Jersey Unreported Judgments

Investment - Costs judgment.

[2013]JRC040A

Royal Court

(Samedi)

21 February 2013

Before     :

H. W. B. Page, Q.C., Commissioner, sitting alone.

 

Advocate M. L. A. Pallot for the Representor.

Mr and Mrs Black appeared in person.

judgment

the commissioner:

1.        By Act of Court dated 6^th December, 2006, the Commission, as Representor, was granted leave to discontinue these proceedings and various orders, including the following, were made:-

"the extent of the Representor's wasted costs arising from the failure of the First, Third and Fifth Respondents to comply with the Court's orders of June 2003, and otherwise to participate in the proceedings in the seventeen months that followed, shall be referred to the Taxing Master for inquiry and report; subject to such report, there will be summary award of costs in the Representor's favour against the First, Third and Fifth Respondents of £60,000 or such sum other as the Court thinks appropriate; the Representor is invited to propose detailed terms for giving effect to the intention of the Court". 

2.        On 19^th June, 2007, I granted each of the relevant respondents leave to appeal from this costs order in one, and one only specific respect, namely:-

"Whether and if so to what extent the fact that proceedings have been brought by a body in pursuance of its public-interest functions (as in the present case) is a proper consideration to which a court may have regard in exercising its discretion in matters of costs generally and in the context of granting leave to such a body to discontinue proceedings in particular." 

Leave was to be conditional on the appellants strictly confining their Notice of Appeal and all written and oral submissions on such appeal to this limited issue, and the question whether the grant of leave should also be conditional on the provision by the respondents of security for the costs of an such appeal was adjourned for further submissions and consideration. 

3.        On 23^rd August, 2007, following further submissions by all parties concerned, I ruled that leave to appeal (as described above) should be conditional on the relevant respondents  providing security for costs in the sum of £14,000. 

4.        On 23^rd January, 2008, the Court of Appeal (Steel, Martin and Jones JJA) rejected the respondents' appeal from that order; and on 6^th March, 2008, Beloff JA, sitting as a single judge of the Court of Appeal refused to stay the Court of Appeal's order and ordered the respondents to put up the security in question within 36 hours of his ruling or face dismissal all appeals currently lodged by the respondents. 

5.        In the event, no such security was provided and the Royal Court's Order of 6^th December, 2006, remained in force.  Thereafter the respondents endeavoured to appeal to the Privy Council from the Court of Appeal's orders.  The precise course and result of that application is unknown but so far at least there does not appear to have been any substantive appeal hearing before that tribunal. 

6.        On 13^th December, 2010, there appearing to be little or no prospect of any appeal by the respondents to the Privy Council making progress, Carey Olsen on behalf of the Commission wrote at length to the Taxing Master setting out their submissions on the quantum of their costs in keeping with the Court's Order of 6^th December, 2006.  The letter was accompanied by a supporting affidavit of Advocate Pallot as well as the relevant Act of Court and the related judgment.  But although it was plainly Carey Olsen's intention that this letter should be copied to the relevant respondents, bearing as it does the notation "Cc Mr & Mrs Black by e-mail", the Blacks subsequently denied ever receiving any such e-mail and Carey Olsen were unable to produce documentary confirmation that it had been duly sent.  On 9^th August, 2012, the Taxing Master himself accordingly e-mailed Mr and Mrs Black copies of Carey Olsen's letter of 13^th December, 2010, and attachments together with a draft of his proposed report to the Court on the contents of that letter.  His original request for a response by 31^st August, 2012, was subsequently extended to 5^th October, 2012. 

7.        By letter dated 5^th October, 2012, Mr Black replied on behalf the respondents to the Taxing Master.  Despite its length - some thirty-three pages - the letter completely failed to address the subject of Carey Olsen's letter and the Taxing Master's draft report, but was devoted once again to ventilating the respondents' grievances about the proceedings instituted against them, the outcome of those proceedings and the costs orders made by the Royal Court. 

8.        On 10^th October, 2012, the Taxing Master duly submitted his report to me, as contemplated by the Court's Order of 6^th December, 2006, e-mailing copies at the same time to Mr and Mrs Black and to Carey Olsen.  The report's conclusion was in these terms:-

"In view of (a) the information and material filed by Carey Olsen and summarised above and (b) my assessment and consideration thereof, I would have no hesitation in certifying that I am satisfied that the costs claimed by Carey Olsen are less than that which would be recoverable on taxation and would in any event exceed £60,000". 

9.        On 7^th December, 2012, the Taxing Master on my instructions informed the parties by e-mail that I was satisfied - as indeed I am - with his report and conclusions and:-

"that (a) on the strength of that report, the Court is satisfied that the sum which would be recoverable by the Representor on a taxation would in any event exceed £60,000, (b) that there will therefore be costs orders in that amount in the Representor's favour against the First, Third and Fifth Respondents [i.e. against A.P. Black (Jersey) Limited, Mr. Black and A.P. Black Limited] and (c) that written submissions as to the precise terms of the appropriate orders are to be served within 14 days" - i.e. by 21^st December, 2012.  By then, therefore, the only outstanding matter was the precise terms of the order. 

10.      On Thursday 20^th December, 2012, the Taxing Master received a six-page letter from Mr Black addressed to him, followed the next day by a shorter letter addressed to me.  The first of these opened as follows:-

"We are urgently writing to you as we only realised on Tuesday [18^th December] that we have completely misinterpreted the task that was before us and that you required from us our comments to the claims supplied to you by the Commission and your conclusions which we have not provided".  

The letter went on to express the hope that consideration would still be given to its contents, to apologise for the inconvenience caused, and to offer for the first time comments on Carey Olsen's costs submissions and the other documents forwarded by the Taxing Master.  In the further letter addressed to me on 21^st December, 2012, Mr Black wrote:-

"..... I am truly sorry for the character of many of the submissions made to the court over the years and now realise they were at times inappropriate and unduly cumbersome in many ways.  At this eleventh hour I ask your clemency to either amend, minimise or cancel the wasted costs orders". 

He reiterated his claim to have "completely failed to understand the task that was before me."

11.      It is, however, impossible to treat as credible this claim to have misunderstood what was required.  Paragraph's 17 and 57(iii) of the Court's judgment of 6^th December, 2006, paragraph 3 of the Act of Court of the same date, Carey Olsen's letter of 13^th December, 2010, and the Taxing Master's draft report which accompanied his e-mail of 9^th August, 2011, individually and collectively can have left Mr and Mrs Black in no doubt whatever what was required of them.  But instead of responding straightforwardly, in their letter dated of 20^th October, 2012, they chose - not for the first time - to use an opportunity to make submissions accorded to them by the Court for a purpose other than that for which it was plainly intended.  Their subsequent attempt to persuade the Court to admit further submissions made long out of time is, I have little doubt, nothing more than a cynical attempt to muddy the waters and play for time to which it would be quite wrong to accede.  

12.      Carey Olsen, responding to the invitation  to make submissions about the precise terms of the appropriate order (as contained in the Taxing Master's e-mail to the parties on 7^th December, 2012), suggest that in addition to making reference to the Court's Order of 6^th December, 2006, the Court's acceptance of the Taxing Master's report and confirming the making of summary awards of costs in an amount of £60,000 against the First, Third and Fifth Respondents, the order should authorise the Commission to enforce such awards against the assets of such wherever situate respondents including any accounts held at any time with Cater Allen Trust Company (Jersey) Limited, Abbey National International Limited or Santander UK PLC, Jersey Branch or any successor entities.  I am not persuaded at the moment that it is either necessary or appropriate to include any such provision about enforcement.  There will, however, be liberty to the Commission to apply for further orders for the purpose of giving effect to the Court's substantive order should that prove necessary.  The terms of the order will, accordingly, be as set out in the Act of Court that accompanies this judgment. 

Authorities

JFSC-v-Black and Others [2007] JRC 118.

JFSC-v-Black [2007] JRC 171.

Black and Others-v-JFSC [2008] JCA 008.

Black-v-JFSC [2008] JCA 036.