Jersey Unreported Judgments

Costs appeal - application by the appellant for an order for costs.

[2016]JRC100

Royal Court

(Samedi)

2 June 2016

Mr Darius Pearce appeared on his own behalf.

Advocate G. G. P. White for the Respondent.

Advocate J. N. Heywood appeared as Amicus.

judgment

the bailiff:

1.        A judgment has just been handed down in relation to the Appellant's appeal against the order of the Greffier Substitute taxing costs claimed by the Treasurer of the States.  The appellant has been at least partially successful in relation to the appeal.  The original bill as submitted for taxation and in the absence of any criticism from the Appellant was in the order of £25,527 and the Court has awarded a lesser sum of £12,500 following its own rough and ready taxation and acceptance of some of the points made on appeal. 

2.        As a result of those orders the Appellant asks for an order for the costs of the appeal in the costs hearing on an indemnity basis and he relies on the fact that the appeal was at least partially successful.  By contrast Advocate White, for the Treasurer, says that it was not the Appellant's grounds that were successful it was the grounds of appeal which were advanced, or one of them, by the amicus appointed by the Court, and of course the amicus' costs are to be paid for out of Court and case costs vote which is maintained by the Greffe. 

3.        It is true that the contentions which the Appellant made personally were generally not accepted, but he did make the comment in his submissions that no-one would spend £25,000 to recover a bill of approximately £268 and that was a point that effectively goes to the question of proportionality.  It was a fair point and therefore he was at least partially successful in the points that he put forward as well.  I accept that he has had some costs to incur in relation to the appeal and he is entitled to an award unless there is something in his conduct of the appeal which would disentitle him to that award. 

4.        It is said by Advocate White that I should take into account a letter which is dated 20^th January, 2015, which was sent by the Law Officer's Department offering to settle the costs claim for £8,000 and that was refused, I say it was refused but no reply was in fact given by the Appellant to that letter.  The letter is marked "without prejudice" and it is not marked "without prejudice save as to costs".  If it had been accepted it is true that it would have brought the taxation process to an end but it was not and it did not.  The fact that the subject matter of the offer was costs as opposed to any other form of dispute is immaterial.  The costs of the cost dispute fall into the same category as the costs of any other kind of dispute and, consistent with all previous authority in this court of which I am aware, a letter which is marked without prejudice is not admissible in arguments as to costs unless it is expressly qualified as being without prejudice save as to costs and so for that reason I do not have regard to either Mr Hamon's affidavit or to the letter of 20^th January, 2015, in so far as the two cover that aspect. 

5.        The next question which arises is as to the attack on Advocate White personally which was referred to already in the judgment at paragraph 31 where the court said "We concluded the Appellant's attitude and his conduct having undoubtedly increased the costs which have been incurred by the Treasurer of the States.  An example of the Appellant's unreasonable conduct is the personal attack which the Appellant has made on counsel for the Treasurer of the States.  The Appellant challenged on more than one occasion the right of Advocate White to appear and challenged his motivation for doing so.  This was unnecessary and inappropriate and it undoubtedly increased costs; and today in making his application the Appellant again contended that Advocate White had acted maliciously in driving up costs and in the course of that the Appellant also said that the Court had sided with Advocate White because he was an advocate, the Appellant is not, and because Advocate White represents the Government.  Those particular contentions I am not going to address further except to say that they are clearly wrong.  But the Appellant also contended that Advocate White had deliberately overstated the time which he had spent.  This was a serious allegation because it goes directly to the bona fides, the good faith, of one of the advocates of this Court and when asked for some detail of that, reference was made to a point in the appeal where Advocate White was asked by the Court to comment upon the amount of time that had been taken in relation to preparation for a particular hearing before the Petty Debts Court. 

6.        As a result of that contention, we listened to the exchange which took place in November last year.  It is clear that the Court did put Advocate White under some pressure for the amount of time spent and his response was" well if on taxation that was a wrong amount to have spent, of course, the time can be reduced."  That comes nowhere near an admission that he had deliberately overstated his time.  The two things are completely separate and the Court has no doubt at all that this was not a point which should have been raised.  Had an advocate raised that point, he would have been very severely criticised indeed, and I have just said to the Appellant that the Rules of Court applies to litigants in person as much as they do to advocates but he is lucky, fortunate, that the Court does sometimes take a more generous view of a litigant in person who is directly involved in the dispute and in this case, having listened to the transcript, the Appellant has rightly agreed, and quickly agreed, that his memory was wrong and he should not have made the insinuation that he did.  He has also, without being asked to do so, apologised for that and that was the right and proper thing to do.  In those circumstances, although I have contemplated whether or not the misconduct in making those suggestions ought to disentitle the Appellant to any award of costs at all, on balance I have come to give him the benefit of the doubt and I am not going to take that approach; but I do wish to make it plain that when someone makes serious allegations in Court against a person's integrity, that person is entitled to require it so be justified or, if not, to expect some penalty to be applied.  The fact that no penalty is being applied on this occasion should not be taken as any form of indication either to the Appellant or to anybody else that the penalty will not be applied next time, because it was the wrong thing to have done. 

7.        So the question then is, is there any other reason which would disentitle the Appellant to the costs on this appeal?  Now he has applied for indemnity costs.  I do not think that is appropriate for there is nothing in the conduct of the Treasurer to justify that conclusion.  I think it should be standard costs and I do not find any other reason and therefore I award the Appellant the standard costs of and incidental to this appeal. 

8.        The next question which arises is whether or not there should be any stay on the collection of the costs which have been ordered against him pending calculation of these costs?  There would be a requirement to consider a stay if there were not to be an award, an assessment, of the costs of the appeal in favour of the Appellant today.  I was told by the Appellant that he is anxious to bring matters to a close.  I think that is right.  The Court wants to bring matters to a close as well in the interests of the parties and in the public interest, and I am going to make an assessment of the costs now so that no further taxation will be necessary.  Of course, it is a rough and ready assessment.  The costs which the Appellant is entitled to claim under the rules as a litigant in person fall within a band of £15 - £25 per hour and I have been informed by Advocate Heywood that the total number of hours spent is 100 hours in relation to this appeal. 

9.        In terms of the costs for the Appellant therefore as a litigant in person, what I propose to do is to allow the sum of £15 per hour for 100 hours making a total of £1,500 and that sum can be set off against the award of costs in favour of the Treasurer of £12,500 which would reduce that award to a figure of £11,000.  The question then is what approach to take to disbursements and the only disbursement I have been informed of is the disbursement of a bill of costs from Messrs Viberts in the sum of £1,638.19.  This was dated 29^th August, 2014, and the work which is covered by this bill runs from 24^th June, 2014 until 29^th July, 2014.  It very largely seems to relate to the question of the judgment on an earlier appeal by the Appellant and not to the matters which are currently under appeal in relation to the taxation of costs.  The Appellant's argument in answer to that was Advocate White for the Treasurer did not do enough to ensure that the whole matter could be settled and he did not engage properly with Advocate Hall (Messrs Viberts) and that is why he became a litigant in person.  Without seeing all that correspondence it is impossible to know and that is why the rough and ready approach which I have been invited to adopt has its drawbacks because I cannot be sure whether the award which I am about to make is entirely fair or not; but I have looked at both the dates during which the work was carried out and to the extent that it does, the subject matter of the work which seems, as I say, to relate to the judgment which had been issued earlier, and I think that most of this bill cannot have related to what is involved in this appeal.  What I propose to allow is the sum of £100 on the assumption that some of the Viberts bill might have related to this appeal so that bill of £11,000, the £12,500 less the £1,500 less now £100, is reduced to £10,900 as being the net sum which is due by the Appellant, to the Treasurer of the States. 

10.      As I say, that is a rough and ready judgment but it has the advantage of bringing to a close this part of the taxation issue. 

11.      The last that arises today is the question of leave to appeal.  The Appellant says that he would ask for leave to appeal if he needs leave to appeal; he does need leave because it is a matter of costs only whether one is considering the taxation appeal or the costs of that appeal.  I consider that there are issues of principle on the taxation appeal, if there is one, which are entirely appropriately ventilated in the Court of Appeal if an appeal is to be entered and therefore leave to appeal is granted. 

No Authorities