In the matter of the Amy Tutelles [2011] JCA 151 (03 August 2011)

Court of Appeal August 2011 Before : The Hon. Michael Beloff, Q. C., President; Dame Heather Steel, D. B. E., and; Miss Clare Montgomery, Q. C. Between Angela Amy Appellant And Marianna Amy Second Respondent Between Angela Amy Appellant And Anastasia Amy First Respondent And Marianna Amy Second Respondent Application concerning costs for Mr Barnett from actions in the Royal Court brought after the substantive appeal. Advocate P. Sinel for the Appellant. Advocate D. Corbel for the First Respondent. Advocate C. Fogarty for the Second Respondent.

JUDGMENT THE president: 1. This is the judgment of the Court setting out the reasons for a costs order made against Mr Sinel on 28 th July 2011 2. The Court gave judgment in Amy v Amy on 27 th July, 2011 (to which reference can be made for the background) and dealt with a number of consequential matters arising out of it. On 28 th July, in the absence of agreement between the parties, the Court had to sit again in order to hear an application from Mr Sinel on behalf of Mr Barnett seeking an order for costs in his favour of and relating to the hearing before the Commissioner whose judgment of 24 th February, 2011 was the subject of the substantive appeal. Costs on that occasion had been reserved.

3. Mr Sinel based his application on the fact that Mr Barnett (although not in form a party to the appeal) had been the beneficiary of the conditional lifting by this Court of a caveat imposed by the Bailiff and not removed by the Commissioner. He explained that he made the application to us and not the Commissioner because the latter has now retired from judicial office.

4. In our view the proper forum for such an application remained the Royal Court, which had, we repeat, reserved the matter of costs; a decision not itself the subject of an appeal. The Commissioner may have retired; the Royal Court lives on. The Royal Court would no doubt take into account in making any such order the substance of the Court's judgments in Amy v Amy. The application for costs in favour of Mr Barnett was therefore dismissed.

5. We indicated that if per contra the application for costs had been properly before us, we would have made no such order in Mr Barnett's favour given his behaviour in causing a need for the substantive proceedings to be brought at all, as in particular exemplified by the letter of 30 th May 2009 referred to in paragraph 10 of the leading judgment of Nugee JA.

6. An application was then made by the respondents for an order that the costs of the hearing of 28 th July 2011 should be made against Mr Sinel.

7. Our jurisdiction as to costs is to be found in the Court of Appeal (Jersey) Law 1961 , Article 16:- "the costs of and incidental to all proceedings in the Court of Appeal under this part of the law shall be in the discretion of the Court and the Court shall have full power to determine by whom and to what extent costs are to be paid" 8. The discretion is of course to be exercised judicially and rationally, but the mere fact that there is, unlike in England and Wales no specific statutory provision to deal with wasted costs does not oblige us, or indeed entitle us, to give the words of the Jersey staute other than their ordinary and natural meaning (cf the contradictory analysis proposed by Paul Matthews in his article in the Jersey Law Review of October 2002 The English Disease and the Jersey Cure; Make the States Pay ) This Court in Mubarak v Mubarak [2009] JLR N 5 decision of 5 th February 2009 certainly recognised the existence of such a jurisdiction to make an order against an advocate.

9. We acceded to the application that Mr Sinel should bear the costs of the hearing before the Court on 28 th July. There was no reason, and indeed none was advanced beyond forgetfulness, why Mr Sinel could not have made on 27 th July the unsuccessful application he made on 28 th July. It was not his clients' fault of responsibility. It seemed appropriate the he, and no-one else - should bear the consequences of his own error.

10. We refused to order indemnity as distinct from standard costs; Mr Sinel's error was the product of carelessness, not design. Mr Sinel's application, although without merit, was not designedly so. Authorities Amy v Amy [2011] JCA 144 . Court of Appeal (Jersey) Law 1961. The English Disease and the Jersey Cure; Make the States Pay, Paul Matthews. Jersey Law Review October 2002. Mubarak v Mubarak [2009] JLR N 5. Page Last Updated: 18 Aug 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII