Jersey Unreported Judgments

En désastre - Viscount costs.

[2020]JCA170

Court of Appeal

21 August 2020

The Applicant in person.

Advocate E. B. Drummond for the First Respondent.

Advocate O. J. Passmore for the Second Respondent.  

judgment

birt ja:

1.        This is the judgment of the Court. 

2.        On 14^th August, 2020, Cochrane v Harbour Fund II LLP and the Viscount [2020] JCA 168, this Court dismissed the Applicant's application ("the Application") for an extension of time in which to appeal against the decision of the Royal Court on 24^th November, 2016 to declare her en désastre.  

3.        The First Respondent ("Harbour") now applies for costs on the indemnity basis against the Applicant.  Harbour submits that included in the costs of the Application should be the costs of two last minute applications (dated 24^th July and 27^th July) for the admission of fresh evidence and an unsuccessful application for an adjournment dated 16^th July ("the adjournment application") which was rejected by the Court in a judgment dated 20^th July, Cochrane v Harbour Fund II LLP and the Viscount [2020] JCA 140A. 

4.        The Application having been dismissed, the Court has no hesitation in concluding that the Applicant must pay Harbour's costs; the question is whether such costs should be on the indemnity or standard basis. 

5.        The test for whether to order costs on the indemnity basis is well established.  In C -v- P-S [2010] JLR 645, Beloff JA, speaking for the Court of Appeal, said as follows at [11] and [12]:

"11. ... We do not accept that it is appropriate to impose such a restrictive approach on the discretion of the court to make an award of costs on the indemnity basis.  The question will always be - is there something in the conduct of the action by one of the parties or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs, recognising that there will usually be some degree of unreasonableness?  We do not consider that there is a need for the claiming party to show a lack of moral probity or conduct deserving of moral condemnation, or malicious or vexatious conduct. 

12. We therefore approach the costs contentions on the understanding that in order for an indemnity award to be made there must be something to take the case out of the ordinary and a degree of unreasonableness (of which abuse of process is but an example) but recognising that there is an "infinite variety" of circumstances where it may be right and proper for the court to make such an award."   

6.        Earlier, at [7] Beloff JA had approved the following observation of Page, Commissioner in Pell Frischmann Engineering Limited -v- Bow Valley Iran Limited [2007] JLR 479 at [25]:

"25. At the risk of oversimplifying matters, the result of these English authorities may be said to be this: that the circumstances in which an award of indemnity costs may, as a matter of discretion, be awarded are less restrictive than they used to be; there must, exhypothesi, still be something to take the case out of the ordinary, but the range of potentially relevant considerations ... is considerable and need not involve any finding of a lack of moral probity; the test, in a word, is unreasonableness; the purpose of such an award is to achieve a fairer result for the party in whose favour it is made than would be the case if he were only able to recover costs on the standard basis; in the end, it is a question of what would be fair and reasonable in all the circumstances."   

7.        In our judgment, the Applicant's conduct in pursuing the Application was unreasonable and takes the case out of the norm.  We so conclude for the following reasons: 

(i)        The delay was extreme (nearly 3 years when the time for appealing is 28 days) in circumstances where this Court found that there was no justification for this period of delay.  As the Court said at paragraph 104 of its judgment, this alone was sufficient to lead to dismissal of the Application unless the merits of any appeal were overwhelming. 

(ii)       The period of delay and the inaction by the Applicant has also to be judged against the fact that, to the Applicant's knowledge, administration of the désastre was continuing throughout this period. 

(iii)      Not only was there extreme delay without justification but this Court found that the prospects of success of any appeal were minimal and that its pursuit would cause prejudice not only to Harbour but also to other parties to the current English litigation, who had all proceeded and incurred time and expense on the basis that the Applicant was en désastre and that the Viscount was accordingly entitled to act on her behalf.

8.        Putting these matters together, we consider that pursuit of the Application was unreasonable and that it would not be a fair result for Harbour only to be able to recover the costs which it has incurred on the standard basis. 

9.        The costs incurred by Harbour in this case include costs in relation to the adjournment application and the two last minute applications for fresh evidence.  As to the former, this was brought on 16th July when the Application was listed for hearing before this Court on 28^th July.  The adjournment application was brought on two grounds namely (i) a last minute decision by the Applicant to dismiss her then advocate and seek to replace him with a new firm, which had not yet agreed to act and; (ii) certain matters in connection with the current English litigation.  As the Court said in its judgment rejecting the adjournment application, neither of these matters could reasonably justify adjourning the case at the last minute. 

10.      As to the fresh evidence applications, the Application was filed as long ago as 31^st December, 2019 and was ready for hearing (with all contentions filed) at the March sitting of this Court.  Despite this, the Applicant sought on 23^rd July (i.e. two clear days before the hearing) to file an affidavit with 72 pages of exhibits and on 27^th July (i.e. one day before the hearing) to file a letter together with 180 pages of additional material.  These two matters undoubtedly required Harbour to spend time at a very late stage considering and responding to them.  In its judgment, the Court rejected both applications for the admission of fresh evidence. 

11.      In our judgment, the conduct of the Applicant both in relation to the adjournment application and the last minute applications for fresh evidence was unreasonable and justifies an award of indemnity costs. 

12.      In summary, we order the Applicant to pay Harbour's costs of and incidental to the Application (including for the avoidance of doubt Harbour's costs of the adjournment and fresh evidence applications) on the indemnity basis.  

13.      We should add that the Viscount did not seek any order for costs.

Authorities

Cochrane v Harbour Fund II LLP and the Viscount [2020] JCA 168.

Cochrane v Harbour Fund II LLP and the Viscount [2020] JCA 140A. 

C -v- P-S [2010] JLR 645.

Pell Frischmann Engineering Limited -v- Bow Valley Iran Limited [2007] JLR 479