Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone. |
Between |
Andrew Alvin Hobson and Maureen Audrey Hobson |
Appellants |
And |
Minister for Planning and Environment |
Respondent |
And |
Bernard William Fairman and Judy Lumsden Fairman (née Coleman) |
Applicants |
Advocate N. M. C. Santos-Costa for the Appellant.
Advocate R. A. Leeuwenburg for the Minister.
Advocate J. D. Kelleher for the Applicants
judgment
the deputy bailiff:
1. On 29th January this year the court delivered judgment on an appeal by the appellants as third parties against a permission for development granted to the applicants by the Minister in June 2013.
2. The circumstances behind that were that in November 2012 the appellants had appealed a different permission of the Minister which had been given, in March 2012, to the applicants to develop the same piece of land by way of a differently designed garage. But the substance of the application, that is to say the application for permission to construct a garage, was the same. The court in January 2014 allowed the third party appeal and cancelled the permission.
3. I have now sat today to consider applications for costs in circumstances where the Minister has agreed that it would be appropriate for the court to make a standard costs order in favour of the appellants and that the Minister would meet all of the costs which the appellants had incurred, whether as a result of the Minister's resistance of the appeal or as a result of the applicant's participation. But the Minister contends that it would not be appropriate to have an order for costs on an indemnity basis. The appellants say that there should be an order for indemnity costs because essentially this is a re-run of the previous application and the previous decision and the previous decision on appeal. One of the differences is that on this occasion this appeal was dealt with under the ordinary procedure and not the modified procedure.
4. The first question is what test is to be applied to the question of indemnity costs. The Minister's approach is that the test is that set out in C-v-P-S [2010] JLR 645 as per Beloff JA where he said "in order for an indemnity award to be made there must be something to take the case out of the ordinary and a degree of unreasonableness". It was then contended that again in reliance on the same case where the learned judge had said at paragraph 18 "It is necessary, therefore, to look for behaviour or conduct on the part of the husband in the course of the appeal in order to determine whether there is something here to take this case out of the ordinary so as to lead to a conclusion that the fair and just award in this case is that costs should be assessed on an indemnity basis." So the essential contention there is that there has to be something unreasonable, in the context of the conduct of the litigation.
5. I think that is too narrowly framed as a proposition. The present situation is that I think set out in Leeds Utd-v-Weston [2012] JCA 088. That sets out the current and correct test and the unusual features do not need to relate to the conduct of the litigation, although of course in some cases they can.
6. Accordingly I am going to apply the award of indemnity costs test which I set out in Dalemont v Senatorov [2013] JRC 209 at paragraph 9:-
"(i) The Court has a wide discretion as to when it makes an award of indemnity costs.
(ii) In considering the question, the Court will consider whether there has been some culpability, abuse of process such as deceit, underhanded or unreasonable behaviour, abuse of court procedures, or the submission of voluminous and unnecessary evidence. This is sometimes referred to as a "special or unusual feature" to justify the award of indemnity costs.
(iii) It is not necessary that the actions of the paying party should be malicious or vexatious, although obviously if they are, the Court is more likely to find a culpability which merits an award of indemnity costs."
I would add straight way this does not apply to the Minister here in the sense of being deliberately malicious or vexatious, and:-
"(iv) It is, in reality, a question of what would be fair and reasonable in all the circumstances."
7. Indeed I think the right question is that which Beloff JA put in C-v-P-S when he said at paragraph 11:-
"The question will always be - is there something in the conduct of the action by one of the parties or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs, recognising that there will usually be some degree of unreasonableness?"
8. That passage comes from paragraph 11 of Beloff JA's judgment in that case, and I just draw attention to that because the learned judge says "conduct of the action by one of the parties or the circumstances of the case" and that is to be contrasted with slightly different language which he used at paragraph 12 when he said:-
"We therefore approach the costs contentions on the understanding that in order for an indemnity award to be made there must be something to take the case out of the ordinary and a degree of unreasonableness (of which abuse of process is but an example)"
And then at paragraph 18 where he poses the question in relation to the conduct of the husband "In the course of the appeal." But the learned judge had just earlier referred to the case of Marett-v-Marett [2008] JLR 384 where there had been a summary of when it is appropriate to make indemnity costs orders and also to Pell Frischmann v Bow Valley [2007] JLR 479 and in those circumstances it seems to me to be perfectly plain that in context Beloff JA was not suggesting that the unreasonable conduct had to relate to the conduct of the litigation itself.
9. Now there was a submission that, as the Minister is a public authority, he cannot escape the decision-taking process, and therefore an appeal if one is brought, we should apply a different rule. Well it is true that the Minister is a public authority and he cannot escape the possibility of an appeal either by the third party or by the applicant, but in my judgment that is no reason, in principle, for the ordinary rules not to apply and I do apply them here.
10. The unusual circumstances here are said to be that this was a re-run of a previous decision by the Minister and an appeal against it. The Minister says, by way of response, that each application has to be considered on its merits. This was a different application and therefore there is nothing particularly unusual in the decision having been given. It was his statutory duty to make a decision, and therefore that no unusual circumstance should affect the allocation of costs.
11. In my judgment the plans here were materially different from those which were presented on the first application, but the criticisms of the Minister decision were essentially the same. Here he was approving a development in the Coastal National Park where there was the strongest presumption against development and in circumstances where the immediate past history was that no new development would be approved. If I could have seen anything in the officer advice or the Minister's decision-taking process which gave any substantial indication that the Court's reasons for its decision on the first application had been considered in relation to the second application I would have reached a different conclusion. But I cannot do so essentially for the reasons that Advocate Santos-Costa has set out. The Minister agreed to pay all the costs on a standard basis, although it was said that the Court might think the applicants should pay some of the costs if they were to be awarded on an indemnity basis. No adequate reasons have been given to me for such an order. I take the view that the applicants, although they did indeed join into the appeal and advanced their case, should not bear any proportion of the costs incurred by the appellants. There is no reason why if the Minister was not prepared to pick up all the costs on a standard basis he should not equally meet all the costs on an indemnity basis.
12. Accordingly I order the Minister to pay the appellants' costs of and incidental to the appeal on an indemnity basis up to 29th January, 2014.
13. There is no order as to the applicants' costs up to and including 29th January, 2014.
14. I order the Minister to pay the appellants' costs of and incidental to today on the standard basis.
15. I make no order for costs in relation to the applicants today because I think it would be unjust to the appellants' to condemn them, in the circumstances, to pay those costs.
16. In my view this order probably does not require leave to appeal because the appeal is not going to be an appeal as to costs only. It is an appeal that is going to be taken with the substantive appeal and it is just a different part of that appeal, but that may be wrong and in those circumstances I am going to give leave to appeal. I accept the contention of Advocate Leeuwenburg that he raised the question as to whether administrative appeals should be treated differently from any other form of appeals. I am certainly aware it was raised as an argument. No authority was put before me to suggest it might be right and it goes contrary to all the experience that I have had of administrative appeals over the years but I am not aware of a Court of Appeal decision on the matter and therefore the Court of Appeal can resolve it if appropriate.
17. The only condition that I attach to it is that the substantive appeal is not withdrawn. If the substantive appeal is withdrawn then I would not have considered it appropriate to have granted leave. The reasons for that are substantially those that I set out in the case of Benest-v-Syvret [2012] JRC 079A:-
"the reasons for a requirement for leave from the trial judge, in a matter of costs only, includes not only the obligation to prevent the Court of Appeal from being faced with wholly unmeritorious appeals on costs alone, as Birt, DB said in Tomes v Coke-Wallis, but also a need to prevent ongoing satellite litigation when the main case is over; and a recognition that the trial judge has a much better handle on how the proceedings were conducted and where the justice of a costs order lies than any appeal court can have merely on reading transcripts, because the trial judge has lived through the proceedings with the parties. Furthermore, the Law anticipates that the judge's decision on costs where the substantive issue is undisturbed will be final and without appeal, so there is no injustice in itself in that."
But as I say, I rather take the view that once the matter goes before the Court of Appeal as part of the main appeal no leave was necessary, so as it is, in my judgment, going anyway I grant leave.
18. A condition of leave to appeal is that the contentions on costs should be added to the appellants' contentions in relation to the main issue.
Authorities
Hobson-v-Minister for Planning and Environment [2014] JRC 028.
Leeds Utd-v-Weston [2012] JCA 088.
Dalemont v Senatorov [2013] JRC 209.
Marett-v-Marett [2008] JLR 384.