Jersey Unreported Judgments

[2007]JRC118

royal court

(Samedi Division)

19^th June 2007

APPLICATION FOR LEAVE TO APPEAL

Advocate M. L. A. Pallot for the Representor.

The Respondents appeared for themselves.

judgment

the CoMMISSIONER:

1.        Leave to appeal is sought from certain costs rulings made by this Court in its judgment delivered on 6^th December 2006 concerning

(i)        the terms on which the Representor ("the Commission") should be entitled to discontinue these proceedings against the First Respondent ("Blacks Jersey"), the Third Respondent ("Mr. Black") and the Fifth Respondent ("Blacks London"), and

(ii)       the appropriate order to be made following an unsuccessful attempt by the Commission to join Mrs. Black as an additional respondent to the proceedings.

2.        As to the first of these, the application for leave is by Mr. Black, Blacks Jersey and Blacks London; and as to the second, the application for leave is by Mrs. Black. The history of these proceedings is set out in the Introduction section of this Court's judgment of 6^th December 2006. As is apparent from that judgment, the Black Respondents have represented themselves since September last year when they withdrew instructions from Crill Canavan.

3.        The grounds of appeal, as served are contained in a short document headed "Grounds of Appeal" and a 40-page "Skeleton Argument: Leave to Appeal" served on 19^th January 2007. These are the composite representations of all three Respondents and also of Mrs. Black. The Commission's 16-page skeleton opposing leave was served on 30^th January and a Response by the Black Respondent's was served on 9^th February. By agreement of the parties, and notwithstanding the references to "Skeleton Arguments", I am requested to determine this application on the basis of these written submissions without an oral hearing.

4.        The effect of the 6^th December judgment, as summarised in paragraph 50, was as follows:-

(i)        the Commission was given leave to discontinue proceedings on terms that all existing costs orders would remain in force but no other order for costs would be made (other than as provided in (iii) below);

(ii)       Mrs. Black's application for an order for costs in her favour following the striking out of the claim against her was refused;

(iii)      the extent of the Commission's wasted costs arising from the failure of Mr. Black and the two Black companies to comply with the Court's orders of June 2003 and otherwise to participate in the proceedings for the next 17 months or so, was to be referred to the Taxing Master for inquiry and report for the purpose described in the judgment; and, subject to such report, there would be a summary award of costs in the Commission's favour against Mr. Black, Blacks Jersey and Blacks London of £60,000 or such other sum as the Court thinks appropriate (the Commission was invited to propose detailed terms for giving effect to the intention of the Court).

5.        As regards the costs of and incidental to the various applications with which the judgment was concerned, I said "my provisional thinking is that in respect of (i) and (ii) above, there should be an award of costs in the Commission's favour; and that as regards (iii), the parties should each bear their own costs, given the novelty of the orders that I am making" (paragraph 51).

6.        The Black Respondents also ask, on this application, that in the event of leave to appeal being granted, the current injunction freezing Blacks Jersey's account with Abbey National in Jersey be lifted so that any money held by that company may be available to them for the purpose of pursuing their appeals.

7.        As to the guiding principles governing the grant or refusal of leave to appeal, I ventured to summarise them relatively recently in the case of Britannia Building Society v. Milborn [2007] JRC 001.

Discontinuance against Mr. Black, Blacks Jersey and Blacks London

8.        The Black Respondents' submissions on this application are, for the most part, a re-iteration of their earlier submissions made on the occasion of the hearing in November last year which resulted in the 6^th December ruling. I have, nonetheless, considered them fully and carefully, trying as best I can to look at the matter afresh. In reading their new submissions, I have also endeavoured (once again) to make full and fair allowance for the fact that both these and the earlier submissions were and are the work of a litigant in person rather than a professional advocate and to have particular regard to the general observations made by Mr. Black (and Mrs. Black) in the Introduction section of their Skeleton Argument, though these considerations need to be kept within reasonable bounds. This is not a case in which the litigants are inarticulate or wholly incapable of helping themselves. They were actively engaged in the world of relatively complex finance, and it is plain that Mr. Black is a man of intelligence and sophistication and - as litigants in person go - is by no means incapable of speaking for himself and for Mrs. Black, as, for the most part he did.

9.        The fact is that nothing that I have read causes me to think that the views expressed in the judgment given on 6^th December and the resulting costs order made on giving leave to the Commission to discontinue were misguided or unfair.

10.      There is, however, the question whether leave would be justified on the point of principle as to the extent to which it can be appropriate, in relation to costs issues, for a court to have regard to the fact that the proceedings in question were instituted by an authority such as the Commission in furtherance of its public-interest functions. This was a point considered at some length in my judgment on the basis of a number of Jersey and English authorities and on which I expressed my conclusions "with some hesitation", having regard to what I described as the "sparsely charted waters", the absence of legal representation on one side, and the fact that the issue was one of general importance. In short, I rejected, at one extreme, the proposition (based on a decision of an English Court of Appeal decision in 1993) that the public-interest nature of the litigating body is always irrelevant in this area and that such bodies must "take their chance on costs just like any other litigant".  I also rejected, at the other extreme, the Commission's submission (largely based on another, more recent, English Court of Appeal decision in 2006) to the effect that, as a rule, there is always a presumption against the making of a costs order against a public authority unless it has engaged in dishonesty or some lack of good faith, or unless there can be shown to be some good reason to make such an order.  Instead, it seemed to me that the correct approach for this Court to adopt was to treat the fact that the unsuccessful or discontinuing party had been engaged in the proceedings in furtherance of its public-interest functions as a factor - one of any number - to which it was legitimate to have regard, that approach being in line with the more flexible approach to issues of costs adopted by the Royal Court in recent years, as discussed in Watkins v. Egglishaw [2002] JLR 1 at paragraph 7, and being consistent with the approach of Lord Bingham of Cornhill CJ in the English case of City of Bradford Metropolitan District Council v. Booth [2000] COD 338.  In reaching this conclusion I was also influenced by observations of Birt, Deputy Bailiff in the comparatively recent case of Ani v. Barclays Private Bank and Trust Limited and H.M. Attorney General [2004] TRC 69.

11.      This view of things was touched on only fleetingly in the Blacks' main submissions and not at all in their Grounds of Appeal, notwithstanding my direction that their skeleton argument should "state clearly which sections of the Orders made are the subject of the application for leave to appeal". But the point was taken up more fully in their "Response" and I treat it, accordingly, as a material part of both Mr. Black's case for leave to appeal as regards costs on discontinuance, as well as Mrs. Black's case for leave to appeal in relation to the costs of her strike out application.

12.      Advocate Pallot for the Commission submits that leave would not be appropriate because this is not the first occasion on which the point has been considered by the Royal Court. But while that is true as far as it goes, this certainly appears to be the first occasion on which the issue has been specifically examined in this Court in the light of other authorities and current principles in relation to matters of costs. And, while the chances of the Court of Appeal holding that the Commission's status is irrelevant may not, I suspect, be particularly good, it cannot be said with confidence that there is no realistic possibility of success. Nor can I accept Mr. Pallot's argument (in effect) that this particular issue did not play a sufficiently material part in my judgment to warrant giving leave to appeal: it may not, by any means, have been the only relevant factor, but it was certainly a material factor and not one that could be regarded as wholly peripheral.

13.      There is, therefore, a case for granting leave to appeal. But, at the same time, I am very much concerned at the practical implications of giving leave in circumstances where Mr. Black is resident outside the jurisdiction and has in the past maintained that he is of limited financial means; where Blacks London is also outside the jurisdiction and nothing is known of its financial resources; and such limited resources as Blacks Jersey have represent the only realistic prospect of the Commission being able to recover its costs under pre-existing costs orders. To my mind, leave to appeal on this point should, in principle, be conditional on the appellants providing a fair and reasonable amount by way of security for the Commission's costs should the appeal fail (and from a source other than the funds currently held in Jersey on behalf of Blacks Jersey as mentioned earlier). 

The costs of Mrs. Black's strike-out application

14.      Here again, having given careful consideration to the submissions made on her behalf on the merits of the matter, I am unpersuaded that anything has "gone wrong" unless - possibly - it is on the same, limited point of law as that just discussed in relation to Mr. Black and the two respondent companies: the correct approach to matters of costs where the proceedings have been brought by a body in furtherance of its public-interest functions.  But here, too, concerns about security for the Commission's cost on any appeal arise and, in principle, it would not, in my view, be right to grant leave except on the basis that fair and reasonable security is provided.

Wasted costs orders against Mr. Black, Blacks Jersey and Blacks London

15.      On any view, there is no reason to grant leave to appeal from that part of the Court's decision concerning the proportion of the Commission's costs for which these Respondents are liable in respect of the three heads discussed in paragraph 9 of the judgment (two-thirds in the case of heads (i) and (ii); the whole in the case of head (iii)).  No application for leave to appeal from the original orders imposing liability in principle for the Commission's costs was ever made; the sole issue with which the 6^th December judgment was concerned was the extent to which costs could be shown to "represent additional costs or wasted expenditure" resulting from the Respondents' failure to comply with certain orders; there is no reason to think that the decision made as to the proportions of the Commission's costs which should be paid by the Respondents was wrong; and no point of principle was involved in the court's conclusions on this issue.

16.      As to that part of the order made which provided for a form of summary costs order (paragraphs 10 to 16 and 50 (iii) of the judgment), I recognise, as acknowledged in my 6^th December judgment, the novelty of an order of this kind in this Court and that, all other things being equal, it might be appropriate for leave to appeal on this point to be given. On the other hand it is difficult to see that anything of practical use to the Black Respondents could possibly come of any appeal, even if successful: they will (as previously indicated) have a proper opportunity to be heard by the Taxing Master, and the whole premise of the procedure that I have directed is that it is only if he, the Taxing Master, is satisfied that the costs to which the Commission would be entitled on a taxation would, on any view, exceed £60,000 (or whatever amount the Commission would be content to limit its claim to, in the light of the funds currently standing to the credit of Blacks Jersey on account with Abbey National in Jersey), that there will be an order in the Commission's favour for that more limited figure. The order does not, therefore, operate to the disadvantage of the Black respondents in any way. The sole effect of following the conventional procedure would be to run up considerably more costs than are likely to be involved in adopting the procedure proposed by the Commission. To insist on such a course in circumstances where the Commission is unlikely to be able to recover any costs of that exercise to which it may be entitled, appears to me to be add odds with the way in which a modern system of legal procedure should operate and is one that I am loath to follow where, as far as I can see, there is nothing to bar a court from adopting the more economical, but no less fair, form of procedure proposed. If this particular point is to be challenged as matter of law it would also be far better for it to be argued in a case in which both parties are legally represented.  The utility of an appeal is something that falls outside the criteria discussed in Britannia, but those tests are guidelines, not absolutes, and the court must always retain a residual discretion to grant or withhold leave according to where the requirements of justice lie.  

Summary

17.      So far as concerns the applications by Mr. Black, Blacks Jersey and Blacks London, for the reasons given above:-

(i)         Subject to (ii) and (iii) below, leave is granted to appeal the costs order of this Court made on discontinuance of the proceedings by the Commission, limited to the following point: "Whether and if so to what extent the fact that proceedings have been brought by a body in pursuance of its public-interest functions (as in the present case) is a proper consideration to which a court may have regard in exercising its discretion in matters of costs generally and in the context of granting leave to such a body to discontinue proceedings in particular."

(ii)       Such leave will be conditional on the appellants strictly confining their Notice of Appeal and all written and oral submissions on such appeal to the limited issue described in (i) above.

(iii)      As to whether such leave should also be conditional on the provision of security for costs (in such amount(s) and otherwise on such terms as the Court may direct) and/or subject to any other conditions, the Court will hear further submissions in accordance with directions to  be given separately.

(iv)      Leave to appeal on any other point or ground is refused.

(v)       The costs of these applications, so far as they relate to the limited issue described in (i) above, will be costs in the appeal. In all other respects the Commission's costs of these applications shall be paid by the Mr. Black, Blacks Jersey and Blacks London.

18.      I do not consider that any case has been made out for releasing the funds currently held on behalf of Blacks Jersey by Abbey National in Jersey (paragraphs 6 and 9 above).

19.      So far as concerns the application by Mrs. Black, for the reasons given above out above:-

(i)        Leave is granted, to the same limited extent and on the same terms as that granted to Mr. Black, Blacks Jersey and Blacks London in paragraphs 17 (i), (ii) and (iii) above.

(ii)       Leave to appeal on any other point or ground is refused.

(iii)      The costs of Mrs. Black's application, so far as they relate to the limited issue described in paragraph 17 (i) above, shall be costs in any appeal. In all other respects the Commission's costs of these applications shall be paid by Mrs. Black.

Authorities

Britannia Building Society v. Milborn [2007] JRC 001.

Watkins v. Egglishaw [2002] JLR 1.

City of Bradford Metropolitan District Council v. Booth [2000] COD 338.

Ani v. Barclays Private Bank and Trust Limited and H.M. Attorney General [2004] TRC 69.