Jersey Unreported Judgments

Costs and leave to appeal

[2022]JRC275

Royal Court

(Samedi)

9 December 2022

The Plaintiff appeared in person.

Advocate D. Evans for the First and Second Defendants.

Advocate A. Kistler for the Third Defendant.

judgment

the COMMISSIONER:

1.        I sat on 7^th and 8^th September to hear an appeal against a decision of the Judicial Greffier refusing leave to the Plaintiff to amend his Order of Justice and giving summary judgment against him in favour of the Defendants.  Judgment was reserved but was handed down on 10^th October 2022 (Cook v Clapham and Ors [2022] JRC 210).  For the reasons set out in that judgment, the Plaintiff's appeal against the Judicial Greffier's decision was dismissed.

2.        In the concluding remarks in that judgment I indicated that, as the Plaintiff was not resident in the jurisdiction, I would accept written submissions in respect of any potential costs orders and decide the matters on the papers, albeit I would certainly sit to receive oral submissions if both parties so requested it.  I directed that the Defendants should file and serve any written submissions within fourteen days following the handing down of the judgment and the Plaintiff should file any response within fourteen days of receiving the Defendants' submissions. 

3.        On 21^st October, the First and Second Defendants filed a detailed submission in relation to costs.  In summary, there was a claim that the Plaintiff should pay the First and Second Defendants' costs on the standard basis until 28^th June 2021 and on the indemnity basis thereafter.  There was also a claim for an interim payment on account of costs pending taxation, in the sum of £277,929 (50% of costs calculated on the standard basis to 28^th June 2021 with their costs after that date claimed on the indemnity basis, in the sum of £555,858).  On 24^th October, the Bailiff's Judicial Secretary received a letter from Advocate Kistler on behalf of the Third Defendant adopting the contentions filed by Advocate Evans on behalf of the First and Second Defendants.  The Third Defendant made no claim for an interim payment on account of costs at that time. 

4.        The Plaintiff has filed no submissions on the question of costs.  All that has been received from him, or from his colleague, Mr Harry Baden-Powell, who claims to be acting at his request, is a Notice of Appeal dated 4^th November seeking an order from the Court of Appeal setting aside the judgment of the Royal Court and ordering the Plaintiff to be given leave to amend his Order of Justice and have the case set down for trial.  The Notice of Appeal gives no grounds for appeal but indicates that 'Detailed grounds for the appeal will follow shortly'.  On 8^th November, Advocate Evans informed the Plaintiff that he needed to apply for leave to appeal because there was no automatic right of appeal to the Court of Appeal and in the ordinary course he should apply to me for leave to appeal, and if I refused, then the application could be renewed to a single judge.  The Plaintiff has subsequently been advised by the Greffier Substitute that he is out of time to apply for leave to appeal, and therefore he will have to apply for an extension of time in which to appeal.  I am not aware as to whether the Plaintiff has taken any further steps in this connection but I now deal with these issues of costs and leave to appeal, insofar as it concerns an application to me.

Leave to appeal

5.        Leave to appeal, to the extent that an application has been made for such leave, is refused.  The Notice of Appeal contains no grounds for appeal and seeks orders which in my judgment are plainly inappropriate.  The proposed draft Amended Order of Justice, containing as it does various allegations of fraud which are unparticularised and for which no evidence in support has been produced, is simply not in a form where a court could, in my judgment, properly give leave for it to be filed.

6.        I cannot identify any new law which emerges from the judgments either of the Judicial Greffier or of the Royal Court which require elucidation by the Court of Appeal.  I do not see any arguable point which ought to trouble the Court of Appeal.  In the circumstances, the Plaintiff will have to seek leave from a single judge, putting forward such basis as he feels he should for that purpose.

Costs

7.        The starting point is that costs follow the event.  The Plaintiff has lost before the Judicial Greffier and there is in my judgment no reason why a costs order should not be made in favour of the Defendants, as indeed I indicated on a preliminary basis in the judgment handed down on 10^th October.  What is raised is the question as to the basis upon which such costs could be calculated. 

8.        Costs are normally awarded on a standard basis unless there is something which takes the case out of the ordinary, and a degree of unreasonableness in the conduct of the paying party.  As was said by Beloff JA in C v P-S [2010] JLR 645, there is "an infinite variety of circumstances where it may be right and proper for the Court to make such an award".

9.        The claim for indemnity costs in this case is based on these considerations:

(i)        Although the Plaintiff pressed ahead with an appeal of the Greffier's decision, he conceded a large part of the case on day two of the appeal.  This raises the costs considerations discussed in Dick v Dick [1990] JCA 48A.  That was a case where the Court of Appeal noted that the appellant had instituted proceedings in the Matrimonial Causes Division of the Royal Court, but when the time came for those proceedings to be heard, he withdrew them at the eleventh hour.  Le Quesne JA said:

"It appears to us that if for reasons of his own, whether good or bad, a party who has instituted proceedings subsequently decides to drop them before they come into Court, it is fair that he should pay for that conduct the price of compensating the other party by way of indemnity costs."

(ii)       From the commencement of the proceedings, the executors claim to have proactively adopted a constructive approach by seeking and providing documentation before discovery relating to the issues pleaded in the Order of Justice.  However, the Plaintiff failed to engage with any of that correspondence; it is said that he deliberately adopted a strategy of delay and non-engagement.

(iii)      The bulk of the documentary evidence was apparently provided on 4^th June 2020 and 6^th October 2020 and the Plaintiff could properly have considered the merits, or lack of merits, of his claims from those dates.

(iv)      On 28^th June 2021, the First and Second Defendants' lawyers explained in detail the documentary evidence that had been disclosed prior to and upon discovery and invited discontinuance of the proceedings on terms as to costs.  It is said now that the Plaintiff could and should have withdrawn the proceedings from that date.

(v)       Since 28^th June 2021, the First and Second Defendants have asserted that the Plaintiff's conduct has been generally abusive and vexatious, particularly in the false allegations of fraud and perjury.  These allegations changed from time to time and appeared in different forms from 31^st October 2021 when the first application was made for leave to amend by including such allegations.

10.      The Third Defendant filed an Answer to the proceedings in which he claimed two particular defences not available to the executors.  The first affirmative defence was his reliance on the exculpation clause at Clause 13 of the trust.  The second affirmative defence was that the claim was time barred under Article 57(3C) of the Trusts (Jersey) Law 1984 as amended.  Both of these affirmative defences were the subject of a Reply filed by Advocate Hoy on behalf of the Plaintiff.  On 15^th March 2021, Advocate Kistler wrote to Advocate Hoy to explain why the Reply filed was misconceived and, accordingly, why the affirmative defences of the Third Defendant must succeed.  Advocate Hoy subsequently ceased acting for the Plaintiff and it was some six months later that the Plaintiff made a claim for fraud, which, if established, would overcome the affirmative defences which had been filed by the Third Defendant.

11.      In my judgment, the Defendants are entitled to an order for indemnity costs in respect of at least part of the period covered by this litigation for these reasons:

(i)        There were wholly improper allegations of fraud.  It is not just that the allegations were not properly pleaded, but rather the fact that the inability to plead them properly demonstrates how improper the allegations were in the first place.  No fraudulent representation by any of the Defendants made with a view to causing and actually causing loss or gain has been identified.

(ii)       The Plaintiff made a series of assertions in correspondence concerning the blood relationship between Lady Cook and the residuary beneficiaries of her estate which were not only irrelevant to what was in dispute but also entirely without merit.  In the light of those allegations, the First Defendant, who had known Lady Cook for some time, swore a second affidavit which the Plaintiff then described as perjury on his part.  That allegation was withdrawn before the Judicial Greffier but a variation on it was subsequently advanced again before me, and in particular was raised again when the draft judgment was circulated - see paragraph 57 of the judgment as handed down.

(iii)      Having not only wrongly raised the question of fraud and then properly withdrawn it, the Plaintiff then sought to resurrect it, again as set out in paragraphs 55 to 70 of the judgment as handed down.

12.      I regard these factors as taking this case out of the norm and they are such as to merit the award of indemnity costs.

13.      The submission that the Defendants had done everything they could to engage constructively with the Plaintiff who refused so to engage is more difficult.  On balance, I think it is justified, although had this been the only basis upon which a claim for indemnity costs had been advanced, I am not at all sure that it would have been sufficient.  As said recently by the Deputy Bailiff in Cohen v Arbitrage Research and Trading Limited SA and Others [2022] JRC 084, it is important 'to bear in mind that costs on the indemnity basis are infrequently awarded...'.

14.      These considerations lead me to the conclusion that indemnity costs should be awarded from the date on which the application was made to amend the Order of Justice wrongly to include unparticularised allegations of fraud, namely 31^st October 2021.  Accordingly, I order the Plaintiff to pay the costs of and incidental to the proceedings incurred by the First, Second and Third Defendants up until 31^st October 2021 on the standard basis, and the costs thereafter on the indemnity basis.

15.      I now turn to the claim for an interim payment on account of costs.  I apply the rationale set out in Francis v JFSC [2018] JRC 064A at [15] to [20], and in the judgment of the Court of Appeal in Crociani v Crociani [2014] (1) JLR 503 at [16] and [17]; and I bear in mind the comments of Commissioner Clyde-Smith in Marange v Gecamines [2013] JRC 119A at [44] that the Court is not seeking to make a detailed taxation of the successful party's costs but instead will adopt a rough and ready approach in order to arrive at a figure which the successful party will almost certainly collect.

16.      The First and Second Defendants seek an interim payment of £277,929, reflecting 50% of the total claim for costs on the standard basis to 28^th June 2021 with their costs after that date claimed on the indemnity basis.  It is said that Advocate Evans has spent 509 hours on this litigation since 1^st February 2020 (it having commenced in November 2019), and that Advocate Pallot has spent 815.9 hours on the litigation during the same period.  Other claims for fee earner costs in the rough summary account for a further 215 hours or so.

17.      I appreciate that the subject matter of the litigation concerned some very valuable paintings, albeit I have not been given information as to the extent of that value.  I also appreciate that the claims involved a review of actions taken very many years ago, and thus involved not only an amount of research for documents but subsequently an amount of analysis as to what their precise import was.  I acknowledge furthermore that the Plaintiff, as a litigant in person, has raised a number of issues over the period which have required additional work and thus caused time costs to be incurred.  I note of course that there have been two substantial hearings before the Court, one before the Greffier and one before me. 

18.      Having said all that, and taking a step back, it seems to me that the litigation ultimately involved a reasonably straightforward question.  The effect of an indemnity costs order is that any doubts are resolved in favour of the receiving party.  I do not have sufficient information - nor on an exercise like this is it appropriate that I seek it - to reach any conclusions as to whether the overall costs involved are proportionate having regard to the litigation as a whole.  But that is clearly a matter which may receive the attention of the Judicial Greffier on taxation.

19.      All I am concerned with now is to assess what would be an appropriate figure for an interim award.  On the basis that a qualified lawyer is expected to provide for his employer 1,400 chargeable hours a year, this claim for costs assumes that he or she would have done nothing else at all but this case for the best part of a full twelve months.  At this stage, bearing in mind that I have to approach the matter on a rough and ready basis, I have some difficulty in accepting such a proposition.

20.      Having regard to these considerations, I order the Plaintiff to make an interim payment to the First and Second Defendants on account of costs in the sum of £175,000.  That sum should be paid within the next two months.  I note from what is said by the First and Second Defendants that the Plaintiff is due to receive a legacy of £100,000 from the estate of Lady Cook, and there is no reason why the executors cannot apply that legacy in part satisfaction of the interim costs order.

Postscript

21.      The Plaintiff and counsel for the Defendants have commented on the draft judgment sent out and changes have been made to accommodate the minor factual errors made as to the date on which the main judgment was handed down and the detail of the claim for a payment on account of costs as proposed by the Defendants.  These changes fell within the ambit of legitimate comments which might be made on the circulation of a draft judgment.  The Plaintiff has in his response gone into other matters.  His comments fall into two categories. First of all, he has urged that no orders be made as to costs because he is applying to a single judge for leave to appeal, or alternatively that the costs be in the cause.  I regard neither of those as appropriate.  If the Plaintiff obtains leave to appeal and is successful, the Court of Appeal will be able to alter the present costs order, but if he does not get leave or fails in his appeal, then it is right that my order should stand.

22.      The Plaintiff's remaining comments seek to reopen the judgment handed down in October.  They are inappropriate and fall outside the scope of comments which the parties are invited to make on receipt of a draft judgment.  Accordingly, I have not addressed them.

Authorities

Cook v Clapham and Ors [2022] JRC 210. 

C v P-S [2010] JLR 645. 

Dick v Dick [1990] JCA 48A. 

Trusts (Jersey) Law 1984 as amended

Cohen v Arbitrage Research and Trading Limited SA and Others [2022] JRC 084. 

Francis v JFSC [2018] JRC 064A. 

Crociani v Crociani [2014] (1) JLR 503. 

Marange v Gecamines [2013] JRC 119A.