Jersey Unreported Judgments

Costs - Personal injuries claim

[2020]JRC229

Royal Court

(Samedi)

2 November 2020

Advocate R. Tremoceiro for the Plaintiff.

Advocate D. A. Corbel for the Defendant.

judgment on costs

the COMMISSIONER:

1.        On 26^th October 2020, the Court issued its Judgment ("the Judgment") on the plaintiff's claim against the defendant in respect of injuries he suffered during the course of his employment with the defendant (Conceiçäo v Silva Cleaning Services Limited [2020] JRC 226).  The Court held that the defendant was liable to the plaintiff because it had failed to implement a safe system of work, but that the plaintiff had been contributorily negligent to the extent of 40%.  The Judgment was only concerned with liability and damages are yet to be assessed. 

2.        When circulating the Judgment in draft, the Court invited written submissions from the parties on the issue of costs.  These have been received and I have considered the matter on the papers.  Expressions defined in the Judgment carry the same meaning in this judgment.

Submissions

3.        The plaintiff submits that he should be awarded his costs.  He was the successful party in that the defendant has been found to be in breach of his duty as an employer and liable to the plaintiff in damages.  The result will be that the defendant will have to pay money to the plaintiff, which is often a convenient way of ascertaining the winner in relation to litigation.

4.        The defendant, on the other hand, submits that the position is more nuanced and that there is no clear winner or loser.  At paragraph 17 of the Judgment the Court said that the following matters arose for its decision:-

"(i)      If only the belt with pouches (not including the holster) were available for carrying the tools (i.e. the smop, blades and cloths) up and down the ladder to and from first floor windows, did the defendant provide safe equipment?  If not, did the defendant in fact make holsters available?

(ii)       If the provision of the belt and pouches amounted to the provision of safe equipment, was adequate training given so as to ensure a safe system of work, by instructing that the tools were to be placed in the pouches, not carried in a hand, so that both hands would be free to hold on to the ladder when ascending or descending?

(iii)      If adequate training to this effect was given, did the defendant provide adequate supervision and monitoring so as to ensure, so far as reasonably practicable, that such safe system of work (i.e. placing the tools in the pouches and using both hands to ascend and descend the ladder) was in fact implemented?

(iv)      If there was a breach of any of its duties by the defendant, did the plaintiff's conduct in holding the smop and blade in one hand when ascending and descending the ladder, so that both hands could not hold on to the ladder, constitute contributory negligence?"

5.        Advocate Corbel submitted that three out of these four issues were in fact decided in the defendant's favour.  She further submits that the plaintiff focused unnecessarily and wrongly on whether there had been a technical breach of the 1989 Law in relation to the documents regarding health and safety procedures without regard to whether this was causative of the accident.  The Court had found against the plaintiff on this issue at paragraphs 70 - 71 of the Judgment. 

6.        In summary, Advocate Corbel submitted that justice would be achieved in this case by departing from a winner / loser approach in relation to costs and instead making an adjusted order for costs which reflected the defendant's success on three of the four issues that had to be determined, including the key issue of contributory negligence. 

Discussion

7.        Leading authorities on costs in Jersey are Watkins v Egglishaw [2002] JLR 1 in the Royal Court and Flynn v Reid [2012] (2) JLR 226 in the Court of Appeal.  Both decisions (Watkins at para 6(d) and Flynn at para 14) specifically approved the well-known statement of principle by Nourse LJ in In Re Elgindata Limited (No 2) [1992] 1 WLR 1207 at 1213:-

"In order to show that the judge erred I must take the principles which ought to have been applied.... The principles are these.  (i) Costs are in the discretion of the court.  (ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.  (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or costs of the proceedings he may be deprived of the whole or a part of his costs.  (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs."

This statement of principle is as applicable today as it was in 1992, but courts have become more willing than perhaps previously to make orders which have regard to success or failure on particular issues.

8.        I endeavoured to summarise the position in MB & Services Limited v Golovina [2020] JRC 099 at [21] in the following terms:-

"21. As pointed out at (iii) in the passage from Elgindata cited above, the Court will not make a deduction for every issue or allegation upon which a successful party fails.  This is consistent with the observations of Simon Brown LJ and Christopher Clarke J cited above to the effect that in many cases the winner is likely to fail on some issues and that it is a fortunate litigant who wins on every point.  Accordingly, as stated in Elgindata itself, it is only where the issue has caused a significant increase in the costs or length of proceedings that a deduction may, in the court's discretion, be made....."

9.        I do not consider that any of the matters raised by Advocate Corbel warrant a deduction from the costs which would otherwise be awarded to the plaintiff as the winning party.  The essential issue before the Court was whether the defendant was in breach of its duty as employer and, if so, whether there should be a finding of contributory negligence.  He was successful in establishing that breach of duty.  Whilst he was not successful on every aspect of alleged breach - e.g. the suggestion of no safe equipment and no adequate training - these sub-issues were simply aspects of proving a breach of duty and they did not add materially to either the length or cost of the trial.  Similarly, the issue of contributory negligence did not require any additional evidence.  It simply required the Court to assess, on the basis of the evidence which it heard, whether the plaintiff was partly to blame. 

10.      If the defendant had wished to protect itself in terms of costs, it would have been open to it to have made a Calderbank offer on the basis of a finding of liability and a percentage finding of contributory negligence.  If the plaintiff was then found to have been contributorily negligent to a greater extent than specified in the offer, the defendant would have been protected in respect of costs incurred after the offer.  However, I was informed that no Calderbank offer was made by the defendant.  It follows that the plaintiff had no alternative but to pursue the claim in order to prove a breach of duty.

11.      For the above reasons, I order that the defendant pay the plaintiff's costs of and incidental to the proceedings on the standard basis, to be taxed if not agreed.

Authorities

Conceiçäo v Silva Cleaning Services Limited [2020] JRC 226. 

Watkins v Egglishaw [2002] JLR 1

Flynn v Reid [2012] (2) JLR 226. 

In Re Elgindata Limited (No 2) [1992] 1 WLR 1207. 

MB & Services Limited v Golovina [2020] JRC 099