Jersey Unreported Judgments

2002/115

ROYAL COURT

(Samedi Division)

7^th June 2002 

Application by the Plaintiff for costs of a discontinued action.

Advocate P.M. Livingstone for C.M.S. Tearooms Ltd.

Mr. Paul Troalic, Director of the Gooseberry Bush Ltd for the Gooseberry Bush Limited.

judgment

the Commissioner:

1.        This is an application for costs arising out of a dispute between two companies trading at Number Seven Centre Point St. Brelade.  I do not intend to enter into the history of the dispute which is complex.  It has not been made less complex by the correspondence and actions of the defendant company's lawyer.  At this hearing the company was ably represented by Mr. Paul Troalic and his wife Mrs. Anne Troalic.

2.        At one stage in the hearing before us I allowed Mr. Troalic to read out a prepared statement which gave the personal background to the legal machinations which have concerned this Court and the parties since the Order of Justice for arrears of rent was filed by the plaintiff on 20th March 1997.  I have sympathy with their feelings but sympathy cannot be the guiding force of this judgment. 

3.        I asked Advocate Livingstone, whose application this is, to compartmentalize the claim.  We finally divided it into four headings:-

(i)        The defendant's counterclaim;

(ii)       The arbitration proceedings;

(iii)      The injunctive relief;

(iv)      The appeal from the Greffier's decision.

The defendant's counterclaim

4.        By order of the Greffier Substitute, the counterclaim was stayed, pending arbitration.  The order is dated 7th October, 1998.

5.        The counterclaim detailed alleged breaches of the sub-sub-lease by the plaintiff which affected the defendant's business.  There is also an allegation of slander.  The answer and counterclaim were filed on 25th April 1997.  Eventually, on 26th April 2002, the action (including the counterclaim) was discontinued by order of the Master and in the terms of a joint letter signed by Mr. Troalic and by Advocate Livingstone.  The opening of the consent letter is very much to the point:

"It is our view that too much time has so far been spent in this case and we do not wish to waste any more of the Court's valuable time and incur further unnecessary costs".

6.        The plaintiff asserts that he is now entitled to the costs of these proceedings as they were brought contrary to the provisions of the sub sub-lease, where provision is made for disputes of this character and kind to be referred to arbitration.  Whether the plaintiff would have succeeded at trial or on interlocutory summons on this argument has not been forensically tested.  In the latter case, no summons was brought by the plaintiff notwithstanding the opportunity to do so.  As I said above, the factual matrix on this matter is complex.  Therefore, having considered the very helpful submissions made by both sides in this matter, I am not persuaded by either side that I should make an order in their favour.  I make no order as to costs. 

The arbitration proceedings

7.        Despite the clear wording of the sub-sub-lease, the arbitration envisaged by that document never got off the ground.

8.        On 13th November 1998 the Court sat to consider the application of the defendant to impose interim injunctions.  That came to naught although the two Jurats sitting (Gruchy and Tibbo) agreed, on terms, to act as umpires in the arbitration of the counterclaim.  The learned Jurats considered the documentation, decided that they did not wish to hear evidence, visited the premises, deliberated at some length and wrote their report.  They were appointed on 13th November 1998.  On 1st March 1999, the defendant's lawyer wrote to the Greffier raising major points in a letter marked "Urgent" which effectively altered the basis for the arbitration.  The plaintiff's statement was filed on 11th February.  The defendant's statement was filed on 2nd March 1999.  The letter led to the Jurats declining to act any further.  The lawyer then acting (as shown in his letter to his clients dated 10th December 1999) took a firm view.  In part, he says:

"Not surprisingly, the Deputy Bailiff gave no indication as to what conclusion the Jurats had reached - if, indeed, he knew himself. I am bound to say that it very much surprises me that they had been able to reach any conclusion at all without any evidence beyond what was embodied in, or attached to, the Statements.  In particular, it seemed to me absolutely essential that the Jurats should hear evidence concerning your contention that The Goosebury (sic) Bush's takings had substantially decreased whilst the De Ste Croix were misbehaving.  Still more importantly, since there were clear conflicts in the respective Statements filed by The Goosebury Bush/CMS Tearooms (e.g. as to whether they had "misbehaved"), it seemed clear to me that the Jurats would need to hear oral evidence to decide whom they believed.  I did, in fact, think of taking the opportunity of raising those two points when writing to the Judicial Greffier about the "floor space issue" and, who knows, it may have been partly because the Jurats were embarrassed that they had overlooked these factors that they took umbrage and decided not to offer their services any further.  In any event, not only had this apparently put off Jurats Gruchy/Tibbo but the Deputy Bailiff made it clear that neither would the Jurats sitting with him that day (Jurats Harrison and Myles) be prepared to take the place of Jurat Gruchy and/or Jurat Tibbo".

9.        I make no comment on that part of the letter nor on any of the voluminous correspondence that has bedeviled this and the other matters of contention.

10.      The arbitration has come to naught.  It was instigated by the defendant.  I order that the defendant shall pay the costs of the arbitration on the standard basis.

The injunctive relief

11.      An application was made on two separate occasions by the defendant seeking an order from the Court to impose immediate interim injunctions.  See Acts of Court dated 13th November 1998 and 1st December 1999.  On both occasions the application for injunctive relief was not fully ventilated, and some other order was made.  There was an undertaking by the defendant to file the sum of £6,700 with the Viscount.  These orders make no reference to the costs of the applications.  The plaintiff is now seeking his costs of these applications.  On balance I am not persuaded that the plaintiff should recover his costs.  In this matter I make no order as to the costs of the injunctive proceedings.

The appeal from the Greffier's decision of 14th February 1998

12.      This has not been pursued.  The defendant must pay the plaintiff's costs (such as they may be) on the standard basis.

13.      I would merely add that in different circumstances, this action could and should have been resolved much more expeditiously than it was.

No authorities.