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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Evans v AG 05-Feb-2021 [2021] JRC 035 (05 February 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_035.html Cite as: [2021] JRC 035, [2021] JRC 35 |
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Costs - re appeal against the decision of the Magistrate on 18th September 2020.
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Before : |
Sir Michael Birt, Commissioner, sitting alone. |
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Between |
Elizabeth Ann Evans |
Appellant |
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And |
Attorney General |
Respondent |
Advocate R. Morley-Kirk for the Appellant
Crown Advocate R. Pedley for the Respondent.
judgment
the commissioner:
1. On 26th November 2020, for reasons set out in a judgment AG v Evans [2021] JRC 026 dated 19th January 2021 ("the main judgment"), the Court allowed the Appellant's appeal against the decision of the Magistrate on 18th September 2020 to order that the Appellant's dog Annie be destroyed and that the Appellant be disqualified from keeping any dog for an indefinite period. I am now asked to rule on the question of costs.
2. The background is set out in the main judgment. In short, the Appellant pleaded guilty in the Magistrate's Court to three counts of being in charge of a dog which was dangerously out of control contrary to Article 11A of the Dogs (Jersey) Law 1961 ("the Law"). These were of course criminal proceedings. At the same time, she faced civil proceedings in the form of a Representation seeking the two orders referred to above under Article 11B(3) of the Law. The Magistrate imposed a fine in respect of the three criminal charges and no appeal was brought against that sentence. The Appellant did however appeal against the two orders referred to above made under Article 11B(3) and it was that appeal which was successful. Following the provision of a formal undertaking by the Appellant that she would not keep any dog other than Annie and Leah, the Court replaced the order for Annie's destruction with an order that:
(i) in any public place, Annie must at all times be muzzled and kept on a short leash; and
(ii) in any private property, by which is meant property to which the public does not have access, including the Appellant's home, on any occasion when Annie is in the presence of a child aged under 10, the Appellant must either remove Annie from the presence of such child forthwith or ensure that Annie is muzzled at all times when she is in the presence of such a child.
3. Following the issue of the main judgment, I invited written submissions on the issue of costs following which I would determine the matter on the papers. I am grateful to the parties for their written submissions.
4. Advocate Morley-Kirk states that the Appellant has had to make the following contributions to the costs of the overall proceedings:
(i) a contribution to the prosecution costs in the Magistrate's Court of £800;
(ii) her own defence costs in relation to the Magistrate's Court proceedings of £10,613.45;
(iii) her own costs in relation to the appeal of £15,737.40; and
(iv) the sum of £5,820 which the Appellant is liable to pay to the JSPCA in respect of Annie's board and lodging costs at the Animal Shelter from 18th May to 27th November 2020.
Advocate Morley-Kirk submits that the order that she should contribute £800 to the prosecution costs in the Magistrate's Court should be overturned and that the prosecution should be ordered to pay the costs listed at (ii) to (iv) above.
5. Both parties are agreed on the applicable statutory provisions. Thus:
(i) Article 2 of the Civil Proceedings (Jersey) Law 1956 provides:
(ii) Article 11(C)(5) of the Law provides:
It follows that I have jurisdiction to deal with the costs of the civil proceedings in relation to Annie, both before the Magistrate's Court and on appeal to this Court.
6. The Appellant has been successful and I see no reason why costs should not follow the event. I therefore award the Appellant her costs against the Attorney General in respect of the appeal.
7. It is not clear from the papers whether the £800 which the Appellant was ordered to pay towards the prosecution costs was in respect of the criminal proceedings, the civil proceedings or both. Looking at the transcript, the Magistrate was dealing with the criminal proceedings at the time she made the costs order and it seems most likely that the order was made in those proceedings. On this assumption, there being no appeal in respect of the criminal proceedings, the costs order in favour of the prosecution should remain.
8. Even if the £800 was wholly or partly in respect of the civil proceedings, I see no reason to interfere with it. Even following the appeal, there is an order that Annie be kept under proper control by use of a leash and a muzzle. The civil proceedings were therefore necessary. Furthermore, the need to keep Tibo under control was relevant at the time of the proceedings before the Magistrate's Court. All in all, I consider it perfectly reasonable for the Appellant to be ordered to pay £800 towards the prosecution costs even if those were wholly or partly in relation to the civil proceedings.
9. As to the Appellant's own costs, these also appear to cover both the civil and criminal proceedings. There are no grounds for ordering the Attorney General to pay any part of her costs in the criminal proceedings, but I do consider it would be reasonable for an order to be made in respect of the civil proceedings in the Magistrate's Court as well as in relation to the appeal. Whilst the majority of the hearing before the Magistrate on 18th September related to the civil proceedings, the argument over the basis of plea and some of the other hearings related to the criminal proceedings. Taking a broad view, I think it would be reasonable to attribute the proceedings in the Magistrate's Court equally to the criminal and civil proceedings and accordingly to order the Attorney General to pay the Appellant half of her costs incurred in the Magistrate's Court, on the basis that she should have succeeded in the civil proceedings.
10. The costs in relation to both the appeal and the Magistrate's Court are on the standard basis, to be taxed if not agreed.
11. As mentioned already, the JSPCA has sent an invoice to the Appellant in respect of the costs of keeping Annie at the Animal Shelter.
12. Article 13(B) of the Law provides:
13. It follows that the Appellant is liable to pay the costs charged by the JSPCA in respect of Annie save to the extent that I order otherwise pursuant to Article 11C(5) of the Law, referred to above.
14. In my judgment, the Appellant should be responsible for such fees from the date when Annie was first placed in the Animal Shelter in May until 19th September, being the day following the hearing before the Magistrate. This is because it was entirely proper and reasonable for Annie to be detained in the Animal Shelter given that she had attacked a small child and such detention would have been reasonable and proper even if the Magistrate had on 18th September made the order which the Royal Court eventually made on appeal. I see no reason why the state should pick up any part of the expenses in relation to this period.
15. However, if the Magistrate had made the order on 18th September which the Royal Court has held she should have, Annie would have been released not later than the following day, namely 19th September. I consider therefore that the Attorney General should be responsible for the costs charged by the JSPCA from 19th September until 27th November.
16. In summary:
(i) I make no variation to the order that the Appellant should pay £800 towards the prosecution costs in the Magistrate's Court.
(ii) I award the Appellant her costs in relation to the appeal, such costs to be on the standard basis and to be taxed if not agreed.
(iii) I award the Appellant half of her costs incurred in relation to the proceedings before the Magistrate's Court, such costs to be on the standard basis and taxed if not agreed.
(iv) I order the Attorney General to be responsible for the costs billed by the JSPCA for the period 19th September to 27th November 2020 and the Appellant to remain responsible for all the remaining costs billed by the JSPCA.
17. Finally, I make no order in relation to any costs incurred in relation to this costs application.
