Jersey Unreported Judgments

[2011]JRC028A

royal court

(Samedi Division)

31^st January 2011

Advocate P. C. Sinel for the Plaintiff.

Advocate M. T. Jowitt for the Defendant.

judgment

the deputy bailiff:

1.        I have been asked to sit to determine question of costs, following the handing down of judgment on the 27^th January, 2011, ([2011] JRC 027), when the Court held against the Plaintiff and dismissed his claim.  The Defendant claims costs on an indemnity failing which a standard basis.  The Plaintiff also claims in the skeleton argument that there should be costs awarded in his favour or an offset of costs for various reasons set out in the skeleton.  In argument, Advocate Sinel departed from that to say there should be no order as to costs, or a costs award for the costs of dealing with the evidence of Mr Headington.  I apply the well known principles and established principles conveniently set out in the decision of Murbarik-v-Murbarak [2009] JCA 016 affirming Maçon-v-Quérée [2001] JLR 187, which applied the English decision of Re: Elgindata Limited (No 2).  In my judgment the award of costs in favour of the Defendant is inevitable, as costs follow the event.  For the reasons which follow I exercise my discretion to say that there should be standard costs in favour of the Defendant, but this is despite the fact that there is a body of reasons why indemnity costs could have been considered appropriate. 

2.        I now refer to Dixon, Richardson and Reeb Investments Limited-v-Jefferson Seal Limited [1998] JLR 47 at page 60 where Mance J, as he then was, is quoted as saying this:-

"In MacMillan-v-Bishopsgate (Unreported, 1994) Mr Justice Millett referred to Mr Justice Chadwick's dictum and Court of Appeal's reasoning and decision in Disney-v-Plummer and concluded that the two were not inconsistent.  The wholly unreasonable "crusade" mounted by the plaintiff in the latter case in his view, certainty bordered on an actual abuse of the process of the Court.  He added:-

The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose.  Litigants who conduct their cases in bad faith or as personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake may expect to be ordered to pay costs on an indemnity basis if they lose, and to have part of their costs disallowed if they win.  Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fenced or circumscribed beyond the requirement that taxation on an indemnity basis must be 'appropriate."

3.        In this case, Advocate Jowitt says there were elements of bad faith.  I think it is important to recognise that the Court has not found fraud to have been proved outside the réticence dolosive, which is set out in the judgment, and certainly the Court has not found that the Plaintiff has brought the case with an ulterior motive or improper purpose.  Mr Jowitt also said that bundles of documents supplied at trial had not been referred to and, as an instance of oppressive or improper manner of conduct, he had had a letter from his opponent to say that the opponent was moving his personal insurance as a result of the conduct of the Defendant in this case and he insisted on a reply from Mr Jowitt and a comment.  Certainly, insofar as the conduct of the trial is concerned, the Court was and is anxious about the volume of material which was put in by the Plaintiff which was not needed at the time of the hearing.  Mr Sinel agreed in his submissions today that approximately half of the authorities bundle was, as he put it, extraneous, and I have to say that my review of the authorities bundle prior to trial led me to question why a number of those were put in.  There were a substantial number of authorities put in before the Court, but only one of those in the bundle was referred to and two other loose cases were passed up by the Plaintiff in the course of argument.  Similarly, some 430 pages of correspondence, the overwhelming majority of which was not referred to, was included in the Court bundles.  That is not required by Practice Directions RC 07/01 which anticipates that only relevant correspondence, on which the party refers, will be included.  The photocopying costs of this exercise alone add unacceptably to the costs of this litigation. 

4.        In every case, it is absolutely essential that counsel focus on what is going to be relevant for the Court at the time of trial. It is particularly relevant where the amount involved is not a very high figure and as the Court said in its judgment on 27^th January, 2011, we recognised entirely that the claim was of significance to the parties, but nonetheless, it was a relatively small claim and it was essential that counsel dealt with the matter commensurately with the amount which was involved.  And so there were indeed reasons why Mr Jowitt was able to advance the submission that applying the dictum I have referred to already that it would be appropriate to have an order for indemnity costs.  I have to say that this submission is supported, by the Plaintiff's bundle that has been put together for the hearing today which has involved again, photocopying of an enormous raft of documents where all those documents are already in the Court bundles and it was unnecessary to have them copied again and then some 16 authorities of which maybe only 3 or 4 were referred to by Mr Sinel in his submissions..  So I do urge counsel to take these comments on board and to ensure that in future that the bundles that are put together are considered rather more carefully before the client's costs are incurred and indeed before costs are incurred on the other side because of the material it has to consider. 

5.        On the other hand however, Mr Sinel is rightly entitled to say that the Plaintiff is entitled to complain about the additional costs regarding Mr Headington's evidence and his notes. We note that as far as Dr Giles is concerned that there was an offer by the Defendant that evidence could be read, as indeed other evidence could be read, but that was not taken up, but nonetheless the Plaintiff was driven to some expense as a result of the difficulties that arose over Mr Headington's notes and in the round it seems to me to be appropriate to find a balance by making an order for the Plaintiff to pay the Defendant's standard costs of and incidental to the claim and to the argument today.  

6.        I just would like to add one further thing, and that is that amongst the correspondence that was before the Court, there was an amount of correspondence from the Plaintiff's counsel to the Defendant's counsel which contained personal remarks which were likely to aggravate tensions between litigating parties.  In my judgment these were not conducive to settlement and were not therefore made in the best interest of the client, and it is regrettable those should have been made.  Examples of these are to be found at page 485 paragraph 2 in the original Court bundles, and also page 489 provoking a response at 505.  Those are the sort of remarks I had in mind. 

Authorities

Murbarik-v-Murbarak [2009] JCA 016.

Maçon-v-Quérée [2001] JLR 187.