Jersey Unreported Judgments

Costs.

[2017]JCA094

Court of Appeal

17 June 2017

The Appellant appeared in person.

Advocate S. A. Meiklejohn for the Respondent.

judgment of the court

logan martin ja:

1.        This judgment concerns an application for costs made by the Respondent following the judgment which we gave dated 23rd May 2017 (Pearce-v-Treasurer of the States [2017] JCA 075).  That judgment concerned an appeal which had been made by the Appellant against a costs judgment given by the Bailiff in the Royal Court dated 2nd June 2016 (Pearce-v-Treasurer of the States [2016] JRC 101). 

2.        The appeal was listed to be heard at the sitting of this Court in the week of 22nd May but the Appellant failed to comply with the requirement in a 'timings letter' issued by the Judicial Greffe to file his contentions and bundles by 7th April.  The Appellant nevertheless maintained that his appeal should be adjourned whereas the Respondent maintained that it should be treated as abandoned pursuant to Rule 10 of the Court of Appeal (Civil) Rules 1964 ("the 1964 Rules").  The Court decided that the position being adopted by the Appellant should be treated as applications by him (i) for the appeal to be reinstated, (ii) for an extension of time in which to file his contentions and bundles under rule 16 of the 1964 Rules, and (iii) for the appeal to be adjourned sine die.  

3.        The Court heard oral submissions from the Appellant and from Advocate Meiklejohn on 22nd May.  For the reasons set out in our judgment, we were satisfied that the Appellant's appeal had been abandoned by the operation of Rule 10 and that the Appellant's applications for the appeal to be reinstated, for an extension of time to file his contentions and bundles, and for the appeal to be adjourned should be dismissed.  We also set out a timetable directing the parties, in the absence of agreement, to make written submissions on costs by 6th June with liberty for either party to reply by 14th June.  We then indicated that we would make any necessary ruling on costs in writing.  

4.        In an email dated 23rd May which was addressed to the Proceedings Officer of the Judicial Greffe and to Advocate Meiklejohn for the Respondent, the Appellant stated that "I have no intention of engaging in any way shape or form with any matter relating to costs..." and he then gave his reasons for that.  He then said that "I place my faith in Advocate Meiklejohn to claim such costs as are rightfully due and whomever assesses the costs to assess them fairly without any intervention from me...".  The Appellant then alleged that this had not happened "last time" and he concluded by saying that "I am only interested in the matter at hand and anything else I just consider legal nonsense and a waste of my time which sadly I do not have any spare to waste."

5.        In his written Contentions on behalf of the Respondent on costs dated 6th June, Advocate Meiklejohn referred to the approach to be taken by reference to Rule 18 of the 1964 Rules and to a number of authorities.  He referred to the need for the Respondent to respond to the appeal and to the Appellant's conduct, including previous incorrect allegations which had been made and withdrawn by the Appellant before the Bailiff, as well as what Advocate Meiklejohn described as "further unfounded allegations of dishonesty in written correspondence to the Judicial Greffe."  Advocate Meiklejohn stated that, in accordance with the Court's direction, he had written to the Appellant on 25th May informing him that although the Respondent's costs then stood at approximately £5,800 (based on Factor A rates alone), the Respondent was prepared to accept the lesser sum of £1,000 in settlement of such costs provided payment was made promptly.  The Appellant responded by making a formal complaint to the Attorney General concerning Advocate Meiklejohn's conduct in contacting him despite the Appellant "specifically requesting that I receive no further communications on this matter".  The Respondent took this to be a rejection of the offer which had been made.  In this situation, the Respondent argues that it would be appropriate for this Court to award costs against the Appellant in a fixed sum, as the Bailiff did, not least to minimise any further delay.  The Respondent submits that costs in the amount of £1,600 would be appropriate. 

6.        In a subsequent email dated 7th June addressed to the Proceedings Officer and Advocate Meiklejohn, as well as to others in government service, the Appellant referred again to his request not to receive any further communication.  He repeated that "My specific instructions were that whatever Advocate Meiklejohn considered fair should be added to the tab, for now" and the Appellant then suggested that Advocate Meiklejohn had in a letter indicated that "he thought £1,000 was fair".  The Appellant then alleged that the application to this Court was "yet another attempt to cause additional emotional distress to me".

7.        Having considered what has been said by both parties, the Court is satisfied that it should grant the application for costs made by the Respondent in the fixed sum of £1,600.  We do so in light of the general principle that the loser should pay, the matters set out in our earlier judgment, and the conduct of the Appellant in failing to comply with the requirements of the timings letter in a situation where he was clearly aware of the consequences.  He then maintained that his appeal should continue thereby requiring the Respondent to respond to his attempt to keep the appeal alive.  Insofar as the amount of the costs is concerned, we are satisfied that it is justified by what is said in the Contentions for the Respondent, and the Appellant in his subsequent email has not provided any reasoned explanation of why the amount is not appropriate.  We also consider that it respects the need for proportionality as referred to by the Bailiff.  As regards the Appellant's suggestion that Advocate Meiklejohn has agreed that £1,000 would be the fair sum, we consider that this does not accurately describe the position.  That amount was indicated as being acceptable to the Respondent provided that payment was made promptly by the Appellant but the Appellant did not respond positively to that.  The fact that Advocate Meiklejohn made such an offer cannot be taken to have bound the Respondent in the event of rejection.  Furthermore, the fact that Advocate Meiklejohn communicated with the Appellant as he did was in line with the Court's direction.  We do not consider that the Appellant may reasonably complain that he had asked to receive no such communication in a situation where the expectation of such communication with a view to agreement on costs was in line with the Court's direction.  As for the Appellant's other allegations made both in the emails to the Judicial Greffe and as referred to in the Contentions for the Respondent, we make no comment on these. 

Authorities

Pearce-v-Treasurer of the States [2017] JCA 075.

Pearce-v-Treasurer of the States [2016] JRC 101.

Court of Appeal (Civil) Rules 1964.