Jersey Unreported Judgments

Planning - costs judgment

[2012]JRC193

Royal Court

(Samedi)

22 October 2012

Before     :

J. A. Clyde-Smith, Commissioner, sitting alone.

 

Advocate D. G. Le Sueur for the Appellant.

The Solicitor General for the Respondent.

judgment

the commissioner:

1.        On 8^th May, 2012, the Court allowed the appeal of the appellant against the decision of the respondent ("the Minister") to refuse permission to the appellant to construct 25 dwellings at De la Mare Nurseries, La Rue a Don, Grouville - see the judgement of the Court at [2012] JRC 090. 

2.        On 13^th June, 2012, I heard applications for costs by both the appellant and the Minister.  The appeal proceeded by way of the modified procedure and both applicants faced the hurdle presented by Practice Direction RC 06/03, which provides:-

"In such appeals, although either party is entitled to be legally represented or otherwise represented as provided by Rule 15/3B(1) of the Rules, the Royal Court will only make an award of costs in such an appeal in exceptional circumstances (whether or not a party is legally or otherwise represented)."

3.        The appellant had appealed unsuccessfully against the Master's decision that the appeal be heard by way of the modified procedure - see the judgement of the Court on that appeal at [2011] JRC 161.  Mr Le Sueur, for the appellant, had argued that this was a complex appeal which could only be dealt with by oral evidence and cross-examination of the Minister personally over an allegation that he had been improperly motivated for political purposes.  In refusing the appeal, I said this at paragraph 19:-

"Approaching the matter afresh as I am required to do, I conclude that the Master was correct in determining that this planning appeal proceed under the modified procedure with the protection as to costs which it gives the appellant and have no reason therefore to interfere with his decision.  The matter can proceed under the modified procedure until such time as an application is made by the appellant for the hearing of oral evidence when the procedure can be reviewed.  The key difference if the procedure is changed will be to remove the appellant's protection as to costs, which the Court might well feel appropriate if oral evidence is to be heard at the appellant's request."

4.        There was no subsequent application by the appellant for the procedure to be reviewed which could have been undertaken at any stage pursuant to the provisions of Rule 15/3A(3) which is in the following terms: -

"(3)     The appeal shall then proceed in accordance with that determination, but paragraph (2) does not affect the power of the Court at any stage of the proceedings of its own motion or on the application of any of the parties to order that the appeal be dealt with under whichever procedure the Court thinks fit."

5.        The appellant then applied unsuccessfully for an extensive order for disclosure against the Minister in support of its assertion of impropriety on the part of the Minister.  In refusing the application (see the judgement of the Court at [2011] JRC 169) I said this at paragraph 19: -

"In this case the evidence upon which the appellant relies falls well short of establishing a prima face case of misconduct.  The application for disclosure is an application made "in the hope that something might turn up" which will lend support to the appellant's contentions and as such is not a legitimate exercise."

6.        In the Court's substantive judgment on the appeal, it found that the central issue on the appeal was the proper interpretation to be given to policy C20 of the Island Planning 2002, which concerns redundant glasshouses, and that there was no evidence before it to support any allegation of impropriety on the part of the Minister or the planning officers. 

7.        Mr Le Sueur submits that there are exceptional circumstances justifying an award of costs in the appellant's favour for the following reasons:-

(i)        The length and complexity of the hearing. 

(ii)       Inequality of arms between the Minister and the appellant. 

(iii)      Mistakes made by the Planning Department in the interpretation of Policy C20. 

I take each in turn. 

Length and complexity of the hearing.

8.        Mr Le Sueur pointed out that the hearing took the best part of a day as opposed to the 1½ hours the Practice Directions states should normally be taken.  I accept that this was the case, but this was due in part to the appellant maintaining its contention of impropriety on the part of the Minister and in part the Court not imposing stricter time limits.  Stripped of those contentions of impropriety, the case was not complex.  It was concerned with the interpretation of Policy C20. 

9.        The expectation, according to paragraph 4 of RC06/03, is that in appeals under the modified procedure, parties will not normally be represented.  In this case, it would be unreasonable, Mr Le Sueur argued, to expect either the beneficial owner of the appellant or Mr Jonathan Stratford, who filed an affidavit on his behalf, to analyse Policy C20 and make submissions of the kind made by Mr Le Sueur.  Accordingly, as the appellant had no choice but to employ a lawyer contrary to the expectations of the modified procedure, the case should be regarded as exceptional for the purposes of awarding costs. 

10.      I do not accept that submission.  In my view, a layman is perfectly capable of interpreting policies and indeed, Mr Stratford did so with considerable skill in his affidavit of 1^st April, 2011.  Irrespective of this, the Practice Direction makes it clear the employment of a legal representative is not an exceptional circumstance:-

"...the Royal Court will only make an award of costs in such an appeal in exceptional circumstances (whether or not a party is legally or otherwise represented)."(my emphasis). 

Inequality of arms

11.      A search by Mr Le Sueur of the unreported judgments and Jersey Law Reports showed that of the 40 or so appeals under the modified procedure heard since 2006 on not one occasion had the Minister either represented himself or been represented by a member of the Planning Department, contrary, Mr Le Sueur said, to the expectation of the Practice Direction that ordinarily the parties would not be legally represented.  The risk to the public, he said, is that the Minister and his advisers would be likely to press unreasonably for the modified procedure since this would positively deter appellants from instructing their own lawyers for fear of their not being able to recover their costs.  The system, he said, actively encourages would-be appellants to dispense with obtaining legal advice and represent themselves but leaves the Minister completely free to engage specialist planning lawyers or as in this case, the Solicitor General, to argue the case for him.  This is clearly unjust, Mr Le Sueur submitted and unfairly weighted in favour of the Minister and where the Minister's decision is found to be wrong, results in legally represented appellants being substantially out of pocket through no fault of their own.  Furthermore he said, the modified procedure also provides absolutely no incentive or reason for the Minister to negotiate a settlement, safe in the knowledge that even if he or she is unsuccessful in the appeal, it is unlikely that adverse costs orders will be made.  All of the "costs pressure" will be with the appellant.  

12.      In my view these are general criticisms of the procedure (upon which I express no view), that might more properly be addressed to the Rules Committee who advise the Superior Number in relation to its power to make rules of Court under Article 13 of the Royal Court (Jersey) Law 1948.  The Court, in the meantime, must work within the procedure as currently laid down, which expressly preserves the entitlement of parties to be legally represented, an entitlement that the Minister exercised as indeed did the appellant.  There can be no question of inequality of arms in this case. 

13.      The modified procedure facilitates the conduct of appeals by disappointed applicants without fear of adverse costs orders, a valuable protection that in my view should not be eroded by the Court too readily finding exceptional circumstances.  In any event I do not see how the fact that an appellant has chosen to be legally represented could amount to exceptional circumstances bearing in mind that, as stated above, the Practice Direction makes it clear that it is not. 

Mistakes made by the Planning Department

14.      Much of Mr Le Sueur's submissions constitute a rerun of his arguments as to why the appeal should have been heard under the ordinary procedure, but it was not heard under the ordinary procedure and there was no application made at the appeal for it to be heard under the ordinary procedure.  In terms of mistakes, he refers to the inability of the planning officers to interpret Policy C20 and to the legal advice apparently received by the Planning Department in this respect being wrong. 

15.      Mr Le Sueur relied upon the costs decision made by Bailhache, Deputy Bailiff, in the case of Manning-v-Minister for Planning and Environment [2012] JRC 086A, an appeal brought under the modified procedure.  In that case, the Minister was ordered to pay 50% of the costs of the appellant and the interested person, even though the appeal was unsuccessful.  The Court had found that the Planning Department had imposed mutually inconsistent conditions upon an existing permit and it is clear from the unreported judgment of the Deputy Bailiff dealing with costs that it was this mistake that in large part gave rise to the proceedings and the parties incurring costs:-

"I am going to order the Minister to pay fifty percent of the Appellant's costs and fifty percent of the costs of Interested Person, on the standard basis.  The reasons for doing so, in some respects, are the same for both the Appellant and the Interested Person.  The aspects in which they are the same are on the fact that both these costs have been incurred on these proceedings as a result of mistakes which have taken place in the Planning Department in the past years and from which these present proceedings largely flow.  I take the view that it is right to reflect that and that it is not an improper factor to take into account in a costs order. 

... At the end of the day, a strong factor in any award of costs is the recognition that things have gone wrong in the Planning Department and many of the costs involved in this appeal have flowed from that.  I regard these as exceptional circumstances and for that reason I am going to make the award. 

I certainly do not expect to see costs awards, generally speaking, in modified procedure cases."

The costs were discounted because the appellant raised arguments as to the bona fides of the Minister that ought not to have been raised, as there was nothing in them on the papers. 

16.      As the Solicitor General argued, it is not possible to equate the facts in the case before me to those in Manning.  In the case before me, the Court was concerned with the interpretation of a not entirely clear policy.  In the end, the Court disagreed with the interpretation placed upon it by the Planning Department, apparently on legal advice.  The Court found that the Planning Department was mistaken in its interpretation of the policy, but if that is to be regarded as an exceptional circumstance, then most successful appellants, where interpretation of policies were at issue, would be entitled to costs - exceptional circumstances would be replaced by ordinary costs principles. 

17.      The Solicitor General submitted that "exceptional circumstances" have to relate to the manner in which the litigation was conducted, not to whether something had gone wrong previously within the Planning Department.  He cited no authority for that proposition and I do not accept it.  The discretion of the Court in awarding costs under Article 2 of the Civil Proceedings (Jersey) Law 1956 is wide and it is open to the Court to have regard to any and all considerations if they have any bearing on the overriding objective of doing justice between the parties - see Watkins-v- Egglishaw [2002] JLR 1 at paragraph 7.  In the context of awarding costs under the modified procedure "exceptional circumstances" is not just limited to the conduct of the appeal itself.  It can include the circumstances of the case and, as in Manning, earlier conduct which in the opinion of the Court had given rise to the appeal.  

18.      The Solicitor General went on to submit that the decision in Manning was wrong in that, whilst the Deputy Bailiff rightly reduced the costs awarded to take into the account the fact that allegations of bad faith had been made without any evidential basis, it was not clear why the Minister (and therefore the public) was not awarded his costs in respect of these matters.  The Minister should not have to bear the costs or have to deal with such baseless allegations.  The simple answer to that, it seems to me, is that the Deputy Bailiff had no application before him by the Minister for costs against the appellant.  There was no reference to such an application in the unreported judgment. 

19.      The decision in Manning in relation to costs is fact specific.  Costs were incurred in large part as a result of negligence on the part of civil servants which, in my respectful view, the Deputy Bailiff was entitled to regard as exceptional.  It is not possible to describe the conduct of the Planning Department in the case before me as negligent.  On the contrary, the Planning Department had taken legal advice on the interpretation of the policy and applied it consistently.  In any event in opening the door to appellants to seek costs against the Minister as a consequence of mistakes within the Planning Department, the decision in Manning does not erode the protection given to appellants under the modified procedure in relation to costs. 

20.      In conclusion, I do not accept that there are exceptional circumstances here justifying an award of costs in favour of the appellant. 

21.      The Minister applies for the costs he has incurred in dealing with the allegations of impropriety made by the appellant of which the Court found there was no evidence, allegations which gave rise to two preliminary hearings in 2011. 

22.      Where there is evidence to support such allegations, then the Court will not shrink from dealing with them (see for example Ruette Pinel Farm Limited-v-Minister for Planning and Environment [2012] JRC 008) but to raise such allegations without any justification can amount to an exceptional circumstance in my view.  An appellant who makes such baseless allegations is at risk of losing the protection as to costs afforded by the modified procedure. 

23.      In this case, I have decided on balance not to award costs against the appellant.  I have borne in mind that:-

(i)        There were long delays in the Planning Department dealing with this application and the very similar application that preceded it. 

(ii)       The appellant had considerable and in my view understandable reservations as to the adequacy of the explanation put forward for that delay by Christopher Jones, Senior Planner, in his affidavit of 12^th September, 2011. 

(iii)      The appellant now has to incur further costs in taking the application back before the Minister for reconsideration. 

24.      My overriding objective in relation to costs is to do justice between the parties and taking into account all the circumstances of the case, and notwithstanding this aspect of the appellant's conduct, I have decided that it would not be just to award costs against the appellant. 

25.      In the result, there are no orders for costs in relation to this appeal.  

Authorities

JK Limited-v-Min for Planning and Environment [2012] JRC 090.

In the matter of E D and F Management Investments Ltd [2011] JRC 161.

JK Limited-v-Minister for Planning [2011] JRC 169.

Island Planning 2002.

Royal Court (Jersey) Law 1948.

Manning-v-Minister for Planning and Environment [2012] JRC 086A.

Civil Proceedings (Jersey) Law 1956.

Watkins-v-Egglishaw [2002] JLR 1.

Ruette Pinel Farm Limited-v-Minister for Planning and Environment [2012] JRC 008.