Jersey Unreported Judgments

[2005]JRC058

royal court

(Samedi Division)

27^th April 2005 

Application before a single judge for leave to appeal from the Fourth Respondent against the costs order dated 8^th February, 2005.

Advocate P.C Sinel for the Representors.

Advocate F.B. Robertson for the First Respondent.

Advocate L.J. Springate for Fourth Respondent.

(The Second and Third Respondents did not appear and were not represented).

judgment

the bailiff:

1.        This is an application by counsel for Mohamed for leave to appeal against the order for costs which I made on 8^th February, 2005.  Unfortunately the short judgment which I delivered at the time giving my reasons for that decision was not recorded. 

2.        The Greffier's note, and that note is confirmed by the recollections of counsel, shows that I stated my conclusion that the conduct of the Representors became unreasonable on 12^th June 2004.  It was clearly on that basis that I disallowed the application for the costs of the Representors to be paid from the Trust Fund with effect from that date. 

3.        The reasons for my conclusion that it was not appropriate to order the costs of the First Respondent, the Trustee and Mohamed from that date to be repaid to the Trust Fund were not recorded in the Greffier's note.

4.        The submissions of all counsel this morning have, however, helped to refresh my memory as to the rationale for that decision.  I am conscious that applying the thinking set out in Macon -v- Quérée [2001]JLR187 leave should normally be granted unless the grounds of appeal have no realistic prospect of success.  Furthermore, where the court's decision on an application will be the final word as with an application for leave to appeal against a costs order the court should err in favour of the application if it is in any doubt as to whether there is a realistic prospect of success. 

5.        The legal test is, however, that laid down by the Court of Appeal in Glazebrook -v- The Housing Committee of the States of Jersey (13^th November, 2002) Jersey Unreported 2002/217 where the Court of Appeal stated the principles in these terms:

"In Vekaplast -v- Picot (1989) JLR 269, Tomes DB considered (at p. 274 et seq) the statement of the principles relating to the grant of leave to appeal by the English Court of Appeal set out in the Supreme Court Practice 1988.  These are:

"... a prima facie case that an error has been made (see 1907 123 L.T.J. 202) or if the question is one of general principle, decided for the first time (Ex parte. Gilchrist, re Armstrong (1886) 17 Q.B.D, 521, per Lord Esher M.R., p.528) or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (see per Bankes L.J., in Buckle -v- Holmes [1962] 2 K.B. 125, p.127".

However, when one examines the authorities upon which these principles were purportedly based (as did Tomes DB) it becomes apparent that they do not entirely support what is stated in the White Book.  The "prima facie case" principle was allegedly derived from remarks of Vaughan Williams LJ in an unidentified case quoted in "Occasional Notes" appearing in the Law Times of 29 June 1907.  The relevant extract does not use the words purportedly extrapolated but refers to the judge saying that "...it was not sufficient for giving leave to appeal that this Court might have come to a different conclusion.   In his opinion, unless they could see that there was a clear case of something having gone wrong, they ought not to give leave to appeal."

In our opinion the "clear case of something having gone wrong" test is to be preferred to "a prima facie case that an error has been made."  We adopt the second principle as accurately based on Lord Esher's statement.  As to the third, it is clear from the judgment of Bankes LJ that his remarks were confined to a question of law and we adopt that principle subject to this restriction.

6.        Applying that test I am not satisfied that there is a clear case of something having gone wrong.  Costs' decisions are inherently an exercise of judicial discretion with which the Court of Appeal is generally loathe to interfere.  I made a finding in giving my decision that the Representors had behaved unreasonably with effect from 12^th June, 2004, and I do not think that the Court of Appeal would regard that date as being so plainly wrong that it would wish to interfere and substitute the earlier date in March 2004, for which counsel for Mohamed argued at the hearing.

7.        Even applying the Macon -v- Quérée approach I do not think that in this respect that the application has any realistic prospects of success.  The decision to disallow the Representors' costs but not to order the reimbursement by the Representors of the other parties' costs was one taken in the round and in the context of all the parties' conduct from June 2003 onwards. 

8.        I reached the view that the Representors should indeed be penalised for their unreasonable conduct but that the appropriate penalty was that their costs with effect from June 2004 should be disallowed.  I do not think that applying either of the suggested tests, which have been laid before me, the Court of Appeal would wish to revisit that decision.  The application is therefore refused.

Authorities

Macon -v- Quérée [2001]JLR187.

Tomes -v- Coke-Wallis (14^th January 2002) Jersey Unreported [2002/10].

Glazebrook -v- The Housing Committee of the States of Jersey (13^th November, 2002) Jersey Unreported 2002/217.