Jersey Unreported Judgments

Injunction - application for leave to appeal set out in its judgment dated 12th February, 2019 - application for costs.

[2019]JRC058

Royal Court

(Samedi)

4 April 2019

Advocate J. M. Sheedy for the Plaintiffs. 

Advocate M. P. Cushing for the Interveners. 

judgment

the deputy bailiff:

1.        There are two applications before me.  The first is for leave to appeal against the decision of the Royal Court set out in its judgment dated 12^th February, 2019, Toorani v Toorani [2019] JRC 023 ("the Judgment") and the second is with regard to the costs that follow as a result of the Judgment. 

Leave to Appeal

2.        In the Judgment this Court dismissed the Interveners' application to set aside the interim injunctions granted on 30^th August, 2017.  The Interveners asserted that the Plaintiffs, when obtaining the interim injunctions, were in breach of their duties of full and frank disclosure.  The Court also dismissed the Interveners' application for release of money paid into Court and formerly held in another form under the interim injunction, for the payment of their legal fees.  The precise nature of the applications are set out at paragraphs 10 - 12 of the Judgment. 

3.        There is no dispute as to the relevant principles that apply when considering leave to appeal.  Applying the principles set out in Crociani and Ors -v- Crociani and Ors [2014] (1) JLR 426 and United Capital Corporation Limited-v- Bender and Ors [2006] JLR 269 the applicant for leave to appeal must show:-

(a)       The appeal has a real prospect of success; or

(b)       A question of general principle falls to be decided for the first time; or

(c)       There is an important question of law upon which further argument in a decision of the Court of Appeal would be to the public advantage; and

(d)       n the case of an exercise of a discretion, the Court has not applied the correct principles in accordance with which its discretion had to be exercised; or

(e)       The Court has taken into account matters which it ought not to have taken into account or failed to take into account relevant matters or reached a decision that is plainly wrong. 

4.        This application for leave is made on two bases.  The first is that the Court adopted the wrong approach by considering each item of alleged non-disclosure by the Plaintiffs in isolation rather than considering whether the cumulative effect of the non-disclosures was such that it would have been appropriate for the injunctions to be discharged. 

5.        In essence, the Interveners refer to a number of paragraphs in the Judgment where the Court accepted that certain information had not been provided to it or where the Plaintiffs evidence had been in error.  Although the Interveners would assert that those failings were in effect material non-disclosures, in fact the Court, save for one exception, found that they were not. 

6.        That exception relates to the failure of the Plaintiffs to disclose to the Court, when the interim injunction was obtained, that they were not in a position to commence proceedings in England and Wales within the delay that they implied because they were seeking litigation funding and insurance.  For the reasons set out in the Judgment, whilst finding that this was a material non-disclosure, the Court did not believe that the interim injunction should be raised. 

7.        One of the matters referred to by the Interveners in their application for leave was an error made by Mr Beale (the solicitor for the Plaintiffs) in his affidavit in support of the interim injunctions.  It was argued in the application that, absent the statement made by Mr Beale that was in error, there was no other evidence to support a risk of dissipation.  The matter is referred to in paragraphs 25 to 35 of the Judgment. 

8.        I single this out because, as it was pointed out by the Plaintiffs during this hearing, the risk of dissipation was dealt with specifically in paragraphs 82 to 84 inclusive of Mr Beale's affidavit in support of the interim injunction and went further than the error in that affidavit.  I agree. 

9.        Whilst it is correct that the Court went through each of the allegations of non-disclosure and dealt with them individually in the Judgment, that does not, to my mind, mean that the Court did not consider the cumulative effect. 

10.      In paragraph 124 of the Judgment the Court said:-

"In our judgment ... a number of matters raised by the Interveners do not amount to a material lack of disclosure on the part of the Plaintiffs...."

11.      And, at paragraph 125 of the Judgment the Court said:-

"...  We are not persuaded either that there has been a sufficient want of disclosure to justify raising the injunctions granted by the Court ..."

12.      These phrases demonstrate that the Court was viewing the application concerning lack of disclosure in the round. 

13.      The second basis on which the Plaintiffs seek leave to appeal is that the Court, so it is argued, applied wrong principles in considering the Interveners' application for the release of monies in that the Court treated it as an application for the payment of legal expenses out of the fund over which proprietary claims are asserted.  The Court should, it was argued by the Interveners, have considered their application for the release of monies in the same manner as it would have been treated under the injunctions had they remained and not been substituted for a payment of monies into Court. 

14.      Paragraph 3(3) in the part of the Order of Justice relating to interim relief provides:-

"The defendant may cause this order to cease to have effect if the defendant provides security by paying the sum of £13,000,000 into Court or makes the provision of security in that sum by some other method agreed with the plaintiff's advocates." 

15.      It seems to me to be questionable to say the least whether or not the injunction is still in existence in any meaningful sense or at all, the sum of money having in effect been paid into Court. 

16.      The reality of the situation appears to me to be that the money held is subject to a proprietary claim as stated in the Judgment.  That does not, in the application before me, appear to be contested. 

17.      Having considered the matter in the round I am not persuaded that in either respect, the argument relating to cumulative effect or to the principles for release of monies, the appeal has a real prospect of success and, in the premises, leave to appeal is refused. 

Costs

18.      The Plaintiffs apply for their costs of the application to set aside the injunctions and secure a payment of money out.  The Plaintiffs argue on first principles that they have inarguably been successful in resisting both of those applications and should accordingly receive their costs which they seek on the standard basis.  Furthermore, the Plaintiffs seek an interim payment of costs of 50% of the amount calculated as due. 

19.      The Interveners accept that they should be liable for an element of the costs but argue that the Court should consider the question of costs on an issue basis.  The Court in some respects found that the Plaintiffs had been in error or not provided information (although the Court did not reach the view that such was material) and in one respect agreed with the Interveners that there had been a material lack of disclosure.  The Interveners argue that they should not be responsible for the costs of those parts of the argument and that the Court should deduct 25% of the costs claimed to allow for those elements. 

20.      There is no doubt that in the round the Plaintiffs have prevailed in their arguments before the Court I do not think that it is appropriate to try to conduct too fine an analysis on an issue by issue basis, particularly with regard to issues that the Court has determined not to be a material non-disclosure. 

21.      I am minded to make some deduction to reflect the area in which there was, in the Court's mind, a material lack of disclosure, namely that of litigation funding.  This was one of the eight bases on which the Interveners applied to set aside the injunctions on the grounds of non-disclosure. 

22.      In the circumstances I order that the Interveners pay 85% of the Plaintiffs' costs of an incidental to the Interveners application to be taxed on the standard basis if not agreed. 

23.      On the matter of interim payment, I can see no reason why an order for the interim payment of costs should not be made.  The Plaintiffs assess their costs, not including the costs of this hearing, in the sum of, approximately, £116,000.  85% of those costs would be £98,600 and in accordance with normal principles I order a payment on account of those costs in the sum of £50,000 with the balance to be taxed if not agreed. 

24.      I direct that that sum shall be paid within 30 days of the date hereof or any determination by the Court of Appeal of a renewed application for leave to appeal should that be made whichever is the later.  There shall be liberty to apply on the issue of the timing of the interim payment. 

Authorities

Toorani v Toorani [2019] JRC 023. 

Crociani and Ors -v- Crociani and Ors [2014] (1) JLR 426. 

United Capital Corporation Limited -v- Bender and Ors [2006] JLR 269.