Jersey Unreported Judgments

[2009]JRC156

royal court

(Samedi Division)

10^th August 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner sitting alone.

 

Mrs R. Pinel, Director, appeared on behalf of the Appellant.

Mr M. S. Yates appeared on behalf of the Respondents.

judgment

the commissioner:

1.        This is an appeal by Reg's Skips Ltd ("the Appellant") against an order of the Assistant Judicial Greffier ("the Greffier") embodied in a letter dated 20^th February, 2009, taxing certain bills of costs pursuant to orders of this Court and of the Court of Appeal.  The first order was made by the Court of Appeal on 22^nd May, 2008; the second order was made by this Court on 3^rd June, 2008.  Both ordered the Appellant to pay the costs of the Respondents on the standard basis.  Those orders followed a judgment by the Royal Court in favour of the Respondents, which was unsuccessfully appealed to the Court of Appeal by the Appellant.

2.        The taxation of the bills of costs proceeded before the Greffier in an orderly manner pursuant to the Rules of Court and Practice Directions.  On 12^th September, 2008, Messrs. Appleby on behalf of the Respondents submitted a bill of costs in relation to the Royal Court order, pursuant to the Rule 12/10(3), and on 17^th September, 2008, a further bill in relation to the Court of Appeal order.  On 28^th September, 2008, Messrs. Sinels gave notice that they were no longer instructed by the Appellant.  On 20^th October, 2008, the Appellant submitted written objections to the Respondents' costs in the Royal Court pursuant to Rule 12/11(1).  On 23^rd October, 2008, the Appellant submitted written objections to the Respondents' costs in the Court of Appeal.  On 5^th November, 2008, the Respondents replied to both sets of objections pursuant to Rule 12/11(3).  On 25^th February, 2009, the Greffier notified the parties of the conclusion of the taxation and requested payment of the taxation fee.  On 9^th March, 2009, the Greffier issued certified bills of costs.  In monetary terms, the Respondents' bill of costs in the Royal Court of £82,058.43 was taxed down to £67,727.72.  The bill of costs in the Court of Appeal of £37,795.12 was taxed down to £28.494.70.

3.        The total taxed costs of £97,347.42 (including the taxation fee of £1125) remain unpaid.  On 19^th March, 2009, the Appellant filed a notice of appeal against the Greffier's order.

4.        Neither party to the appeal was represented by Counsel.  However, the first Respondent is a practising advocate; furthermore the Appellant was assisted by Mr Jim Diamond, a costs lawyer, who asserts expertise in this field.  Mrs Pinel clearly relied substantially upon his advice. 

5.        The grounds of appeal lodged on 19^th March, 2009, contained some generalised objections to the form of the Respondents' bills of costs and a number of more detailed objections (styled "specific comments") upon the decisions of the Greffier in relation to particular cost items.  By letter of 7^th April, 2009, the Respondents objected that it was not proper "to make the same comments by way of appeal that were made by way of objection in the taxation process".  There does not appear to have been any response to this letter.  On 23^rd June, 2009, a document entitled "Updated notes on grounds of appeal and authorities to be submitted" was filed with the Court by the Appellant.  On 13^th July, 2009, a case and skeleton argument in response to this document was filed by the Respondents.

6.        At the hearing of the appeal Mrs Pinel stated that the Greffier had reduced the bills of costs submitted by the Respondents by about 20%, but that she believed that they should be still further reduced.  The Court explained to Mrs Pinel that it was not the function of the judge on appeal from the taxation process to engage in exactly the same line by line exercise as that conducted by the Greffier.  Practice Direction 05/11 provides that "the amount of costs to be allowed on taxation shall... be in the discretion of the Greffier."  Mrs Pinel was asked whether there were points of principle to be raised on behalf of the Appellant as to how the Greffier had misdirected himself or wrongly exercised his discretion.  Mrs Pinel requested, and was granted, a short adjournment for the purpose of discussing the position with Mr Diamond.

7.        When the Court resumed, Mrs Pinel explained that it was only in the last few days that the Appellant had settled its dispute with Sinels, its former legal advisers, on the fees due to that firm.  Sinels had exercised a lien over the Appellant's files and had refused to allow access to them. Mrs Pinel contended that the Appellant had been deprived of the opportunity to consider the Respondents' bills of costs against the information contained in its files, that this was unfair, and might even be contrary to its Convention rights under the European Convention of Human Rights.  The last point was not developed, but I am satisfied that there has been no breach of any Convention right.  Mrs Pinel acknowledged that she was asking, in effect, for a second bite at the cherry.  She wanted the opportunity to raise a second round of objections to the Respondents' bills of costs for re-consideration by the Greffier.

8.        Mr Yates pointed out that there was only one reference in the objections filed by the Appellant in October 2008 to the files retained by Sinels.  That reference concerned a charge for 12 minutes' time which had been reduced by the Greffier to 6 minutes.  Furthermore, the Appellant had at no time sought an adjournment of the taxation process before the Greffier so that the dispute with Sinels could first be resolved.  In addition the Appellant had not availed itself of its right to a taxation hearing pursuant to Rule 12/11 at which any perceived difficulties could have been raised orally with the Greffier.

9.        In my judgement it is far too late now to seek the opportunity to make additional objections based on information which might be available in the files held by Sinels.  There were opportunities for the Appellant to raise this problem and to seek an adjournment and it failed to take them.  Mrs Pinel told the Court that it was her lack of understanding of the procedure that had led to the current situation.  Had she not been advised by Mr Diamond I might have had more sympathy for this plea.  But according to an email to Appleby on 24^th September, 2008, Mr Diamond has been instructed by the Appellant since that time and he must have been aware of the relevant Rules of Court and Practice Directions.  But even putting the advice potentially available from Mr Diamond to one side, it seems to me that it would be unfair to the Respondents to require them essentially to return to square one.  If the Appellant were to be permitted to lodge further objections to the bills of costs, the Respondents would clearly have to be permitted to file replies to those further objections.  The Greffier would have to revisit the entire taxation process.  Much of the time and effort expended so far might be wasted.  This Court gave judgment in favour of the Respondents as long ago as 11^th December, 2007.  It is time to draw a line under this litigation. 

10.      I have given careful consideration to the objections raised by the Appellant in its grounds of appeal.  They are largely matters rehearsed before the Greffier who has exercised his discretion in relation to them.  On occasions the Greffier has exercised his discretion partly in favour of the Appellant, and the Appellant seeks only to reiterate its original position.  By way of example, it is asserted in relation to paragraphs 44, 46, 49 and 54-56 - "We repeat our objection in the Points of Dispute that 2 [hours] of the 4 [hours and 18 minutes] claimed is reasonable.  We do not accept the 3 [hours and 18 minutes] provisionally assessed as being reasonable."  No argument has been advanced as to why the Greffier's assessment of the appropriate amount of time to be allowed was wrong.  The Court is simply asked to revisit the matter.

11.      The Appellant complains that it was not given sight of the invoices supporting the claims for disbursements.  The Greffier accepted in his ruling that this was an omission on the part of the Respondents.  However, the Greffier satisfied himself that the disbursements were proper.  The Appellant could have required a taxation hearing at which such matters could have been clarified, but did not do so.  I find no substance in this ground of complaint.  Complaint is also made that there was insufficient narrative to justify some of the cost items, but this is again a matter which could have been clarified at a taxation hearing.

12.      Complaint is also made that an allowance was made by the Greffier for research.  The Appellant contends that highly paid lawyers should know the law.  The Greffier concluded that this was not a run of the mill case.  There was uncertainty as to the state of the law of voisinage, and in his view a reasonable allowance should be made for research.  I agree with the Greffier's conclusion.

13.      In summary, it is clear from the papers that the Greffier applied himself assiduously to the task of taxing the bills of costs.  Inevitably one or both of the parties will disagree with one or more of the Greffier's conclusions.  The Appellant may well consider that it should have achieved a greater percentage reduction in the total amount of bills of costs.  That is no ground for setting aside the exercise of the Greffier's discretion.  In my judgement he applied the correct approach in accordance with the relevant Rules of Court and Practice Directions.  The appeal must accordingly be dismissed.

Authorities

European Convention of Human Rights.