Jersey Unreported Judgments

2002/119A

ROYAL COURT

(Samedi Division)

 

13^th June 2002 

 

 

 

 

 

Claim by the Plaintiff for costs to be ordered on the indemnity basis and against the Defendant's Advocate personally on the withdrawal of a summons to strike out the Plaintiff's claim.

 

 

 

Advocate R. J. Michel for the Plaintiff

Advocate A. D. Hoy for the Defendant

                                (Advocate A. P. Begg having appeared on 24th April, 2002)

 

 

 

judgment

the master:

1.        The background to this action is well-rehearsed and does not need repeating here.  For details of that background see the judgment of the Royal Court delivered on 8th March, 2002.

2.        The background to the present application is as follows:-

(i)        On 10th January, 2002 Advocate Begg on behalf of the defendant issued a summons seeking to strike out the two actions for the reasons set out in the summons.

(ii)       The parties duly arranged for this summons to be heard before me on 10th April, 2002.

3.        Subsequent to the fixing of that date Advocate Begg sought to fix an earlier date.  The reasons for his action are clear from the correspondence and basically what he was saying was that if the decision on that summons went against him (whether my decision or that of the Royal Court) then he intended to appeal the matter to the Court of Appeal.  He wished, therefore, to ensure that the matter could come before the Court of Appeal at the same time as another appeal (namely that from the decision of the Royal Court on 8th March, 2002) which was due to be heard by the Court of Appeal in June, 2002.  I express no views on the procedural objectives which Advocate Begg sought to achieve.  As it happens, Advocate Michel was involved in a two month trial commencing in January and it was not possible to arrange an earlier date. 

4.        Matters do seem to have become unnecessarily complicated and the issues before me are intertwined with matters before the Court of Appeal.  The substantive issue before the Court of Appeal in June is an appeal against the decision of the Royal Court of 8th March.  In addition, Advocate Begg on behalf of the defendant has sought a stay of the order made by me and confirmed by the Royal Court on 8th March pending the outcome of the appeal.

5.        As I have mentioned, there were practical difficulties in obtaining an earlier date than 10th April for the hearing of the summons issued by the defendant.  I repeat again that the tactic adopted by Advocate Begg on behalf of the defendant was to get the summons before the Court of Appeal if either my decision or that of the Royal Court went against his client.  It does seem, however, that the real objective which Advocate Begg was seeking to achieve was to ensure that the fact that the original defendant Mr. Pascoe had died was a fact put before the Court of Appeal.  Advocate Michel's position on behalf of the plaintiff was that it was not for him to advise the defendant on how to conduct matters before the Court of Appeal or what evidence could or should be presented.

6.        From the information put before me and the submissions which I have heard it would seem that it became apparent to the defendant and Advocate Begg that when he could not achieve his objective of having two appeals before the Court of Appeal at the same time he indicated that he wished to withdraw the summons.  A similar approach was taken in relation to the application for a stay which was made to the Court of Appeal but which is not the subject of this hearing.

7.        Not surprisingly, Advocate Michel on behalf of the plaintiff indicated that he was not prepared to agree the withdrawal of the summons without a costs order being made against the defendant.  The defendant through Advocate Begg was not able to agree this proposal.

8.        For reasons not relevant to this decision, the date of 10th April for the hearing of the summons was changed to 24th April when the matter came before me.  Although technically the issue was the substantive one raised in the summons both parties agreed that I treat the application as one by the defendant under Rule 6/24 of the Royal Court Rules 1992 to withdraw the summons.  I heard argument on 24th April and reserved my decision until today.

9.        For the hearing both parties provided detailed skeleton arguments and filed bundles with relevant documents and authorities and I also heard full oral submissions.  I am grateful to both parties for the work involved in this regard.

10.      In essence, Advocate Michel's contentions in relation to the summons are two-fold.  He submitted that the application to withdraw the summons should only be granted on the basis that:-

(a)       the costs of the summons be paid on an indemnity basis;

(b)       those costs be paid by Advocate Begg personally.

Advocate Begg resisted the application and sought costs on behalf of his client contending that costs had only been wasted because of the attitude and stance adopted by the plaintiff and his lawyers.

11.      For this application there was placed before me voluminous correspondence.  I do not intend to comment at length on its content but I do think it appropriate to make two observations.  Firstly, it does seem to me that a procedural entanglement has occurred which does not seem justified and might be viewed as being instigated by motivations relating to tactics, animosity and, perhaps, sheer bloody-mindedness.  Secondly, I find it difficult to see (having reviewed all the material put before me) exactly what benefit has accrued to the parties to the litigation themselves from all that has occurred.

12.      Before considering the specific issues before me I consider it appropriate to refer again to the extract of the judgment in the case of In re Esteem Settlement reported at (2000) JLR N-41 in the following terms:-

"The objection of all involved in civil proceedings is to progress to trial in accordance with an agreed or ordered timetable, at a reasonable level of costs, and within a reasonably short time.

                       In the 21st century the conduct of advocates playing interlocutory games, passing between the Royal Court and the Court of Appeal several times before pleadings are closed, and perhaps additionally before trial is reached, is unacceptable, because usually only the lawyers benefit.  The assumption that a trust fund will necessarily bear the lawyers costs no longer applies.

                       The correct function of pleadings is to set out the material facts the parties will later rely on to establish their causes of action or defences.  Advocates should not try to persuade the Royal Court to strike out the whole or part of a pleading which contains plainly arguable causes of action, or to edit a pleading to make it more or less effective.

                       If there is not a change to new ways of practice consistent with this objective, advocates may be ordered to pay the costs of the opposing party, or be denied the ability to charge their own client for unnecessary  additional work."

13.      The terms relating to discontinuance of actions are set out in Rule 6/24 of the Royal Court Rules 1992  which states:-

"Withdrawal and discontinuance

           6/24 - (1) Except with the consent of the other parties to the action, a party may not discontinue an action or counterclaim, or withdraw any particular claim made by him therein, or withdraw his defence or any part of it, without the leave of the Court, and any leave may be given on such terms as to costs, the bringing of a subsequent action or otherwise as the justice of the case may require.

                       (2) Subject to the terms imposed by the Court in granting such leave, the fact that a party has discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action.

                       (3) Where a party is liable to pay any costs under the provisions of paragraph (1) of this Rule, then if, before payment of such costs, he subsequently brings an action for the same, or substantially the same, cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid."

14.      In relation to the matter of indemnity costs I was referred to the judgment of the Court of Appeal in Dixon & Others -v- Jefferson Seal Limited (1998) JLR 47 CofA which essentially stipulates that for indemnity costs to be ordered there must be special or unusual features of a case to justify such an award.  Those principles are, of course, applicable generally.  There is, in addition, however another decision of the Court of Appeal namely Dick -v- Dick (6th April, 1990) Jersey Unreported CofA which deals with the question of withdrawal of proceedings which have been instituted.  In delivering his judgment Sir Godfray Le Quesne Q.C. as President of the Court of Appeal said as follows:-

"....it appears to us that if for reasons of his own, whether good or bad, a party who has instituted proceedings subsequently decides to drop them before they come into Court, it is fair that he should pay for that conduct the price of compensating the other party by way of indemnity costs."

I consider that the same principles apply generally to interlocutory summons.

15.      The second element of the application by Advocate Michel was to seek an order that the costs in this matter be paid personally by Advocate Begg.  On the basis of the terms of Article 2 of the Civil Proceedings (Jersey) Law, 1956 and the decision of the Royal Court in Macon -v- Quérée (2001) JLR 187 I consider that I do have jurisdiction to make such an award in appropriate circumstances.  Both Counsel accepted that I do have such jurisdiction.

16.      Advocate Michel went on to contend that in determining what principles I should apply in deciding this matter I should adopt those applicable to Order 62 of the Rules of the Supreme Court, then in existence, which are detailed in the Supreme Court Practice 1999 ("the White Book").  These are addressed specifically in Order 62, Rule 11 and the commentary set out in the White Book at pages 1142 to 1148.  Advocate Michel contended that notwithstanding that we did not have in Jersey equivalent rules providing for wasted cost orders the principles applicable (especially those set out in paragraph 62/11/3 of the White Book) could properly be adopted and applied and should be in the present circumstances.

17.      I have considered very carefully the points raised by Advocate Michel.  However, I do not think it necessary for me to express any views on the applicable principles.  The reason that I decline to do this is that by a fax dated 18th April, 2002, Advocate Begg advised Advocate Michel:-

"I take this opportunity of mentioning (in relation to the application for costs against me personally) that, every step of the way, I have acted on instructions from my instructing solicitors - who, in turn, are acting on instructions from Walbrook Executors Limited / Mr. Pascoe's heirs."

18.      Nevertheless, I would say that having regard to the Esteem judgment and the views expressed by the Court of Appeal and the material put before me I have come to the conclusion that Advocate Michel was perfectly entitled to seek an order for personal costs against Advocate Begg and it was proper for him to bring such an application.  I note that Advocate Begg's fax which I have quoted above was sent only some six days before the summons hearing.

19.      Before giving my decision I would wish to make one observation.  It does seem to me that the activities in relation to this action do no credit to those involved.  I have already referred to the very clear and unequivocal views of the Court of Appeal as set out in the Esteem case and the decision of the Royal Court of 8th March makes it equally clear that it considered that this matter should be progressed as quickly as possible.  What has happened since has been totally at odds with those principles.  I have seen voluminous correspondence which does not appear to progress matters in any way.  Various interlocutory summonses have been issued which again do not and on their face do not intend to progress matters in the substantive sense and nothing that I have seen has conferred any real benefit on the parties to the litigation.

20.      Having considered very carefully everything put before me and the detailed submissions made I consider that the defendant should pay at least in part the costs incurred in relation to the summons which it is now sought to withdraw.  Accordingly, the order that I propose to make is as follows:-

The defendant be granted leave pursuant to Rule 6/24 of the Royal Court Rules 1992 to withdraw its summons dated 10th January, 2002, on  the following terms:-

(i)        the defendant shall pay the costs of the plaintiff on an indemnity basis in relation to the said summons up to 18th April, 2002;

(ii)       the defendant shall pay to the plaintiff 50 per cent of the costs incurred after that date again on the indemnity basis;

(iii)      all other costs in relation to the summons shall be costs in the cause.

21.      I wish to make it clear that my decision not to award indemnity costs throughout is based solely on the fact that at the very late date of 18th April Advocate Begg made it clear that he had been acting throughout on the basis of the express instructions provided by those instructing him.  It is for that reason only that all costs have not been awarded.  The balance of the costs I have ordered as costs in the cause because I consider that until 18th April the plaintiff, through Advocate Michel, was more than justified in seeking the order for costs personally against the defendant's advocate.

Authorities

In re Esteem Settlement (2000) JLR N-41 CofA.

Dixon & Others -v- Jefferson Seal Limited (1998) JLR 47 CofA.

Dick -v- Dick Jersey Unreported (6th April, 1990) Jersey Unreported CofA.

Macon -v- Quérée (2001) JLR 187.

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

Royal Court Rules 1992: Rule 6/24.

The Supreme Court Practice (1999 Ed'n): pages 1142 - 1148.