Jersey Unreported Judgments

Costs

[2021]JRC279

Royal Court

(Samedi)

10 November 2021

Advocate H. B. Mistry for the Fifth Defendant.

Advocate E. B. Drummond for the First Plaintiff

judgment

the bailiff:

1.        This was to have been a hearing lasting the full day in which the Plaintiff in this matter, Cristiana Crociani ("Cristiana") applied for an anti-suit injunction against Princess Camilla De Bourbon des Deux Siciles (who I will refer to hereafter for ease as "Camilla") to withdraw proceedings that she had commenced before the Courts in Paris against, among others, BNP Paribas SA and Cristiana and members of Cristiana's immediate family.  

2.        In the proceedings in Paris which were started by Camilla in May of 2021 she claims US$120 million on a joint and several basis from the Defendants in that case including Cristiana.  It is urged upon me by Advocate Drummond for Cristiana that that sum appears to be calculated on the basis of the amounts of money that this Court and other Courts in this Island have declared that Camilla owes and is an attempt, so it is submitted, on her part in effect to recover that loss.

3.        On 18^th August Cristiana filed her application before this Court for an anti-suit injunction and on 14^th September she filed an affidavit setting out her evidence foreshadowing the points that would be made in her claim.  They were elaborated by the subsequent filing of a skeleton argument.  The hearing had originally been fixed for a date in October but was deferred until 10^th November.

4.        During the course of exchanges between the parties, Cristiana's legal advisors suggested directions to provide for the orderly filing of evidence and exchange of skeleton arguments which were not substantively responded to by Camilla or by her legal advisers.   As a result of this there has been no evidence filed by or on behalf of Camilla.  The hearing scheduled for 10^th November was met by a summons filed on 25^th October to adjourn that hearing.  At the same time, Camilla filed an anti-suit injunction in the Parisian Courts listed for return on 5^th January 2022.

5.        On 2^nd November I considered the application for an adjournment and refused it, for the reasons set out in a brief ex tempore judgment that I delivered on that occasion.  Notwithstanding that refusal and the fact that the Court was to proceed today to deal with the anti-suit injunction, Camilla filed a further urgent application before the Parisian Courts which was heard yesterday seeking an order that Cristiana be required to withdraw the summons before the court today.  As a result of that urgent application Cristiana's legal advisers asked me to issue a letter to the judge in Paris, the terms of which were settled in chambers with Camilla's legal adviser present.  

6.        I agreed to issue that letter and it was issued and placed before the judge in Paris, so I understand.  At the hearing before me in chambers I expressed the view that Camilla's actions in seeking to pre-empt the jurisdiction of this Court, to which she was undoubtedly subject, was disrespectful to say the least.  Advocate Mistry for Camilla did not disagree

7.        The Paris Court dealt with the anti anti-suit injunction yesterday and judgment was issued this morning which requires Cristiana to withdraw the proceedings before this Court today under a penalty of ten thousand Euros per day for each day that she delays.  She was ordered to pay costs in favour of Camilla.  

8.        Her legal advisers inform me that she has no wish or intention to be in contempt of the Parisian Court and therefore wishes to withdraw the proceedings immediately.  They seek, however, an order that Camilla pay Cristiana's costs on an indemnity basis.  

9.        The ability of the Court to order costs pursuant to Rule 6/31(1) of the Royal Court Rules 2004 and of those under my general costs jurisdiction is quite clear and that is a matter reserved to me as presiding judge. 

10.      There has been useful dicta given by the Courts in the linked case of BNP Paribas Jersey Trust Corporation Limited v Camilla De Bourbon des Deux Siciles, 1^st November [2021] JRC 268 of the circumstances in which indemnity costs may be ordered.  The relevant section provides:

"9       The principles in relation to indemnity costs are well established. A convenient summary is to be found in the decision of the Court of Appeal in C v P-S [2010] JLR 645 where Beloff JA said this at paragraph 11:-

'.... We do not accept that it is appropriate to import 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 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."

10       The Court of Appeal specifically approved the observation of Page, Commissioner in Pell Frischmann Engineering Limited v Bow Valley Iran Limited [2007] JLR 479 where the Commissioner said at paragraph 25:-

'25      At the risk of over simplifying 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 ordered are less restrictive than they used to be; there must, ex hypothesi, 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.' "

11.      In my view the conduct of Camilla in terms of the timing of her various applications was cynical.  In my judgment, application for an anti anti-suit injunction of which Advocate Mistry tells me he was wholly unaware when he made the adjournment application before the Court and believed, in losing it, he was going to go ahead together with her clear disrespect and indeed contempt (in the non-technical sense) for the deliberations and procedures of this Court, to which, as I have said, she is subject, to my mind crosses the threshold of unreasonableness not only such that she should pay the costs of and incidental to the present proceedings to Cristiana but also that those costs in the circumstances should be paid on a full indemnity basis. 

12.      I gave Advocate Mistry an indication that that was my thinking so that he would know that he had to be prepared to argue that and he has pointed out quite properly that there was nothing legally wrong with Camilla taking the steps that she did in France.  I do not suggest that there was anything wrong with that, but quite clearly Cristiana's case before this Court today was entirely arguable and that may have succeeded, it may not, but it may and that case will no longer be argued because of the respect that Cristiana has for the Parisian Courts and because of this Court's respect for comity and the decision of the foreign courts.

13.      However, that has, in the mind of the Court, come about as a result of disrespectful and manipulative action by Camilla and we order costs on a full indemnity basis.

14.      As Cristiana has asked, the proceedings are withdrawn. 

Authorities

BNP Paribas Jersey Trust Corporation Limited v C. de Bourbon des deux Siciles [2021] JRC 268.

Royal Court Rules 2004