[2007]JRC171
royal court
(Samedi Division)
23rd August 2007
Before : |
H. W. B. Page, Esq., Commissioner (sitting alone). |
Between |
Jersey Financial Services Commission |
Representor |
|
|
|
And |
A.P. Black (Jersey) Limited |
First Respondent |
|
Alistair Pollock Pedersen Black |
Third Respondent |
|
A.P. Black Limited |
Fifth Respondent |
|
Eila Anneli Black |
Sixth Respondent |
IN THE MATTER OF SECURITY FOR COSTS OF AN APPEAL
judgment
the commissioner:
1. On 19th June 2007 I made the following ruling on the applications of the First, Third and Fourth Respondents ("Blacks Jersey", Mr. Alistair Black and "Blacks London") for leave to appeal from the judgment that I gave on 6th December 2006:-
"So far as concerns the application by Mr. Black, Blacks Jersey and Blacks London,...
(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."
2. As regards Mrs. Black, I gave leave on substantially the same terms.
3. The same day, I also gave directions concerning the determination of the matter of security for costs which included a timetable for lodging written submissions (subsequently extended at the request of Mr. and Mrs. Black) and a direction that any response by Mr. Black or Mrs. Black to be unable to put up security for costs should be backed up "by up-to-date affidavit(s) of current assets and annual income, and of approximate annual expenditure". The parties were offered the opportunity of an oral hearing but indicated their wishes, on both sides, for the matter to be determined on the basis of their written submissions.
4. Advocate Pallot on behalf of the Commission seeks security of £15,695 made up as to £8,914 representing costs incurred to date in dealing with the Defendants' applications for leave to appeal, and £6,781 representing the projected costs of an appeal. In arriving at the latter, due note is said to have been taken of the observation made in the directions that I gave on 19th June to the effect that the issue in question is one that would be unlikely to involve extensive research over and beyond that already undertaken or involve more than a half-day hearing before the Court of Appeal. These figures are backed up by a skeleton Bill of Costs, which appears to me to be reasonable and fair. Some deduction for the possibility of them being reduced on taxation might ordinarily be appropriate. But the Commission's costs to date will, to some extent, reflect the need to deal with the unduly wide-ranging submissions lodged by Mr. and Mrs. Black in January and February. Mr. and Mrs. Black's latest submissions in connection with the present issue also bode ill, whatever assurances may be given, for their willingness in practice to limit their arguments to the matter in hand, with the result that it is not difficult to imagine circumstances in which the Commission's costs of the appeal could exceed the present projection.
5. Mr. and Mrs. Black complain that the matter of security for the costs of any appeal has been improperly raised by the Court of its own motion, but this is incorrect: paragraph 28 of Mr. Pallot's written submissions on the last occasion read "Notwithstanding the foregoing, should the Court disagree with the JFSC's submissions and find a ground meriting consideration by the Court of Appeal then it is submitted that no appeal should be allowed without conditions being attached to the manner in which the Applicants must conduct themselves. Part of any such conditions must be that payment into Court is made by way of security for costs. In this last regard the JFSC submits that further argument will need to be heard prior to any final decision being taken by the Court." The present issue is a direct consequence of that submission.
6. For the rest, Mr. and Mrs. Black's response to the Commission's submissions is for the most part a further repetition of their earlier contentions, consisting of a catalogue of perceived grievances regarding the Commission's conduct of these proceedings from the outset and regarding the decisions of the Courts at almost every stage. On this basis, to order security for costs of an appeal would, they say, be unjust. So far as this material goes, it was addressed in the judgment of this Court of 6th December 2006 (paragraphs 39 to 42) and again in its judgment of 19th June 2007 (paragraphs 8 and 9) and it is unnecessary to say more. Mr. and Mrs. Black complain once again of their lack of legal representation, but have chosen of their own volition to withdraw instructions from those previously acting for them on a legal aid basis.
7. A notable feature of Mr. and Mrs. Black's present submissions is the absence of any affidavit of means in response to this Court's direction as referred to in paragraph 3 above. Nor is there any mention of this subject in the submissions themselves.
8. In summary, therefore, the position is this. Mr. Black, Mrs. Black and Black's London are all resident outside the jurisdiction. Black's Jersey is within the jurisdiction but, as far as is known, has assets which, at best, are likely to be insufficient even to satisfy existing costs orders in the Commission's favour. If the appeal is pursued and lost there will be no realistic possibility of the Commission recovering its costs of the application for leave or of the appeal itself. There is no material before the court to show that, on the basis of their present assets, annual income and expenditure, it would be oppressive for Mr. and Mrs. Black to be required to put up security of the order sought by the Commission.
9. In these circumstances, it would be quite wrong for any of the Respondents to be free to pursue an appeal at no risk, in practice, to themselves even if unsuccessful; especially an appeal where the prospects of success are, perhaps, not good.
10. For these reasons, I consider that it would be just to order that security for the Commission's costs, limited to an amount of £14,000 (having regard to the factors referred to in paragraph 4 above), should be required as a condition of leave to appeal.
11. The terms of the relevant orders will therefore be as follows:
In the case of each of the First Respondent (Blacks Jersey), the Third Respondent (Mr. Black), and the Fifth Respondent (Blacks London),
(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 is conditional (a) on the Appellant/Respondents strictly confining their Notice of Appeal and all written and oral submissions on such appeal to the limited issue described in (i) above, and on (b) filing with the Court by not later than mid-day on Fri. 21st September 2007 an undertaking in writing that they will do this;
(iii) Such leave is also conditional on the payment into Court by such Respondents or one or more of them, as security for the Representor's costs in respect of (a) such Respondents' applications for leave to appeal and (b) the appeal itself, of the sum of £14,000 (Fourteen Thousand Pounds), to be lodged by mid-day on Friday 21st September 2007 on terms that such security is to be available to satisfy any costs that the Representor may be entitled to recover from any one or more of such Respondents;
(iv) Paragraphs 17 (iv) and (v) this Court's judgment of 17th June 2007 apply as before.
In the case of Mrs. Black,
(v) Leave to appeal is granted to the same limited extent as that set out in (i) above.
(vi) Such leave is conditional on the Appellant (a) strictly confining her Notice of Appeal and all written and oral submissions on such appeal to the limited issue described in (i) above and (b) and on filing with the Court by not later than mid-day on Friday 21st September 2007 an undertaking in writing that she will do this;
(vii) Such leave is also conditional on the payment into Court, as security for the Representor's costs in respect of (a) Mrs. Black's applications for leave to appeal and (b) the appeal itself, of the sum of £14,000 (Fourteen Thousand Pounds) by mid-day on Friday 21st September 2007;
(viii) Paragraphs 19 (ii) and (iii) of this Court's judgment of 17th June 2007 apply as before.
In all cases,
(ix) Provided that (a) in the event of one or more of the First, Third and Fifth Respondents putting up the requisite security on terms that it is also available to satisfy any costs that the Representor may be entitled to recover against Mrs. Black, paragraph (vii) above shall cease to apply; or (b) in the event of Mrs. Black putting up the requisite security on terms that it is also available to satisfy any costs that the Representor may be entitled to recover against the Third, First and Fifth Respondents or any of them, paragraph (iii) shall cease to apply; the intent being that, provided that, one way or another, a sum of £14,000 is lodged with the Court on terms that it is available to satisfy any costs that the Representor may be entitled to recover against any one or more Appellant(s), only one such payment is required.
(x) There will be liberty to all parties to apply for the purpose of clarifying the intent of these Orders and/or putting them into effect.
(xi) The costs of the present application will be costs in any appeal.
12. Mr. and Mrs. Black repeat a request made on the occasion of their application for leave to appeal for the lifting of the injunction imposed on 6th December 2006 in relation to the funds said to be held by Abbey National in Jersey on behalf of Blacks Jersey (so that - the implication appears to be - these funds may be available to fund legal representation on behalf of all the prospective Appellants). It is as well to recall the circumstances in which this arose. Shortly before the hearing the subject of the 6th December 2006 judgment, a draft summons was submitted by Mr. and Mrs. Black, complaining that Abbey National were refusing to release the funds in question to Crill Canavan and seeking the intervention of the Court to direct it to do so. It seemed to me at that time that it would be wholly inappropriate to make any such peremptory order without at least Abbey National being a party to the proceedings and the matter being appropriately explored and I accordingly indicated (in paragraph 53 of that judgment) that, if it was to be pursued, it should be made the subject of separate proceedings. At the same time, in order to preserve the position pending such proceedings, I imposed an injunction restraining any of the Black Respondents and Mrs. Black from (to put it shortly) dealing with any assets of Blacks Jersey "pending further order of the Court". Since then my observations appear to have gone unheeded: no steps of any kind have been taken to raise this issue in properly constituted proceedings. All that has happened is that Mr. and Mrs. Black have asked for the injunction to be lifted. But that step, of itself, would achieve nothing, in that what Mr. and Mrs. Black want is an order that Abbey National release the funds which (for reasons, of which I have know little, if anything) they have been unwilling to release so far. If Mr. and Mrs. Black are serious about pursuing this matter, it is up to them to start proceedings in the proper form (as to which, I have no doubt that advice can, if required, be obtained from the Judicial Greffe).
13. That said, should circumstances have changed (as to which I know nothing) so that Abbey National is now willing to release the funds in question as requested by Mr. and Mrs. Black, then, subject to intervention by the Commission or any other third party, this Court would no doubt be willing to lift the injunction. The terms of the injunction will be varied so as to add the words "except that Mr. and Mrs. Black or their agents shall be free to communicate with Abbey National with a few to obtaining their consent in writing to the disposal of any such assets in accordance with the wishes of Mr. and Mrs. Black; and in the event of such consent being forthcoming, Mr. and Mrs. Black, on giving not less than 72 hours' notice in writing to the Commission, shall have liberty to apply to this Court for the lifting of the injunction".
Authorities