Jersey Unreported Judgments

Costs judgment - Commission's application for costs.

[2015]JRC156A

Royal Court

(Samedi)

24 July 2015

Advocate B. H. Lacey for the Respondent.

judgment

the commissioner:

1.        I sat on 16^th July, 2015, for the adjourned hearing of the application by the Jersey Financial Services Commission ("the Commission") for its costs arising out of its successful appeal against the decision of the Master to stay the substantive appeal of W ("W"). 

2.        The application first came before me on 2^nd July, 2015, and for the reasons set out in my short judgment for the file and parties only was adjourned to be heard on a date to be fixed by Advocate Lacey on behalf of the Commission upon notice to W.  I said in that judgment that the Commission's application for costs will proceed on that date unless W files with the Court an affidavit exhibiting a medical report which satisfies the Court that he is unable, through ill health, to give instructions on this matter to Sinels or otherwise unable to attend or be represented.  Pursuant to that order, Advocate Lacey fixed 16^th July, 2015, for the adjourned hearing and notice was given to W accordingly. 

3.        The Court has now received an affidavit from Mrs W, the wife of W ("Mrs W") in which she sets out the recent history of the medical problems that have beset W and she concludes at paragraph 8:-

"The appellant remains in serious poor health such that he has been and is unable to liaise with his lawyers and provide proper instructions in respect of this litigation.  As a result Sinels are unable to continue to act for the appellant."

And at paragraph 10:-

"Upon the evidence produced it can clearly be seen that the appellant is unable through ill-health to give instructions on this matter to Sinels and unable to attend or be represented at the Hearing."

It would seem from the Meta data extracted from the affidavit that Sinels had involvement in producing the document that became Mrs W's affidavit, although the extent of that involvement is unknown. 

4.        Attached to the affidavit is a short letter from W's General Practitioner, in which he confirms only that "he is currently not well enough to attend future Court hearings until his symptoms are more stable."  In a lengthier letter of 6^th July, 2015, he says this:-

"We understand that this patient is involved with complex legal matters in Jersey.  Currently his medical condition is not stable, not adequately treated and not adequately investigated.

We would be very grateful if we could be given extra time to allow this to happen."

In neither letter does the General Practitioner advise upon the ability of W to give instructions.  It would seem from the Meta data extracted from the affidavit that Sinels had involvement in producing the document that became Mrs W's affidavit, although the extent of that involvement is unknown. 

5.        Since then, the Court has also received a report from Professor M C Walker, a consultant neurologist, dated 9^th July, 2015, following a consultation in London to which W was clearly able to travel.  It goes into detail about his medical condition and gives advice as to his treatment but nowhere does it opine upon the ability of W to give instructions to his lawyer. 

6.        The issue of costs arising out of the application for a stay and the appeal before the Royal Court is not complex.  There is no requirement for W to attend in Jersey physically, but simply to give instructions.  The order sought by the Commission is manifestly reasonable, namely that the costs of the hearing before the Master and of the appeal before the Royal Court should be costs in the cause, and this in recognition that it was not unreasonable for W to have brought his application for a stay which was successful before the Master. 

7.        Advocate Lacey, for the Commission, wrote to Sinels on 19^th May, 2015, proposing orders to this effect in order to save further costs and that proposal was rejected. 

8.        I was not satisfied on the medical evidence before me that W was unable to give instructions on what is a very discrete and straightforward issue and concluded that the original order sought by the Commission should therefore be made.  Yet another adjournment and the incurring of yet more costs were not justified. 

9.        In view of W's rejection of the proposal put forward by the Commission in relation to costs, I also granted the Commission its costs of and incidental to the application for costs and the hearings before me on 2^nd July and 16^th July, 2015. 

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