Jersey Unreported Judgments

Costs- application for leave to appeal decision regarding order of standard costs against the applicants.

[2016]JRC058

Royal Court

(Samedi)

9 March 2016

Advocate A. D. Hoy for the Applicants.

Advocate J. D. Kelleher for the Respondent.

judgment

the commissioner:

1.        The applicants apply for leave to appeal against my decision, Larsen-v-Comptroller of Taxes [2015] JRC 001, to order standard costs against the applicants in respect of the ex parte hearing on notice concerning their application for leave to apply for judicial review.  The decision on that latter application is reported at Larsen Oil and others-v-Comptroller of Taxes [2014] JRC 143. 

2.        The judgment summarised the principles to be applied on the issue of costs in respect of ex parte hearings on notice in applications for judicial review.  I sought to summarise those principles at paragraph 29 of the judgment as follows:-

"29.    In my judgment, the policy considerations which underlie both the old and new practice in England in relation to oral hearings for leave - the position in England is of course now different in relation to the costs of filing an acknowledgment of service - are much the same as in Jersey.  I find them persuasive.  Accordingly, I hold that the general approach should be that a putative respondent should not be awarded his costs in relation to such a hearing unless the judge hearing the application considers in his discretion that there are grounds for departing from this normal practice.  I would prefer to put it this way rather than referring to 'exceptional circumstances' as the use of such an expression immediately invites dispute as to whether the circumstances are sufficiently different or unusual to become 'exceptional'.  As Auld LJ emphasised in the passage referred to above, the matter is ultimately one for the discretion of the judge but having regard to the general approach."

3.        I grant leave to appeal. 

4.        Even though the applicants state that they do not challenge the principles which I outlined, I consider that, as this matter has not previously been considered by the courts of the Island, and applications for judicial review are increasingly common, it would be useful for the Court of Appeal to have the opportunity of considering whether I have correctly described those principles.  The respondent argued before me that costs should normally follow the event on such applications and was able to point to some, albeit limited, support for this proposition in the two Jersey cases referred to at paragraphs 15 and 16 of the judgment. 

5.        Furthermore, although the applicants profess not to take issue with the principles contained in the judgment, their submissions seeking leave appear to me to come very close to doing so.  Thus, it is suggested that, unlike the CPR, the decision as to whether or not there should be an oral hearing is outside the control of an applicant.  It was submitted before me and would be submitted on appeal that it is unreasonable to expect an applicant to pay the costs of an oral hearing when it is not within his control as to whether there is such a hearing.  The applicant may wish the matter simply to be considered on the papers (in which event there can be no award of costs as the putative respondent would not have incurred any), but the Bailiff may of his own volition decide that an oral hearing is required.  This seems to me to be saying that costs should never be awarded against an applicant where the ex parte hearing on notice has been ordered by the Bailiff of his own volition.  That would be contrary to the general principle which I outlined, namely that costs of such a hearing may be ordered against an applicant where there is good reason to depart from the normal practice. 

6.        Furthermore, although costs orders are par excellence a matter for the discretion of the trial judge - and that is reflected not only by Article 13(1)(c) of the Court of Appeal (Jersey) Law 1961 which provides that, unlike interlocutory appeals, an appeal on costs may only be brought with the leave of the Royal Court, but also by the observation of the English Court of Appeal at paragraph 76(7) of its judgment in the Mount Cook case quoted at paragraph 26 of my judgment - and I remain of the clear view that there were good grounds for departing from the normal practice in this case, I think it reasonable that the applicants should have the opportunity of arguing whether I exceeded the limits of my discretion in finding that, on the facts of this case, there was good reason to depart from the normal practice that a putative respondent should not be awarded his costs in relation to such a hearing. 

7.        Although there was a suggestion by the respondent that the application for leave to appeal was out of time because the decision itself was given on 14^th October, the Act of that date records that the Court left over until the delivery of the Court's judgment (which was on 5^th January, 2015,) any application the applicants might make in respect of seeking leave to appeal.  It is clear to me therefore that I extended the 28 day period so that it would run from the date of delivery of my reasoned judgment.  If the Act of 14^th October did not, on a strict interpretation, have that effect, I exercise my discretion to extend the time for appealing until 20^th January, 2015, being the date upon which the application for leave to appeal was filed. 

Authorities

Larsen-v-Comptroller of Taxes [2015] JRC 001.

Larsen Oil and others-v-Comptroller of Taxes [2014] JRC 143.

Court of Appeal (Jersey) Law 1961.