Jersey Unreported Judgments

2000/93

ROYAL COURT

(Samedi Division)

30^th May 2000

IN THE MATTER OF

the Representation of the Bâtonnier

regarding Advocate Philip Cowan Sinel

AND IN THE MATTER OF

An application by the Bâtonnier to withdraw the Representation.

Application by Advocate Sinel for costs, following the Court's granting the Bâtonnier's application to withdraw the Representation.

The Bâtonnier, Advocate R.J. Michel;

Advocate N.M. Santos Costa for the Attorney General;

Advocate D.E. Le Cornu for Advocate P.C. Sinel.

judgment

THE COMMISSONER: 

1.        Mr Le Cornu has made an application for costs on behalf of his client Advocate Philip Cowan Sinel.   I am not going to recite again the history of this matter, which was summarised in my Judgment of  1^st July, 1999, following the récusation proceedings, and in the Judgment of the Court of Appeal dated 27^th January, 2000.   It is only necessary to repeat here that the original complaint by Advocate Clyde-Smith against Mr Sinel's affidavit was dated 25^th September, 1998; that the then Bâtonnier, Advocate  Mourant, appointed a panel of three Advocates to investigate the complaint; that in February, 1999, the panel replied to the four questions which  they had been asked to consider, and concluded there was a prima facie case of professional misconduct; and that the first Representation signed by Mr Michel, who had succeeded Mr Mourant as Bâtonnier, was dated 11^th March, 1999.

2.        On 25^th May, 2000, Mr Michel withdrew the Representation at a hearing before me which was to have involved an application by Mr Le Cornu to strike out.   Mr Michel had been able to give Mr Le Cornu three days notice only of his intention to withdraw, because Mr Le Cornu was out of the Island at the end of the previous week.   However, the earliest that Mr Michel could have informed Mr Le Cornu of his intention would have been 18^th May.   In anticipation of this application for costs, Mr Michel submitted a skeletal argument, the second paragraph of which reads:

"The Bâtonnier, having taken advice, concluded that

(a)   whilst there were serious arguments to be raised in rebuttal of the

strike out application, which might have been successful and:

(b)   there were also serious arguments to be pursued on the

Representation which might have been successful, it was not in the public interest, or in the interest of Advocate P.C. Sinel for him to pursue the matter further." 

Mr Michel told me that the advice was taken from leading Counsel in England, and was received by him on 15^th May, 2000.   Mr Michel frankly stated that the effect of it was that:

"There was more than a strong possibility that the matter would run into

the sands in Strasbourg."

He went on to remind me that it was his duty as Bâtonnier to ensure that he did nothing to bring opprobrium on the administration of justice in this Island.

3.        He at once conceded that as a matter of principle Mr Sinel was entitled to be paid his costs of and incidental to the Representation, which, as the Representation was being withdrawn, should follow that event.   He further concluded that if Mr Sinel could show that after the service of the Representation upon him on 17^th March 1999, he was a litigant in person, then he was entitled to be paid costs for that period on the basis set down in the Royal Court Rules.   He submitted that the case had no special or unusual features  to justify the award of indemnity as distinct from standard costs.   There was no additional factor amounting to exceptional circumstances which might justify such an award.

4.        Mr Le Cornu has sought indemnity costs covering the period between 28^th September, 1998, when Mr Clyde Smith's complaint was served on Mr Sinel, and 17^th March, 1999, during which time Mr Sinel was acting as a litigant in person and thereafter until today.    In March, 1999, he instructed Mr Le Cornu, but during the earlier period he was under a duty to reply to the complaint and he took professional advice in London.   Mr Le Cornu has relied in part on the Court of Appeal Judgement delivered on 6^th April, 1990, in the case of Dick -v- Dick when the President, Sir Godfray Le Quesne, stated that if for reasons whether good or bad a party who had instituted proceedings subsequently decided to drop them before they came into Court, it was fair that he should pay for that conduct, the price of compensating the other party by way of indemnity costs.   I was also invited to consider the case of Bairstow -v- Queens Moat Houses plc & Ors (3^rd December, 1999) Q.B. Unreported.

5.        Mr Le Cornu has submitted to me that these proceedings should never have been brought against his client, and that they were always ill-advised.  He points out that until the re-amended Representation which came into existence in January, 2000, with the encouragement of the Court of Appeal, earlier Representations had referred to:

"Conduct which was dishonest or otherwise discreditable to an Advocate,"

and to

"an act which was capable of amounting to a criminal or other contempt of

Court."

6.        I was also referred to the Judgment of Sir Robert McGarry, Vice Chancellor, in In re Gibson's Settlement Trust [1981] 1CH 179 in the context of costs reasonably incurred, and costs of and incidental to the proceedings in question.   Applying the test set out in that case, I am satisfied that costs were reasonably incurred by Mr Sinel when acting as a litigant in person, as from the date of the serving of the complaint upon him.   Indeed, during the hearing before me of this application Mr Michel indicated that he did not dispute this.   Mr Michel agreed that he could not argue that the complaint was other than a serious matter, which Mr Sinel, once he had received it, had to treat with genuine seriousness.   He also agreed that the position was constant between September, 1998,and March, 1999, and during that time Mr Sinel must have appreciated what was likely to follow afterwards.   So if Mr Sinel could show that he was a litigant in person during this earlier period, and he incurred legal costs in the United Kingdom, he was entitled to costs, although Mr Michel was submitting on a standard basis throughout.

7.        I have therefore had to consider the single issue whether the costs should be on a standard or indemnity basis.   I would emphasis that I have not found it appropriate to consider whether this was a case which should never have been brought.   Neither Mr Michel nor Mr Santos Costa, who has appeared before me as amicus curiae on behalf of the Attorney General, has sought to argue that I should judge this to be a matter which Mr Sinel has brought upon himself.   I have not been invited to pass judgement on the affidavit, and I have not done so.   The compelling basis of Mr Le Cornu's argument, as I have been impressed by it, is the fact that this Representation was abandoned at a late stage, and also that if the need for advice and the need to act upon it was apparent this year, it might also have been apparent in March, 1999.   If advice had been taken at that time, it would seem that these proceedings might never have reached the stage they did.   However, I have concluded that there is a dividing line clearly identifiable between the position during the months from September, 1998, to March, 1999, and during the subsequent 14 months.

8.        I am firmly of the view that there were no exceptional circumstances to justify the award of indemnity costs before the serving of the Bâtonnier's first Representation dated 17^th March, 1999.   In my judgement, the right course is to order standard costs to Mr Sinel as a litigant in person during the period between the serving of the complaint upon him, and the serving of the Representation.   Thereafter, he is entitled to indemnity costs down to and including this hearing.   They will, of course, be against the public office of Bâtonnier, at present held by Mr Michel, and payable out of public funds.

Authorities

Dick-v-Dick (1990) JLR Note 2.

Mellors and Anor-v-Gibson & Ors [1981] Ch. 179.

Bairstow-v-Queen's Moat Houses PLC & Ors (3^rd December, 1999) QB unreported.

Dixon-v-Jefferson Seal Ltd (1998) JLR 47.

Civil Proceedings (Jersey) Law, 1956: Article 2(1).

In re Gibson's Settlement Trust [1981] 1 Ch. 179.