Litigating Against the Government for Free?
On March 10, 2015, the Court of First Instance of Sint Maarten rendered an interesting judgment in a case between one of our clients against the Minister of Justice, concerning a so-called “verklaring van rechtswege” (i.e. a residence permit for Dutch and US citizens: “The Permit”).
In summary, the facts are as follows. Our client applied for a Permit on August 2, 2013. The Minister granted the Permit on October 15, 2013, in which he set certain conditions, among which, the restriction that the applicant could only work for one specific company on the island. Since this requirement is in violation of the law, we went to Court in order to obtain a Permit, without this restriction. We won that case, and on December 6, 2013, the Court annulled the Minister’s decision and ordered the Minister to issue a new Permit without the restriction.
On July 4, 2014, the Minister issued the new Permit. However, the restriction of working for one specific company on island was set again. That prompted our client to go back to Court with, in essence, the same claim. She won the case (again). Since the Court was not amused by the Minister’s stubbornness, the Court annulled the Minister’s decision, but instead of ordering the Minister to issue a new decision, the Court took the decision for the Minister, granting the Permit without the restriction.
The unique part of the decision is the following. Usually, in determining the litigation costs which the Minister has to pay to the winning party, the Court uses a Guideline to calculate litigation costs. The amount awarded based on that Guideline does not cover the actual attorney costs by far. In this case, however, the Court ordered the Minister to pay the actual attorney fees our client incurred. In its decision-making, the Court considered that this was an extraordinary case whereby the Minister’s unwillingness to comply with the first judgment, and continuation to act in violation of the law, played a fundamental role.
In conclusion, this judgment does not mean that one can litigate against the Government for free in every case. However, in case of extraordinary circumstances whereby, for instance, the Government does not comply with a previous Court decision, the Court may very well order the Government to pay the actual attorney fees. In our experience, this is the first time the Court awarded the actual attorney fees, but in our expectation, this will not be the last.