ROYAL COURT
(Samedi Division)
Before: FC Hamon Esq., Deputy Bailiff
17 March 1998
BetweenStephen Hotton LimitedAppellant
AndIsland Development CommitteeRespondent
Application, under Article 13 (c)(ii) of the Court of Appeal (Jersey) Law, 1961,
for leave to appeal against the Order for costs, made on the 24 February 1998.
Advocate Fielding appeared for the Appellant
The Respondent did not oppose the application and did not appear.
JUDGMENT
THE DEPUTY BAILIFF: This is an application by Stephen Hotton Limited for leave to appeal against the order made for costs of 24 February 1998. Crown Advocate Matthews did not appear but sent a letter to Advocate Fielding which he copied to the Court to say that "he would not oppose the application for leave to appeal."
The judgment stands and Mr Fielding this morning has expressed his client's intention to comply with its terms so that at the end of the six months he has no doubt that the two notices will be otiose. That, of course, is a matter which will only be established at the end of the six months period.
By Article 13 (c) (ii) of the Court of Appeal (Jersey) Law 1961 provides that "no appeal shall lie (c) without the leave of the Court making the order from any Order (ii) as to costs only which by law are left to its discretion.
After the reserved judgment was delivered on 24 February 1998, I heard argument as to costs.
Mr Fielding asked for full indemnity costs. He said that it had been necessary for his clients to fight the action as the effect of the notices would have been to put the company out of business. The Committee, by allowing the company to spend £85,000 to erect its garage and by endorsing the use of the lower yard, had shown the "extreme of caprice and unfairness" in serving the notices. There was no choice. He felt that his client had succeeded in opposing the notices. Crown Advocate Matthews felt that both parties had been castigated by the Court but the company had shown a total disregard for the Planning Law. He felt that each party should bear its own costs or that the Committee might pay a fixed proportion if the Court did not agree.
The issues in dispute were limited and if the company had admitted to the condition of the land, at least 50% of the Courts time would have been saved.
I retired and then made the order that each side bear its own costs.
Mr Fielding did not cite to me this morning the case of Smiths Ltd. v Middletons (No. 2) (1986) 2 All ER 539. I have found that case useful because it shows that where there is similar legislation in England the Court of Appeal has held the fact that the judge took extraneous matter into account was not necessarily fatal if the extraneous matter was not the over-riding reason for his decision. The Court refused to interfere in that case. There is useful matter contained in that judgment about discretion as there is the recent judgment of the Court of Appeal in Dixon & Ors. v Jefferson Seal. (13 January 1998) Jersey Unreported, CofA.
Mr Fielding expanded his argument on costs to me this morning arguing that the immediate effect of the notices was too draconian. At the end of the day the orders made were too wide.
He cited to me passages from IDC v Fairview Farm Ltd. (1996) JLR 306 at 317 and 318 but only to submit that the Court now, as then, had re-written the notices in a reasonable form. In any event, he argues, his clients were successful because if they carry out the modified notices within six months they will be using the land in a manner that the orders did not envisage. In Fairview Farm, in any event, the judgment reads (at page 319) "At the end of the argument the Solicitor General conceded that if the conditions were found to be unreasonable, the IDC should pay the company’s costs. We order accordingly."
In this case the Committee clearly submits " à la sagesse de la Cour".
Advocate Fielding says that the costs of his client company could exceed £20,000. I remain of the opinion that a discretion was exercised in the light of all the facts including the site visit, but to cut the appellant off from an opportunity to appeal a matter where it clearly feels aggrieved is a difficult exercise. I am prepared to grant leave to appeal.
Authorities
Smiths Ltd. v. Middletons (No.2) (1986) 2 All ER 539
IDC v Fairview Farm Ltd. (1996) JLR 306
Dixon & Ors. v Jefferson Seal. (13 January 1998) Jersey Unreported CofA