Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
Between |
Simon John Richardson |
Appellant |
And |
The Minister for the Environment |
Respondent |
And |
Michael James |
Applicant |
The Appellant appeared in person
Advocate G. G. P. White for Respondent.
The Applicant appeared in person.
COSTS judgment
the MASTER:
1. This judgment follows on from my substantive judgment in this matter dated 4th November 2020 reported at Richardson v The Minister for the Environment and James [2020] JRC 232 to deal with what costs order I should make as a result of the substantive decision I reached.
2. In relation to the question of costs Advocate White for the respondent firstly raised the question of whether I possessed jurisdiction to make a costs order at all. This was because he argued that the general jurisdiction contained in Article 2(1) of the Civil Proceedings (Jersey) Law 1956 ("the 1956 Law") did not apply to appeals under Part 7 of the Planning Law.
3. He argued that I recognised this distinction in Guest v Minister for Planning and the Environment [2017] JRC 069 at paragraph 26 where I stated:-
"26. Firstly, as far as the function of the Judicial Greffier is concerned, the projet filed with the States of Jersey in respect of Planning and Building (Amendment No.6)(Jersey) Law 2002 which led to the current version of Article 112 referred to the Judicial Greffier administering the appeals process (see the section headed 'administration of the appeals'). However, it is clear that the Judicial Greffier at least under Article 112(4) possess a discretion to decide what to do where a notice of appeal does not comply with the requirements of Article 112(2). The Judicial Greffier may reject the notice or may invite the appellant to remedy any defect. This is more than an administrative function. By rejecting a notice the Judicial Greffier is dismissing an appeal. The Judicial Greffier in doing so is not acting as a delegate of the Royal Court but under the express authority granted by Article 112. Nevertheless it is a power where an appeal could be dismissed and so has a judicial element to it."
4. He also reminded me that the underlying policy of the appeals process introduced by the amendments to the Planning Law was to remove the risk of costs to participating parties that existed under the provisions that the amendments replaced. He argued I could take judicial notice of that underlying policy. He contended that the intention of the legislature was for appeals to be pursued without the prospect of costs being awarded and it was a feature of the revised appeal process for all parties to an appeal to bear their own costs. Any decision on costs would be contrary to that clear statutory intention. He therefore argued that it was only if a power was found within the Planning Law itself could costs be awarded. As the Judicial Greffier was administering the appeals process where the appellant body was ultimately the Minister, there was no application to the court itself and so no proceeding to which the 1956 Law applied.
5. He rightly accepted that where an appeal was brought on a point of law under Article 116(5)-(7) of the Planning Law, such an appeal would plainly be proceedings in the Royal Court for the purposes of the 1956 Law and in such appeals costs could be awarded.
6. Mr James made submissions to like effect and then went onto argue that, if I considered I did possess a discretion, I should either make no order as to costs or alternatively that both Mr Richardson's costs and his costs should be borne by the Minister.
7. Mr Richardson argued that I did possess jurisdiction but was content with no order as to costs.
8. In relation to the jurisdiction question, the relevant part of Article 2(1) of the 1956 Law provides:-
"... the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court... [Emphasis Added]"
9. As noted at paragraph 26 of Guest when exercising any powers under Article 112 the Judicial Greffier is acting under the express authority granted by Article 112 and is not acting as a delegate of the Royal Court. In other words the source of the Judicial Greffier's powers is not because the Royal Court has delegated powers the Royal Court would exercise to the Judicial Greffier, but rather arises from Article 112.
10. However, I also observed in paragraph 26 of Guest that the Judicial Greffier in rejecting a notice of appeal or inviting an appellant to amend the same was performing more than an administrative function. I therefore concluded in that case that, because the Judicial Greffier had a power to dismiss an appeal by rejecting a notice, there was a "judicial element" to that power.
11. The same analysis applies to allowing an appeal out of time. There is also a judicial element to the exercise of that power. The test in Herold as applied in Guest requires the Judicial Greffier (or someone on his behalf) to determine whether exceptional circumstances exist to allow an appeal out of time. That is not just an administrative function; the decision has a judicial element to it because the Judicial Greffier is deciding if a civic right is engaged, and, if it is, how to exercise a discretion that engagement of such a civic right produces.
12. While I do not disagree that the intention of the States, when approving the current provisions found in Part 7 of the Planning Law, was for parties to be able to pursue appeals without the prospect of costs being awarded against an unsuccessful party, the States must also be taken to have known that the Judicial Greffier is an officer of the Royal Court. When therefore vesting powers in him and a discretion (albeit limited) on the face of Article 112, in my judgment, the States must have had in mind that they were granting the Judicial Greffier powers with a judicial element which might require determination by the Judicial Greffier.
13. The conclusion I have reached is therefore that such a determination, when contested, is a proceeding in the Royal Court because it is an argument before an officer of the Royal Court even though the authority of the Judicial Greffier derives from the Planning Law rather than from a delegation by the Royal Court. In my judgment that distinction does not matter. The discharge by the Judicial Greffier of any functions under the Planning Law which have a judicial element, which includes extensions of time application applying Herold, is still a proceeding in the Royal Court. It is a proceeding before the Judicial Greffier. The proceedings also take place within the precepts of the Royal Court. It therefore falls within the definition of Article 2(1) of the 1956 Law which covers all proceedings before the Royal Court.
14. In addition, unlike the decision whether or not to follow a recommendation of an inspector, the Minister does not decide whether or not to extend a time for an appeal. That is a discretion solely vested in the Judicial Greffier. There is therefore a distinction between the ultimate determination of the appeal which is a matter for the Minister and any decisions that need to be made by the Judicial Greffier containing a judicial element prior to that appeal being determined.
15. For these reasons I am satisfied on behalf of the Judicial Greffier that the present claim does fall within Article 2(1) of the 1956 Law and so I have power to make a costs order.
16. The question then arises is how that power or discretion should be exercised.
17. It is in relation to the exercise of that discretion that there is force to the submissions of Advocate White supported by Mr James that one of the policies underlying the appeals process introduced by the Planning Law was to remove the risk of costs to participating parties that existed under the previsions it replaced. I regard this policy as pertinent to how any discretion should be exercised.
18. In my judgment the discretion should only be exercised sparingly and only where exceptional circumstances arise. Without fettering the court's discretion by attempting to define those circumstances exhaustively, a costs order might well be appropriate where an application was pursued that was hopeless with no prospect of establishing exceptional circumstances. Similarly, if an application was made where it was clear that exceptional circumstances existed and a party sought to resist that application without arguable grounds to do so that also might justify an adverse costs order. The power to make such orders could also be applied to protect parties from arguments advanced by another party in bad faith or which might amount to an abuse of process.
19. That is not the situation in the present case at all. The Minister did not oppose the application. In respect of Mr James, although he did oppose the application and might in one sense be categorised as the loser of the argument, he had genuine concerns about the effect of an appeal on his development and reasonable arguments that there had not been an invasion of Mr Richardson's privacy. His position was put forward in good faith and with justifiable grounds to do so.
20. In respect to the suggestion that the Minister should pay the costs of both of the parties, I do not regard this as doing justice between the parties. The issues I had to decide were between Mr Richardson and Mr James. Although they followed on from the failure of the Planning Department notifying Mr Richardson as they had promised, the argument arose because Mr James wished to contend that Mr Richardson should not be allowed to appeal out of time. It was that decision that led to the hearing before me. I do not therefore see why the Minister should bear the costs of any other party, having decided not to oppose Mr Richardson's application to appeal out of time.
21. In respect of Mr Richardson and Mr James, in view of the intended policy of legislation for planning appeals to be pursued without risk as to costs, on the facts of this case I do not consider that any special circumstances exist to depart from that policy. Although Mr Richardson has been the successful party before me, neither he nor Mr James have acted anything other than the utmost good faith and both helpfully and clearly set out their positions for which they are commended. I therefore consider that the right order to make in this case is no order as to costs.
22. Finally, I should make it clear that this decision only relates to applications to appeal out of time. In respect of appeals to the Royal Court on a point of law, I agree with Advocate White that in respect of such appeals the normal cost rules apply and ordinarily an unsuccessful party will be required to meet the costs of the successful party absent matters which justify a different costs order.
Authorities
Richardson v The Minister for the Environment and James [2020] JRC 232.
Civil Proceedings (Jersey) Law 1956.
Guest v Minister for Planning and the Environment [2017] JRC 069.