Jersey Unreported Judgments

[2003]JRC177

royal court

(Samedi Division)

 

13^th October 2003

 

 

 

 

Judgment on Costs

 

Application for costs.  The Plaintiff had obtained damages for trespass and nuisance amount to £2,000, after a 4 day trial.  The Defendant submitted that with the costs so heavily outweighing the damages, the Plaintiff should bear some part of the costs.

The Court found inter alia that the Defendant had brought the action on his own head and in the exercise of its discretion awarded the Plaintiff her costs.

 

 

Advocate O. Blakeley for the Plaintiff.

Advocate P.M. Livingstone for the Defendant.

 

 

judgment

the COMMISSIONER:

1.        Judgment was given in this case on the 1^st October, 2003, by which the Plaintiff was awarded damages of £500 for nuisance and £1,500 for trespass.

2.        The case was heard over 4 days, and a number of witnesses were called on both sides.  The costs are inevitably far greater than the damages awarded.

3.        This is a matter of concern for the Court, and Mr Livingstone for the Defendant made a submission to the Court to the effect that the Plaintiff should bear at least some part of the costs incurred.

4.        In particular, he referred the Court to a series of comments made by Mr Page in Watkins -v- Egglishaw [2002] JLR 1.

5.        It is apparent that the system of assessing and awarding costs in England is changing; and although, of course, the Court is not bound by those rules, it should, nonetheless, have regard to them.

6.        Although the facts in Watkins were clearly not on all fours, the Court found the following comments helpful:

(i)        At the head note:

"(e)  it was, accordingly, open to the court to have regard to any and all considerations that had a bearing on the overriding objective of doing justice, including (i) whether a defendant brought the action on his own head, and (ii) whether litigation had been conducted in a manner which enabled the parties involved to know where they stood at the earliest possible stage and at the lowest practicable cost; and .."

and the Court particularly notes (e)(i).

(ii)       the comments of Nourse LJ In re Elgindata Limited (no 2) (5) [1992] 1W.L.R. at 1213:

...(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 a part of his costs.  (iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs."

(iii)      Woolf M.R. in A.E.I. Rediffusion Music Limited -v- Phonographic Performacne Ltd  [1999] 1 W.L.R., said this:

..."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 April 26^th, 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 yours costs as long as you win, you are encouraged to leave no stone unturned in your efforts to do so".

(iv)      Para 6:

"6.  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 (6) 2000 JLR N-41): "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 it represents 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.

7.  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:

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

(b)       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.

...

9  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 on his own head...."

7.        Taking these statements into consideration, the factors which the Court considers to be of importance in reaching a decision in the present case may perhaps be summarised as follows:

(i)        Costs had already been incurred while the Defendant's building work was in progress v. Mr Fielding's letter of the 20^th July, 2001, and the subsequent application to the Bailiff for an injunction on 10^th August; so that the Plaintiff had already incurred costs at that stage.

(ii)       The Defendants were found by the Court (1) inevitably to have been guilty of trespass and (2) of nuisance.

(iii)      Despite the subsequently justified complaints of the Plaintiff, it was apparent to the Court that the Defendant carried on regardless.

(iv)      Although the Defendant characterised some of the Plaintiff's witnesses, whose evidence was accepted by the Court as liars, the Court was left in no doubt but that the Defendant  did work later than he admitted to the Court.

(v)       At no time, during or after the work did the Defendant attempt to come to an accommodation or to settle, nor was any payment made into Court.  In particular, a suggestion to settle in February, 2002 (when costs were estimated at £8,500 was firmly rejected in March, 2002).

(vi)      As a result the Plaintiff had to sue or abandon her claim.  There was nowhere else other than the Royal Court where she could pursue her claim.  The Court did not find that she had acted out of spite.

(vii)     It is correct that there were no aggravated damages awarded, no TV loss, no house sale lost, but very little time was spent on any of these matters; so little in fact as to be minimal.

(viii)    There was nothing before the Court (as there had been in e.g. Lownds where the number of prison visits was criticized) to show that unnecessary work or witnesses were called; indeed both parties called a number of witnesses.

(ix)      Finally, it is clear that the Defendant continued on his path regardless of the Plaintiff's requests during the building work, and the view of the Court is that, unfortunately for him as it now appears, he has in the words of Watkins brought this on his own head.

8.        Taking all these factors into account, it is clear to the Court that the Defendant has indeed been the author of his own misfortune, and in the circumstances the Court's view of its exercise of judicial discretion is that the Plaintiff be awarded her taxed costs of and incidental to the proceedings on the standard basis.

Authorities

Watkins -v- Egglishaw [2002] JLR 1.