Claim - Human Rights Law - costs.
Before : |
Advocate David Michael Cadin, Master of the Royal Court. |
Between |
(1) J (the Father) |
|
|
(2) BB (the Child) |
Plaintiffs |
And |
The Chief Officer of the States of Jersey Police Force |
Defendant |
Advocate D. C. Robinson for the Plaintiffs.
Advocate H. J. Heath for the Defendant.
judgment
the master:
1. By an Order of Justice issued in November 2022, the Plaintiffs claimed, amongst other things, a declaration against, and damages from, the Chief Officer of the States of Jersey Police for allegedly breaching Article 7(1) of the Human Rights (Jersey) Law 2000 (the "Human Rights Law").
2. The Second Plaintiff is a child and was accommodated by the Minister for Children and Education with the consent of the child's mother. The child's father, the First Plaintiff, sought to remove the child from the accommodation pursuant to Article 17(8) of the Children (Jersey) Law 2002, which provides that:
"Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the Minister under this Article."
3. The Plaintiffs allege that police officers wrongly prevented the child being returned to the father's care.
4. That claim is denied by the Chief Officer who avers that his officers "gave a lawful order to the Father to leave the area in order to prevent a breach of the peace" with which order the father complied.
5. The proceedings came before the Court for Directions in March 2023 when I ordered limited discovery and an exchange of witness statements, together with a stay for ADR.
6. From the correspondence I have seen, although the parties are willing to participate in mediation, they are of the view that the cost of engaging a mediator (estimated at £1,500) will exceed the amount of any possible award of damages. No mediation has yet taken place.
7. The parties have therefore brought the matter back before me for further directions:
(i) the Plaintiffs seek a further stay for mediation and if no resolution is reached, they invite the Court to give a number of procedural directions to progress this to a trial (including applications to strike out, amend pleadings and to rely upon "evidence of experts in the field of policing standards");
(ii) the Defendant seeks a transfer to the Petty Debts Court on the basis that "there would be real benefits to this being transferred to the Petty Debts Court, not least of all the availability of judge - led mediation at no cost to the parties and reduced costs generally."
8. Article 7(1) of the Human Rights Law provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right".
9. Article 8(1)(a) of that law provides that:
A person who claims that -
(i) a public authority has acted, or proposes to act, in a way which is made unlawful by Article 7(1)...may -
(a) bring proceedings against the authority or, in the case of the Assembly, the States, under this Law in the Royal Court;
10. Article 9 of the Human Rights Law sets out the remedies that may be granted, and by whom, in the following terms:
"9 Judicial remedies
(1) In relation to -
(a) any act or proposed act of a public authority which the court finds is, or would be, unlawful; or
(b) any act of the States Assembly which the court finds is unlawful,
the court may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) Damages may be awarded under this Article only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings...
(6) In this Article - "court" includes a tribunal..."
11. The Plaintiffs have brought proceedings in the Royal Court to comply with Article 8(1)(a) of the Human Rights Law. The question before me is as to whether such proceedings have to remain in the Royal Court, and if not, whether they can be transferred to the Petty Debts Court.
12. In my judgment, although proceedings for damages under the Human Rights Law have to be brought in the Royal Court, they do not have to remain here as Article 9 of that law expressly anticipates damages being awarded by other courts and tribunals.
13. In terms of whether proceedings for damages under the Human Rights Law can be transferred to the Petty Debts Court, Article 1(1) of the Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000 (the "Petty Debts Court Law") provides that:
(1) Subject to paragraphs (2) and (3), the Petty Debts Court ll have jurisdiction in all civil causes and matters where the claim (whether liquidated or unliquidated), net of any interest claimed in respect thereof, does not exceed £30,000.
14. Paragraphs (2) and (3) deal with proceedings for cancellation of leases and arrears of rent and are not relevant to the proceedings before me.
15. In my judgment:
(i) Article 9(2) of the Human Rights Law provides that damages under the Human Rights Law can only be awarded by a court that has jurisdiction to award damages in civil proceedings.
(ii) In relation to the Petty Debts Court, such jurisdiction is provided by Article 1(1) of the Petty Debts Court Law in relation to "all civil causes and matters" under £30,000.
(iii) There is no substantive difference between the phrase used in the Human Right Law (i.e. "civil proceedings") and that used in the Petty Debts Court Law (i.e. "civil causes and matters").
(iv) The Petty Debts Court has jurisdiction to award damages for breach of Article 7(1) of the Human Rights Law up to a maximum of £30,000, following a transfer from the Royal Court.
16. In addition to damages, the Plaintiffs claim a declaration. In my judgment, this declaration amounts to no more than a finding that the Defendant has breached article 7(1) of the Human Rights Law such that damages can be awarded (if appropriate). In my judgment such a declaration is one the Court can make under Article 1(5) of the Petty Debts Court Law which provides that:
"When exercising its jurisdiction in relation to any proceedings, the Petty Debts Court shall have the same powers to grant relief as the Royal Court would have had if those proceedings had been brought in the Royal Court."
17. Having found that the Petty Debts Court has jurisdiction to hear this claim, Article 2(2) of the Petty Debts Court Law provides a mechanism for transfer from the Royal Court in the following terms:
"(2) At any stage in any proceedings commenced in the Royal Court, the Court may, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to the Petty Debts Court on such terms as to costs or otherwise as it thinks proper, if it considers that the action is or is likely to be within the jurisdiction of the Petty Debts Court."
18. That mechanism is in the form of a judicial discretion to be exercised having regard not just to the likely amount of damages but also to the subject matter, complexity and significance of the underlying claim.
19. Notwithstanding the serious subject matter of this claim, in my judgment this litigation is, and always has been, uneconomic for all parties, irrespective of the outcome:
(i) the parties accept that if the Plaintiffs succeed in their claim, any award of damages is likely to be at the lower end of the Petty Debts Courts' jurisdiction and quite probably less than the estimated cost of mediation (£1,500);
(ii) the costs of the proceedings to date will inevitably outweigh the amount of damages in issue;
(iii) that disparity is only going to increase as the claim progresses, particularly if the directions suggested by the Plaintiffs are granted;
(iv) the interaction between the Plaintiffs' representation on Legal Aid, the public funding of disbursements, and the likely irrecoverable costs may make it difficult for whichever party is successful at trial to make a tangible recovery.
20. This assessment does not come as a surprise to the parties.
21. It does however create risks for them in that they are required to help the Court to further the Overriding Objective, which includes considering whether the likely benefits of taking a particular step justify the costs of taking it (and that extends to pre-action matters). It may be extremely difficult for parties to meet that objective in patently uneconomic litigation and in my judgment, parties should be wary before issuing in such circumstances, or indeed, defending.
22. Similar issues have troubled courts in England and Wales in relation to alleged breaches of human rights arising out of actions taken by public authorities and I note the words of:
(i) Keegan J in H v Northamptonshire County Council [2017] EWHC 282 (Fam) who recommended that "every effort should be made by the claimant and the local authority to settle the issues of liability and the quantum of damages before and without the need to issue proceedings".
(ii) Cobb J in CZ (Human Rights Claim: Costs) [2017] EWFC 11 in which he stated that "a careful and realistic eye has to be kept on proportionality of the process by which relief is sought, and on outcome".
23. Whatever the eventual outcome of these proceedings, the Court may well wish to consider whether the litigation has been conducted in accordance with those principles and to the extent that it has not, mark any failure in costs (Watkins v Egglishaw [2002] JRC 2).
24. The uneconomic nature of the litigation also presents challenges for the Court in terms of actively managing this litigation in accordance with the Overriding Objective justly and at a proportionate cost.
25. In my judgment, that challenge will remain even if this case is transferred to the Petty Debts Court:
(i) as with the Royal Court, the award of costs is a matter for the discretion of the Petty Debts Court, albeit that it may choose to limit recovery of future costs by the successful party in accordance with the Petty Debts Court Practice Direction PD 18/01;
(ii) the actual costs incurred by the parties in the litigation to date will be unaffected by any transfer; and
(iii) the costs to be incurred, particularly if the parties remain represented, may not be markedly dissimilar to the costs likely to be incurred in the Royal Court, especially if the Petty Debts Court is required to determine the applications suggested by the Plaintiffs.
26. The Defendant seeks a transfer to the Petty Debts Court on the basis that mediation is free. In my judgment, that is not a significant consideration in circumstances where:
(i) neither party is a litigant in person;
(ii) the Plaintiff is in receipt of legal aid and has a route to obtain public funding for mediation;
(iii) the Defendant is publicly-funded and cannot be said to be impecunious;
(iv) a referral to mediation is discretionary; a stay for mediation has already been granted by the Royal Court and the parties chose not to avail themselves of the opportunity; there is no guarantee that the Petty Debts Court would, or should, refer this claim to mediation again;
(v) although the cost of engaging a private mediator may be greater than the amount of damages likely to be awarded, that cost is unlikely to be significant when viewed against:
(a) the costs incurred by the parties to date; and/or
(b) the costs likely to be incurred in pursuing this matter to trial; and/or
(c) the costs likely to be incurred by the parties' respective lawyers attending any mediation.
27. Whilst I accept that it may be quicker and simpler to get a trial date in the Petty Debts Court, particularly on the narrow factual and evidential issues at the heart of this case, I am also conscious that the resources in the Petty Debts Court are limited, and it is not necessarily suited to determining complex interlocutory applications.
28. Accordingly, in actively managing this case and progressing it justly and at proportionate cost, I order that:
(i) the proceedings be stayed for ADR for 28 days pursuant to RCR 6/28 and I would encourage the parties to do all they can to resolve matters, whether with or without the assistance of an external mediator;
(ii) in the event that no agreement is reached, within 14 days of the expiry of that period:
(a) the parties shall provide to one another, and file with my secretary, all and/or any summonses which they wish to have determined in advance of trial;
(b) the parties shall fix a date for determination of all summonses provided and for any further directions;
(c) the parties shall provide costs budgets for the litigation giving amongst other things, particulars of:
(1) the costs incurred to date;
(2) the costs likely to be incurred to trial, and
(3) the costs of complying with each direction set out in the summonses in the event that the Court were to so order.
29. The Defendant's application for transfer to the Petty Debts Court shall be adjourned to the date to be fixed under paragraph 28(ii)(b) above.
30. Costs reserved.
Authorities
Human Rights (Jersey) Law 2000.
Children (Jersey) Law 2002.
Petty Debts Court (Miscellaneous Provisions) (Jersey) Law 2000.
Petty Debts Court Practice Direction PD 18/0.
Royal Court Rules.
H v Northamptonshire County Council [2017] EWHC 282 (Fam).