Jersey Unreported Judgments

[2009]JRC105

royal court

(Samedi Division)

15^th June 2009

Before     :

Sir Philip Bailhache, Kt., Bailiff, sitting alone.

 

IN THE MATTER OF THE PROCEEDS OF CRIME (JERSEY) LAW 1999, AS MODIFIED AND IN THE THIRD SCHEDULE TO THE PROCEEDS OF CRIME (DESIGNATED COUNTRIES AND TERRITORIE)(JERSEY) REGULATIONS 1999

AND IN THE MATTER OF A SAISIE JUDICIARE IN RESPECT OF THE REALISABLE PROPERTY OF GARY STEPHEN KAPLAN IN JERSEY

AND IN THE MATTER OF THE REPRESENTATION OF GARY STEPHEN KAPLAN

Advocate J. Harvey-Hills for the Representor.

Advocate A. J. Belhomme for the Attorney General.

Advocate A. J. Dessain for the Viscount.

judgment

the bailiff:

1.        On 6th May 2009 I heard argument from counsel in relation to the application by Mr Harvey Hills for the costs of and incidental to Mr Kaplan's representation seeking the discharge of the Saisie Judiciaire. Mr Harvey Hill's submission was in essence that Mr Kaplan's application had been successful, and that costs should follow the event.

2.        Mr Belhomme for the Attorney General conceded that costs did usually follow the event, but he pointed out that Mr Kaplan had lost on all the issues which were argued save on the exercise of discretion.  Counsel submitted that there should be no order for costs.

3.        In Re W [Drug Trafficking Restraint Order; Costs] October 13th 1994, the Times Law Reports, Schiemann J held that the public should, in principle, pay the costs of proceedings initiated by the Commissioners of Customs and Excise under the Drug Trafficking Offences Act 1986 to restrain the assets of a defendant charged with drug trafficking offences of which he had been acquitted.  The judge emphasised that no blame was to be attached to the commissioners for seeking to restrain the assets, but that it was preferable as a matter of principle that the public rather than the innocent third party should pay the costs of the institution of proceedings by the commissioners.

4.        In my judgment the same principle should be applied in this jurisdiction where, on an application by the Attorney General, a Saisie Judiciaire is obtained under the Proceeds of Crime (Jersey) Law 1999 and that order is subsequently varied or discharged at the instance of the defendant.  It is, as I underlined in the case of in re O'Brien 2003 JLR 1 at para 16 in relation to drug traffiking legislation, a strong thing for a person to be divested of his assets on an ex-partie application made in private.  If, after a contested application, that order is discharged, it is generally appropriate that the judge's discretion should be exercised in favour of the defendant so that the public pays the costs involved.

5.        In relation to this application however, it is the case that Mr Kaplan lost on all the points which were argued except on the question whether the Saisie Judiciaire should be discharged as a matter of discretion.  Weighing all the relevant matters in the balance as best I can, I order that fifty per cent of Mr Kaplan's costs be paid by the Attorney General on the standard basis.

Authorities

In re O'Brien [2003] JLR 1.