Jersey Unreported Judgments

2002/2

ROYAL COURT

(Samedi Division)

 

8^th January, 2002. 

 

 

 

 

 

Judgment on costs in relation to:

1.     the principal issues in the main action, the subject of the Judgment of 31st July, 2001 [2001/166]; and the residual issues in that action, the subject of the Judgment of 17^th December, 2001 [2001/248]; and

2.     the second action, Judgment also given on 31^st July, 2001 [2001/167].

 

Advocate M. St. J. O'Connell and Advocate F.B. Robertson for the

Plaintiffs in the original action.

Advocate M.M.G. Voisin and Advocate A.D. Hoy for the

Defendants in the original action.

 

 

 

judgment

the commissioner:

Introduction

1.        This judgment deals with the matter of costs in relation to

(1)       The principal issues in action No. 96/18 ("the Main Action") which was the subject of the judgment of this Court given on 31^st July 2001 (No. 2001/166), and the residual issues in that action, the subject of the further judgment given on 17^th December 2001; and

(2)       Action No. 96/15 ("the Second Action"), judgment in which was also given on 31^st July 2001 (No. 2001/167).

2.        The Court has had the benefit of both written and oral submissions on the matter of costs in relation to the principal issues in the Main Action and also in respect of the Second Action.  In the case of the residual issues in the Main Action, the representations have been oral.

The guiding principles

3.        The Court's power to award costs derives from Article 2 of the Civil Proceedings (Jersey) Law, 1956 (as amended).  That Article provides that the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court and that the Court 'shall have full power to determine by whom and to what extent the costs are to be paid'. 

4.        That discretion is, of course, to be exercised judicially and the practice of the Royal Court has, in general, mirrored that of the English Courts in this respect.  The discretion remains, however, a wide one.

5.        Until relatively recently the definitive statement of guiding principal concerning the exercise of this discretion was usually taken to be that contained in the judgment of Nourse L.J. decision of the Court of Appeal in In re Elgindata Limited (No.2) [1992] 1 WLR 1207 at 1214, as follows: 

"In order to show that the judge erred I must state the principles which ought to have been applied.  They are mainly recognised or provided for, it matters not which, by section 51 of the Supreme Court Act 1981 and the relevant provisions of R.S.C., Ord. 62, in this case rules 2(4), 3(3) and 10.  They do not in their entirety depend on the express recognition or provision of the rules.  In part they depend on established practice or implication from the rules.  The principles are these.  (i) Costs are in the discretion of the court.  (ii)  They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.  (iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or part of his costs.  (iv)  Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him or his costs but may order him to pay the whole or a part of the unsuccessful party's costs.  Of these principles, the first, second and fourth are expressly recognised or provided for by rules 2(4), 3(3) and 10 respectively.  The third depends on well established practice.  Moreover, the fourth implies that a successful party who neither improperly nor unreasonably raises issues or makes allegations on which he fails ought not to be ordered to pay any part of the unsuccessful party's costs."

6.        But in his judgment in the case of A.E.I. Rediffusion Music Limited -v- Phonographic Performance Limited [1999] 1 WLR 1507 Lord Woolf MR, commenting on the impact of the new Civil Procedure Rules which were due to come into force on 26^th April 1999 (some two months after this judgment was given), said this (at 1522, 1523):

"The Civil Procedure Rules 1998 (S.1 1998 No. 3132) which have now been made and come into force on 26^th April 1999 confer an equally broad discretion as to costs as the existing Ord. 62, r.3 but are much more specific as to the matters to which the courts should have regard in deciding what order should be made.  I refer to Part 44.3 (2) and (4) which have to be considered together with the overriding objective of the rules contained in Part 1: [sections of the text then set out].  Part 44 also sets out the wide range of different orders which the court can make in paragraph 44.3 (6).

I draw attention to the new Rules because, while they make clear that the general rule remains that the successful party will normally be entitled to costs, they at the same time indicate the wide range of considerations which will result in the court making different orders as to costs.  From 26^th April 1999 the "follow the event principle" will still play a significant role, but it will be a starting point from which a court can readily depart.  This is also the position prior to the new Rules coming into force.  The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues.  In doing this the new Rules are reflecting a change of practice which has already started.  It is now clear that too robust an application of the "follow the event principle" encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take.  If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your efforts to do so."

The Master of the Rolls then went on to refer to the "useful general principles" stated by Nourse LJ in In re Elgindata (No.2) as constituting a guide to the ordinary approach to costs and continued as follows (at 1523, 1524):

"The "well established practice" on which Nourse LJ based his third principle is, as I have already indicated, less generally followed than it has been in the past and it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs of a particular issue on which he has failed.  However, where the chairman of the tribunal was in error was in attempting to apply Nourse L.J.'s principles to which they were quite unsuited.  Here it was not appropriate on his finding to regard either party as being successful in relation to the section 135D application.  The decision meant that there had in the words of the chairman been "roughly a draw".  Nourse L.J.'s principles are not to be regarded as requiring a party to be treated as successful when this is the situation......The chairman's approach places far too great a significance, in a case where there are a number of issues, in trying to find a party who can be described as the overall winner and then attaching importance to that label."

7.        This re-statement of the appropriate approach to costs has subsequently been reflected in a number of cases in the English Courts and there is every reason why, in principle, it should also be followed in the practice of the Royal Court, being consistent, as it is, with the Court of Appeal's reminder in In re Esteem Settlement (2000) JLR Notes 41 that

"the objective of all involved in civil proceedings is to progress to trial in accordance with an agreed or ordered timetable, at a reasonable cost, and within a reasonably short time."

It is, however, plain from Lord Woolf's remarks in A.E.I. Rediffusion that they represent a shift of emphasis rather than any change of fundamental principle.  The court's power, in the exercise of its discretion, to depart from the "general" rule that the "winning party" should get its costs was always there.

8.        The principles that should guide the court in the exercise of its discretion in this area appear to me, therefore, to be as follows, stating them as shortly and simply as possible:

(1)       The court's overriding objective in considering costs is, as in everything else, to do justice between the parties.

(2)       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 can still be a useful starting point. 

(3)       It is a mistake, however, to strain overmuch 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.

(4)       The discretion as laid down in Article 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 In re Elgindata (No.2) and A.E.I. -v- Phonographic Performance. 

(5)       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 (per Lightman J. in BCCI -v- Ali and Ors. (No.4) (1999) NLJ 1734).  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 the parties" being one, and "whether a party has succeeded on part of his case, even if he has not been wholly successful" another (CPR paragraph 44.3); but, to a large extent, the particular matters mentioned do no more than state the obvious and, it is unnecessary to import them verbatim, in any formal way, into the practice of the Royal Court.

(6)       It is implicit in this that, even though a party would otherwise be regarded as having been "successful", justice may require that costs should not automatically follow the event. 

9.        Among the factors to which a court may have regard, two in particular should be mentioned at this point.  The first is conveniently expressed in the passage of the judgment of Judge LJ in Ford -v- GKR Construction (Practice Note) 2000 1 WLR 1397, CA (with which Pill LJ and Lord Woolf MR agreed) in which he said:

"Civil litigation is now developing into a system designed to enable the parties involved to know where they stand in reality at the earliest possible stage, and at the lowest practicable cost, so that they make informed decisions about their prospects and the sensible conduct of their cases.  Among other factors the judge exercising his discretion about costs should consider is whether one side or the other has, or has not, conducted litigation with those principles in mind." (at 1402)

And a little later, with reference to the trial judge's reasons for making the order:

"Indeed his judgment has served to underline the importance, rightly and increasingly, to be attached to civil litigation being conducted openly between the parties with the real issues between them efficiently and quickly identified and investigated....." (at 1402)

The case in question was one in which the trial judge had, quite properly in the opinion of the Court of Appeal, awarded a successful plaintiff the entirety of her costs notwithstanding that she had failed to beat the payment in, but the principle was plainly intended to be of more general application.

10.      Secondly, it may also be appropriate for a court to have regard to the fact (if such be the case) that a defendant has to a greater or lesser extent brought the action against him on his own head.  Authority for the proposition that this can be a legitimate factor to take into account is to be found in clutch of decisions of the English Court of Appeal in the late nineteenth and early twentieth centuries which include, among others: Angus -v- Clifford [1891] 2 Ch 449, Bostock -v- Ramsey Urban Council [1900] 2QB 616; and Ritter -v- Godfrey [1920] 2 KB 47.  In each of these cases the Court recognised that, in exercising a discretion in relation to costs, a court was not confined to looking at the conduct of the parties during the course of the litigation itself but was entitled to have regard also to the earlier circumstances.  And although it is now necessary to treat older authorities on costs with caution, the general point made in those cases is, in my view, still a perfectly valid one.  A relatively recent application of the point can, for example, be found in the decision of the English Court of Appeal in Walker -v- Daniels, 3^rd May, 2000, unreported, in which the successful appellants were refused their costs because they had

 "brought the appeal on themselves as a result of the way the matter was conducted in the court below." (Lord Woolf MR)

Such an approach in civil cases  would also be broadly consistent with that of the Royal Court in criminal proceedings: Romeril -v- AG (2001) JLR Note 16.

11.      The facts in Angus -v- Clifford were not so very different from those of the present case.  It was an action in deceit, brought by an aggrieved shareholder who had bought shares in a mining company on the strength of a prospectus containing an untrue statement, against the directors who had put their names to that document.  The action failed because the court concluded that the directors' conduct, though grossly careless, was not intentional.  But the members of the court were trenchant and unanimous in their views on the subject of costs:

"It is a case of negligent, as distinguished from fraudulent, conduct.  That entitles the Defendants to our judgment.  But now as to costs.  That is a different matter.  I am bound to say that I think the statement was grossly careless, and was such a statement as to invite an action, and I therefore think the Defendants ought not to have their costs": per Lindley LJ at 468;

".....I do not think they or any of them were dishonest, but they ought not to have the costs of this action, for I think they have used language which was grossly misleading, and which has naturally brought about this litigation": per Bowen LJ at 474; and

"....I also agree on the question of costs.  It seems to me that although fraud is not made out to our satisfaction, there was an amount of carelessness so gross as almost to invite an action of this kind, and although the Defendants have escaped, they have escaped in such a way that we ought not to say they are entitled to have any of their costs in this action": per Kay LJ at 481.

12.      In Bostock -v- Ramsey Urban Council, the context was very different, the point at issue being whether a statutory provision regarding costs excluded the court's discretion to deprive a successful defendant of costs "for good cause" within the then Order LXV., r.l.  The Court of Appeal (A.L. Smith, Vaughan Williams and Romer LJJ), affirming the judgment of Lord Russell of Killowen CJ at (1900) 1 QB 357, held that it did not and went on to consider what might constitute "good cause".  All the members of the Court agreed that, in principle, though subject to certain caveats, this could include earlier conduct. 

13.      Ritter -v- Godfrey involved a claim against a medical practitioner for damages for negligence in connection with the delivery by the plaintiff's wife of a still-born child.  At trial the judge found in favour of the defendant on the issue of alleged negligence but refused to give him his costs on the ground, principally, of the attitude taken by him in correspondence with the plaintiff.  The court held (Lord Sterndale MR and Atkin LJ with some hesitation, Eve J more confidently) that the correspondence did not of itself justify depriving the defendant of his costs.  But all members of the court were, once again, unanimous that pre-litigation conduct was, in principle, something of which it could be legitimate to take account, provided that it had sufficient causative connection with the institution of the litigation.  Atkin LJ, having reviewed a number of earlier authorities, including Bostock -v- Ramsey Urban Council, observed that it was not easy to deduce what the precise principles were that should guide a judge in exercising his discretion over costs, but he attempted to summarise them as follows:

"In the case of a wholly successful defendant, in my opinion the judge must give the defendant his costs unless there is evidence that the defendant (1) brought about the litigation, or (2) has done something connected with the institution or he conduct of the suit calculated to occasion unnecessary litigation and expense, or (3) has done some wrongful act in the course of the transaction of which the plaintiff complains." (at 60)  

He then proceeded to expand at some length on these principles.

14.      One point arising out of Ritter -v- Godfrey, and out of the judgment of Eve J. in particular, requires particular mention as it was relied on by Advocate Hoy in his submissions on behalf of the Defendants.  At page 66 of the report of his judgment Eve J. said this:

"I venture to suggest that in determining whether a good ground exists for the exercise of the judicial discretion, the judge must eliminate from consideration the conduct constituting the alleged cause of action and must then inquire whether the defendant has so conducted himself ante litem motem (1) as to induce in the plaintiff's mind the reasonable belief that there is no valid defence to the claim, or (2) has so misconducted himself as to have goaded the plaintiff into a litigation on which he would never have embarked but for such misconduct." (emphasis added.)

The idea reflected in the underlined words is also alluded to at one point in the judgment of Atkin LJ, but exactly what his conclusion was is obscure: on any reading it was not, however, as black and white as that of Eve J.  Lord Sterndale MR did not address the point.  It is difficult, however, to understand on what basis Eve J. thought it appropriate to exclude from consideration, in the context of costs, the very conduct that is in issue in the action.  To do so appears to be illogical in principle and wholly at odds with the unanimous views of Linley, Bowen and Kay LJJ in Angus -v- Clifford, where it was the defendants' conduct in relation to the prospectus (which was at the heart of the case) that led to the court depriving the otherwise successful parties of their costs.  But Angus -v- Clifford appears to have been overlooked in both Bostock -v- Ramsey Urban Council and Ritter-v- Godfrey:  it was certainly not cited in either case.  Nor does there appear to be anything in the more modern statements of guidance on costs that would warrant the introduction of a restriction in principle of the kind contemplated by Eve J.  The practice today plainly requires a court to have regard to all the circumstances. 

15.      In the light of these guiding principles, it is right first to consider each of the main constituents of the two actions separately and then to look at the matter in the round. 

The Main Action: the principal issues

(Paragraph references are to the paragraphs of the judgment in the Main Action given on 31^st July, 2001 unless otherwise stated.)

16.      The Defendants may, as this court put it in paragraph 104, "legitimately claim a substantial measure of overall success in relation to the issues of misrepresentation and breach of warranty", in that the allegation of deceit was not made out and, although breaches of warranty were established by the Plaintiffs in two respects, these were insufficient to establish entitlement to any shareholding greater than 5 per cent.  But, for the reasons given below, it would be wrong to describe the Defendants as being the "winners" in any more categoric terms than this, though I recognise, of course, that the allegation of fraud on the part of the Defendants was, on any view, a most serious one.

17.      There is one aspect of the litigation in the Main Action that deserves separate consideration from the others.  This is the issue of alleged "overcharging of clients".  It falls into a category of its own principally because it was a claim of a significantly different nature from the other elements of the Plaintiff's case (as explained in paragraph 67) and because some of the considerations below do not necessarily apply to it in the same way that they do to the other claims.  The "overcharging" issue occupied a substantial portion of the trial in terms of overall time, volume of documentation, oral evidence from both witnesses of fact and expert witnesses and written and oral submissions.  It was, moreover, a wholly misconceived claim (paragraphs 67 to 73).  The fact that it occupied as much time as it did at trial was to some extent the result of the late stage at which Mr. Connell's schedules were made available to the Defendants, but also in part because of the Defendants' own inactivity in responding to this allegation (paragraph 72 (i)) and their belated attempt to raise the ill-conceived "Client Group" argument (paragraph 72 (iii)).  If the issue stood on its own, the appropriate order would be that Plaintiffs should bear the greater part of the Defendants' costs.  It is, however, only one part of a larger picture - a matter to which I return later.

18.      As regards the other (principal) issues in the Main Action, success was by no means all on the Defendants' side.  They succeeded on the issues of

-          the contractual dispute as to the identity of the 'final' accounts (paragraphs 29, 30 and 59 (iii));

-          the bad debts provision of £61,792 (paragraph 75);

-          the bad debts write-off of £50,101, though in most unsatisfactory circumstances (paragraph 76);

-          the leasehold improvements, in part (paragraph 85); and

-          the work in progress (paragraph 87).

19.      On the other hand the Plaintiffs can fairly be said to have been successful on the following: 

-          the great majority of the contractual issues, that is to say the date of execution of the FSA; the 'variable versus fixed percentage' issue, including the question whether the provisions of the FSA were overtaken by the discussions of 1^st April 1996 (paragraph 27 and 59 (iv)); the inter-relationship between monetary value and percentage (paragraph 28); and the implied warranty (paragraphs 56 and 59 (ii));

-          mis-statement of the position as regards the Gritton refund, including what took place at the crucial meeting on 1^st April 1996 (paragraphs 34 to 38, and 92 and 98);

-          mis-statement of the position as regards leasehold improvements, to the extent of the absence of any provision for amortisation (paragraphs 84 to 86 and 98): not a matter of obvious significance in terms of the amount involved, but a point of principle that raised a number of concerns about the Defendants' conduct;

-          to a very large extent, the troubling matter of the £40,556 prior-year adjustment (paragraphs 78 to 83).

20.      It is not practicable in a judgment such as this to attempt to quantify the relative impact of each of these issues on the litigation as a whole.  But each of them played an important part in contributing significantly to its cost and duration, the contractual issues as much as the purely factual ones.  If one were to weigh up them as separate components of the action and to disregard the considerations referred to in paragraphs 16 and 17 above, the result might reasonably be considered a draw.  As it is, these other considerations, which count significantly in the Defendants' favour, cannot be ignored.  Nor, however, can a series of considerations concerning the Defendants' conduct that weigh heavily against them in the present context.  For the most part the Court covered these fairly fully in the judgment dated 31^st July, 2001 and it is unnecessary to do more than summarise them here:-

(1)       the Defendants' conduct generally as regards discovery of documents (paragraphs 55, 60 (iii), 79, 81 and 94);

(2)       the seriously unsatisfactory contributions, as witnesses, of Mr. Richard Egglishaw and Mr. Philip Egglishaw (paragraph 63);

(3)       the Defendants' unsatisfactory approach to the issue of the £40,556 prior-year adjustment, including the belated disclosure of documents, the absence until a late stage of any explanation and the omission from Mrs. Vautier's initial report of any attempt at a detailed investigation (paragraphs 78 to 81);

(4)       the unsatisfactory circumstances surrounding the Defendants' deployment of the Alex Picot material (paragraphs 95 to 97); and

(5)       the fact, as it was expressed in paragraph 104 of the judgment that this was a case in which the Defendants, to a large extent, brought the proceedings on their own heads.

21.      As regards this last matter, Advocate Hoy argued that this was not a fair assessment.  It is not practicable to recite and answer separately each of his submissions, but two in particular require mention.  First I reject his contention, based on the passage from the judgment of Eve J. in Ritter -v- Godfrey, to which I have already referred, that it is impermissible to have regard to the Defendants' conduct in relation to the facts and matters constituting the alleged cause of action itself: my reasons for this have already been given.  Secondly, Mr. Hoy argued that the litigation was caused, not by anything that the Defendants did, or did not do, in relation to the events of March/April 1986, but by Mr. Connell's bitterness and recrimination arising from the salary-cut that was required of him at the end of 1991 and the subsequent breakdown of the "corporate marriage"; had it been the former, Mr. Hoy submitted, the action would have been started far earlier, given that Mr. Connell had been in possession of the County Bank report and the 1986 tax accounts since mid-1989 at latest.  But this is to ignore the reality of what must have been a wholly unenviable situation for Mr. Connell for a considerable period of time from July 1989 onwards.  He had been unable to secure satisfactory answers to his various concerns that had been prompted by the tax accounts; the Defendants had re-acquired Mr. Watkins' shareholding and were prevaricating over the appointment of other shareholder/directors; relations with the Defendants were strained; he had a major investment locked up in a private company which could only be released either by agreement with the Defendants or by giving notice of retirement; and, yet, he was still dependant for his salary on continued employment with the company.  In such circumstances it is not in the least surprising that Mr. Connell shrank for a long time from starting legal proceedings and that it was only after a final parting of the ways had occurred that he proceeded down that route. 

22.      So far as the Plaintiffs are concerned, I have already voiced the Court's disapproval of the way in which the 'overcharging' issue was handled.  Advocate Hoy submitted that the same strictures should apply to Mr. Connell's 'debtors' schedules which were also only served with Mr. Salsac's first report.  That would be quite wrong.  There was little to suggest that the Defendants were ever genuinely embarrassed by not having these schedules at an earlier stage: their Answer pleaded specifically to each of the three amounts put in issue by the Plaintiffs and no request for further particulars was ever made (unlike the case of the alleged overcharging of clients).  I have no doubt that the Defendants could have addressed these issues perfectly well if they had had the mind to do so (see in particular paragraph 80 of the judgment in the Main Action).  Apart from the matter of the 'over-charging schedules', there is no reason to be substantially critical of the conduct of either plaintiff.  (It was suggested on behalf of the Defendants, late in the trial that Mr. Connell had covered up a material portion of a manuscript note when copying it for the trial bundle, but the point was left hanging in the air without ever being resolved one way or the other, much as Mr. Connell's suggestion that the Defendants had belatedly inserted certain computer print-outs relevant to the work-in-progress issue in a box of documents previously disclosed without them.  I discount both points.) 

23.      What can, however, properly be said is that the Defendants' belated and inadequate discharge of their discovery obligations and their propensity for producing fresh documentation in the course of the trial, the source and purpose of which was often ill-explained, operated at a number of levels, so as unfairly to disadvantage the Plaintiffs in their conduct of the case in just the sort of way that Judge LJ indicated in Ford -v- GKR Construction was unacceptable and something to which a Court exercising its discretion about costs should have regard (see paragraph 9 above).  Their production on the eve of the trial of their Bundle 30, containing as it did a number of previously undisclosed documents of considerable significance, was but one example. 

The Main Action: interlocutory issues

24.      Costs were reserved on two issues: on Mr. Watkins' application to adduce evidence on affidavit; and on the Defendants' challenge to the Plaintiffs' pleading as regards a cause of action for breach of warranty.  In the former case, although Mr. Watkins was successful in his application, it was neither surprising, nor wholly unreasonable of the Defendants to have challenged the application.  The Defendants' stance may have prolonged this part of the proceedings to some extent, but the Court itself would, in any event, have required the state of Mr. Watkins' health to be examined in some detail.  The same cannot, however, be said of the Defendants' challenge to the Plaintiffs' pleadings, even if they were infelicitously drawn.  In each case these are factors that have to be taken into account when assessing the matter overall.

The Main Action: the residual issues

25.      Although Mr. Connell's claim to be a continuing shareholder and director was a part of the Main Action and depended to some extent on evidence relating to the origin and development of the relationship between the Plaintiffs and the Defendants that was also relevant to the principal issues, in practice it formed a largely separate chapter in the litigation as a whole.  The issues that it raised did not involve Mr. Watkins.  And the criticisms that we made of the Defendants in paragraph 20, above, have no application here.  The basis on which the Defendants ultimately succeeded was, however, somewhat different from that originally pleaded.  If the matter stood on its own the appropriate order would probably be that the Defendants should have their costs of the shareholder/director issue and that Mr. Connell should have his costs of the Counterclaim.  (Advocate Robertson argued that the costs of the Counterclaim should be paid by the Defendants on an indemnity basis, but I do not think it right to go that far.)

The Second Action

26.      This also only involved Mr. Connell, not Mr. Watkins, and Mr. Connell can, for the most part, reasonably be regarded as having been largely successful.  Advocate Robertson submitted that the correct order here should be that the Defendants should not only pay Mr. Connell's costs, but that they should do so on an indemnity basis.  Mr. Hoy did not oppose in principle the making of a costs order against his clients (though not one on an indemnity basis) but he did submit that there should be substantial discount having regard to the fact that the amount recovered by Mr. Connell was very much less than the total claimed.  (The 'shortfall' was, in fact, only in relation to the second of the two years in question; in the case of that year it was, however, substantial.)  Although, here again, the Court had occasion to be critical of the evidence of Mr. Richard Egglishaw and there were also shortcomings on the part of the Defendants in relation to discovery, I do not consider that a case for indemnity costs is made out.  On the other hand, it would be wrong to attach too much weight to the comparatively modest financial recovery by Mr. Connell, given that there can be little doubt that the motive force for the action was (understandably) one of principle as much as money.

27.      There is also the matter of interest on the sums for which judgment was given in this action in Mr. Connell's favour.  Mr. Robertson submitted that this should run from the date of accrual of the two debts.  But the fair ruling, in my view, is that it should run (at 2 per cent over base rate) from 13^th May 1993, the date of receipt of Bailhache and Bailhache's letter to Michael Voisin and Co. dated 12^th May 1993 (agreed by the parties to amount to £10,641).

Overview and Conclusion

28.      It is instructive to examine the various different components of the litigation separately, as I have endeavoured to do.  But it is also both legitimate and desirable, in a situation such as this, that the Court should also - as far as possible - take an overview of the litigation as a whole, although, in the present case, the position is complicated by the fact that there are two actions and that some of the issues did not involve Mr. Watkins.  On this basis and adopting a reasonably robust approach, (following the example of Robert Walker J. in United Wire -v- Screen Repair Services (Scotland) TLR 20^th August 1997) I believe that justice and fairness overall, including the desirability of obviating the need for the complex and expensive taxations that would otherwise follow from a multiplicity of separate orders, can best be met by making no order as to costs in either action, except that the Defendants' costs of Mr. Watkins' application to adduce evidence by affidavit should be borne by Mr. Watkins.       

 Authorities

Civil Proceedings (Jersey) Law 1956: Article 2.

In re Elgindata, Ltd (No.2) [1992] 1 WLR 1207.

AEI Rediffusion Music -v- Phonographic Performance [1999] 1 WLR 1507.

BCCI -v- Ali and Ors. (No.4) (1999) NLJ 1734.

Ford -v- GKR Construction (Practice Note) 2000 1 WLR 1397 C.A.

Angus -v- Clifford [1891] 2 Ch 449.

Bostock -v- Ramsey Urban Council [1900] 2 QB 616.

Ritter -v- Godfrey [1920] 2 KB 47

Walker -v- Daniels (3^rd May, 2000) Court of Appeal of England; unreported.

Romeril -v- AG (2001) JLR N.16.

United Wire Ltd -v- Screen Repair Services (Scotland) (20^th August, 1997) T.L.R.