party to pay the other party's costs on the grounds that the 1 proceedings have been brought in the public interest, have left me with the firm view 2 that the appropriate exercise of discretion in this case is to make no order as to costs, 3 as in the case of previous applications in which the Attorney General succeeded but 4 sought no such order. 9 G.E. Harre 10 22nd April, 1998 Chief Justice