Jersey Unreported Judgments

Costs - decision in relation to an application for costs.

[2018]JRC053

Royal Court

(Samedi)

8 March 2018

Mr Holmes appeared on his own behalf.

Advocate J. D. Kelleher for the First and Second Respondent.

Advocate D. J. Dixon for the Intervenor.

Advocate H. J. Heath as Amicus Curaie.

judgment

the deputy bailiff:

1.        On the 16^th January, 2018, the Court refused an application by Shane Michael Holmes ("Mr Holmes") for leave to bring judicial review proceedings against the Law Society of Jersey and the Bâtonnier (the "Law Society" and the "Bâtonnier" respectively) arising out of Mr Holmes' attempts to secure or continue to have legal aid and the decisions made by or on behalf of the Bâtonnier in that regard.  Those proceedings were served on the Attorney General who applied successfully for leave to intervene. 

2.        On the 14^th February, 2018, the Court sat to determine Mr Holmes' application for leave to appeal against that refusal and the Law Society and Bâtonnier's application for costs against Mr Holmes. 

3.        In a short ex tempore judgment on the 14^th February, 2018, I refused Mr Holmes' application for leave to appeal.  I reserved the question of costs.  This is my decision on that matter. 

4.        The principles applicable to the award of costs against an applicant who is unsuccessful in applying for leave to apply for judicial review when a hearing on 'ex parte' had taken place were considered by the Royal Court and the Court of Appeal in Larsen-v-Comptroller of Taxes [2015] JRC 001; Court of Appeal Larsen and Others-v-Volaw [2016] JCA 139.  I do not need to set out substantial excerpts from either of those judgments because I agree with the characterisation of the principles established by those two decisions set out by Advocate Kelleher on behalf of the Law Society and the Bâtonnier in his Skeleton Argument.

5.        They are, in my view, as follows:-

(i)        The Court has the power to award costs in the circumstances pursuant to Article 2(1) of the Civil Proceedings (Jersey) Law 1956;

(ii)       An applicant for judicial review should not ordinarily be made to pay the costs of a failed application for leave;

(iii)      This is a starting point only and applies whether the application is dealt with on the papers or disposed of after an oral hearing - even if the oral hearing was requested by the applicant and even if it follows a refusal on the papers;

(iv)      That starting point can be departed from.  The Court, in the exercise of a broad discretion as       to costs, may depart from it if it considers that there are exceptional circumstances that justify            doing so;

(v)       A useful guide to the circumstances which might justify such a departure may be found from R-v-Mount Cook Land Limited-v-Mount Eden Land Limited and Westminster City Council [2004] CP Rep 12 in which the court said:-

"Exceptional circumstances may....consist in the presence of one or more of the features in the non-exhaustive list:

(a)       The hopelessness of the claim;

(b)       The persistence in it by the claimant after having been alerted to facts and/or of the Law demonstrating its hopelessness;

(c)       The extent to which the court considers that the claimant in the pursuit of his application has sought to abuse the process of judicial review for collateral ends - a relevant consideration as to costs at the permission stage as well as when considering discretionary refusal of relief at the stage of substantive hearing, if there is one; and

(d)       Whether as a result of the deployment of full argument and documentary evidence by both sides of the hearing of a contested application, the unsuccessful claimant has had, in effect, the advantage of an early substantive hearing of the claim."

6.        In the Larsen case the Royal Court had made an order for costs against the unsuccessful applicant for leave to bring an application for judicial review.  The Court of Appeal, at paragraph 16 of its judgment (cited above) said this of that decision:-

"The circumstances of the present case were on any footing unusual.  The application was plainly long out of time.  It represented a further challenge to a notice whose validity had been upheld by the domestic court system at all levels. Although the prior challenge had failed, it had raised questions of substance and difficulty.  Whilst it was very unlikely that the new application could raise any new point or could survive a long delay in bringing it, the Bailiff was entitled to take the view that the interests of justice required a hearing at which the merits of allowing the application to proceed could be properly investigated.  What the hearing made clear, however, was that there was no basis for a further judicial review.  The timing of the new application was material not only for its own sake, being over two years after the issue of the notice, but also because it gave rise to the inference that it was a last ditch attempt to keep alive a challenge that had been rejected by the domestic courts.  The Bailiff's remarks at the conclusion of the hearing, set out in paragraphs 6 above, demonstrates an awareness of both these factors. They amply justify his view not only that the delay could not be overcome but also that the notice was not susceptible of a further challenge immediately after the failure of the prior judicial review.  But they also justify his decision to make an adverse cross order; the application was hopeless, it had been persisted in despite the appellants knowing the comptroller was taking the       point about delay, and amounted to an abuse of process.  These are three of the factors identified in paragraph 76.5 of the judgment in Mount Cook as capable of amounting to exceptional circumstances justifying the departure from the ordinary practice."

7.    The primary ground on which leave to apply for judicial review had been refused was that of delay.  A further ground insofar as what was called 'the systematic claims' were concerned, was lack of           standing.

8.        Whilst accepting the usual starting point Advocate Kelleher submitted that this case contained exceptional circumstances which would justify a departure and that Mr Holmes should be ordered to pay the costs.

9.        He submitted that shortly after being notified of Mr Holmes' intention to apply for leave to bring judicial review proceedings he wrote on the 20^th January, 2017, to me but copied to Mr Holmes making certain points.  This included that it was clear that the Law Society and Bâtonnier would be making submissions concerning both delay and the lack of any reasonable prospect of success.  In an email dated the 8^th February, 2017, further points were made to Mr Holmes including the lack of particularity within his application and the fact that the applications had not been made promptly and were out of time.  Included also was the statement that to the extent that Mr Holmes was seeking to challenge the operation of the legal aid scheme as being unlawful and incompatible with the European Convention of Human Rights then he would be challenged on the basis that he did not have a 'sufficient interest' as required pursuant to Rule 16/2(11) of the Royal Court Rules.

10.      In the event, it was not the Law Society that concentrated on the question of 'standing' but rather it was the Attorney General who did so, approaching, in argument, the status of Mr Holmes' as a 'victim'.

11.      Accordingly Mr Holme's had been warned in advance that both of these points, delay and standing would be taken against him. 

12.      Mr Holmes denied that there had been any delay and did not address in his application or supporting documentation the effect of any possible delay on third parties - specifically the other parties to the proceedings in which he was involved.

13.      Furthermore, Advocate Kelleher argued that Mr Holmes was uncooperative in preparing and filing documentation in a way that made his case understandable.  The Law Society and Bâtonnier had dealt with this in correspondence and had not only notified Mr Holmes of the grounds upon which the application would be resisted but also the difficulties that the Law Society and the Bâtonnier had in understanding the application.

14.      The Law Society is, of course, a body that is funded by the membership.  Mr Holmes is a litigant in person although he had the benefit of certain assistance from Advocate Heath as amicus curiae who, of course, also assisted the Court.

15.      This is a matter for the exercise of my discretion.  There is no doubt that the fact that Mr Holmes was notified in advance of the basis on which his application would be resisted by the Law Society, and at least two of those bases were successful, means that he was warned in advance of the problems with his application.  That is one of the Mount Cook features.

16.      The Amicus Curiae took a similar view of the problems attendant upon delay. 

17.      On the other hand, Mr Holmes is a litigant in person and there is no suggestion that his application were brought in bad faith or that he did not genuinely think that his reference to his systemic claims which, so he indicated, had only been available to him in October of 2017 on his analysis, might not have overcome any question of delay in connection with the applications for legal aid themselves.  I do not think that this, wrong though to my mind it was, amounts to an abuse of process.

18.      In my view whereas there are some arguments in favour of making an order for costs against Mr Holmes in the present case, there is not sufficient for me to do so and to depart from the usual starting point.  Mr Holmes is and has been persistent in his application but it was not in my view unreasonable of him to seek to have the matter of leave determined by a court even though for the reasons that the Court set out, leave was refused.

19.      In the circumstances I do not make any order for costs.

Authorities

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

Larsen and Others-v-Volaw [2016] JCA 139.

R-v-Mount Cook Land Limited-v-Mount Eden Land Limited and Westminster City Council [2004] CP Rep 12

Royal Court Rules 2004.