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Amendment of litigation laws will deter legitimate actions against Government, human rights lawyer




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By: M Ravi / Human Rights Lawyer
The latest amendment to the Government Proceedings Act (GPA) will especially deter lay litigants from commencing actions against the government for fear of prohibitive costs.
In the Vellama’s by election case, the State submitted $10,000 costs against her despite the fact that she was a part time cleaner having a legitimate case before the court. I submitted that the court should make a Protective Cost Order (PCO). On a rare occasion, the Judge did not award any costs to the government on the basis that the case involved questions of public interest .

However, Vellama undertook to pay security of costs of $20,000 to appeal to the Court of Appeal (and risked bankruptcy in the event she lost the appeal) and eventually succeeded in getting the apex court to rule that by elections are mandatory and not discretionary. Imagine if Vellama had not taken the risk, the PM would have had the power not to call a by election like what the previous PM did on 3 occasions when the seats became vacant prior to 2012.
It is time that the GPA is amended to include Protective Cost Orders (PCO) whereby in “public interest” cases brought by applicants who could satisfy the court that, among other things, they had no private interest in the outcome of the proceedings.
Their corresponding aim was to ensure that public bodies did not escape judicial review just because an applicant might be unable to meet a costs ordered “against” in the event of the application for judicial review being dismissed.
A PCO would thus limit the costs liabilities of an applicant where the court was of the view that the issues to be raised were of a wider public interest and that they should for that reason be heard.
Indeed, while the early case law established that PCOs could not issue where the applicant had a private interest in the outcome of the case, subsequent case law has since held that this need not always be so where the application still raises important points of public interest (Re Thompson’s Application [2010] NIQB 38). The emphasis, once more, has therefore been on tracking possible government illegality rather than allowing it go unchallenged.
PCO is available in several commonwealth countries including UK and South Africa. I hope the Worker’s Party, civil society and concerned citizens will take this up and seriously urge the government to consider introducing PCO.

Republished from M Ravi Facebook.

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