Jersey Unreported Judgments

Court of Appeal - Judicial Review.

[2020]JCA123

Court of Appeal

29 June 2020

Judgment on application for Costs

montgomery ja:

1.        On 16 June 2020 I refused the Applicant leave to appeal to the Court of Appeal (Scott v The Minister for Treasury and Resources and the AG [2020] JCA 114) against the judgment dated 28 May 2020 given by J A Clyde Smith, Commissioner, (Scott v The Minister for Treasury and Resources and the AG [2020] JRC 095) refusing to grant the Applicant leave to apply for a Judicial Review of the decision of the First Respondent to distribute the States of Jersey strategic reserve or other funds to businesses under phase 2 of the Government Co-Funded Payroll Scheme ("the Scheme").  The reasons for my decision are set out in my judgment.  On 18 June 2020 I refused the Applicant leave to appeal to the Privy Council (Scott v The Minister for Treasury and Resources and the AG [2020] JRC 115). 

2.        The Respondents have now applied for an order that the Applicant should pay their costs of the appeal in the sum of £250.  Reliance is placed on the general discretion of the Court of Appeal to award costs in Article 16 of the Court of Appeal (Jersey) Law 1961:  "The costs of and incidental to all proceedings in the Court of Appeal under this Part shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid."

3.        This was an appeal concerned with an application for leave to appeal against a refusal of leave to apply for judicial review, decided by me on the papers, without the benefit of any submissions from the Respondents.  I consider that  it is appropriate  in these circumstances to have regard to the principles set out in Holmes v Law Society of Jersey [2018] JRC 053 at [5]:

"(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."

4.        The Respondents accept that the ordinary rule is that a failed applicant for leave to appeal against a refusal of leave to apply for judicial review does not have to pay the respondent's costs.  However it is submitted that the ordinary rule may not apply where an application is renewed or taken on appeal or where the application is demonstrably hopeless since these circumstances fall within the exceptional circumstances contemplated in Holmes.  

5.        I consider that the application for leave to appeal was demonstrably hopeless and the Applicant should have understood that his claim was not sustainable from reading the judgment of the Commissioner.  In those circumstances I consider that this case falls into the exceptional category in which an order for costs could be made. It is clear to me that the costs involved in the Respondents considering the relatively voluminous documents filed in support of application for leave to appeal to the Court of Appeal will on any view have exceeded the sum of £250 applied for.  

6.        However a further relevant factor, when considering the exercise of discretion on the grounds of exceptional circumstances, may be the extent to which the unsuccessful applicant has substantial resources used to pursue an unfounded claim and which are available to meet an order for costs.  The Applicant in this case does not have substantial resources. He is unemployed living on a total of £147 per week.  In the circumstances I consider that the appropriate costs order is that he should make a modest contribution to the costs incurred by the Respondents in the appeal in the sum of £50. 

Authorities

Scott v The Minister for Treasury and Resources and the AG [2020] JCA 114

Scott v The Minister for Treasury and Resources and the AG [2020] JRC 095

Scott v The Minister for Treasury and Resources and the AG [2020] JRC 115

Court of Appeal (Jersey) Law 1961

Holmes v Law Society of Jersey [2018] JRC 053