Benedetto v. R No. 2 (British Virgin Islands)

Factual and Procedural Background

The decision concerns two criminal appellants, referred to here as Appellant A and Appellant B, whose substantive appeals to the Judicial Committee of the Privy Council were recently allowed. At the conclusion of oral argument, counsel for the appellants requested an award of costs in the event of success. The Crown opposed the application, drawing particular attention to the fact that Appellant B had originally obtained special leave to appeal “as a poor person,” a status that would ordinarily exempt him from paying Privy Council Office fees and from providing security for the respondent’s costs. Written submissions on costs were invited and later considered by the Board, along with information obtained by the Registrar regarding Appellant B’s current financial position.

Legal Issues Presented

1. Whether the successful criminal appellants should be awarded their costs before the Privy Council.
2. If costs are awarded, whether they should extend to proceedings in the courts below.
3. Whether Appellant B should continue to be treated as a “poor person” for costs and fee-remission purposes.

Arguments of the Parties

Appellants’ Arguments

• Requested an order for their costs before the Board and in the courts below, to be taxed on the standard basis.
• Contended that, given the success of their appeals, costs should follow the event.

The Crown’s Arguments

• Opposed any award of costs to the appellants.
• Submitted that Appellant B remained a “poor person,” affecting both liability for costs and entitlement to fee remission.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Status of Appellant B
The Board emphasised that a litigant granted “poor person” status must notify the Privy Council Office if his financial position improves. Evidence showed that Appellant B was sufficiently funded by December 2002, yet neither he nor his solicitors informed the relevant authorities. Although the failure was attributed to the solicitors rather than to Appellant B personally, the Board ruled that his “poor person” status ceased on 31 December 2002. Consequently, Privy Council Office fees remitted after that date become payable.

2. Power and Practice to Award Costs
Under sections 15 and 12 of the Judicial Committee Acts 1833 and 1843, the Board possesses a broad discretion to award costs in appeals and in the courts below. Earlier authorities suggesting an almost blanket refusal of costs to successful criminal appellants were held no longer reflective of current practice, which now turns on the circumstances of each case.

3. Costs in the Courts Below
Section 50(1) of the West Indies Associated States Supreme Court (Cap 80) (Virgin Islands) expressly prohibits costs orders “on either side” in criminal appeals from the High Court. Local practice likewise bars costs against the Crown after trial on indictment. The Board therefore declined to award the appellants costs incurred in the domestic courts.

4. Costs Before the Board
Given the appellants’ successful outcome and absence of any statutory barrier, the Board found it appropriate to order the Crown to pay:

• For Appellant A: costs of the appeal to the Board, including the application for special leave, taxed on the standard scale.
• For Appellant B: costs of the appeal to the Board incurred after 31 December 2002, excluding the application for special leave, also taxed on the standard scale.

Holding and Implications

HOLDING: the Crown is ordered to pay the appellants’ costs before the Judicial Committee of the Privy Council, subject to the temporal and procedural limitations described above; the application for costs in the domestic courts is refused.

Implications: The decision confirms the Board’s modern, discretionary approach to costs in criminal appeals and clarifies that statutory or local-practice constraints in the jurisdiction of origin will be respected when determining whether to award costs for proceedings below. It also serves as a reminder that litigants granted “poor person” status must notify the registry promptly of any material change in financial circumstances.