Jersey Unreported Judgments

[2007]JRC001

royal court

(Samedi Division)

5^th January 2007 

Britannia Building Society

v

Simon Philip Milborn

Advocate A. Winchester for Britannia.

Advocate D. Le Maistre for Milborn.

judgment

Reasons

For the Court's refusal on 13^th December 2006 of Britannia's renewed application for leave to appeal against the Order for costs made on 12^th October 2006 in relation to the trial of liability.

the Commissioner:

1.        Britannia applies for leave to appeal against this Court's ruling on costs made following a trial on liability earlier this year. That ruling was given on 12^th October 2006 and explained in reasons given on 17^th October 2006. The only aspect of the orders made to which objection is taken is my ruling that Britannia should pay 85% of Mr. Milborn's costs of the trial.

2.        The ground of the application, as set out in Advocate Winchester's letter dated 8^th November 2006, is also limited: that in making my ruling I failed to give due consideration to the matter of possible set-off of Britannia's original claim against any damages that he might be awarded at the next stage of the proceedings and might, thus, properly be regarded as the successful party in the litigation.

3.        So far as the relevant principles to be followed on an application such as this are concerned, it is suggested that there are inconsistent lines of authority: one being the approach adopted by the Court of Appeal in Glazebrook v. The Housing Committee of the States of Jersey [2002] JCA 217 and the other a slightly more liberal one suggested by me in the earlier case of Macon v. Queree [2001] JLR 187 -  this divergence having been recognised by the decision of the Bailiff in the case of Al-Suleimany & Ors. v. Standard Chartered Grindlays Trust Corporation [2005] JRC 058, 27^th April 2005, and having been the subject of an article by Advocate Hanson in The Jersey Law Review for June 2003, "Civil Appeals to the Court of Appeal and All That Jazz".

4.        In Macon, which was, like the present case, an application for leave to appeal from an order on costs, I observed in a judgment delivered in March 2001 that "the general test" as to the basis on which leave to appeal would ordinarily be given is "that the court will normally grant leave unless the grounds of appeal have no realistic prospect of success".  That formulation was affirmed by the Deputy Bailiff in January 2002 in the case of Tomes v. Coke-Wallis [2002] JRC 010 (another instance of an application for leave to appeal on costs), subject to the following observation:

"The test set out in Macon was that leave should normally be granted unless the grounds of appeal have no realistic prospect of success. Where the Court's decision on leave will be the final word (as in relation to an order for costs only) the court should err in favour of the applicant if it is in any doubt as to whether there is any realistic prospect of success. But the requirement for leave is clearly intended by the legislature to prevent the Court of Appeal from being faced with wholly unmeritorious appeals on costs only and it is therefore the duty of the Royal Court to refuse leave if quite satisfied that there is no realistic prospect of success."

5.        In neither Macon nor Tomes was there any extensive examination of earlier authorities. In November 2002, however, the Court of Appeal in Glazebrook did take the opportunity to review some of the previous authorities - though curiously without reference to either Macon or Tomes. As suggested by the Court of Appeal, the circumstances in which applications for leave to appeal under Article 13(e) should be granted can be summarised as follows:-

(i)        where there is a clear case of something having gone wrong;

(ii)       where the question is one of general principle, decided for the first time;

(iii)      where the case involves a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.

So far as the first of these is concerned, the formulation approved by the Court was based on the view of Vaughan Williams LJ in an unidentified English case, quoted in the Law Times of 29^th June 1907 as follows:  "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".

6.        When in April 2005 it came to Al-Suleimany, another costs case in which Macon, Tomes and Glazebrook were all cited, the Bailiff acknowledged that the Macon and Glazebrook tests were not the same, but held that on the facts of that particular case the application failed, whichever test was applied.  But a few months later, in yet another application for leave to appeal on costs, Bespoke Investments v. Lincoln Nominees [2005] JRC 117, counsel evidently agreed and the Bailiff accepted that the proper test was that laid down by the Court of Appeal in Glazebrook. Although no specific reference appears to have been made to Macon or Tomes, in expressing his conclusion the Bailiff did, however, adopt - if only as a convenient short-hand - the language used in those earlier cases, referring as he did to "There being no realistic prospect of the plaintiff's appeal succeeding" (emphasis added). 

7.        The effect of these decisions appears to me to be as follows:

(i)        the leading statement of the circumstances in which leave to appeal will be granted is that of the Court of Appeal in Glazebrook: that was not a case on costs but on an application for leave to appeal from interlocutory orders under Article 13 (e) of the Court of Appeal (Jersey) Law 1961, and the specified second and third grounds are unlikely to occur often in costs cases; but there is  no good reason not to treat it as applicable to such cases - as indeed has happened in at least two later cases;

(ii)       as regards Macon, to continue to pose the question whether there is any "realistic prospect of an appeal succeeding" is perfectly acceptable and a useful form of short-hand, as long as it is recognised that the criteria by which that "prospect" is to be judged are those set out in Glazebrook; but, while the point may be of only marginal significance in most cases, my suggestion in Macon that the normal practice is to give leave unless the grounds of appeal have no realistic prospect of success - with the implication, perhaps, that the burden is on the party opposing leave to displace a prima facie presumption in the applicant's favour - may give a misleading impression and should not, in the light of Glazebrook, be invoked in future (the better formulation being that referred to in sub-paragraph (iii) (b) below); whether there may be circumstances in which granting leave to appeal would be justifiable, notwithstanding that the prospects of success are not realistic or substantial or whatever other similar term one applies, as I suggested could be a legitimate consideration (paragraph 25 of the judgment in that case), is a matter on which it is unnecessary for me to say anything in the present case and one which would be better to leave open for consideration by another court on another occasion; and

(iii)      where, as here, the application is for leave to appeal on costs, in considering whether "something has clearly gone wrong" (or, indeed, in considering the second and third Glazebrook grounds) regard must be had (a) to the well-established, limited grounds on which the Court of Appeal will interfere with the exercise of discretion by the Court below, as to which see Brown v. Barclays Bank [2001] JCA 241, and also (b) to the observations of the Deputy Bailiff in Tomes in the second and third sentences of the passage from his judgment set out in paragraph 4 above, that is, that where costs are at issue the applicant should have the benefit of any doubt as to whether there is a realistic prospect of success, but where the Court is satisfied that there is no such prospect it has a duty to refuse leave - observations that appear to me to remain valid and not inconsistent with Glazebrook.

8.        Applying these principles to the present case, there is no doubt in my mind that there is no realistic prospect whatever of any appeal by Britannia succeeding. The matter of set-off, which was the basis of the application, was specifically addressed in my judgment on costs. And, while I avoided making any hard and fast ruling as to how the matter of set-off would work out in practice on the facts of the case (paragraph 7), I specifically alluded to the possibility that Mr. Milborn might fail, at the next stage, to prove damages in an amount that exceeds Britannia's (former) claim and observed that I had little doubt that Mr. Robertson would still be making the same submissions - with justification - and I would at that stage still be entitled to award Mr. Milborn his costs of the trial on liability, whatever the outcome on damages" (paragraph 17).

9.        At the same time, given the possibility in mind that Mr. Milborn might end up recovering nothing, I stayed enforcement of the costs order in favour of Mr. Milborn pending the trial on damages and also refused Mr. Milborn's application for the release of money previously paid into Court by him as security for Britannia's costs.

10.      There was no substantial argument that my summary of the relevant principles governing the exercise of the Court's discretion in relation to costs was wrong; and there was no suggestion that the other three factors (apart from set-off) beginning at paragraph 14 of the judgment were unfair or ill-founded- points, moreover, which to a large extent were based on findings of fact by the Court as a whole (that is, including the Jurats) and are reflected in its judgment on liability.

11.      Even erring on the generous side, and bearing in mind that if I decline leave, Britannia will have no further opportunity to pursue the matter, there appears to me to be no ground on which there can fairly be said to be any clear case of something having gone wrong in the way in which my discretion as to the appropriate costs order has been exercised, or of either of the second and third Glazebrook grounds applying here. And even if I were to adopt the approach suggested by me in Macon in precisely the terms proposed in that case, the answer would be the same: there is, in my view, no realistic prospect of any appeal succeeding and, notwithstanding that, no other wider ground that would justify granting leave.  The application accordingly fails.

Authorities

Glazebrook v. The Housing Committee of the States of Jersey [2002] JCA 217. 

Macon v. Queree [2001] JLR 187. 

Al-Suleimany & Ors. v. Standard Chartered Grindlays Trust Corporation [2005] JRC 058. 

The Jersey Law Review for June 2003, "Civil Appeals to the Court of Appeal and All That Jazz" article by Advocate Hanson.

Tomes v. Coke-Wallis [2002] JRC 010.

Brown v. Barclays Bank [2001] JCA 241.