Jersey Unreported Judgments

[2006]JRC054

royal court

(Samedi Division)

7^th April, 2006

 

 

 

Advocate T. J. Le Cocq for the Plaintiff.

Advocate S. J. Young for the Second and Eighth Defendants.

JUDGMENT

Application to the Master to adjudicate on the jurisdiction the Judicial Greffier to tax certain costs incurred in Jersey arising from the Privy Council decision of 20^th November, 2003.

the MASTER OF THE ROYAL COURT:

1.        The issue before me for adjudication concerns the jurisdiction or otherwise of the Judicial Greffier to tax certain costs of Messrs. Ogier & Le Masurier incurred in Jersey arising from the Appeal to the Privy Council, the decision of which is set out in a Report from the Judicial Committee of the Privy Council, dated 20^th November, 2003, which was approved by Her Majesty in Council on 10^th December, 2003.  The matter came before me for hearing on the 28^th March, 2006, and I reserved my decision until today.

2.        A brief background to the application before me is as follows.  In 1997 the plaintiff commenced proceedings against the defendants in Jersey by way of Order of Justice.  In July, 1998, the Royal Court ordered a stay of those proceedings on the grounds of forum non conveniens on the basis that the Courts of Kenya were the appropriate jurisdiction to deal with the matters in issue.  The plaintiff brought an appeal against the decision of the Royal Court and that decision was reversed by the Court of Appeal on 14^th July, 1999.  In March 2000, the Privy Council granted special leave to the second and eighth defendants (referred to in this judgment as "the defendants") to appeal against the decision of the Court of Appeal.  The Judicial Committee of the Privy Council allowed that Appeal, reversed the decision of the Court of Appeal and restored the Order of the Royal Court.  The reasons for that decision are set out in the Judgment of Lord Walker of Gestingthorpe of 20^th November, 2003.

3.        The material facts of the action generally and relating to the subject matter of the Appeal are set out in sufficient detail in the judgment of the learned Lord Walker and there is no useful purpose in my elaborating on them for the purposes of this decision.

4.        The question which I have to decide is whether the Judicial Greffier has jurisdiction to tax certain costs incurred by Ogier & Le Masurier in Jersey (for ease of reference I will refer to these as "the Jersey costs") which the Registrar of the Privy Council declined to tax in the United Kingdom.

5.        The Report of the Judicial Committee dated 20^th November, 2003, (which was approved by Her Majesty in Council on 10^th December, 2003) is in the following terms:-

"THE LORDS OF THE COMMITTEE in obedience to His late Majesty's said Order in Council have taken the Appeal and humble Petition into consideration and having heard Counsel on behalf of the Parties on both sides Their Lordships do this day agree humbly to report to Your Majesty as their opinion that (1) the Appeal ought to be allowed and the Judgment of the Court of Appeal of Jersey dated 17^th June 1999 set aside and the Judgment and Order of the Royal Court dated 16^th July 1998 restored and (2) the Respondents ought to pay to the Appellants their costs of the Appeal to the Court of Appeal:

"AND in case Your Majesty should be pleased to approve of this Report then Their Lordships do direct that that there be paid by the Respondents to the Appellants their costs of this Appeal incurred in the said Court of Appeal and their costs thereof incurred in England the same to be hereafter taxed and certified if not agreed."

6.      The Judicial Committee (General Appellate Jurisdiction) Rules 1982, ("the Rules") contain provisions relating to costs and these are set out in paragraphs 75 to 82 of the Rules.  Those particularly relevant for present purposes are Rules 75, 76 and 80.  These are in the following terms:-

           "75       All bills of costs under the order of the Judicial Committee shall be taxed by the Registrar, or such other person as the Judicial Committee may appoint, and all such taxations shall be regulated by the scale set forth in Part I of Schedule B hereto."

"76     The taxation of costs in England shall be limited to costs incurred in England."

"80.    The amount allowed on the taxation shall, subject to any appeal to the Judicial Committee, be inserted in Her Majesty's Order in Council determining the appeal or petition:

Provided that, where such taxation has not been completed before the date of Her Majesty's said Order in Council, the Registrar may issue a certificate of the amount allowed."

7.      The Registrar duly carried out a taxation in accordance with the Rules (i.e. dealing with costs incurred in England or deemed to have been so incurred).  The Registrar issued a certificate on 2^nd April, 2004, allowing those costs in the sum of £111,329.95.  The Registrar declined to tax the Jersey costs on the basis that these were not costs which came within Rule 76 of the Rules and thus he had no power to do so.  He expressed the view that such costs should be taxed in Jersey.

8.      At the hearing before me Advocate T. J. Le Cocq appeared on behalf of the defendants and Advocate S. J. Young represented the plaintiff.  Written submissions were filed by both parties and I also received detailed oral submissions.  In support of the defendants' application were filed two affidavits sworn by Advocate M. J. Thompson (who had appeared before the Registrar on the taxation as well as having conduct of the Appeal generally) and an Affidavit sworn by Mr Ken Scott, the Costs Draftsman retained by the defendants to prepare the various bills arising from the decision of the Privy Council.  On behalf of the plaintiff there was filed an Affidavit sworn by Mr Norman John Pickett, the Costs Draftsman retained by the plaintiff who had represented the plaintiff at the taxation before the Registrar.

9.      The main submissions put forward by Advocate Le Cocq on behalf of the defendants were as follows.  The question of whether the Jersey costs were covered by the Order was a simple one of construction of the relevant part of the decision (as quoted in paragraph 5 above).  He urged that the effect of the first part of that decision which allowed the Appeal provided for the defendants to receive all their costs below i.e. the costs of the proceedings before both the Royal Court and the Court of Appeal and the second part of the decision deals with the costs incurred in relation to the Appeal to the Privy Council itself.

10.     Advocate Le Cocq urged two particular points arising from the terms of the decision.  Firstly, the words ".... costs of the Appeal occurred in the said Court of Appeal" can only sensibly mean the costs incurred in Jersey of the Appeal to the Privy Council.  That wording in itself covers costs incurred in both in England and Jersey.  Thus the Jersey costs, the subject of this application clearly come within the express terms of the Privy Council Order.

11.     Secondly, Advocate Le Cocq submitted that the words "the same to be hereafter taxed and certified if not agreed" encompass both types of costs.  By virtue of Rule 76 of the Rules the Registrar could only tax costs incurred in England.  Nevertheless there was also provision for taxation of the Jersey costs (which taxation must necessarily take place in Jersey).

12.     He urged that taxation must fall within the jurisdiction of the Judicial Greffier.  In support of that contention he relied upon the case of Tai Hing Cotton Mill Limited - v- Liu Chong Hing Bank Limited and Others (No. 2) [1986] AC 519.  I will refer subsequently in more detail to this case which both parties used in support of their respective arguments.  In addition, Advocate Le Cocq called in aid an extract of the relevant rules governing Privy Council practice as set out in "Privy Council Practice" by Bentwich, Third Edition (1937). Rule 26 of the relevant Rules provide as follows:-

"Where the Judicial Committee directs a party to bear the costs of an Appeal incurred in the Colony, such costs shall be taxed by the proper officer of the Court in accordance with the Rules for the time being regulating taxation in the Court."

13.     Advocate Young on behalf of the plaintiff made the following main submissions in urging that the Judicial Greffier did not have jurisdiction to carry out the taxation requested.  He outlined a chronology of events and referred to correspondence which had been exchanged between the parties on this subject.  He also said that Jersey costs had been included in the bill submitted to the Registrar for taxation but because of the provisions of Rule 76 of the Rules the Registrar had declined to tax them because he lacked jurisdiction.

14.     Advocate Young said that it was common ground between the parties that the Judicial Greffier had no jurisdiction to tax the Jersey costs in the absence of an express order from the Privy Council for such taxation.  He urged that there was no such order in the present case.  He argued, firstly, that the order of the Privy Council did not cover the Jersey costs which were the subject of this application in any event.  Furthermore, there was not any provision for such costs to be taxed.  His argument was that an express provision of the type made in the Tai Hing case (see paragraph 21 below) would be required. 

15.     He contended that the correct position was as follows.  The Registrar's certificate issued on 2^nd April, 2004, was a final one which encompassed all costs allowed on the taxation.  Rule 79 of the Rules provides that any party aggrieved by a taxation may appeal to the Judicial Committee.  The appropriate way to proceed would be for the defendants to appeal under this provision.

16.     In response to this particular point Advocate Le Cocq indicated his clients were not aggrieved at the taxation of the Registrar and Rule 79 was, therefore, irrelevant.

17.     Advocate Young urged that there was nothing in the order of the Privy Council or otherwise on which the Judicial Greffier could found jurisdiction to tax the Jersey costs.  I should therefore decline to rule that there was such jurisdiction and invite the defendants to appeal to the Privy Council under Rule 79.  Alternatively, Advocate Young submitted that if there was doubt in my mind as to whether the order allowed for the recovery of the Jersey costs or their taxation I should, on that basis, again decline to adjudicate on the application by the defendants.

18.     As both parties relied on the Tai Hing case where similar questions of jurisdiction arose, I think it helpful to make some reference to that case in a little more detail.  The case concerned the question of costs incurred in Hong Kong in relation to a Privy Council decision.  The particular facts are not of great relevance but some of the issues raised do have bearing on the present application.  The relevant parts of the actual decision in the case can be summarised as follows:-

(i)        The jurisdiction of the Registrar of the Privy Council to tax costs was limited by Rule 76 of the Rules to costs incurred in England;

(ii)       When the Judicial Committee ordered a party to pay the costs of an Appeal incurred in Hong Kong, Rule 25 of the Hong Kong (Appeal to Privy Council) Order Council in 1909 conferred jurisdiction to tax those costs upon the proper officer of the Supreme Court of Hong Kong.

19.     The judgment of Lord Roskill refers to the decision of the Privy Council which led to the Appeal in Tai Hing and the relevant extract is set out at page 523 of his judgment as follows:-

"On 3 July 1985 this Board in an opinion delivered by Lord Scarman [1986] AC 80, 96, humbly advised Her Majesty that an appeal by Tai Hing Cotton Mill Ltd, ("the company") against a decision of the Court of Appeal of Hong Kong in favour of certain banks ("the banks") should be allowed.  By an Order in Council dated 31^st July 1985 Her Majesty was graciously pleased to accept that humble advice and the appeal was accordingly allowed.  Their Lordships had directed that in this event the banks should pay to the company "its costs of this appeal incurred in the said Court of Appeal" and also a specific sum "for its costs thereof incurred in England including the costs of three counsel."

20.     The use of the words "costs of this appeal incurred in the said Court of Appeal" are, of course, identical to those used in the order of the Privy Council in this case.  Advocate Le Cocq relied on this in support of his contention that the Order of the Privy Council clearly and expressly provided for the recovery of Jersey costs.

21.     In the Tai Hing case, references were made in the judgment to Rule 25 of the Order in Council of Hong Kong of 1909 which expressly provides that where the Judicial Committee directs a party to bear the costs of an appeal incurred in Hong Kong they should be taxed by the appropriate Hong Kong officer.  Advocate Young pointed out, that there is no Rule or other legislation in Jersey equivalent to that provision.  He also referred to the decision of the Privy Council in Tai Hing (as set out at page 526 of Lord Roskill's judgment) to insert a further direction relating to costs incurred in Hong Kong in the following terms:-

"To avoid any further dispute their Lordships think it right to add to the previous direction regarding costs incurred in England a further direction to the effect that there also be paid by the respondents (i.e. the banks) to the appellants (i.e. the company), its costs of this appeal incurred in Hong Kong, such costs to be taxed pursuant to rule 25 of the Order in Council of 1909."

Advocate Young submitted that the absence of a similar direction in the Privy Council Order in this case was fatal and prevented the recovery of the Jersey costs or their taxation by the Judicial Greffier.  Advocate Le Cocq took issue with that contention and said that the effect of the additional direction was merely to provide for the taxation of costs in Hong Kong rather than their recovery.  Furthermore, he argued that the express terms of the Order issued by the Privy Council on 20th November, 2003, provided for taxation of the Jersey costs and there was no requirement for any such direction as had been given in the Tai Hing case.

22.  I have considered very carefully all the material put before me and the detailed written and oral submissions made by both Counsel for which I am extremely grateful.  Having done so, my decision is as follows:

(i)        I think a proper construction of the Order of the Privy Council is as follows:-

(a)            the first paragraph (as cited in paragraph 5 above), insofar as it relates to costs, deals with the costs of the appeal before the Court of Appeal in Jersey;

b)             the words in the second paragraph "the costs of this Appeal incurred in the said Court of Appeal" must add something and that something can only be the costs incurred in Jersey in relation to the Privy Council Appeal.

(c)            the words "to be taxed and certified if not agreed" cover and apply to all costs.

(ii)     Because of Rule 79 of the Rules, the Registrar did not have jurisdiction to tax the Jersey costs as they were not incurred in England.  However, I am satisfied that Rule 26 of the relevant rules of procedure (as cited in paragraph 12 above) do confer a jurisdiction on the appropriate authority in Jersey, namely the Judicial Greffier, to tax the Jersey costs.

(iii)    I am satisfied that the terms of the Privy Council order as drawn confer the necessary jurisdiction.  I do not think a further direction of the type given in the Tai Hing case is necessary.  Furthermore, I do not consider that Mr Young's suggestion that I should decline to adjudicate on the application and invite the defendants to appeal to the Privy Council under Rule 79 is a correct one.  I do not think it appropriate for me to proceed that way and I do not think it necessary for the reasons expressed above. 

(iv)     In all the circumstances, therefore, I consider that the Judicial Greffier has jurisdiction to tax the Jersey costs for the reasons stated above and he should therefore proceed to do so.

23.     In the light of my ruling I will hear the parties on the question of costs and any consequential directions which may be required.

Authorities

Gheewala v Compendium Trust and Nine Others [2003] JPC 212B.

The Judicial Committee (General Appellate Jurisdiction) Rules 1982.

Tai Hing Cotton Mill Limited - v- Liu Chong Hing Bank Limited and Others (No 2) [1986] AC 519.

Privy Council Practice by Bentwich, Third Edition (1937).

Hong Kong (Appeal to Privy Council) Order Council (1909).