Trust - matters relating to constitution of the Court at the substantive hearing.
Before : |
David Roderick Notley Hunt, Q.C., Commissioner, sitting alone. |
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Between |
(1) CI Trustees and Executors Limited (2) Gary Killmister |
Costs Plaintiffs |
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And |
(1) Sinels Advocates (2) Carey Olsen |
Costs Defendants |
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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. As I recorded at para.15 of my judgment of 15 January 2017 (as revised on 3 April 2017), at the hearing on 12 January 2017 ("the January hearing") Mr Garrood for the Second Costs Defendants ("Carey Olsen") submitted that that hearing should take place before myself and two Jurats, not just myself. I ruled that I should conduct the January hearing myself for the reasons set out in para.15. But I also indicated that the advocates should discuss the issue in the context of, in particular, any substantive hearing on the merits of the Costs Plaintiffs' wasted costs application.
2. Shortage of time did not allow this issue to be resolved at the hearing on 11 July 2017, so I directed without objection from the parties that I would decide it on the basis of written submissions. I also laid down a timetable for such submissions.
3. Carey Olsen duly served written submissions in support of the approach which Mr Garrood had outlined at the January hearing. The First Costs Defendants served brief written submissions in which they endorsed Carey Olsen's position. By an email to the Court dated 28 July 2017, Mr Scholefield for the Costs Plaintiffs wrote as follows:
"In court on the 11th July I said that I had drawn up a list of reasons why it would be appropriate for [the Commissioner] to sit alone at a substantive hearing of the Costs Plaintiffs= application for their wasted costs.
....
I have now had the opportunity to consult and to give this issue further consideration. I have decided not to offer any submissions as to the composition of the court as it will sit in December. For the Costs Plaintiffs this is therefore a matter à la sagesse de la cour, which will I expect proceed to evaluate the contentions submitted to it by the Costs Defendants on this point."
The result of the stance now adopted by the Costs Plaintiffs is that I have not had the benefit of full argument on both sides in relation to the points raised by the Costs Defendants.
4. This is conveniently summarised in their written submissions as follows:
"2... [T]he court at the Wasted Costs hearing should comprise so far as possible the same Presiding Judge and Jurats as sat at the trial and determined the substantive case which gave rise to the Judgment of the Royal Court of 17 November 2015 (the "Trial"). The two Jurats who sat in the trial court were Jurat Marrett Crosby and Jurat Grime. Jurat Marrett Crosby retired in July last year, however Jurat Grime is still a Jurat.
3. The Court may not be obliged as a matter of law to sit with Jurats (the legal position discussed below is not clear) but, based on previous court practice discussed below, it seems that it may and should do so. Best practice would be sitting with Jurats. This is because this application for wasted costs is not restricted to deciding matters only of law (which includes procedure) or purely within the exclusive costs jurisdiction of the Presiding Judge/Bailiff. If it is within that costs jurisdiction, Jurats may play their fact finding part and the "award" of costs can be made by the presiding Judge based upon their factual findings. The single costs jurisdiction is not suitable because the Wasted Costs hearing will require the Royal Court to make decisions of fact set out in pleadings containing serious allegations of misconduct different from the factual allegations at Trial between different parties."
5. The Royal Court (Jersey) Law 1948 ("the 1948 Law") provides as follows:
"15 Powers of the Bailiff and Jurats
(1) In all causes and matters, civil, criminal and mixed, the Bailiff shall be the sole judge of law and shall award the costs, if any.
(1A) For the purposes of this Law, a question of procedure is one of law.
(2) In all causes and matters, civil, criminal and mixed, other than criminal causes tried before the Criminal Assizes, in which causes the jury shall, as heretofore, find the verdict, the Jurats shall, subject to Article 17(2), be the sole judges of fact and shall assess the damages, if any.
....
(4) In all causes and matters, civil, criminal or mixed, the Bailiff shall have a casting vote whenever the Jurats -
(a) being 2 in number, are divided in opinion as to the facts or as to the damages to be awarded or as to the sentence, fine or other sanction to be pronounced or imposed; or
(b) being more than 2 in number, are so divided in opinion with respect to any one or more of the matters specified in sub paragraph (a) that the giving of a casting vote is necessary for the finding of a majority opinion.
....
17 Bailiff as sole judge
(1) Any cause or matter in which only issues of law arise may be determined by the Bailiff sitting alone."
6. Rule 3/6 of the Royal Court Rules 2004 reads:
"Jurisdiction of the Bailiff
In any cause or matter wherein, pursuant to Article 15(1) of the Royal Court (Jersey) Law 1948, the Bailiff is sole judge, the Inferior Number is properly constituted if it consists of the Bailiff alone, and the Bailiff alone shall award costs."
7. I agree with Carey Olsen that the questions of law to which their position gives rise are these:
(1) whether a wasted costs application is a matter of "procedure" within the meaning of Arts.15 (1) and (1A) of the 1948 Law; and
(2) whether the wording of Art.15 (1) of the 1948 Law, and of Royal Court Rule 3/6, requires me alone to determine wasted costs applications in their entirety.
8. In my view Carey Olsen are correct that the answer to question (1) must be in the negative. Wasted costs applications are matters of substance, not of procedure, not least because they require findings to be made in relation to the conduct of the advocates against whom such costs are sought. That leaves only question (2).
9. Carey Olsen have drawn my attention to a number of Jersey authorities, which I take in chronological order.
10. In Skinner v. Myles [1990] JLR 98 the Court, consisting of the Bailiff alone, had to determine whether it had jurisdiction to entertain an application that the costs awarded against the plaintiff should be paid by the plaintiff's advocate, i.e. to make what we would now call a wasted costs order. The Court decided that it had such jurisdiction but added (at p.100):
"Whether that court consists of the Bailiff sitting alone, or the Bailiff with an Inferior Number or the Bailiff with a Superior Number is not an issue at the moment."
11. In Bland v. First National Commercial Bank Plc [1993] JLR 80 the claim had been struck out because the plaintiffs had failed to give security for the defendants' costs. The first plaintiff sought an order from the Judicial Greffier that either his original advocate or the defendant pay the costs of the action, or that the advocate indemnify him in respect of such costs. The headnote continues:
"On the issue as between the first plaintiff and his original advocate, the advocate submitted in reply ... (b) the court's power to award costs against the advocate of a party to proceedings was only exercisable in its jurisdiction to discipline its own officers for behaviour tending to defeat the course of justice and as such, could only be exercised by the Inferior Number or the Superior Number of the Royal Court and not by the Judicial Greffier ... The court considered the situations in which it could use its powers to discipline an advocate.
Held, dismissing the first plaintiff's application:
(1) There were two different situations in which a court could take action against advocates in respect of their conduct of proceedings: (a) where a client had suffered loss due to the neglect or misconduct of his advocate; and (b) where an advocate acted in proceedings without authority...
(2) In the present case, however, the court would not consider the plaintiff's application since in either situation mentioned above, the court's jurisdiction was disciplinary in nature and accordingly only exercisable by the Inferior Number or the Superior Number of the Royal Court and not by the Judicial Greffier."
The Greffier added as follows in his judgment (at p.92):
"I would also comment in passing that apart from the jurisdictional question mentioned above, I would not have thought it appropriate to deal with disputed matters of fact on affidavits and would, in any event, have needed to remit these to the Royal Court (Inferior Number) which is the appropriate forum for the hearing of evidence and the determination of issues of fact."
12. Drake v. Gouveia [2000] JLR 411 was heard by the Bailiff and two Jurats. The claim had been struck out for want of prosecution. The plaintiff was ordered by the Master to pay the defendant's costs. The Royal Court allowed the plaintiff's appeal and made a wasted costs order against the plaintiff's former advocate instead. The final paragraph of the judgment reads as follows:
"We accept the submission of Mr Landick that the appellant is blameless for [the action being struck out]. She now finds herself facing a bill for many thousands of pounds in legal costs. ... Responsibility for this unhappy state of affairs rests fairly and squarely with LWR, and in my judgment it is just that they should pay the wasted costs of the action. I therefore order that the costs of the respondent up to August 10th, 2000 and the costs of the appellant between March 16th and August 10th, 2000 be paid by LWR on the standard basis. I am prepared to hear counsel in relation to the costs of this appeal."
13. In Perczynski v. Perczynski [2005] JRC 084 the Master had struck the claim out and ordered the costs to be paid by the representor's advocates. On appeal to the Royal Court, consisting of the Deputy Bailiff and two Jurats, the action was allowed to proceed. However the Court also allowed the appeal by the representor's advocates against the Master's wasted costs order.
14. In In the matter of the Internine and the IntertradersTrusts [2006] JLR Note 1, the Deputy Bailiff sitting alone ordered the second respondent's advocates to pay wasted costs.
15. Finally in Leeds United Association Football Club Ltd. v. Admatch [2014] JRC 167 (which Carey Olsen included in their bundle of authorities but upon which they did not comment in their written submissions) the Bailiff sitting alone made a third party costs order against the convened party. As appears from the judgment, the Bailiff made a number of findings of fact in reaching his decision.
16. From this review of the authorities I draw the following conclusions.
(i) In Skinner the Bailiff expressly raised the question whether the wasted costs jurisdiction should be exercised by the Bailiff sitting alone, or by the Bailiff with an Inferior Number or a Superior Number, but gave no answer. In Bland the Judicial Greffier concluded that the jurisdiction was exercisable only by the Inferior or Superior Number. In none of the last four cases does the relevant report contain any mention of any discussion about the proper constitution of the Court in a wasted costs matter.
(ii) In practice, wasted costs orders have been made by both Courts comprising a judge alone and Courts comprising a judge and Jurats.
(iii) Although in Bland the Judicial Greffier considered that the Inferior Number was the appropriate forum for the hearing of evidence and the determination of issue of fact, in both the Internine Trust and Leeds United cases the judge had no apparent difficulty in making the necessary findings of fact himself.
In short, it seems to me that no consistent practice emerges from the authorities.
17. As both Costs Defendants emphasise, the present wasted costs proceedings involve serious allegations against them with potential reputational repercussions. The Court will have to resolve disputed issues of fact in order to determine whether the misconduct alleged by the Costs Plaintiffs occurred. The Costs Defendants were not, of course, parties to the original litigation. Art.15(2) of the 1948 Law places the primary responsibility for resolving issues of fact fairly and squarely on the Jurats, as the Judicial Greffier expressly recognised in Bland. In those circumstances I have no doubt that if it is open to me to sit with Jurats that would be the appropriate course.
18. Nor, in my view, is such a course precluded by Art.15 (1) or Rule 3/6. I see no reason why, as Carey Olsen suggest in para.3 of their written submissions as quoted in para.4 above, the Jurats should not fulfil their fact finding role as envisaged by Art.15(2), whereupon I can make the appropriate award of costs pursuant to Art.15(1). Indeed the language of the judgment in Drake which I have quoted in para.12 above lends some support to such an approach.
19. Accordingly I accede to the request of the Costs Defendants that the substantive hearing of the Costs Plaintiffs' wasted costs application should take place before me and two Jurats. I also agree with the Costs Defendants that the Jurats who sit with me on the substantive hearing should, so far as possible, be the same as those who heard the original action in 2015. Of the two Jurats who heard the original action, only Jurat Grime remains in office; Jurat Marrett-Crosby has retired. So while Jurat Grime should, subject to his availability, be one of the Jurats who sits with me on the substantive hearing, Jurat Marrett-Crosby will have to be replaced by another, serving Jurat.
Authorities
Royal Court (Jersey) Law 1948.
Royal Court Rules 2004.
Skinner v. Myles [1990] JLR 98.
Bland v. First National Commercial Bank Plc [1993] JLR 80.
Drake v. Gouveia [2000] JLR 411.
Perczynski v. Perczynski [2005] JRC 084.
In the matter of the Internine and the IntertradersTrusts [2006] JLR Note 1.
Leeds United Association Football Club Ltd. v. Admatch [2014] JRC 167.