Jersey Unreported Judgments

Trust - application by Sinels for leave to appeal against decision of 14 August 2017.

[2017]JRC140A

Royal Court

(Samedi)

4 September 2017

Before     :		David Roderick Notley Hunt, Q.C., Commissioner, sitting alone.
Between	(1)   C.I. Trustees and Executors Limited (2)   Gary Killmister		Costs Plaintiffs
And	(1)   Sinels Advocates (2)   Carey Olsen		Costs Defendants

Advocate C. J. Scholefield for the Costs Plaintiffs.

Advocate J. M. P. Gleeson for the First Costs Defendants.

Advocate N. F. Journeaux for the Second Costs Defendants.

judgment

the commissioner:

1.        On 14 August 2017 the Court handed down its judgment ("the August 2017 judgment") dismissing the amended application of the First Costs Defendants ("Sinels") to strike out paras.7(b), 10(b) and 12 of the Grounds for seeking wasted costs against the Costs Defendants ("the Grounds") served by the Costs Plaintiffs, alternatively for reverse summary judgment in respect of the same paragraphs.

2.        In para.42 of the August judgment I directed that any application by Sinels for leave to appeal against my decision (if required) was to be made by 4 pm on Friday 25 August 2017, and that any response by the Costs Plaintiffs was to be lodged by Thursday 31 August (which I subsequently extended by 24 hours).  I also repeated the direction which I had given at the hearing on 11 July that I would deal with any such application in writing.

3.        In due course Dickinson Gleeson for Sinels did apply for leave to appeal, serving a skeleton argument in support, and Viberts for the Costs Plaintiffs served a skeleton argument in opposition to Sinels' application.

4.        Since my decision on Sinels' amended application was interlocutory, both Sinels and the Costs Plaintiffs are agreed that leave is required to appeal against my decision.  Sinels submitted that the relevant test for the grant of leave is set out in para.32 of the judgment of the Court of Appeal in Tygres v. Jersey Home Loans [2016] JCA 115A, where Birt JA said as follows:

"In order to obtain leave to appeal against an interlocutory decision, a potential appellant must show: -

(i)        that an appeal has a real prospect of success;

(ii)       that a question of general principle falls to be decided for the first time; or

(iii)      that there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage - (see Crociani v Crociani [2014] (1) JLR 426 at paragraph 50)."

The Costs Plaintiffs did not contend for any different test.  It is Sinels' case that they can satisfy both limbs (i) and (iii).  They do not suggest that they can satisfy limb (ii), so I can ignore that limb.  I now take each of limbs (i) and (iii) in turn.

Limb (i)

5.        Under this limb Sinels rely, in summary, on the following five grounds (in the order which they adopted):

(1)       that I failed to provide adequate reasoning in support of my conclusion that the Costs Plaintiffs had a real prospect of successfully demonstrating the requisite  causality between the alleged conduct of Sinels and the costs incurred by the them after September 2013 ("the later claim");

(2)       that I erred in law in holding that the burden of proof on their application rested with Sinels;

(3)       that I erred in law in deciding to disregard the opinion of Mr Victor Joffe in its entirety for the present purposes, as well as disregarding the subsequent decision of the Beddoe court;

(4)       that I erred in law in holding that the Costs Plaintiffs had a real prospect of successfully establishing causation in respect of the later claim; and

(5)       that I erred in finding that there was a compelling reason why the issue of causation should be disposed of at trial.

I now briefly address each ground.

(1) Failure to provide adequate reasoning

6.        I accept that the principles enunciated by Lord Phillips M.R. in English v. Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605, in the passages cited in para.30 of Sinels' skeleton argument, apply with equal force in Jersey.  But as Lord Phillips also emphasised at para.17 of his judgment:

"As to adequacy of reasons, as has been said many times, this depends on the nature of the case..."

(I add that in my view the decision of the English Court of Appeal in Weymont v. Place [2015] EWCA Civ 289, which involved an appeal relating to findings of fact, and upon which Sinels also rely, takes matters no further.)

7.        I note that at para.26 of their skeleton argument Sinels have chosen to omit the final sentence of para.36 of my August judgment.  That point aside, and following the approach suggested by Lord Phillips at para.25 of English, I have considered whether paras.25 to 36 of the August judgment are, in the context of Sinels' reverse summary judgment application, defective for lack of reasons.  My conclusion is that, as the Costs Plaintiffs contend, I have given adequate reasons for my decision to reject both aspects of Sinels' application.  I therefore refuse to give Sinels leave to appeal on this ground.

(2) Burden of proof

8.        There is nothing that I can usefully add to what I said on this issue at paras.23 to 24 of the August judgment, in which I concluded that the burden of proof on the reverse summary judgment application remained on Sinels in the usual way.  I am not persuaded that Sinels have a real prospect of showing that either my reasoning or my conclusion on this point were incorrect.  Accordingly this ground does not avail Sinels.

(3) Disregarding the opinion of Mr Victor Joffe

9.        I note that Sinels do not challenge the observation at para.21(2) of my August judgment that currently there is uncertainty about the extent, if any, to which they can rely on the opinion of Mr Victor Joffe (which I record that neither the Costs Plaintiffs nor I have  seen).  Indeed the procedural orders which I made at the hearing on 11 July included specific provision for any outstanding issues of privilege, which would include any issues of privilege in relation to Mr Joffe's opinion, to be resolved prior to the parties' preparation for the substantive hearing.  I accept that as a matter of fact, as Sinels record in paras.44 and 45 of their skeleton argument, the Beddoe court relied upon Mr Joffe's opinion in sanctioning the continuation of the original proceedings.  But it seems to me that there is force in the point conveniently summarised by Viberts at para.44 of their skeleton argument that:-

"material not able to be disclosed to the Court making the decision in this matter (whether on the grounds of privilege or any other ground), should not be relied on for any purpose or in any way, even if it was disclosed to another court differently composed determining other issues."

10.      At the very least, it seems to me, the significance of the Beddoe court's decision must be linked to, and potentially affected by, the question whether, and if so to what extent, Sinels can rely on Mr Joffe's opinion in these proceedings.  In those circumstances I concluded that the only proper course was to disregard Mr Joffe's opinion for the purposes of their amended application.  I do not consider that Sinels have any real prospect of establishing that that approach was wrong.

(4) Holding that the Costs Plaintiffs had a real prospect of successfully establishing causation

11.      To be entirely accurate, and contrary to the formulation in para.49 of Sinels' skeleton argument, my conclusion in para.36 of the August judgment was that Sinels had not discharged the burden of establishing that the Costs Plaintiffs had no real prospect of succeeding on the causation issues raised by paras.7(b), 10(b) and 12 of the Grounds.  Understandably no doubt, paras.48 to 66 of Sinels' skeleton argument consist, in effect, of a re-run of their submissions to me at the hearing in July and in their skeleton arguments in support of their original and amended applications.  Nothing in those paragraphs persuades me that my conclusion in para.36 of the August judgment was incorrect or that Sinels have any real prospect of establishing that it was.

(5) A compelling reason why the issue of causation should be disposed of at trial

12.      There are two matters in Sinels' skeleton argument on this issue which call for comment.

13.      The first is the reference in para.70 to Sinels having no need to lead any evidence in respect of the later claim if the claim against them were curtailed to the period in which they acted for the original Plaintiffs.  At the hearing in July 2017 there was, as I recall, no suggestion that any party would adduce evidence at the substantive hearing, hence the absence of any reference to evidence in the procedural orders which I made at the hearing on 11 July.  In those circumstances I have some sympathy with the observations of Viberts in para.54 of their skeleton argument that:-

"It is unlikely that Sinels are sitting on a wealth of important evidence which they have for some reason hitherto elected to withhold."

In short, I do not understand the basis for this assertion by Sinels about having no need to lead evidence.

14.      Second, I am not persuaded that the fact that in Iliffe v. Feltham Construction Ltd. [2015] EWCA Civ 715 the summary judgment application was made by the Claimants, whereas in the present case the application was made by Sinels as Defendants, makes any difference to the position.

15.      Those points aside, again I do not consider that the conclusion which I reached in para.39 of the August judgment was wrong, or that Sinels have any real prospect of showing that it was.

Limb (iii)

16.      I accept, as Sinels contend at para.14 of their skeleton argument, that by comparison with the position in England there is relatively little case law in Jersey in relation to the exercise of the wasted costs jurisdiction.  But neither party contended before me that there was, or should be, any difference between the law of Jersey and that of England in relation to wasted costs generally or to causation in particular, so there is no need for separate Jersey jurisprudence for its own sake in this area.  Second, it seems to me that there is force in the Costs Plaintiffs' submission at para.5 of their skeleton argument that the issues arising from Sinels' defence to the later claim are too fact specific to make the present case one of general legal importance.  Finally, even if it would in principle be to the public advantage to have a decision of the Court of Appeal on the issue of causation as regards wasted costs, or on the significance of Sinels' obtaining the approval of a Beddoe court, it seems to me that what would assist the public would be a decision of the Court of Appeal which was given following a full hearing in the Royal Court, not a decision on an interlocutory appeal against a refusal to grant reverse summary judgment.  In those circumstances I conclude that limb (iii) does not avail Sinels.

Conclusion

17.      For the reasons set out above, I refuse Sinels' application for leave to appeal against my August 2017 judgment.

18.      Again I reserve all issues of costs arising out of Sinels' application.

Authorities

Tygres v. Jersey Home Loans [2016] JCA 115A.

English v. Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605.

Weymont v. Place [2015] EWCA Civ 289.

Iliffe v. Feltham Construction Ltd. [2015] EWCA Civ 715.