Minister for Infrastructure -v- Parish of St Helier [2016] JRC 220 (25 November 2016)

judgment the commissioner: 1. The Minister seeks his costs on the standard basis following the judgment of the Court dated 2 nd September, 2016, ( Minister for Infrastructure-v-Parish of St Helier [2016] JRC 153 ) in which the Court declared that the Bellozanne covenants (as defined in that judgment) were spent and extinguished.

2. This was commercial litigation between two public bodies, neither of whom were discharging any statutory duty, and both counsel agreed that the ordinary principles for the awarding of costs as set out in Watkins and Connell v Egglishaw and Four Others [2002] JLR 1 were to apply.

3. The Solicitor General submitted that the Minister was the winning party, his construction of the Bellozanne covenants having been endorsed by the Court and that accordingly, costs should follow the event.

4. Advocate Williams, for the Parish, submitted that there should be no order for costs on the grounds that the Court had to determine complex factual and legal issues in what was not hostile litigation. He referred to an e-mail sent by Advocate Duncan Mills to Advocate Edward Mackerith on 8 th February, 2016, in which Advocate Mills said this:- "As I mentioned on the 'phone, this is not meant as hostile litigation - it is in both parties' interest to know where they stand in respect of the contract." 5. The parties, he said, adopted a largely constructive and amicable approach in which there was a considerable amount of collaboration in order to assist the Court. The Parish had conceded that this was an appropriate case for declaratory relief, had agreed the principles to apply to construction of contracts, had accepted that no real servitude had been created and that the concept of a personal servitude was a misnomer.

6. Analogies could be drawn, said Advocate Williams, to construction issues that arose in trust cases where costs were usually paid out of the trust fund, pursuant to the principles set out in Re Buckton [1907] 2 Ch 406 .

7. Furthermore, he said, the Bellozanne covenants were ambiguous, both on their face and latently, as a result of the way the parties had originally drafted them. That failure to draft with clarity was the cause for the matter being referred to the Court for clarification and it was wrong for the costs of that to be laid at the door of one party only. Decision 8. I accept that both parties approached the matter in a way which was not personally hostile and that there had been collaboration, both in the collation of evidence and in assisting the Court. That reflected a mature and sensible approach to litigation that was still adversarial; quoting from paragraph 26 of the judgment:- "The Parish has taken and maintains the view that under the Bellozanne covenants it is entitled to have its refuse processed by the States free of charge in perpetuity. As Mr Rogers says, if that is a correct interpretation of the Bellozanne covenants, then it would frustrate (in perpetuity) the introduction of charges for refuse disposal. The Solicitor General explained that the matter was of some urgency." 9. This matter came before the Court because of the stance taken by the Parish on its rights under the Bellozanne covenants; a stance it need not have taken, and if the Court was right in the conclusion it reached, (the decision is the subject of an appeal), a stance it should not have taken. It is that stance that is the cause for the matter being litigated, not the way the covenants were originally drafted.

10. A winning party should not be deprived of its costs because both parties had approached the litigation in a mature and sensible way; I believe the Court would want to encourage all parties to approach adversarial litigation in that way.

11. I do not think the issues of construction were unduly complex or that there are features of the case which would take it outside the usual principles that apply in the awarding of costs. Nor do I think that this can be equated to a trust case, where trustees or beneficiaries seek the guidance of the Court on issues of construction for the benefit of the trust estate, which would ordinarily bear the costs involved. There is no analogous trust estate here to bear the costs of this litigation.

12. I have also looked at the judgment as a whole, to see if the Parish were successful in part, sufficient to justify a reduction in the costs that ordinarily would be awarded to the Minister as the winning party, but it is the case that the Parish argued against all of the Court's material findings, namely the construction of the Bellozanne covenants, the extrinsic evidence supporting that construction, there being no covenant binding the Bellozanne land in favour of the Parish personally, there being an implied term for termination on reasonable notice, the 1994 contract not resuscitating the Bellozanne covenants and there being no estoppel. The issue of parliamentary privilege was not argued.

13. It is true that the Parish agreed the legal principles to be applied to the construction of contracts, but that is now well established, and it did concede that there was no real servitude created, a concession which, in my view, it had to make, there being no dominant tenement.

14. The reality here is that this was adversarial litigation in which the Minister succeeded in the interpretation he had placed upon the Bellozanne covenants. He is the winning party and justice is achieved by his being awarded his costs on the standard basis and I so order. Stay 15. In the event of costs being awarded against the Parish, Advocate Williams asked for a stay pending the outcome of its appeal. He referred to the case of Jean v Murfitt (Unreported, 24 September 1996) where a stay was granted by the Court of Appeal in the particular circumstances of that case, but the general position is set out in Veka A,G, v T. A. Picot (C. I.) Ltd [1999] JLR Notes - 3b), where it was held that no stay would be granted for an order for the taxation and payment of costs pending the determination of an appeal unless special circumstances exist. Quoting from the judgment of 28 th June, 1999, (1999/117):- "The defendants submitted that the order for taxation and payment should be stayed, as the result of the appeal could mean that the costs of the taxation would be wasted. That is correct in that a successful appeal is likely to reverse the order as to costs that I made. The practice is that an order for taxation and payment of costs is normally ordered provided that repayment is secured. In this case, the plaintiffs accept that any money ordered will be paid to their solicitors

upon their solicitors and their joint undertaking to repay it if so ordered. Thus, repayment will be made if necessary. I conclude that the defendants have not made out any special circumstances for staying the order for taxation. It may turn out that the costs will be wasted, but the court can ensure that the plaintiffs pay the defendants reasonable costs. Further delay in taxation could mean that the plaintiffs would never recover their costs. I conclude that no stay should be granted." 16. Accordingly, the fact that the costs of taxation might be wasted if the appeal succeeds is not a special reason justifying a stay and in this case, there is no question as to the ability of the Minister for Infrastructure to repay any sums received.

17. The only difference here is that I am dealing with two public bodies, but they are public bodies who have engaged in commercial litigation and I see no reason to disapply the ordinary principles. No special circumstances exist here, and I will not therefore order a stay. Authorities Minister for Infrastructure-v-Parish of St Helier [2016] JRC 153 . Watkins and Connell v Egglishaw and Four Others [2002] JLR 1 . Re Buckton [1907] 2 Ch 406 . Jean v Murfitt (Unreported, 24 September 1996. Veka A,G, v T. A. Picot (C. I.) Ltd [1999] JLR Notes 3b. Page Last Updated: 29 Nov 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII