Before : |
Sir William Bailhache, Commissioner |
Between |
J |
First Plaintiff |
And |
BB |
Second Plaintiff |
And |
Chief Officer of the States of Jersey Police |
Defendant |
Advocate Darry Robinson for the Plaintiffs.
Advocate H. J. Heath for the Defendant.
judgment
the COMMISSIONER:
1. This is an appeal against the Order of the Master condemning the Plaintiffs to pay 80% of the costs if not agreed then calculated on the standard basis, to the Defendant in respect of some unsuccessful applications for summary judgment and strike out. The Plaintiffs also apply before me for a protective costs order in respect of the ongoing litigation, which is down for hearing on 10 and 11 April.
2. The underlying complaint of the Plaintiffs is that the police wrongly refused him permission to collect his daughter, who was aged 12 at the time of the incident, from a care home where she had been placed by the Minister for Children with the consent of the child's mother. I am told the mother had agreed with the father that consent should be withdrawn and the father, who also has parental responsibility, indeed withdrew consent to the placement with the Minister, and turned up at the care home at 9pm on a Monday night without notice to the Minister in order to collect the child. It appears that the care home staff informed the Minister who asked the police to attend. They did so and they informed the father that he would not be permitted to collect the child as there was a temporary care order of some kind and that he should leave the area. When the father remonstrated with the officers he was told again that he should leave and that if he refused to do so, he would be arrested for conduct likely to cause a breach of the peace. The father then left. These are the broad details. I have heard no evidence and when that is given at trial, the Court will have a firmer factual foundation but the present judgment assumes, without deciding it, the broad basis which I have just set out to be accurate.
3. The proceedings originally included a claim against the Minister but that has been compromised, the Minister having accepted liability and agreed to pay damages. What is left is the claim against the Chief Officer for a declaration that the rights of the Plaintiffs under the European Convention of Human Rights have been breached and for damages for just satisfaction for that breach.
4. It appeared to me to be convenient to deal first with the application for a protective costs order because resolution of that issue might assist in a determination of the appeal against the costs order made by the Master. In reaching my conclusions on the protective costs application, I have had regard to the principles which I set out in Flynn v Read [2013] (2) JLR 280.
5. The first question is whether the proceedings raise any significant issue of law which it would be in the public interest to determine. If that were not the case there would be no question of a protective order. In my judgment there is no doubt that there is. The relationship between the police powers generally and the powers and duties under the Children (Jersey) Law 2002 is important, especially when it involves the removal of children from their parents or the prohibition of a parent from exercising his or her parental rights. It is vital that the police should know where they stand in respect of these issues. It is equally essential that parents know their rights so that in the critically important area of family relationships they are not unfairly frustrated in their attempts to stand up for what they believe them to be. In my judgment, it is important that this case proceeds to trial so that there can be a reasoned judgment of the court on the issue in question here. As far as I am aware, with the exception of F H Y W T and S v Minister for Children and Education [2021] JRC 280, there is no authority of this Court on the point, and the case just mentioned is not on all fours, albeit there are points of similarity. In saying that it is important this case proceeds to trial I certainly do not wish to dissuade the parties from seeking a resolution by agreement of the dispute between them and one point which has been canvassed is the possibility of some form of apology by the police, perhaps without acceptance of any legal liability, coupled with an undertaking to review guidance to police officers faced with a similar situation in the future. As I say, I have no jurisdiction to make any such order and anything I have said about the importance of the case proceeding to trial is not intended to detract from the possibility of such a settlement being reached.
6. In deciding whether to make a protective order, the court takes into account whether there is a private interest on the part of the Plaintiff. Here there undoubtedly is. That is a feature which goes into the balance, but in my judgment it does not operate in this case as a fatal block to such an order. Even if successful, the Plaintiffs may find that a declaration is sufficient "just satisfaction" for the breach of their Convention rights, and even if that were not the case and some damages were to be awarded, the quantum of those damages would fall far short of the likely costs of the action.
7. On the other hand, although Advocate Heath denies this possibility, in my view the risk that an adverse costs order might well stultify the action are real for the very reason that the reward for success is too small to justify the risk of failure and in that event, an important issue of law, which it is in the public interest to determine, would remain unaddressed.
8. The financial means of the Plaintiffs are not significant and that supports the view that, absent a protective order, the proceedings will come to an end. The father's means are set out in an affidavit of means and rightly so because the Court needs that information when considering the exercise of the discretion that is required.
9. The Defendant resists making the order, although the nature of that resistance was tapered somewhat in the course of the submissions that were made. The Chief Officer does not rely, although he might have done so, on the lateness of the application; and it is true that the application does come late. Indeed, the tardiness of the application for a protective order might well in many cases operate as an insuperable impediment to getting such an order. This feature goes into the balance with other features - it is relevant not least because the opponent to the party with a protective order might well have taken other steps in the litigation - or no steps - had he been aware that the litigation would be pursued at his own cost without hope of recovery.
10. If the court were to think that a protective order was appropriate, it has the power to make an order that the party's costs be paid from public funds - see Flynn v Read and Channel Islands Knitwear Co. Ltd. v. Hotchkiss [2001] JLR 570. In practice, the costs would be paid from the Court & Case costs vote in the budget for the Judicial Greffe under the old arrangements and now covered by the Legal Aid vote operated by the Greffier on behalf of the Minister.
11. When I describe some tapering of the Defendant's objection to the making of a protective costs order it followed from an exchange I had with Advocate Robinson in the course of his application during which he gave an undertaking to the Court that if a protective costs order were made he would not make any claim against either of the Plaintiffs for any surplus over and above the amount that he was entitled to receive under the arrangements reached with the Greffier for payment of his fees from the Legal Aid vote. That being so he would not be able to make a claim for any surplus against the Defendant if he were to be successful on the basis of the indemnity principle which, with respect to the Court of Appeal was not covered in their judgment in Flynn v Reid, would apply to prevent that claim being made. So the Defendant is better off in the context of this application by the undertaking which Advocate Robinson has given. As to whether or not there could be any claim if Advocate Robinson were to be successful to recover the £30,000 to replenish the Legal Aid vote I leave that question open. I would have to hear from the Minister before making an order that no such claim could be brought but I assume it to be unlikely because it would amount to the Minister arguing before a Court for what is essentially a circular order taking public money from one budget and giving it to another.
12. Although this application comes much too late, in my judgment it is appropriate that the discretion be exercised and a protective costs order made. Accordingly, I direct that no costs order should be made against the Plaintiffs in this litigation from now on in the absence of improper conduct on their part and, to the extent that any order has been made so far, no such order shall be enforceable without leave of this court.
13. I turn next to the appeal against the Master's order. The fact the protective costs order has been makes this appeal superfluous but I take note of the fact that no application for a protective order could have been made before the Master and that nonetheless it seems to me that the decision which the Master made was entirely understandable. In my judgment it is not the case that he was unreasonable in any sense or made any error of law in the orders which he made. He balanced the factors that the Master should have balanced and he came to his own view as to what the appropriate balance should be and without more I would have needed quite a lot of persuasion that his order should be set aside. He recognised in effect the Plaintiff could not pay the costs order and therefore made the order that it should not be enforced without leave. But for the protective order of costs which I have just made, I would not have interfered with the Master's order.
Authorities
Flynn v Read [2013] (2) JLR 280.
Children (Jersey) Law 2002.
F H Y W T and S v Minister for Children and Education [2021] JRC 280.
Channel Islands Knitwear Co. Ltd. v. Hotchkiss [2001] JLR 570.