Costs - application for standard costs.
Before : |
Sir William Bailhache, Bailliff, sitting alone. |
J
-v-
His Excellency the Lieutenant Governor of Jersey
Advocate R. C. L. Morley-Kirk for the Applicant.
Advocate S. A. Meiklejohn for the Respondent.
JUDGMENT
THE BAILIFF:
1. On 18th April, 2018, judgment was handed down J v His Excellency the Lieutenant Governor [2018] JRC 072A setting aside at the Applicant's request the Respondent's decision to deport him from the Bailiwick of Jersey on his completion of the sentence imposed upon him by the Royal Court on 17th December, 2015. Following the handing down of that judgment, the parties had discussions but could not agree the question of costs. On behalf of the Applicant, Advocate Morley-Kirk made on 24th May an application for standard costs. This application was resisted by Advocate Meiklejohn on behalf of the Respondent.
2. The Applicant was legally aided throughout the proceedings. His costs have been assessed at the legal aid rate rather than the private advocate's rate. They have not obviously been taxed, but the claimed sum is £44,150.20. Mrs Morley-Kirk makes her application pursuant to Article 2(1) of the Civil Proceedings (Jersey) Law 1956 which confers on the Royal Court the power to order in its discretion the costs of and incidental to all proceedings in the Royal Court. That includes judicial review proceedings.
3. On the face of it, in proceedings before the Court, costs follow the event. Advocate Morley-Kirk accepts however that the Court has a discretion and what is just and reasonable will depend on all the relevant facts and circumstances. She also accepts that where a complainant has successfully challenged an administrative decision made by a regulatory authority acting "honestly, reasonably, properly and on grounds that reasonably appear to be sound, in exercise of its public duty, the Court should consider both the financial prejudice of the complainant and the need to encourage public authorities to make and stand by honest, reasonable and sound decisions made in the public interest without fear of exposure to undue prejudice if the decision is successfully challenged." City of Bradford Metropolitan District Council v Booth [2000] COD 338.
4. These submissions were made on the application of principles approved by this Court in Jersey Financial Services Commission v A P Black (Jersey) Limited and others [2007] JLR 1, Watkins v Egglishaw [2002] JLR 1 at paragraph 7, Attorney General v Rosenlund and another [2016] (1) JLR 348 and An Advocate v Disciplinary Committee of the Law Society and Y [2011] JLR 12.
5. The submission made was that there had been procedural impropriety in this case as the Royal Court found at paragraph 31 of its judgment of 18th April, and also that there was no doubt that the Respondent has acted disproportionally in interfering with the Applicant's Article 8 rights - the Royal Court had commented at paragraph 60 of its judgment that both the prosecution, two judges and seven Jurats had all reached the view that making the deportation order was disproportionate to the Applicant's human rights. Accordingly it could not be said that the Respondent was acting in a manner that was "reasonably sound".
6. Advocate Morley-Kirk also submitted that the Court had commented that the procedural point raised was an important one of principle on which the Court should express a view, and accordingly it was anticipated that the procedures adopted by the Home Affairs Minister in deportation cases (because the Respondent no longer has that function) will change so that the Court's comments about transparency are taken into account in the future.
7. The case of An Advocate v Disciplinary Committee of the Law Society was cited to justify the submission that making a costs order would not have a chilling effect on the decision taker in deportation cases in the future.
8. Finally, Advocate Morley-Kirk submitted that the fact that the Applicant was represented on legal aid was irrelevant to the claim for costs other than to contain the costs to the legal aid rate rather than the private rate. In reliance on Flynn v Reid [2012] (2) JLR 226, she submitted that the fact that an award of costs to a party may only benefit that party's advocate is not a reason for not making an order that would otherwise be justified.
9. This latter point was not taken by Advocate Meiklejohn on behalf of the Respondent. I accept that Flynn v Reid is binding upon me as a Court of Appeal decision, and I do not therefore depart from it. However, I do consider that at some future date it may well be appropriate for the Court of Appeal to revisit its conclusions in that case, not least because costs orders are not made to benefit the lawyers concerned. The purpose of costs orders is to provide an indemnity to a party who has incurred costs with his or her lawyer in litigation in which he or she has been successful. With the greatest of respect to the Court of Appeal in Flynn v Reid, I am not sure that this fundamental principle on the award of costs was given the attention which arguably it deserved, the only reference to that being at paragraph 39 of the judgment of Beloff JA that:-
"The fact that, because of the operation of the legal aid scheme, a particular award of costs to one party may benefit only that party's advocate (but without, I should add, disadvantaging that party) is no reason for not making an order which is otherwise justified."
10. I note from the cases cited that the Court of Appeal does not appear to have been referred to numbers of cases both in England and Jersey where the indemnity principle has been considered by the courts. It may be that at some future date there will be a case in the Court of Appeal which will require this point to be revisited, but for present purposes it is clear that the fact that the applicant was on legal aid is to be disregarded (save as to the applicable rate). I add only that in a case such as the present one, there are competing points to be made in respect of legal aid.
11. On the one hand, the fact of legal aid on a non-contributory basis means that the Applicant has personally suffered no loss whatever from the proceedings. From his perspective, he has been able to challenge the administrative decision successfully without financial cost to him and as has been mentioned, the indemnity principle would normally mean that he does not obtain a costs order in his favour. On the other hand, the legal aid scheme has been so far a scheme for the provision of legal aid in particular cases, enforceable as a matter of customary law and through the oath of office which all advocates take before the court, albeit the operation of the scheme has previously been approved from time to time by the Jersey Law Society. The provision of legal aid in appropriate cases is fundamentally necessary for the delivery of justice and for compliance with the European Convention on Human Rights which now forms part of the domestic law of the Island. It is important that any legal aid scheme, whether it be of a kind currently in force or a new statutory scheme, should operate so that it does not deter advocates from doing their professional duty. It has not been the experience of the Royal Court that the present scheme has deterred advocates in the past, and that is very much to the credit of the profession, demonstrated in this case by the commitment of Advocate Morley-Kirk and Messrs Viberts to advancing a judicial review application on behalf of the Applicant when they must have known from the outset that there was no chance of being paid for their work unless a costs order were obtained at the end of the day. Historically the Court has reflected the importance of ensuring that the legal aid scheme worked fairly by making orders for legal aid costs in respect of Magistrate's Court appeals and appeals to the Court of Appeal; and in making the costs provision which is made in public law children cases. These comments appear to me to be relevant both to the design of any new legal aid scheme and to any consideration of the indemnity principle in the future, which one would like to think should in some form or other recognise that in Jersey, unlike in other places, advocates and solicitors do make an unpaid contribution to the community through the provision of legal aid. This should be both appreciated and at the same time taken into account in the recoverability of costs through costs orders, albeit the latter point will require an overall balance of fairness towards a profession making its pro bono contributions to our small local community.
12. On behalf of the Respondent, Advocate Meiklejohn did not contest the jurisdiction to award costs in judicial review cases, but did assert that there should be no costs awarded against the Respondent because he was exercising his statutory duty to consider whether a non-British national sentenced to imprisonment for a period in excess of four years should be deported. Advocate Meiklejohn submitted there needed to be a justification for the costs award which goes beyond the mere fact that the Applicant was successful, and if the normal rule of costs following the event were to be strictly followed in cases such as the present one, there would be a risk of a chilling effect of future immigration decisions taken by the Minister.
13. It was emphasised that here, as both parties accepted, the Respondent had acted in good faith following established procedure, albeit the procedure was criticised by the Royal Court in its judgment.
14. I accept the submission that the Applicant was a clear winner of the litigation, both on the grounds of procedural impropriety and proportionality. I depart from both parties in so far as they assert that on procedural impropriety grounds alone the Applicant would have been successful. At paragraph 32 of the main judgment, I said that while I accepted the submission that the process was unfair for the reasons which were given in that judgment, I had not gone on to address the question whether the decision would have been any different without that procedural unfairness. The human rights arguments were such that it was unnecessary to do so.
15. I also accept the proposition of Advocate Morley-Kirk that the case will have had a beneficial effect because the procedures adopted by the Customs and Immigration Department will now be reviewed having regard to the Court's comments in relation to the previous process which was regarded as unfair.
16. Advocate Meiklejohn submitted that one had in effect to cross the threshold for indemnity costs to get any costs order in cases where a public authority exercising a public duty was judicially reviewed. For that submission he relied on paragraphs 21 - 25 of Rosenlund, and in particular paragraph 25 where the Court said this:-
"In the context of ordinary civil litigation, I would have considered the advancing of a hopeless case as crossing the threshold for indemnity costs, as suggested in that extract from the case of Richmond Pharmacology Ltd v Chester Overseas Ltd, but in the context of the Attorney General, a public body carrying out an important public function, that factor weighs heavily enough in the balance to limit the order against the Attorney General to standard costs. Those costs will include the preliminary issue argument which took place after 23rd January 2015 because, although the Attorney General succeeded on that issue, it was being argued at a time when the Attorney General was pursuing a claim that I have found had no possibility of succeeding."
17. In other words Commissioner Clyde-Smith was saying in that case that in ordinary civil litigation he might have awarded indemnity costs, but the public function arguments were such that the order would only be made for standard costs.
18. In my judgment, Advocate Meiklejohn's submission that this means one has to cross the threshold for indemnity costs to get any costs order misconstrues the passage in Commissioner Clyde-Smith's judgment. On the facts of that case, having regard to all the circumstances, Commissioner Clyde-Smith considered that whereas an indemnity costs order might have been justified, he was in fact only going to make a standard costs order. He did so in all the circumstances of that case including the public function principle but that does not mean that there is a general principle that no costs order should be made at all unless the indemnity costs threshold were crossed. In my judgment, that is a different proposition. It may be so in some cases but it will not always be so.
19. Were it not for the fact that the Respondent was exercising a public function, in my judgment there is no doubt at all that the Applicant would have had standard costs of his application.
20. In ATF Overseas Holdings Limited v The Jersey Competition Regulatory Authority [2018] JRC 025, the Court said:-
"It is apparent that the fact that the JCRA was performing a public function is a factor to be considered and taken into account but as has been said, the fact that a private party is put to expense by the conduct of the public authority is also a factor which works in the opposite direction. In my view both those factors apply so both the public function and the private party have been put to expense factors [which] apply both to whether an order for costs should be made and to the basis of such an order."
21. I might have taken the view in this case that, subject to the considerations in paragraph 11 above, the fact that the Applicant was on legal aid and making a nil contribution towards the costs of the judicial review application was sufficiently significant that no costs order would in fact be made as to do so would breach the indemnity principle, but more importantly, the balancing exercise referred to in ATF would also disentitle the Applicant on legal aid to a costs order. However, Flynn v Reid prevents me from considering this further.
22. Advocate Meiklejohn relied also on Re T [2012] UKSC 36, the first costs only case to be heard by the Supreme Court, in connection with contested care proceedings brought by a local authority. At paragraph 34, Lord Phillips, delivering the judgment of the court said this:-
"No evidence is needed, however, to support the proposition that if local authorities are to become liable to pay the costs of those that they properly involve in care proceedings this is going to impact on their finances and the activities to which these are directed. The Court can also take judicial notice of the fact that local authorities are financially hard-pressed, as demonstrated by the fact that their counsel have appeared before us without payment."
23. At paragraph 41, Lord Phillips said this:-
"When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority."
24. And at paragraph 44, he summarised in this way:-
"... we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings ..."
25. Accordingly, the Supreme Court allowed the appeal and gave clear guidance that costs orders would not be made in similar circumstances in the future.
26. On the other hand, it is right to note that there have been numbers of cases where costs orders have been made against public authorities where the public authority was taken to court and unsuccessfully defended its position in judicial review proceedings. I say immediately that in my view care proceedings fall into a completely different category from the present. In care proceedings, it is the function of the local authority, or in our case the Minister, to consider the care and protection of children and where it might be appropriate to do so the Minister must invoke the jurisdiction of the court. It is absolutely essential as a matter of policy that the local authority, or in our case the Minister, is not constrained from bringing proceedings to protect children by the fear of an adverse costs order if he should be unsuccessful. If there is financial harm for the successful litigants in those cases who are able to rebuff the contentions of the Minister, that private damage is more than outweighed by the public concern that would follow from the Minister being unwilling to take the necessary legal steps to protect children in court where that seemed to be appropriate. I therefore regard Re T as unhelpful in the issues I now have to consider.
27. I refer also to the case of Minister for Planning and Environment and another v Hobson [2014] JCA 174. In that case, an order made by the Royal Court for indemnity costs was set aside by the Court of Appeal on the grounds that there was nothing in the conduct of the proceedings by the Minister that would take the case out of the ordinary so as to justify an award of indemnity costs. In particular, however, the Court of Appeal was faced with a contention from the Minister that, as a Minister and public official, he was in a different position from the private litigant, and that an award of indemnity costs was unlikely to have anything but a negative effect on the department for which the Minister was responsible, increasing expenditure and therefore the burden on the public purse. It appears to me that the Court of Appeal cannot have accepted that submission in full because if it had done so, it would have set aside the costs order in its entirety. However it substituted an order for standard costs. The case demonstrates therefore that there is no reason not to make a costs order against a person exercising a statutory function, even one where the public official concerned was obliged to reach a substantive decision one way or another. Furthermore in my judgment there is a difference between that sort of case, where the public official must reach a decision and the instant case where the public official at its highest has only an obligation to consider whether to take a positive decision and make an order for deportation. The present case is one where the Respondent was not obligated to take any particular step, and any argument that the Respondent should not be penalised in costs for exercising a public function is weaker in such cases.
28. I accept that the Respondent did have a duty to consider the question of deportation at the end of the Applicant's sentence of imprisonment. I also accept that there is at least a possibility of the Minister who has to take these decisions in future being unprepared to take a controversial decision in circumstances where the departmental budget for the year was under pressure. The arguments which Advocate Meiklejohn raises are in those circumstances very properly raised.
29. On balance in this particular case, I do not however accept them. There are two reasons which stand individually as well as together. My reasons are as follows:-
(i) It was appropriate that the procedural impropriety arguments be ventilated and determined because that will have had the beneficial effect that the procedures will be reviewed, as indeed was the view taken by Commissioner Pitchers in An Advocate v Disciplinary Committee of the Law Society. The unfair procedure is something which should be marked by an appropriate costs order.
(ii) There is a difference between a decision on deportation taken which pays insufficient regard to the Court's recommendations, and a decision which does not do so. The Minister may in the future make a deportation decision without any relevant court order, one way or the other. The present case, however, is one of those cases where the decision taker was aware that the human rights considerations had been sufficiently influential that both the prosecution and the sentencing court considered that no deportation order should be sought or made as the case might be. In those circumstances, it was necessary to look particularly closely whether there were any changes in circumstance which were sufficient enough that they might affect the outcome, and the reality is that no such changes existed. The Customs and Immigration Service was clearly aware of the risks that the decision might be overturned.
30. I would like to add this, albeit it is not a reason for the costs order made. In making the decision for deportation, it seems reasonably clear that the Respondent applied the rules which arguably might have been applied in the United Kingdom although one would like to think that the human rights considerations there would also have been regarded as more than persuasive. An approach taken by politicians or officials in the United Kingdom does not necessarily translate, however, to an appropriate approach in Jersey. There may be particular insular features which would make that inappropriate, and I give two examples. The first is that the culture and practice of the Portuguese community in Jersey, is frequently not to seek out British nationality although they have been resident in the Island for a very long time and regard Jersey as their home; and the second is that in drugs cases the sentencing regime in Jersey is generally thought to be more severe on the offender than in the United Kingdom and it may well be the case that in such cases the application of the United Kingdom designed four year rule, which is reflected in the current rules on deportation in Jersey needs to be reconsidered.
31. In the premises, having regard to the particular circumstances of this case, and recognising that in future it is possible that no costs order would be made against the Minister who was unsuccessful in resisting a challenge by way of judicial review to a deportation order, I have exercised my discretion to award standard costs in favour of the Applicant. In default of agreement, the amount of such costs will be ascertained by taxation in the usual way.
Authorities
J v His Excellency the Lieutenant Governor [2018] JRC 072A.
Civil Proceedings (Jersey) Law 1956.
City of Bradford Metropolitan District Council v Booth [2000] COD 338.
Jersey Financial Services Commission v A P Black (Jersey) Limited and others [2007] JLR 1.
Watkins v Egglishaw [2002] JLR 1.
Attorney General v Rosenlund and another [2016] (1) JLR 348.
An Advocate v Disciplinary Committee of the Law Society and Y [2011] JLR 12.
Flynn v Reid [2012] (2) JLR 226.
ATF Overseas Holdings Limited v The Jersey Competition Regulatory Authority [2018] JRC 025.
Minister for Planning and Environment and another v Hobson [2014] JCA 174.