Jersey Unreported Judgments

2001/104

COURT OF APPEAL

Judgment reserved: 3rd May, 2001

Reserved Judgment delivered: 15th  May, 2001

Between          Channel Islands Knitwear Company, Limited             Appellant

And                  Iona Nicola MacKay Hotchkiss              Respondent

Appeal by the Appellant against so much of the Order of the Royal Court of 8th May, 2000, as entered Judgment for the Respondent in the sum of £538,577.28 (plus interest on special damages).

Appeal by the Respondent, by way of Respondent's Notice, against so much of the Judgment of the Royal Court of 8th May, 2000, as relates to the relevance of the finding of a pre-existing condition and the exacerbation of that pre-existing condition.

Judgment on costs.

Advocate C.J .Dorey for the Appellant;

Advocate N.M. Santos Costa for the Respondent.

JUDGMENT

SMITH, JA (delivering the Judgment of the Court):

1.        We sat on 3rd May 2001 and delivered our judgment on the substantive aspects of this appeal.  We then dealt with the costs of the appeal.  In this short judgment we give our reasons for the orders we made in respect of those costs.

2.        Advocate Dorey, for the Appellant, argued that it was entitled to its costs of the appeal against the Respondent as the Appellant had "won" before us.  However, examination of the grounds of the appeal does not support this proposition.  The appeal concerned not only quantum but also liability.  It is true that the latter issue was not argued before us on the Appellant's behalf to any significant extent.  However, this does not alter the facts that the Appellant did appeal on liability and lost before us on the liability issue.

3.        It is also true that the Appellant had a degree of success on quantum in that the Royal Court's award of damages was reduced.  However, this was by no means a clear cut victory as, for example, the Appellant's submission that judgment be entered for the Appellant and its request, in the alternative, for a retrial were both rejected.

4.        By reason of the above we ordered that the Appellant bear its own costs of the appeal.  The order of the Royal Court (that the Appellant pay the Respondent's costs) was not challenged before us and, insofar as it is necessary, we affirm it.

5.        In the absence of exceptional circumstances we would have ordered that the Respondent also should bear her costs of the appeal.  But as we made clear in our judgment the Royal Court fell into serious error in two respects.  First, it failed to deal properly with its own conclusion that the Respondent had suffered damage not in accordance with her pleaded case but in accordance with evidence proffered by the Appellant's expert, Mr. Ransford.  Moreover, it failed to give the parties the opportunity of properly considering, and addressing it on, the issue of exacerbation.  Secondly, in its calculation of damages the Court appears wholly to have overlooked the inevitable effect of its finding of exacerbation on the damages that flowed from the injury.  Faced with these errors the Appellant was forced into a situation where it felt bound to initiate an appeal.  As a result the Respondent was obliged to reply through her advocate.  The errors that we identified are not just errors of law where we have come to a different conclusion from the Royal Court.  They are fundamental errors in procedure which resulted in a fatally flawed judgment.

6.        It is our view that in these exceptional circumstances it would not be just to visit the consequences of the errors to which we have referred on the Respondent by requiring her to bear her own costs of this appeal.  Accordingly, we are minded to make an equally exceptional order - that the Respondent's costs be taxed on the standard basis and be paid out of public funds.

7.        Because of the exceptional nature of what we propose and because it would obviously touch the public interest we have allowed Her Majesty's Attorney General twenty-eight days from 3rd May 2001 to indicate to the Court whether he wishes to contest the payment of the Respondent's costs out of public funds.

No Authorities.

Authorities

This is one authority.