Jersey Unreported Judgments

[2006]JCA101

COURT OF APPEAL

13^th July 2006

Before     :		The Hon Michael Beloff, Q.C., President; Sir John Nutting, Bt., Q.C., and; J. W. McNeill, Esq., Q.C.
Between	Durant International Corporation Sun Diamond Limited Kildare Finance Limited Macdoel Investments Limited		Applicants
And	Her Majesty's Attorney General The Federal Republic of Brazil		Respondents

Costs order following withdrawal of application for leave to appeal by the applicants.

Advocate G. S. Robinson for the Applicants.

Crown Advocate S. M. Baker for the Attorney General.

Advocate N. M. Santos Costa for the Federal Republic of Brazil

JUDGMENT

THE President:

1.        This is the judgment of the Court.

2.        This is an application by the Respondents for indemnity costs against the Applicant, in respect of a withdrawn application for leave to appeal a decision of Sir Richard Tucker, sitting as a commissioner in the Royal Court, who rejected an application for leave to apply for Judicial Review of a decision by the Attorney General of Jersey to transmit certain material obtained in the course of investigations into the applicants' affairs in Jersey to the Minister of Justice in Brazil.

3.        The applicants' conduct was characterised by Sir Richard as a delaying tactic and he remarked in the course of his brief reasons for dismissing the application for leave

"I have, in the course of my duties as a judge in England, heard hundreds of applications for leave to apply for Judicial Review and substantive applications for review.  It has been my unhappy experience to deal with many which are utterly devoid of merit.  This is one of them.  What distinguishes this case from the others is the persistence and the sophisticated and valiant determination with which this application is made".

4.        The applicants with further persistence and notwithstanding the terms of that decision sought to appeal the Commissioner's Order.  On 27^th April of this year, the date of the hearing before Sir Richard, Crown Advocate Wheeler pointed out, correctly, in a letter that a Court in Brazil had issued a letter rogatory seeking the transmission of materials the Attorney General is proposing to transmit pursuant to Article 33 of the Investigation Fraud of (Jersey) Law 1991 and therefore the appeal was without any practical purpose because the basis for transmission of material under that provision was not controversial and that indeed the material had already been transmitted.

5.        It is not unknown in the sphere of public law for an Appellate Court to entertain an appeal when a matter has become moot between the parties because of the general importance of the issues raised, but we are unaware of any case in which leave has been given in respect of a matter when no useful remedy could be granted and, in principle, it seems to us unlikely that leave to appeal would ever be given in such circumstances.

6.        On 7^th July, that is the Friday before this session of the Court of Appeal it may be in recognition of that fact, we know not, since no explanation has been given - the Applicants abandoned their appeal.  This Court has had the opportunity, which they have properly taken, to read the written contentions of both parties and there is no reason at all for us to demur from the trenchant observations that the Commissioner made in respect of the merits (or the lack of them) of the original application.

7.        In the case of Dixon -v- Jefferson Seale Ltd [1998] JLR 47 at p60 this Court laid down the principles in a civil indemnity which should be awarded:

"The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose.  Litigants who conduct their cases in bad faith, or as personal vendettas, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and to have part of their costs disallowed if they win.  Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fended or circumscribed beyond the requirement that taxation on an indemnity basis must be 'appropriate'".

8.        We shall apply these principles to the Respondents' application.

9.        We consider, for the reasons that I have already outlined, that there are special features of this case and we would adopt the observation made in the written contentions for the Respondents that pursuit of the appeal has been, at any rate, tantamount to an abuse of process.  It is for those reasons that we award indemnity costs. 

10.      We cannot let this matter pass without expressing our regret that the Court itself is unable to be indemnified in respect of the costs that were involved in the perusal of considerable papers and preparation for the hearing of this application.  The Court always encourages settlement of disputes and has no objection to preparing on the basis that a hearing may usually be required.  But a belated (as distinct from timely) withdrawal of this character without any explanation given is something on which the Court cannot commend because of the wasted time and expenditure involved.

Authorities

Investigation Fraud of (Jersey) Law 1991.

Dixon -v- Jefferson Seale Ltd [1998] JLR 47.