Jersey Unreported Judgments

[2010]JCA217

COURT OF APPEAL

2^nd December 2010

Advocate P. Sinel for the Appellant.

Mr R. L. Weston as Director of the Respondent.

JUDGMENT

montgomery JA:

1.             This is the judgment of the Court to which all the members of the Court have contributed.  On 10 June 2010  the Bailiff adjourned the hearing of an application by the Appellants to strike out the Respondent's Answer on the grounds that Mr Weston, who had been responsible for the  representation of the Respondent company for the duration of the proceedings, was seriously ill and unable to appear on the application.

2.             The Appellants sought an order that the Respondent company should pay indemnity costs in respect of the hearing of 10 June 2010.  The Bailiff directed that there should be no order as to costs.

3.             The Appellants sought but were refused leave to appeal against the decision to grant the adjournment on 10 June 2010, by the Deputy Bailiff (sitting as a single Judge in the Court of Appeal) on the papers on 20 July 2010 and by Pleming JA on 2 August 2010 following an oral application.

4.             The Bailiff granted the Appellants leave to appeal against his refusal to make an order for costs in their favour.  The issue of costs is therefore the only live issue before this Court.

5.             Advocate Sinel on behalf of the Appellants accepts in his contentions that the Court of Appeal can only interfere with the exercise of discretion by the Royal Court where the judge has misdirected himself with regard to the principles in accordance with which his discretion has been exercised; or where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or has failed to take into account matters which he ought to have done; or where his decision is plainly wrong.

6.             Misdirection is not relied on in this case.  Advocate Sinel instead suggests either that the Bailiff took into account matters which he ought not to have or failed to take account of relevant matters.  In any event Advocate Sinel argues the decision was plainly wrong.

7.             It is suggested that the Bailiff failed to take into account relevant factors in the form of allegations made by Advocate Sinel about the conduct of the Respondent company and of Mr and Mrs Weston.  It is not clear to the Court that the Bailiff disregarded any of these allegations.  The Bailiff was very familiar with the history of the proceedings and with the respective contentions of the parties, each of whom have made serious allegations against the other.  There is no evidence that the Bailiff failed to take these facts into account when he made his order as to costs.

8.             However, even on the assumption that the Bailiff left out of account the wider conduct of the parties and concentrated instead on the narrow merits of their conduct in relation to the application to adjourn, that was an approach that the Bailiff would have been entitled to take for two reasons.

9.             First, the Bailiff was entitled to do so for case management reasons since any determination of the wider allegations of misconduct would have involved traversing much of the ground that was raised on the main strike out application.  It would be a disproportionate and unwarranted use of the resources of the court to consider those hotly contested issues as satellite litigation on an application for costs.

10.          Second the Bailiff was entitled to disregard the wider conduct of the parties because it was not directly relevant to the narrow question he had to decide, namely whether  there be an order for costs in circumstances where it was common ground that Mr Weston was genuinely ill; the application for adjournment was found by the Bailiff to have been justified; and the making of the application and its grounds for it had been signalled well in advance of the hearing so that the hearing could have been avoided in any event.

11.          It should be noted that there was delay in the supply of the medical evidence relating to Mr Weston in advance of the hearing on 10 June 2010 and that Mrs Weston indicated that it should not be supplied to Advocate Sinel without the Court deciding upon the terms of disclosure.  However we also note that Advocate Sinel, in responding to intimation that the evidence was about to be produced, did not indicate, in accordance with earlier observations made by the Bailiff on 8 April 2010, that he would not disclose the contents of the medical evidence to his clients.

12.          In the circumstances the Bailiff was entitled to conclude that the hearing of 10 June 2010 was only necessary because the Appellants opposed the grant of an adjournment.

13.          It is not disputed that the Bailiff had a wide discretion as to the costs of 10 June 2010.  An appellate court should only interfere with the exercise of such a discretion if the judge exceeds the generous ambit of that discretion.

14.          In our judgment, it was well within the discretion vested in the Bailiff to leave the wider conduct of the parties out of account.  That conduct was a matter that the Bailiff was entitled but not bound to take into account

15.      So far as the decision that there should be no order for costs, that appears to us to be a wholly rational response in the circumstances that cannot be characterised as plainly wrong.

16.      The possibility of an adjournment had been canvassed before the Bailiff on 8 April 2010.  It was made clear by the Bailiff at that hearing that any application for further time made by the Respondent in connection with Mr Weston's ill health should to be supported by medical evidence.  The Bailiff indicated, in that event, he would set a timetable that took account of any ill health but that did not allow the litigation to drift indefinitely.

17.      The Respondents were slow in producing the medical evidence but the delays in the provision of an undertaking by Advocate Sinel also contributed to the delay.  Both parties share some measure of responsibility for the matter having to come before the Bailiff as a contested application in June.  A sensible timetable could and should have been agreed between the parties without any need for the hearing on 10 June 2010 and without any significant expenditure of costs.

18.      In the circumstances, whilst we do not accept that costs should follow the event of the Respondent having 'won' on 10 June 2010 because the application for an adjournment succeeded, we equally do not accept that this is a situation where costs were necessarily incurred by reason of the application so that the Appellants should have the costs of the adjournment hearing.

19.      In our judgment the decision that there should be no order for costs was well within the generous discretionary margin of rational decision making  and was a fair and just decision.

20.      Advocate Sinel sought to argue before this Court that the Bailiff should have ordered that the costs of the adjournment hearing be paid by Mr Weston personally.  In view of our conclusion that the decision to make no order for costs was a reasonable one, it is not arguable that there should have been an order against Mr Weston personally.  Nevertheless we should observe that the application is not one that properly arises on this appeal since it was not made to the court below.

21.      Such an application was not foreshadowed in the skeleton argument filed by Advocate Sinel on 7 June 2010 for the hearing on 10 June 2010.  No such application was made to the Bailiff.  On the contrary in oral submissions Advocate Sinel submitted that; "the company should pay the costs" and "this Defendant Company should be ordered to pay the costs of and incidental of both adjournment applications on a full indemnity basis because it has not bothered with the Court Orders."

22.          Accordingly we declined to permit Advocate Sinel to pursue this argument before the Court of Appeal.

23.          We should add that at the commencement of the appeal hearing both parties applied for leave to adduce fresh evidence before the Court of Appeal.  Since the fresh evidence went, in the main, to the submission that should be an order for costs against Mr Weston personally we refused leave to both parties to adduce any evidence other than evidence that was before the Bailiff in June 2010.

24.          In the circumstances this appeal is dismissed.

25.          As we indicated at the end of the oral hearing of the appeal we did not consider that it is appropriate in the circumstances to make any order for costs against the Appellants.  

26.          Mr Weston submitted that costs should follow the event and that an order for costs might be an appropriate measure by which the Court of Appeal could mark its disapproval of the wide ranging issues raised on appeal which the Respondent was obliged to respond to.

27.          We do not consider that an order for costs should be made in this appeal as a quasi disciplinary measure.  The Respondent chose to respond at length on appeal to matters raised by the Appellant notwithstanding the fact the responses were not necessary for the purposes of disposing of the appeal.  It is not practicable on an interlocutory appeal for the court to allocate blame for this state of affairs that led to (at best) marginally relevant allegations of misconduct being litigated in an appeal concerned only with a narrow issue of costs.

28.          The Respondent devoted little or no time in his response to the narrow issues raised in this appeal.  This is a case in which there should be no order for costs on the appeal.

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