MASTER of the High Court Sarah De Silva will get her full costs from the Judicial and Legal Services Commission (JLSC) for her judicial review application over the protracted delay for promotion because of a disciplinary complaint against her.
On January 16, De Silva withdrew her application because she had been sworn in as a Master of the High Court.
De Silva served as a prosecutor in the Office of the Director of Public Prosecutions (DPP) for eight years before she was eventually appointed a magistrate in April 2018.
During the recruitment process for the position of master, a complaint was filed against her by the manager of a Tobago hotel over her conduct as a magistrate.
In late 2020, the JLSC wrote to De Silva informing her that she was successful in the recruitment process and had placed third on a merit list for promotion.
However, the JLSC warned that the final consideration of her for the position would take place after the determination of the misconduct allegation against her.
In February 2021, the JLSC preferred two disciplinary charges against De Silva.
There was a delay in the tribunal completing its work as its first chairman, retired Appeal Court judge Andre des Vignes died in January 2022. Several months later, retired magistrate Anna Ryan was appointed to chair a new disciplinary panel to consider the charges.
When the case came up for trial in September last year, High Court Judge Hayden St Clair-Douglas, who was assigned to prosecute the case, failed to produce any witnesses.
When the hearing was reconvened one month later, St Clair-Douglas indicated that the prosecution’s witnesses were uncooperative and reluctant to testify.
The complaint against De Silva was eventually discontinued on January 11 and she was appointed on Tuesday. Her promotion took effect on January 4, 2021.
At last week’s hearing, the JLSC argued against being made to pay costs since the matter had not passed the leave stage.
Its lead attorney, Russell Martineau, SC, contended that the court should order each side to bear its own costs.
De Silva’s attorney, Anand Ramlogan, SC, disagreed, pointing out the JLSC did not respond to De Silva’s pre-action protocol letter assuring her that the merit list would be extended beyond December 26 or further pending the outcome of the disciplinary complaint against her.
However, in a written ruling on the issue, Jutsice Ricky Rahim said there was the inference that the validity of the list would only be extended on De Silva’s request and it would have been a fundamental error in judgment had she simply sat back and assumed it would be having regard to the history of the extensions.
“There was the real possibility that the validity may have expired without extension which would have augured to the disadvantage of any case to be brought by the applicant and to her entitlement to promotion in keeping with that list. The result may have meant that she would be required to start the process for promotion de novo.”
He said because of the impending expiration of the validity of the list, he said she was justified in giving the JLSC a shorter period to respond in her pre-action letter so that “in the event that the response was not favourable, she could still approach the court before the expiration of the validity of the list for urgent interim relief.”
He said it was reasonable for the JLSC to respond to her legal letter before she filed her application to say its chairman was ill in December 2022.
“A simple response to the pre-action letter explaining this fact at the least was therefore of crucial importance. The failure to respond in light of the impending expiration of the validity of the list ultimately led to the commencement of proceedings which might otherwise not have needed to be commenced and to the incurring of unnecessary costs. The court considers this to conduct highly relevant to its decision as to who pays costs in the circumstances of this case.”
He said in awarding costs, the objective is to ensure that the innocent party was in no worse a position than they would have been in had the protocol for such claims been complied with.
“The court is of the view that in this case that object will be met by an order that the JLSC pay the costs of the application.
“In that regard, the court is also aware that in real terms cost orders are usually paid by the ministry responsible for such payment which in this case is the Attorney General who happens to be a defendant. That is of course an internal administrative matter. Suffice it to say that the order of the court need not be reflective of this administrative step.”