Breach of Covid-19 Regulations - appeal on costs
Before : |
J. A. Clyde-Smith, Commissioner sitting alone |
The Royal Yacht Hotel
-v-
The Attorney General
Advocate M. St J. O'Connell for the Appellant
M. R. Maletroit Esq., Crown Advocate for the Respondent.
JUDGMENT
THE COMMISSIONER:
1. I have been asked to determine an issue of costs on the papers.
2. The history in brief is that:
(i) On 30th April 2021, the Inferior Number imposed a fine of £350,000 upon the Appellant for breaches of the Covid-19 Laws and ordered the Appellant to pay costs of £5,000 to the Respondent ("the Prosecution Costs Order").
(ii) On 20th October 2021, the Superior Number allowed the appeal of the Appellant against the fine imposed reducing it to £100,000, for the reasons set out in its judgment of that date (Royal Yacht v AG [2021] JRC 257), but left over the issue of the Appellant's appeal against the Prosecution Costs Order. The Appellant was granted its costs in relation to this part of the appeal which had been successful.
(iii) On 9th December 2021, the Superior Number dismissed the Appellant's appeal against the Prosecution Costs Order for the reasons set out in its judgment of that date (Royal Yacht Hotel v AG [2021] JRC 308), but left over the issue of the costs of that part of the appeal.
3. The Respondent now applies for its costs in relation to the appeal of the Appellant against the Prosecution Costs Order which was unsuccessful. The Appellant submits there should be no order for costs arising out of this part of the appeal.
4. In support of the application for the Respondent's costs, Crown Advocate Maletroit made the following points, in summary:
(i) Whilst the notice of appeal of the Appellant extended to the Prosecution Costs Order, no reference was made by the appellant to this aspect of the appeal in its written and oral contentions in the substantive hearing. Not surprisingly the Respondent did not do so either.
(ii) When the substantive judgment of the Superior Number was issued in draft dealing with the appeal against the fine, it indicated that it would decline to interfere with the Prosecution Costs Order not having been addressed on it. The Appellant then sought to be heard on that part of the appeal and a further date was therefore fixed for that purpose.
(iii) In his written contentions in respect of the appeal against the Prosecution Costs Order, Advocate O'Connell did not set out any of the relevant case law or legislation or address the appropriate test in respect of an appeal against such order.
(iv) The Appellant came nowhere near the high threshold required to be met before an appeal court will interfere with an order as to costs, namely that the decision was perverse.
5. Advocate O'Connell made the following points in response in summary:
(i) The Superior Number allowed the Appellant to pursue the appeal against the Prosecution Costs Order notwithstanding that no reference was made to it in the substantive appeal, so its failure to deal with this issue in the substantive appeal was beside the point.
(ii) The appeal against the Prosecution Costs Order involved a short hearing concluded in twenty minutes or so.
(iii) This was the first occasion when a challenge to a costs contribution of this nature had been made, and the clarification that the Superior Number had now brought to bear upon the matter is both novel and generally instructive to the legal profession and other Court users.
6. For all these reasons, Advocate O'Connell submitted that there should be no order for costs.
7. It is not in dispute that the Superior Number has the power to order an appellant to pay the whole or any part of the costs of an appeal pursuant to Article 3 of the Costs in Criminal Cases (Jersey) Law 1961, and that it falls to me as the presiding judge to consider the issue of costs, pursuant to Article 15(1) of the Royal Court (Jersey) Law 1948.
8. Whilst the hearing of the appeal against the Prosecution Costs Order may have been relatively short, that ignores the fact that the Appellant was required to file its skeleton argument setting out the grounds of its appeal against the Prosecution Costs Order. That skeleton argument made no reference to the legal principles to be applied in such an appeal.
9. The Respondent was then required to research the matter and in contrast helpfully set out in its skeleton argument, the legal principles to be applied in such an appeal. When asked by the Court why he had not made a reference to those principles in his skeleton argument, Advocate O'Connell stated that they were so well established that he did not need to refer to them.
10. I agree with Crown Advocate Maletroit that the issues raised by the appeal against the Prosecution Costs Order are not novel. As he says, the statements of the law set out in the Respondent's skeleton argument comprised legislation and case law which is available and easily identifiable, and the Appellant could have, and should have, identified the relevant legislation and case law and placed it before the Court. As he said, advocates have a duty to take reasonable steps to ensure that the Court has before it all relevant decisions and statutory provisions.
11. As the Court said at paragraph 19 of its judgment of 9th December 2021, Advocate O'Connell had conflated the issue of the fine imposed by the Inferior Number with the Prosecution Costs Order, but they are separate matters and there is a high threshold to overcome before an appellate court will interfere with a decision as to costs,
12. In my view, the Appellant has acted unreasonably in the conduct of this part of the appeal, firstly in failing to address it at all in the substantive appeal hearing and secondly and more importantly, in pursuing that part of the appeal when it is clear to me that the Appellant had not researched and addressed the relevant legal principles. The grounds of appeal put forward, which did not address those principles, came nowhere near the high threshold required before an appellate court will intervene in such an order. The Respondent has therefore been unreasonably put to the costs of dealing with this part of the appeal and should be compensated with a costs order.
13. I therefore order the Appellant to pay the Respondent the costs the Respondent has incurred of and incidental to the appeal against the Prosecution Costs Order, to be assessed by the Judicial Greffier, if not agreed, in accordance with Article 5A of the Costs in Criminal Cases (Jersey) Law 1961.
Authorities
Royal Yacht v AG [2021] JRC 257.
Royal Yacht Hotel v AG [2021] JRC 308.
Costs in Criminal Cases (Jersey) Law 1961.
Royal Court (Jersey) Law 1948.