Costs.
[2022]JRC192
Royal Court
(Samedi)
16 September 2022
Before :
|
J. A. Clyde-Smith OBE., Commissioner,
sitting alone.
|
Between
|
Alan Paul Booth
|
Plaintiff
|
And
|
The Viscount of the Royal Court of Jersey
|
First Defendant
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And
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David O. Reynolds Surveyors Limited trading
as Reynolds Chartered Surveyors
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Second Defendant
|
The Plaintiff appeared in person.
Advocate D. R. Wilson for the First
Defendant.
Advocate S. A. Hurry for the Second
Defendant.
judgment
the Commissioner:
1.
On 8th
September 2022 I heard applications as to costs arising out of the decision of
the Court given by its judgment of 8th March 2022 and published as Booth v Viscount and Anor [2022] JRC 062
(“the Substantive Judgment”), a decision which is under appeal.
2.
By way of
a preliminary issue, the Court declined to intervene in the decision of the
First Defendant (“the Viscount”) not to assign to the Plaintiff
(“Mr Booth”) a cause of action in negligence against the Second
Defendant (“Reynolds Surveyors”).
3.
Both the
Viscount and Reynolds Surveyors applied for their costs of and incidental to
the preliminary issue on the standard basis because they say they were the
successful parties and that costs should follow the event. Mr Booth resisted the making of any
orders for costs against him or in the alternative argued that any award should
be substantially curtailed.
4.
I will
take the Substantive Judgment as read and will not set out the background. I was referred by counsel to the
guidance given by the Court in Watkins v Egglishaw [2002] JLR 1:
“a) The court’s overriding objective
in considering costs is, as in everything else, to do justice between the
parties.
b) In
many cases, that objective will be fulfilled by making an award of costs in
favour of the ‘winning’ party, where a ‘winner’ is
readily apparent. In any event, the
‘follow the event’ rule dan be a useful starting point.
c) It
is a mistake, however, to strain very much to try to label one party as the
‘winner’ and one as the ‘loser’ when the complexity or
other circumstances of the litigation do not readily lend themselves to
analysis in these terms.
d) The
discretion as laid down in art.2 of the Civil Proceedings (Jersey) Law 1956 is
a wide one and ought not to be treated as fettered by any particular supposed
rule or practice, other than that the discretion should be exercised judicially
and broadly in accordance with the guiding principles referred to in re
Elgindata (2)(5) and A.E.I v Phonographic Performance (1).
e) It
is, accordingly, open to the court to have regard to any and all considerations
that may have any bearing on the overriding objective of doing justice. Its
task is to take an overview of the case as a whole (Bank of Credit &
Commerce Intl. v Ali (No 4) (3), per Lightman, J.). The new Civil Procedure Rules governing
civil litigation in the English courts provide that the court ‘must have
regard to all the circumstances’ and then go on to spell out certain
matters that such circumstances include, the ‘conduct of all the
parties’ being one and ‘whether a party has succeeded on part of
his case, even if he has not been wholly successful’ another (Civil
Procedure Rules, para 44.3(4)).
f) It
is implicit in this that, even though a party would otherwise be regarded as
having been ‘successful’ justice may require that cost should not
automatically follow the event’.”
5.
On the
face of it, the Viscount and Reynolds Surveyors have a strong argument for the
award of costs in their favour. The
Court declined to direct the Viscount to assign the cause of action to Mr
Booth, which remains vested in the Viscount, leaving Mr Booth no standing to
pursue it against Reynolds Surveyors.
6.
One might
question why Reynolds Surveyors played any substantive part in the preliminary
issue which was essentially between Mr Booth and the Viscount, but I accept
that the consent order of 29th June 2021 did give Reynolds Surveyors
a role in the filing of evidence and skeleton arguments and attending the
hearing. It was of assistance to
the Court in ensuring the factual matrix was accurate and, for example, its
involvement led to an accurate copy of the King’s Oak valuation being
procured for the Court. Advocate
Hurry addressed the Court on the merits of the cause of action, although as the
Court pointed out at paragraph 47 of the Substantive Judgment, it was concerned
with the Viscount’s assessment of the merits in making her decision.
7.
A clear
warning as to his potential liability as to costs was given to Mr Booth by the
English lawyers acting for Reynolds Surveyors in these terms:
“5.1 You do not have
standing to bring a claim against our client. Even if it is found that you do (which
is not accepted) liability is denied.
You have failed to provide sufficient information or evidence regarding
the claim, including any expert evidence, and it is clear that any breach has
not caused you to suffer loss.
5.2 We are confident that your claim will
fail and strongly recommend that you do not pursue this meritless claim any
further If you do, we consider the
claim will be liable to be struck out and we will pursue you for our
client’s costs on the indemnity basis. Should you pursue your claim, we
reserve, also, the right to draw the court’s attention to this
letter.”
8.
In seeking
an assignment of the cause of action, Mr Booth was relying on the decision of
the Court of Appeal reported as Booth v The Viscount [2016] (2) JLR 473,
where the Court of Appeal stated, in effect, that the merits of a cause of
action were a matter for the Court before whom the cause of action would be
litigated, and not a matter for the Viscount.
9.
The Court
felt able to distinguish the decision of the Court of Appeal for the reasons
set out in paragraph 45 of the Substantive Judgment, but it did so with the
benefit of opinions of English counsel procured by the Viscount on the
analogous position under English law citing English authority, which had not
been placed before the Court of Appeal.
10. Advocate Wilson submitted that Mr Booth should
have anticipated the decision of the Court of Appeal being distinguished in
this way and pointed out that although Mr Booth was a litigant in person, he
did have the benefit of legal advice in bringing the proceedings and in the
drafting of the Order of Justice.
Indeed, as stated in paragraph 23 of the Substantive Judgment, Advocate
Steenson, acting for Mr Booth, contacted the Viscount on 28th March
2021, inviting the Viscount to assign the cause of action, citing in very firm
terms the Court of Appeal decision.
11. Mr Booth is now aged 71 and is a discharged
bankrupt. He lives, in his words, a
hand to mouth existence where he can as a chartered surveyor, and he informed
me that he passed the means test for qualifying for Legal Aid in relation to
his appeal. Under that means test,
as I understand it, Legal Aid will not be granted if the applicant either has
personal capital above £50,000 or personal income above
£33,000. It is fair to
observe that a person who qualifies for Legal Aid will therefore be a person of
limited means.
12. I was informed that in very approximate terms,
the Viscount had incurred costs with Advocate Wilson’s firm of some
£66,000 and Reynolds Surveyors have incurred costs with Advocate
Hurry’s firm of some £45,000, which Advocate Hurry pointed out
would not include the costs of his English instructing solicitors. These are, of course, costs charged at
the commercial rates of firms concerned and would be reduced on taxation.
Disbursements are not included.
Even so, the amounts if costs are awarded are likely to be substantial.
13. Counsel submitted that the means of Mr Booth was
not a relevant factor for me to take into account, citing the authority of the
Court of Appeal decision in Flynn v Reid [2012] (2) JLR 226, where
Beloff JA said this at paragraph 40:
“40 In my view, costs awards should be based on
two major considerations: the merits of the case (as adjudicated upon by the
court) and the conduct of the
parties in the litigation (as appraised by the court). These are not the only
considerations. A court may, for
example, properly decline to make a costs order which might aggravate the
relationship between the parties and for that reason be undesirable in the
public interest or one which would be futile because the party against whom it
would otherwise be made is impecunious.
But, save it may be in exceptional cases (whose existence or extent we
do not need to consider in these proceedings), the means of the parties are, in
our view, outwith the matrimonial field, not relevant. No one after all is compelled to bring a
claim or to defend one. The
potential exposure to costs, if unsuccessful, is itself a salutary discipline
against maintaining from either perspective an untenable position.”
14. The Court of Appeal in Flynn v Reid was
concerned with cost capping, but the following passage from paragraph 43 of the
judgment is also helpful:
“…. There are all kinds
of familiar devices which prevent what may be seen subjectively, or even
objectively, as harsh treatment of a party with slender means when the insult
of costs is added to the injury of an adverse holding. The successful party (especially for
example a large corporation) may regard seeking a costs order against an
individual of limited means as unnecessary, futile, or even, in terms of its
own reputation, damaging. The court
may itself encourage clemency.
Awards made may not be enforced.
Indeed, the Court has the power to attach to an award of costs a proviso
that it is not to be enforced without leave of the court, something done on at
least one occasion by this court (see Costs Orders Against Legally Aided
Parties, 9 Jersey Law Review at 2-6 (2005)). (In England this is sometimes called a
‘football pools order’ which recognized the possibility that the
indigent litigant may by some future stroke of good fortune acquire sufficient
means to discharge his cost obligation).”
15. Both sides made complaints about the conduct of
the other in these proceedings, but in my view, there is nothing in the conduct
of the parties that has any bearing on the issue of costs. I start from the premise that the
Viscount and Reynolds Surveyors are the winning parties, and that as a starting
point, costs should follow the event in the usual way.
16. I am concerned with the costs of the
preliminary issue, namely the assignment of the cause of action and in this, Mr
Booth relied on the authority of Court of Appeal judgment in Booth v
Viscount that the merits of the cause of action was not an issue for the
Viscount to take a view on, an authority binding on the Royal Court. The merits of the cause of action was a
key factor in the decision of the Viscount. It is not reasonable to suggest, in my
view, that Mr Booth should have predicted the way in which the Royal Court
would distinguish the two cases, both involving assignments of causes of action
by the Viscount. In seeking an
assignment, he was not maintaining an untenable position. In my view, justice dictates that his
reliance on this Court of Appeal decision should be taken into account in
considering the extent to which costs should be awarded against him.
17. I am also concerned with the possibility that
any costs ordered in favour of the Defendants could be rendered futile in that
enforcement might render Mr Booth impecunious and drive him once again into
bankruptcy. At the same time, it
would not be fair for no order for costs to be made at all because by bringing
these proceedings, Mr Booth has forced the Defendants to incur legal
costs. I therefore intend to order
that any award should not be enforced without the prior leave of the Court.
18. I therefore order:
(i)
Mr Booth
to pay the Viscount and Reynolds Surveyors one half of the costs they have
incurred of and incidental to the preliminary issue on the standard basis, to
be taxed if not agreed, and
(ii) that award is not to be enforced against Mr
Booth without the prior leave of the Court.
19. I make this final observation in relation to
costs. Advocate Hurry made
reference to the costs of his instructing English solicitors. The survey, which is at the heart of
this case, was carried out by Reynolds Surveyors, a Jersey incorporated company
carrying on business in Jersey, over a property situated in Jersey. Whilst this will be a matter for the
taxing master if not agreed, I question whether it is reasonable for a local
defendant to justify instructing an English firm of solicitors who would, in
turn, instruct Jersey lawyers, both running up costs in the conduct of the
matter. This
is quite separate to the potential use of English counsel for the provision of
advice in an area of law which is very similar in the two jurisdictions.
Authorities
Booth
v Viscount and Anor [2022] JRC 062.
Watkins
v Egglishaw [2002] JLR 1.
Booth
v The Viscount [2016] (2) JLR 473.
Flynn
v Reid [2012] (2) JLR 226.