APPLICATION FOR PROTECTIVE COSTS ORDER – PUBLIC INTEREST – CAPPED COSTS
BEST had appealed against the Minister’s decision dismissing BEST’s appeal to him against the decision of the Development and Applications Board (the “DAB”) granting conditional approval to four planning applications. The present interlocutory application, sought, an Order that: “There be a Protective Costs Order made in favour of BEST, pursuant to sections 12 and 18 of the Supreme Court Act 1905, RSC Order 1A, Rule 1, RSC Order 62, Rules 2(4), 3(2), and/or 3(3), Section 61(2) of the Development and Planning Act 1974, and/or the inherent jurisdiction of the Court”.
There was no known precedent for the Bermuda Court granting a Protective Costs Order (a “PCO”). Despite this, it was common ground between the parties that a PCO could validly be granted, based on the Court’s flexible statutory discretion to deal with costs and guided by persuasive English case law grounded in a comparable civil procedural regime. Controversy turned on how the principles developed by the English courts should be applied to the facts of the present case. In this case the question was whether BEST, an environmental non-governmental organisation with admittedly limited funds and no private interest at stake, ought in the public interest to be protected from the usual costs consequences of pursuing its appeal, in the event that it failed, and if so, on what terms.