Jersey Unreported Judgments

[2008]JRC084

royal court

(Samedi Division)

23^rd May 2008

The parties appeared in person.

judgment

the bailiff:

1.        This is an appeal by Mark Robert Le Sueur and Susan Eleanor Le Sueur ("the appellants") against the taxation of a bill of costs submitted by Michael Terry Millar and Kathryn Jane Millar ("the respondents") following Orders of the Court.  The Greffier Substitute issued a taxation certificate on 14th February 2008 certifying that he had allowed costs in the total sum of £11,970.30.

2.        The appellants made a number of submissions but none of them persuades me that the taxation of the respondents' costs was other than orthodox and perfectly in order.  Most of the appellants' submissions were directed not to the taxation but to issues relating to the underlying judgments made against them.

3.        The appellants did however complain that they had not seen the particulars of an account for costs incurred by the respondents with Messrs Pickersgill and Le Cornu.  The total of costs allowed in that respect totalled £7,517.30 and therefore formed a significant percentage of the overall costs.

4.        Both parties are litigants in person and, without any assistance from counsel, it has been difficult to establish precisely what happened.  It appears however that the Greffier Substitute had requested the respondents to obtain particulars of the account of Pickersgill and Le Cornu prior to the taxation taking place.  These particulars were supplied by the respondents to the Greffier, but not to the appellants.  According to Mr Millar, the Greffier made it clear that there was no entitlement on the part of the appellants to see these ledger entries showing the time spent on each piece of work.  When the Greffier had taxed the account, he did however refer in his letter of 14th February 2008 to some of the individual ledger entries showing how the account of Pickersgill and Le Cornu had been taxed down.  Subsequent to the taxation, copies of the ledger entries were supplied to the appellants.

5.        The complaint of the appellants is that it was unfair that they did not have the opportunity to comment on these particulars before the Greffier Substitute made his decision.

6.        I have referred myself to Butterworths Costs Service, Section B Issue 72, August 2006, page 16 where there is a useful paragraph headed "Right of one party to inspect document of another party on a detailed assessment".  The editors state:-

"With the advent of ECHR arguments have been raised that failure to disclose is a breach of Article 6 and prevents a fair trial.  Previously the relevant documents have been produced to the costs officer but not to the opposing party.  Where, however, a question is raised which is not a sham or a fanciful dispute, the court will have to decide between two conflicting principles: ie that there should not be secret communications with the court on the one hand and the preservation of privilege on the other."

7.        At paragraph 12.1 there is a further passage in the following terms -

"The [Costs Judge] does not have any power to order discovery to be given:  he does not have any power to override a right of privilege.  But it is the duty of the [Costs judge] if the respondent raises a factual issue, which is real and relevant and not a sham or fanciful dispute, to require the claimant to prove the facts upon which he relies.  The claimant then has to choose what evidence and to what extent he will waive his privilege.  That is a choice for the claimant alone.  The [Costs Judge] then has to decide the issue of fact on the evidence.  In considering whether he is satisfied by the evidence the [Costs Judge] will no doubt take into account that the claimant may have a legitimate interest in not adducing the most obvious or complete evidence, and may prefer only to rely on oral evidence rather than producing privileged documents.

Mr Justice Rimer found these views to be still valid.  Having quoted that passage he continued:

'I can in any event see no good reason why the client care letter and the payment calculation should not have been disclosed to the defendant, since I have not been persuaded that they were privileged.  But if anything in them might have been regarded as privileged one course which might at least have been considered was the redaction from them of the privileged parts ....

....The claimant chose to prove his version of a disputed issue of fact by reference to certain documents.  In my view, the basic principle is that, if he wanted to do so, fairness required him also to disclose the documents to the defendant.'

Once the document is of sufficient importance to be taken into account in arriving at a conclusion as to recoverability, then, unless otherwise agreed, it must be shown to the paying party or the receiving party must content itself with other evidence.  The court did not suggest that the receiving party should be put to its election in respect of every document relied on regardless of its degree of relevance.  It was expected that in the great majority of cases the paying party would be content to agree that the costs judge alone should see privileged documents.  Only where it was necessary and proportionate should the receiving party be put to his election.  The redaction and production of privileged documents or the adducting of further evidence would lead to additional delay and increase costs.  The court considered that the applicable principle was an absolute one.  Privilege would not be overridden by the court and must be waived by the party entitled to assert it.  It followed that the terms of paragraph 40.14 of the CPD were consistent with the requirements of the ECHR.  The court expressed the view that the protection afforded to the receiving party by the rule that the waiver is for the purpose of the assessment only and that the document remains otherwise privileged should play a much more significant role than it appears to in the decision whether or not to waive privilege in a proper case.

The court indicated that it should be standard practice where a client care letter was affirmatively relied on that it be produced to the paying party.  Where, in an extended argument concerning possible breach of the indemnity principle, the receiving party's counsel quoted selectively from privileged letters which were not shown to the paying party, the court on appeal held that the judge should have followed s 40.14 of the CPD and ordered the receiving party to produce a witness statement together with the relevant documents to him alone at first and then decided whether he wished to put the receiving parties to their election as to whether to disclose the documents in order to rely upon their contents, or to decline disclosure and rely on witness statements alone."

8.        I do not think that it would be right for me, in the absence of any submissions from counsel on behalf of the parties, to lay down any general principles, although it does seem to me that the passages quoted above may afford some useful guidance for the Greffier Substitute.  This must be regarded as a decision which is confined to the facts of this case.  It is however clear to me that none of the particulars in the ledger narrative could properly be regarded as privileged material.

9.        In all the circumstances of this case it seems to me desirable that the appellants should have been given the opportunity to make such submissions as they thought fit in relation to the particulars of the account submitted by Pickersgill and Le Cornu.  It may be that the Greffier Substitute has already taken into consideration any such matters, but it may avoid a sense of grievance if the opportunity is now given to the appellants.  I therefore allow the appeal to the extent of remitting to the Greffier Substitute that element of the bill of costs which concerns the account submitted by Pickersgill and Le Cornu.  I direct that the appellants be afforded the opportunity of making such submissions as they think fit in relation to the ledger entries.  Those submissions should be made in writing and a copy should be given to the respondents who should have the opportunity to comment upon them should they so wish.  The Greffier will then determine whether any modifications of the taxation should be made.

10.      I make no order in relation to the costs of this appeal.

Authorities

Butterworths Costs Service, 2006.