Jersey Unreported Judgments

Court of Appeal - costs.

[2022]JCA231

Royal Court

31 October 2022

Advocate N. B. R. Mière, for the Appellant

Advocate D. R. Wilson, for the First Respondent

Advocate S. A. Hurry, for the Second Respondent.

judgment

crow JA:

1.        The appeal in this matter was dismissed by a judgment of this court dated 10 October 2022 [2022] JCA 200 ("the main judgment").  This is the judgment of the court in relation to the costs of that appeal.  We will continue to use the same abbreviations as in the main judgment. 

2.        The positions adopted by the parties are straightforward.  The Respondents submit that costs should follow the event.  Mr Booth submits that his liability should be limited to 50% of the Respondents' taxed costs.  The parties are agreed that, whatever costs order is made, it should not be capable of being enforced without further order of the Royal Court. 

3.        Although Mr Booth was unsuccessful in the Royal Court, he was only ordered to pay 50% of the Respondents' costs in the court below, for the reasons set out in a judgment dated 16 September 2022, [2022] JRC 192.  We have considered that judgment carefully, not least because it helpfully quotes the guidance provided in Watkins v. Egglishaw [2002] JLR 1 and Flynn v. Reid [2012] (2) JLR 226 on the exercise of the court's discretion in relation to costs.  For the purpose of disposing of the issue now before this court, it is unnecessary to recite that guidance again. 

4.        Mr Booth also relies on the terms of the Royal Court's judgment dated 8 March 2022, which explained that leave to appeal was granted on the basis that the case contained an important question of law and that a decision of this court would be to the public advantage.  Specifically, the Royal Court noted that the appeal would give this court an opportunity "to review" the November 2016 Judgment - an opportunity which this court has taken, as is apparent from paras 58 - 59 and 73 - 78 of the main judgment.

5.        In reaching our decision on costs, we have also taken into account the written submissions of the parties, which have helpfully been provided to us by email, and for which we are grateful.

6.        We have taken fully into account the matters on which Mr Booth relies, and the considerations set out in the judgment of 16 September 2022 which led the Royal Court, quite fairly, to award the Respondents only 50% of their costs in the court below.  In particular, we have kept well in mind the fact that the Royal Court:  did not consider that Mr Booth was pursuing an untenable position;  that he was a man of limited means;  and that there was a possibility that a costs order in favour of the Respondents might render him impecunious and drive him once more into insolvency.  We have also kept in mind that the court below gave leave to appeal for the reason outlined above, and also that there is an argument based on consistency to suggest that the costs outcome in this court should match the costs order in the court below.

7.        Nevertheless, in our judgment the balance falls clearly in favour of awarding the Respondents the full amount of their taxed costs, not just 50%, for a combination of reasons:

(i)        The starting point is that costs generally follow the event, unless there are sufficiently persuasive considerations which cause the court to depart from that approach.

(ii)       In this appeal, Mr Booth has lost on all grounds, including various issues which were dealt with obiter.  It is accordingly not a situation where any kind of split costs order might be considered on an issues-based approach.

(iii)      Indeed, as is apparent from paras 63 - 71 of the main judgment, the appeal raised a number of peripheral issues (thereby putting the Respondents to further expense) which were either not pursued, or not pursued with any vigour.

(iv)      Although the Royal Court granted leave to appeal, it is significant that it did so only on the basis outlined in para. 4 above, and not on the basis that there was a real prospect of success.

(v)       Although the appeal ostensibly raised an issue of general importance, Mr Booth was pursuing it in his own financial interests. 

(vi)      Furthermore, as is apparent from paras. 73 - 87 of the main judgment, it emerged in the course of the appeal that Mr Booth could not and did not seek to persuade this court that the November 2016 Judgment stood as authority for an immutable rule of law that, in deciding whether to assign a cause of action, the Viscount must always disregard the merits of the claim.  As such, although the appeal was presented to the Royal Court as a case raising a point of legal principle, under scrutiny in this court the supposed principle evaporated.

(vii)     Mr Booth was the Appellant, not the Respondent.  He could simply have accepted the Royal Court judgment, but instead he chose to bring an appeal, thereby putting the Respondents to further expense.

(viii)    It is not irrelevant that Mr Booth has been a vigorous litigant in relation to matters arising out of the désastre.  As the authorities show, an award in costs can properly operate as a salutary discipline, both in relation to the specific litigants before the court and also as a signal to other parties to actual or potential future litigation.

(ix)      For the reasons summarised in para. 96 of the main judgment, this court cannot disagree with the assessment of the Royal Court that the Viscount was entitled to reach the view that the claim which Mr Booth wanted to bring against Reynolds was hopeless.

(x)       For the reasons mentioned in paras. 8 and 96(ii) & (v) of the main judgment, Mr Booth's conduct in seeking to advance a claim against Reynolds is not above criticism.

8.        In the court below, Mr Booth was not legally represented throughout.  He has been legally represented in this appeal.

9.        For these reasons, Mr Booth will be ordered to pay the full amount of the Respondents' taxed costs of and incidental to the appeal. 

Authorities

Booth (A.P) v Viscount and Anor [2022] JCA 200.  

Booth v. Viscount & Anor [2022] JRC 192.

Watkins v. Egglishaw [2002] JLR 1.

Flynn v. Reid [2012] (2) JLR 226.