ROYAL COURT
(Samedi Division)
21 October 1998
Before: F C Hamon, Esq., Deputy Bailiff, and
Jurats Gruchy and Potter
In the matter of the representation of Fiona Catherina Fields,
née Harvie-Smith (the Representor)
and
The Parish Rate Appeal Board, Respondent.
Application by the Representor for Judicial Review of final decision of the Respondent regarding assessment of rateable value of dwelling house in Jersey.
Advocate M St J O’Connell for the Representor
Advocate N F Journeaux for the Respondent
JUDGMENT ON COSTS
THE DEPUTY BAILIFF: It is clear that costs will follow the event but the Representor now applies for indemnity costs.
In the course of argument Advocate Journeaux referred the Court to 4 Halsbury 1 para 193 as follows:
"Costs are, however, awarded against justices or similar tribunals only when they have done something which calls for strong disapproval by the courts".
He then cited the footnote which says:
"In R -v- Paddington South Rent Tribunal, ex p Millard [1955] 1 All ER 691, [1955] WLR 348, DC, Lord Goddard CJ said that the court never gives costs against rent tribunals unless they act improperly".
It is useful to see what Lord Goddard actually said in the case of R -v- Paddington Rent Tribunal and I refer to p693:
"It does not matter to the tenant (who is legally aided) whether her costs come out of one fund or another, but so that we should not be making a precedent I do not think we should give costs against the tribunal. We never give costs unless they act improperly".
In my view this case is unique. It is the first action to review a decision of a Board which has only come into existence on 1 January 1996, and which is quite properly trying to establish a sense of uniformity throughout the Island on rating matters.
On the question of indemnity costs, I rely entirely on the definitive judgment of the Court of Appeal in Dixon & Ors -v- Jefferson Seal Ltd (13 January 1998) Jersey Unreported and to illustrate the problem that I face I need only to refer to p5 of that judgment where the Court of Appeal said this:
"The difference between costs on an indemnity basis and costs on a taxed scale basis is likely to be substantial and the Court was shown a copy of the scale applied in the former instance which allows a maximum of £120 per hour for the advocate’s costs on appearing in court on the taxed scale basis. As against this, we have been told that on current practice in taxation of indemnity costs the Judicial Greffier recognises a maximum at present of £220 per hour. This, as I understand it, is a maximum which itself lies in his discretion. The likelihood is therefore that in relation to the costs of the trial the Respondents would be substantially out of pocket if their costs were to be on a taxed scale basis and indeed that this would result in a substantial erosion of the damages which they have recovered".
Let me say immediately that the bona fides of the Board is not in question. The Court decided that the Board acted incorrectly and the Court has sent the matter back for further consideration, but as a result of its actions during the period of decision-making certain unfortunate events occurred and these have been stressed to us by Advocate O’Connell.
On 6 October (the hearing was on 19 October) Advocate Journeaux wrote a letter to Advocate O’Connell which contained this passage:
"A third aspect concerns the assertions made in our clients re-amended answer, that they did consider some evidence that was put to the Board at the hearing of the appeals of the assessed rental value of other similar properties. I referred you to the further and better particulars and to the terms of paragraph 26/97/46 and 47 of the Minutes of the Meeting of the Board held on 6 November 1997. You asked me to obtain my client’s instructions as to why, if the Board say they considered the evidence of the ARV of other properties, those assessments were not applied in reaching the valuation, rather than the contractors’ method. I am instructed that it was the view of the Board that the comparable figures put to the Board were inaccurate as being too low, in the experience of the Board. The Board were not satisfied that the methods previously used in assessing the properties put up for comparison had been carried out properly. Further, the Board was not satisfied that the properties put in evidence were comparable in anything other than the most general sense. The view of the Board was that properties in this market are very much individual properties, and almost impossible to compare."
Now that led to an immediate reply from Advocate O’Connell in these terms, and I need to set it all out but where he refers to the Chairman of the Board I will use the words "the Board:
"The evidence that you are seeking to lead is contained in paragraph 3 of your letter of to date and boils down to three assertions as follows:
Those three assertions are entirely inconsistent with the pleaded case as set out in the further and better particulars. They are also inconsistent with the reason given for the decision of the Board in the 1996 assessment which provides: 3. that having regard to the assessment of other properties in the parish, indicated by the assessors, the Board concluded the assessment was a fair one.
In the italicised response to paragraph number 8, as set out above, the Board appears to have given some weight to that submission but not much due apparently to the lack of any detailed comparison between the properties referred to and Lowlands.
There is nothing in the italicised response as to paragraph 13, as set out above, which is even remotely similar to any of the points which the Board is now seeking to make at this late stage.
The italicised responses to paragraph 16 are difficult to understand. Having said that it appears as if the Board gave considerable weight to the evidence provided by the Parish Assessment Officer of comparable ARV substantial properties within the parish. The Board simply went on to note that no previous decision had been based on the contractors method and they intended not to use the contractors method on this occasion because to do so would lead to inconsistencies. What the Board is now apparently attempting to say is that in the absence of any evidence in this regard whatsoever the Board took the view that the assessment of comparable properties were too low. Secondly, he is saying that the Board believed that the comparable assessment had been carried out by using an inappropriate method and thirdly, the Board is saying that these properties were not comparable. Quite how the Board can assert that the properties listed in paragraph 16 in the further and better particulars are not comparable to Lowlands, given that the further and better particulars confirm that considerable weight was given to this submission, and given the fact that the Board upheld the comparison as being fair in 1996, I find it very hard to understand. You will see, therefore, why I am asserting that the matters now raised in paragraph 3 of your letter are so fundamentally different from anything which has previously been pleaded and I accordingly invite you, if you think it appropriate, to make an application and amend your client’s pleaded case. I reserve my client’s position in this regard, bearing in mind the lateness of the day of these issues being raised."
That correspondence eventually led to the amendment of the pleadings at trial, an amendment that this Court described as a non sequiter.
Now, that is not, in my view, at all on all fours with the complete volte face by the respondent in the Dixon case. And Advocate O’Connell, I think, was not yesterday was trying to imply that it was. Nor was the way that the respondents in that case abused the process of the Court by tactical manoeuvring. Nevertheless, it was a surprising sequence explainable, in my view, by the fact that the Court found that the Board was in reality only paying lip service to a method - that is comparison with other properties - that it felt was not only wrong but had been wrong for many years and probably from year one of the Rating Law.
The Board will hopefully emerge from this experience with more understanding of the complexities of the Rating Law. Their task was never going to be an easy one and as I have said, and I need to repeat, the bona fides of the members of the Board has never been in question. In my view this unique case need not, and must not, set a precedent. It has required an enormous amount of research by both counsel and the Court was greatly helped in the manner in which the case was presented by both counsel.
I take the view that the rate payer, the representor in this unique case, should not be out of pocket to the extent that she would be if I allowed the costs on a taxed costs basis. The Board is a creature of statute, and probably more importantly as I understand that statute, a creature of the Finance and Economics Committee and if I were able I would order the costs of both sides to be paid out of public funds. I am not convinced that I can do that but I am going to make an order for indemnity costs in the anticipation that the Board will be able to look to the Committee for its necessary disbursements. Of course, if it does not, I suggest the Board will have to come back to Court. I make that Order accordingly.
(The Court subsequently refused an application by the Respondent, under Article 13(c](2) of the Court of Appeal (Jersey Law, 1961, for leave to appeal against the Order for costs]
Authorities
4 Halsbury 1 : p.193 R -v- Paddington South Rent Tribunal exp. Millard (1955) 1 All ER 691
Dixon & Ors. -v- Jefferson Seal Ltd. (13 January 1998) Jersey Unreported C.of A [1998.006]