Jersey Unreported Judgments

[2007]JCA235

COURT OF APPEAL

12^th December 2007

Appeal by the Appellants against the judgment given by the Bailiff of Jersey, sitting alone as a Judge of the Samedi Division of the Royal Court on 13^th December, 2006.

Advocate K. J. Lawrence for the Appellants.

Advocate D. Gilbert for the Respondents.

JUDGMENT

MCNeill ja:

1.        This is the judgment of the Court on the question of costs following on the decision of the Court on 5^th September, 2007.

2.        We have been favoured with written submissions on behalf of the Appellants and Respondents and are content that our decision on this matter can be based upon those written submissions without requiring further attendance of parties.

The Law

3.        In this jurisdiction an award of costs following or during litigation is a matter for the discretion of the relevant Court; see the Civil Proceedings (Jersey) Law 1956, Article 2.  The principles to be applied have been the subject of recent consideration in the Royal Court; firstly by Commissioner Page sting with Jurats Watkins v Egglishaw and others [2002] JLR 1 and secondly by Commissioner Page, sitting alone in Pell Frischmann Engineering Ltd v Bow Valley Iran Limited and others [2007] JRC 143.

4.        Whilst, in cases such as Pell Frischmann particular intricacies may arise, we are content gratefully to adopt the views expressed in Watkins which seek to enunciate the general principles which should guide the Court in this jurisdiction in the exercise of this particular discretion.  These were:-

"7...

a)     The Court's overriding objective in considering costs is, as in everything else, to do justice between the parties.

b)    In many cases that objective will be fulfilled by making an award of costs in favour of the "winning" party where the "winner" is readily apparent.  In any event the "follow the event" rule an still be a useful starting point.

c)     It is a mistake, however, to strain overmuch to try to label one party as the "winner" and one as the "loser" when the complexity or other circumstances of the litigation do not readily lend themselves to analysis in these terms.

d)    The discretion as laid down in Art 2 of the Civil Proceedings (Jersey) Law 1956 is a wide one and ought not to be treated as fettered by any particular supposed rule or practice, other than that the discretion should be exercised judicially and broadly in accordance with the guiding principles referred to in In re Elgindata (No.2) and A.E.I. v Phonographic Performance.

e)     It is, accordingly, open to the Court to have regard to any and all considerations that may have any bearing on the overriding objective of doing justice.  Its task is to take an overview of the case as a whole (Bank of Credit & Commerce Intl v Ali (No 4)...

f)      It is implicit in this that even though a party were otherwise to be regarded as having been "successful" justice may require that costs should not automatically follow the event.

8              Among the factors to which a Court may have regard, two in particular should be mentioned........... The first is conveniently expressed in the passage of the judgment of Judge, L.J. in Ford v G.K.R. Construction Limited....

"civil litigation is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage, and at the lowest practical cost, so that they may make informed decisions about their prospects and the sensible conduct of their cases.  Among other factors the judge exercising his discretion about costs should consider whether one side or the other has, or has not, conducted litigation with those principles in mind." "

Respondents' Submissions

5.        For the Respondents, Advocate Gilbert submitted that then only equitable order was that the Appellants should pay the Respondents' costs of the Appeal, taxed on a standard basis.

6.        Advocate Gilbert submitted that the Appellants could clearly be labelled as "the losers".  They had been unsuccessful in every point of their Appeal.  Not only that, the Appellants themselves had created the scope and magnitude of the Appeal by the arguments put forward, particularly in raising the issue as to whether there was a remedy of voisinage  in Jersey Law.  It was this issue which had led to the extension of the scope of the Appeal and led both parties to an extensive consideration of the law of nuisance generally.

Appellant's Contentions

7.        For the Appellants, Advocate Lawrence submitted that, viewed in the round, the appropriate order was that each party should bear their own costs of the Appeal.  Her submission was based, however, on a systematic assessment of the Appeal and its conduct; with particular reference to two particular matters, namely, (i) the nuisance issue and (ii) the Respondent's supplemental contentions.

8.        As regards nuisance, Advocate Lawrence reminded the Court that this was an important "issue success" point for the Appellants.  In the Royal Court and in the Grounds of Appeal, the Appellants had put in issue that the tort of nuisance did form part of the law of Jersey.  A significant proportion of the time spent and costs incurred in preparation of the hearing, as well as at the hearing itself, had concerned a consideration of the law of nuisance and whether it formed part of the law of Jersey.  The point was of no small importance because, if nuisance did not form part of the law of Jersey, the Royal Court would have been quite entitled to look further afield on the matter.

9.        Advocate Lawrence further submitted that some 40% of the contentions document, 60% of the cases in the main and supplemental authorities' bundles (excluding the decisions of the Bailiff and Searley v Dawson) and all but one of the statutes focused on the nuisance argument.  She also pointed out that the Respondents did not appear to address the issue in any great detail in their contentions document.

10.      As regards the Respondents' supplemental contentions, Advocate Lawrence referred to the nine substantive queries which the Court itself had posed to the parties in the week before the hearing and observed that the Respondents, whilst not answering the questions in turn, appeared to use one of the questions as a springboard to file significant new arguments and materials with particular reference to the work of Le Gros.

Discussion

11.      In our view, in the circumstances of this appeal, the only reasonable way to do justice between the parties is to identify the success of the Respondents and award costs on the basis of that success.

12.      We do take note that, as Advocate Lawrence pointed out, a reasonable appraisal of the conduct of the appeal discloses (a) that there were issues which could be separated out for the purpose of identifying whether the party ultimately losing had in fact been successful on part of the Appeal and whether that issue had taken up a significant part of the preparation and presentation of the Appeal, and (b) that there could well be areas where, upon a general appraisal, it might be open to submission that one party might have failed to conduct proceedings upon the footing that the opposing party ought to be placed in the position of knowing the appellant party's position at a reasonable early stage.

13.      We agree that the nuisance issue was an important one for each party.  The Appellants had construed the decision of the learned Bailiff as holding that the tort of nuisance had not been incorporated into the law of Jersey and appealed on the basis that there was an error of law.  This was indeed a fundamental; issue for the Appellant because, if nuisance - as an identifiable legal concept - did not form part of Jersey law, the Court in Searley v Dawson was entitled to cast its net widely in order to find a resolution for the issue before it.

14.      On this matter this Court had itself prompted significant further research by issuing questions in early June, and this had resulted in detailed and helpful further submissions and material being provided.

15.      Upon this issue, broadly speaking, the Appellants were successful.  Indeed, early in her submissions, Miss Gilbert accepted that there was a significant body of case law in Jersey indicating consideration of nuisance.

16.      As to the Respondents' supplemental contentions we consider Advocate Lawrence was well founded in her submission that the questions posed by this Court in early June 2007 led to the Respondent adding significant new material at a very late stage.  Again as Advocate Lawrence submitted, consideration of this material was of great importance for this Court in being able to reach its decision on the principle issue.  However, this was also a fundamental issue for the Appellants and, given (a) the manner in which this case developed and (b) the highly singular nature of the issue, it was only to be expected that, in a properly conducted and fully argued Appeal, the fullest depth and extent of investigation would be expected.

Conclusion

17.      in this case much of the work on each side has arisen from the further realisation that there was a an increased need to carry out detailed research in order to be able to assist the Court in identifying whether, and if so, where the doctrine of voisinage sits in the law of Jersey in the late 20^th and 21^st centuries.  What may to some appear to be unusually extensive amounts of work do regularly arise in cases which issues not frequently conducted, especially when those cases reach the higher Courts.

18.      In the whole circumstances here, and giving due weight to Advocate Lawrence's cogent submissions we consider that the particular relevant principle to be considered is whether the successful Respondent has unjustifiably caused a significant increase in the length or cost of the proceedings.  Looking at the matter broadly, we consider that whilst the nuisance issue in particular was one which could have been made the subject of a concession at an earlier stage, given the complexity of the matter, the concession would doubtless have had to be qualified either as to the extent to which nuisance had become part of the law of Jersey, as to the manner in which it was applied in Jersey or as to the extent to which such incorporation had been an incorporation of the law of England.

19.      Therefore we do not consider that it can reasonably held that the successful Respondents have unjustifiably caused a significant increase in the length or cost of the proceedings.  Accordingly we consider that the Respondents should be entitled to their costs, taxed on a standard basis.

Authorities

Civil Proceedings (Jersey) Law 1956.

Watkins v Egglishaw and others [2002] JLR 1.

Pell Frischmann Engineering Ltd v Bow Valley Iran Limited and others [2007] JRC 143.