Jersey Unreported Judgments

[2005]JRC117

royal court

(Samedi Division)

18^th August 2005

Application for leave to appeal on costs decision in Judgment of 20^th July, 2005.

Advocate P. C. Sinel for the Plaintiff

Advocate D. J.  Benest for the First, Second and Third Defendants

judgment

the bailiff:

1.        This is an application by counsel for the Plaintiff for leave to appeal against the judgment which I delivered on 20^th July 2005 in relation to the costs of the action.  Counsel seeks to appeal only paragraphs 12 and 13 of the judgment which applied a discount of 15% to the order that the defendant should pay the plaintiff's costs.  At the conclusion of the hearing I dismissed the plaintiff's application and stated that I would give my reasons at a later date.  This I now proceed to do.

2.        Both Counsel agreed that the legal test to be applied was that laid down by the Court of Appeal in Glazebrook -v- 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.

3.        Mr Sinel sought to argue that the reasons for applying a discount as set out in paragraph 12 of the costs' judgment were insufficient to justify a discount, and that the plaintiff ought to have recovered the whole of his costs.  He submitted that the original claim of £244,328 in respect of the CCTV security system was only maintained for forty-two days before being replaced by a much lower claim.  So far as the rejection of the offer before trial of £70,000 was concerned, he contended that the plaintiff was perfectly entitled peremptorily to reject it, and was under no obligation to make a counter-offer.  In relation to the withdrawal of elements of the claim shortly before trial, Mr Sinel submitted that these elements amounted to no more than a few thousand pounds' worth of garden equipment.  So far as the unsuccessful attempt at the beginning of the trial to add further claims to those set out in the Order of Justice was concerned, council contended that this argument consumed little time, and did not justify a reduction.  All in all, counsel submitted that it was unfair to apply a discount of 15%.

4.        I gave careful consideration to all these submissions, bearing in mind that a decision to refuse leave to appeal would be determinative of the matter.  I did not consider that there was anything like a clear case of something having gone wrong.  As counsel for the defendant rightly submitted, the plaintiff was substantially successful on its action, and recovered the substantial proportion of its costs.  I did not consider that there was the remotest prospect of the Court of Appeal finding that there was a clear case of something having gone wrong so that it would wish to interfere with the exercise of judicial discretion at first instance.

5.        This action was bitterly contested at every stage. There is no love lost between the principals of both plaintiff and defendant companies. There being no realistic prospect of the plaintiff's appeal succeeding, I determined that it was time to bring finality to the dispute and that leave ought to be refused.  I ordered the defendant to pay the plaintiff's costs of the application on a standard basis.

Authorities

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