Two applications - costs and leave to appeal
Before : |
T. J. Le Cocq, Esq., Bailiff, sitting alone |
Between |
Badrul Huda |
Plaintiff |
And |
The Minister for Health and Social Services |
Defendant |
Advocate I. C. Jones for the Plaintiff.
Advocate J. P. Rondel for the Defendant.
ex tempore judgment
the bailiff:
1. I will deal with the costs question first and then the matter of leave.
2. The plaintiff, having been successful before me on appeal from a decision of the Master, seeks costs against the defendant for the entirety of the action on an indemnity basis. Some elements of the costs have already been ordered by the Master on earlier occasions and I am advised have been settled and accordingly the application is made for the costs not covered by those previous orders.
3. I have a discretion to exercise and the principles applicable to an award of costs on an indemnity basis have been referred to in a number of authorities which were not referred to me in oral argument but which were referred to in the skeleton arguments helpfully filed by Counsel in this case. I do not intend to make reference to them. In short, as I see it, I must be satisfied that the order I make meets the justice of the case in all of the circumstances before I should make an award of indemnity costs. It seems to me that if the unless order had not been breached and in some other way the matter had proceeded to trial, as Advocate Jones rightfully argued, the normal order, if the plaintiff had been successful would have been standard costs to be taxed if not agreed, and there would probably not be a basis for a request for indemnity costs. He argues however that such a request is now appropriate because the matter has come to an end because of a failure by the defendant to meet the terms of an unless order. I will not make further reference to that because that is more than fully referred to in the judgment of the Master and indeed my own judgment on appeal from that judgment. But the matter would have been fought out, an order would have been for standard costs, almost certainly, and the case would have been won by one party and lost by another and there is nothing to my mind that is exceptional in those circumstances.
4. A strike-out has brought these proceedings to an end, and the nature of it is that neither the plaintiff not the defendant have been vindicated before the Courts in their argument. This was a technical, although important, significant and prejudicial failing by the defendant but it has brought the matter to an end, no evidence has been heard, no decisions as to evidence has been taken by the Court and neither party factually has accordingly been vindicated.
5. In those circumstances, it seems to me, that I should not order the payment of indemnity costs, the discretion I exercise is that the costs should be on a standard basis to be taxed if not agreed.
6. The defendant seeks leave to appeal from my judgment in which I overturned the decision of the Master and struck-out the defendant's answer and counterclaim, entering judgment for the plaintiff.
7. The basis on which I should consider whether or not to grant leave has been referred to in passing in the skeleton argument of the plaintiff but I set it out for the benefit of this judgment. It is included in the case of Britannia Building Society v Millburn [2007] JRC 001 in which at paragraph 5. the Court said:-
"As suggested by the Court of Appeal, the circumstances in which applications for leave to appeal under Article 13(e) should be granted can be summarised as follows:-
(i) where there is a clear case of something having gone wrong;
(ii) where the question is of general principle decided for the first time;
(iii) where the case involves a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage."
8. In its skeleton argument the defendant did not seek to address any elements of those tests expressly but did so in oral argument relying on paragraph (i) and claiming that there was a clear case of something having gone wrong.
9. In my view the matter before me was the exercise of a discretion in a striking-out and clearly could not fall within (ii) or (iii) of the test that I have just summarised.
10. So, was there a clear case of something having gone wrong? The decision to overturn the judgment of the Master was one that I was entitled to take exercising a de novo jurisdiction. Authority states that I should pay due regard to the exercise by the Master of his discretion, which I did, but I was entitled to depart from it and exercise my own discretion as to whether the overall circumstances should give rise to a striking-out of the answer and counterclaim or a refusal to do so.
11. It is argued by the defendant that I have failed properly to consider the case of Newman v de Lima [2018] JRC 155 but I do not accept that that is the case. The specific section that is suggested that I did not follow is whether a case can continue justly and at proportionate cost. At paragraph 33. of my judgment I referred to the missing evidence by reciting the plaintiff's argument in that regard and I clearly took that into account when I exercised my judgment and discretion.
12. On the question of whether or not I have exercised my discretion incorrectly I have researched, in the absence of any quoted authority from either side, the principles on which the Court of Appeal will intervene in the exercise of a discretion, and that is reflected in the case of Benest v Syvret [2012] JRC 079A at paragraph 2. of that judgment. An intervention will take place in three circumstances:
"where the judge misdirected himself with regard to the principles in accordance with which his discretion was to be exercised; where the judge in exercising his discretion has taken into account matters which he ought not to have done, or has failed to take into account matters which he ought to have done; and thirdly, where his decision is plainly wrong".
13. I do not accept that my decision is plainly wrong and in my own view the judgment reflects the fact that I took into account those things which I should have taken into account, the admitted position that this was a serious and inexcusable breech and what could not now be found as a result of the failure by the defendant in terms of missing evidence. Those things seemed to me to be relevant to my judgment and I think that accordingly it is unlikely that the Court of Appeal would exercise its own jurisdiction against the exercise of a discretion in those circumstances.
14. Be that as it may, I do not think there is any clear justification for saying that something has plainly gone wrong and accordingly I refuse leave to appeal.
Authorities
Britannia Building Society v Millburn [2007] JRC 001.