1998/172 - Greffier v Les Pas Holdings Ltd [1998] UR 172 (10 August 1998)

JUDGMENT THE COMMISSIONER: After judgment was delivered on the 22 July I heard applications for costs. As between the Crown and Les Pas I reserved my decision. I now proceed to give it. The proceedings before the Court began with an application by the Greffier of the States, under Article 4A(1) of the Compulsory Purchase of Land (Procedure) (Jersey) Law, 1961, for an order that the land be vested in the public. (I shall call that Law ‘the Compulsory Purchase Law’). The Court having granted that application, the Solicitor General submitted that in the exercise of my discretion I should order that the costs should follow the event. Dr Kelleher, on the other hand, submitted that Les Pas, although their opposition to the application had failed, were entitled to their costs under Article 14(2) of the Compulsory Purchase Law. That provides (in part): "… all expenses incurred in proceedings under this Law shall be paid by the acquiring authority …". Alternatively, if Article 14(2) were not applicable, Dr Kelleher submitted that I ought not in my discretion to order Les Pas to pay the Greffiers costs. (There was also an application by the Waterfront Enterprise Board that Les Pas should pay their costs. I dismissed this application on the 22 July so am not concerned with it now). It is settled by the decision of the Privy Council in Lesquende, Ltd -v- Planning and Environment Committee

(11 February 1998) Jersey Unreported (PC) that the word ‘expenses’ in Article 14(2) covers costs incurred by the dispossessed owner of the land. However, the claim in that case was to costs incurred in the proceedings before the Board of Arbitrators, and the Privy Council’s decision was limited expressly to costs incurred ‘in the proceedings before the Board’. The question which arises now is whether the owners’ costs of the proceedings which have taken place in this Court were ‘incurred in proceedings under this Law’ within the meaning of Article 14(2). The answer to this question is provided by the terms of Article 14(2), as amended by the Compulsory Purchase of Land (Procedure) (Amendment No. 5) (Jersey) Law, 1994, and Article 14A, inserted by the same Law. I set out Article 14(2) as amended and Article 14A(1): "ARTICLE 14 (2)The fees of the Board and all expenses incurred in proceedings under this Law shall be paid by the acquiring authority subject to reimbursement by any other party in accordance with an order of the Board under Article 14A of this Law. ARTICLE 14A Costs (1)Subject to the following provisions of this Article, the Board may order that the costs or any part of the costs of any proceedings before it incurred by any party shall be paid by any other party and may tax or settle the amount of any costs to be paid under any such order or direct in what manner

they are to be taxed." Thus, the ‘expenses incurred in proceedings under this Law’ are subject to reimbursement under Article 14A. Article 14A applies only to costs of proceedings before the Board, so it is only those costs that can be reimbursed. This suggests that costs of proceedings in the Royal Court are not covered by Article 14(2), for it is natural to infer from that paragraph that the legislature intended whatever had to be paid under the first part of the sentence to be subject to reimbursement under the second. If this is right, ‘proceedings under this Law’ in Article 14(2) means proceedings before the Board and nothing more. This interpretation is confirmed, in my judgment, by other provisions of the Compulsory Purchase Law. Article 12 provides for the Board to state a case for the opinion of this Court on a question of law. If proceedings in this Court on the stated case are ‘proceedings under this Law’, the result is that costs incurred in the proceedings before the Board are at the Board’s discretion under Article 14A(1), but the Crown must always pay the costs of proceedings on a stated case, even if the Court’s decision on the question of law is entirely in the Crowns favour. I can think of no reason why the legislature should have intended so strange a distinction. If, on the other hand, proceedings in this Court on the stated case are not ‘proceedings under

this Law’, costs incurred before the Board are at the Boards discretion under Article 14(A)(1) and costs incurred in this Court are at the Courts discretion under the ordinary law. When the Lesquende case was before the Court of Appeal, the Court held ((1996), JLR 320, 326) under the previous Law of 1953 that proceedings upon a case stated were not ‘proceedings under this Law’, for the purposes of Article 13 (the predecessor of Article 14(2) of the Compulsory Purchase Law). The Privy Council reversed that judgment of the Court of Appeal, but expressed no disapproval of the passage to which I have referred. I therefore conclude that the words, ‘expenses incurred in proceedings under this Law’, in Article 14(2) refer only to expenses incurred in proceedings before the Board of Arbitrators. From this conclusion it follows that Article 14(2) does not apply to the costs of an application to this Court under Article 4A(1). Quite apart from the matters which I have discussed, I should have had serious doubts whether the proceedings in this case were ‘proceedings under this Law’. These proceedings began, as I have said, with an application by the Greffier of the States under Article 4A(1). The purpose of such an application is to get an order of the Court that the land in question be vested in the public. The Court is bound to make the order ‘if satisfied that the provisions of this

Law have been complied with’. The provisions intended can only be the formal requirements of Articles 2, 3 and 4; and it seems to me to be at least arguable that the question whether there has been compliance with those Articles is the only relevant question on an application under Article 4A(1). There are other requirements which must be satisfied if land is to be compulsorily purchased; e.g. the rules, established not by statute but by judicial precedent, about the way in which the decision of the States must be reached. Compliance with them can be challenged, but, it seems to me again to be arguable, in proceedings other than an application under Article 4A(1). In this case it was agreed that the requirements of Articles 2, 3 and 4 had been satisfied. The argument before us was directed entirely to the purpose of the States decision and the questions whether they could reasonably have come to that decision and whether they had considered all relevant material. This was the result of complicated procedural manoeuvring, the course of which I forbear to trace. It culminated in a decision of the Court of Appeal of the 24 June 1998. Mr Southwell said in his judgment, with which the other members of the Court agreed: "Whatever may be the true interpretation of Article 4A(2) of the 1961 Law, clearly Les Pas will be able at the hearing of the vesting order application to argue any

point, which it could properly have argued on a separate judicial review application." Mr Southwell went on to give his reasons for this statement. They included a concession by the Greffier and the WEB that this was the position, and various particular features of the proceedings which had led to his judgment. It is thus clear that the Court of Appeal was not deciding what strictly is the ambit of an application under Article 4A(1), but in effect was saying that in this case issues arising on such an application and issues which would have arisen on an application for judicial review should be argued together. That, if I may say so with respect, was obviously the convenient course. It may well be the convenient course in other cases of compulsory purchase. When that course is taken, however, it may well be that the proceedings in this Court are not simply and solely proceedings under Article 4A or ‘proceedings under this Law’; so that Article 14(2) would not apply to those proceedings, even if, contrary to my conclusion, it would apply to proceedings simply and solely under Article 4A. My conclusion makes it unnecessary for me to decide this point. Since I have found Article 14(2) to be inapplicable, I have to decide the matter of costs in my discretion. The Greffier has succeeded on all the matters argued before us, and normally costs should follow the event. On the other

hand, compulsory purchase is not a normal process, but a serious curtailment of private rights allowed by the law for limited purposes and subject to strict compliance with procedural requirements. A dispossessed owner must be allowed an opportunity to put forward any reasonable objection that those purposes have not been established or those requirements have not been observed, and according to the nature of his objections and all the circumstances of the case it will sometimes be right not to penalise him in costs even though his objections fail. Having weighed these considerations, I order Les Pas to pay the Greffiers costs, not including the costs of making the original application of the 29 May 1998 under Article 4A(1), but including the costs of the application for an adjournment made on the 4 June 1998. The application for récusation , although based partly on grounds subsequently described by the Court of Appeal as frivolous, was in effect granted by this Court - on the 17 June so I make no order for the costs of that application. I give Les Pas leave to appeal, if it is needed. Authorities Planning & Environment Committee -v- Lesquende, Ltd (1996) JLR 320 CofA Lesquende, Ltd -v- Planning & Environment Committee (11 February 1998) Jersey Unreported (PC) Compulsory Purchase of Land (Procedure) (Jersey) Law, 1961: Article 14(2) Compulsory Purchase of Land (Procedure) (Amendment No. 5) (Jersey) Law, 1994 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII