Minister for P E v Yates and Regs Skips

JurisdictionJersey
CourtCourt of Appeal
JudgeMcNeill JA
Judgment Date27 November 2008
Neutral Citation[2008] JCA 203
Date27 November 2008

[2008] JCA 203

COURT OF APPEAL

Before:

Dame Heather Steel, President;

J. W. McNeill, Esq., Q.C., and;

Miss C. Montgomery, Q.C.

Between
The Minister for Planning and Environment
Appellant/Party Convened
and
Marc Silvanus Dorey Yates
Michaela Yates nee Van Neste
First Respondents/Plaintiffs

and

Reg's Skips Limited
Second Respondent/Defendant

Advocate S. C. K. Pallot for the Appellant.

Mrs. R. L. Pinel in person as a Director of the Second Respondent.

The First Respondents did not appear and were not represented.

Authorities

Yates v Reg's Skips Limited [2008] JCA 077B .

Drake v Gouveia [2000] JLR 411 .

Aiden Shipping Co Limited v. Interbulk Limited “The Vimeira” [1986] AC 965; 980E – 981B .

Symphony Group plc v. Hodgson [1994] 1 QB 179 .

Forbes-Smith v Forbes-Smith and Chadwick [1901] P 258 .

John Fairfax & Sons Pty. Limited v E.C. de Witt & Co. [1958] 1 QB 323 .

Pritchard v J. H. Cobden Limited [1988] Fam. 22 .

Dolphin Quays Developments Limited v Mills and Others [2008] 1 WLR 1829 .

TGA Chapman Limited v Christopher [1998] 1 WLR 12, 20 .

Globe Equities Limited v Globe Legal Services Limited [1999] BLR 232, 239 .

Hamilton v Al Fayed (No 2) [2003] QB 1175 .

Gore (t/a Clayton Utz) v Justice Corpn Pty Limited (2002) 189 ALR 712 .

Kebaro Pty Ltd v Saunders [2003] FCA 5 .

Dymocks Franchise Systems (NSW) Pty Limited v Todd [2004] 1 WLR 2807 .

Civil Proceedings (Jersey) Law 1956.

Planning and Building (Jersey) Law 2002.

Court of Appeal (Civil) Rules 1964.

Appeal against orders of the Royal Court (Samedi Division) of 20 December 2007 and 3 June 2008 whereby the Appellant was convened to attend proceedings and found liable to contribute to the Second Respondent in respect of that party's liability to the First Respondents in costs of the proceedings below.

McNeill JA
Background
1

In April 2007, the First Respondents, by Order of Justice in the Royal Court (Samedi Division) sought various orders against the Second Respondent. The principal order sought was that the Second Respondent cease carrying on a skip business and associated activities at Heatherbrae Farm, or within one mile of the residence of the First Respondents, “Les Ormes”, both in the Parish of St. John.

2

One of the grounds set out was that, under the Jersey law doctrine of voisinage, an occupier or possessor of land must use the land in such a way that he does not cause damage to his neighbours. The First Respondents averred that the Second Respondent's activities in operating a skip business in a property adjacent to the First Respondents' home, constituted a breach of those duties in that the operations unreasonably disrupted the First Respondents' rights to quiet and peaceful enjoyment of their property.

3

By Act of Court dated 11 December 2007, the Royal Court (Inferior Number) granted an injunction preventing the Second Respondent from operating a skip business at or in the immediate vicinity of Heatherbrae Farm, the injunction to come into force on 1 May 2008. In the Judgment of the Royal Court dated 11 December 2007, delivered by the Bailiff, the Royal Court found that the activities of the Second Respondent constituted a breach of the duty of voisinage.

4

In expressing the decision of the Royal Court, the learned Bailiff stated:-

“32 It follows that, in our judgement, the activities of the defendant company at Heatherbrae Farm constitute a breach of the duty of voisinage which is owed to the plaintiffs. We reached this conclusion not without considerable sympathy for Mr. and Mrs. Pinel. They were permitted, if not encouraged, by the Planning Department, to establish their business at Heatherbrae Farm which they did in good faith. The difficulty is that any skip operating business is inherently noisy .

35 By way of postscript, we direct that any application for the costs of these proceedings should be pursued only after a directions hearing before the Bailiff at which consideration can be given to the question whether any other party or parties should be convened.”

5

A Directions Hearing was arranged for 20 December 2007. On that day the Bailiff adjourned further consideration of the First Respondents' application for costs and ordered that the Appellant (hereinafter “the Minister”) be convened to attend before the Court, on a date to be fixed, for hearing the application for costs. There was no application by either of the parties for the making of such an order: rather, the order was made by the Court of its own motion.

6

The application for costs was heard before the Bailiff on 29 April 2008 when those represented were the present Second Respondent and the Minister. At that hearing the Advocate instructed for the Second Respondent submitted that the Minister should be found liable to the present First Respondents to the extent of 50 per cent of the costs of the First Respondents. On behalf of the Minister it was submitted that he should be discharged altogether from the proceedings. The court reserved judgment and on 3 June 2008 ordered that: “The [Second Respondent] will pay the costs of the [First Respondents] on the standard basis, but will be entitled to recover twenty-five per cent of those costs from the Minister”.

The Present Appeal
7

The Minister now appeals against those orders in the following way:-

  • (i) The Appellant appeals against the order of 3 June 2008 insofar as it requires him to make any contribution at all to the costs of the proceedings instituted by the First Respondents; and

  • (ii) The Appellant requests this court to quash the order of 20 December 2007 convening him to attend.

The Proceedings Below
8

It is clear from the transcript of the proceedings on 20 December 2007 that the suggestion that the Minister ought to be convened into the litigation on a question of costs came from the court; subject only to any views that either of the advocates for the two principal parties wished to offer. On behalf of the present First Respondents, Advocate O'Connell made clear that he would not be supporting any application, if there was one, for the convening of the Minister. His clients had attempted a public law remedy but failed on the basis of the existence of a private law remedy which, by December 2007, had successfully been pursued. While recognising that the court had power to convene non-parties to proceedings in appropriate circumstances, his clients did not wish to prolong and further complicate matters by having the Minister convened.

9

On behalf of the present Second Respondent, Advocate Clarke specifically sought clarification as to whether the convening of the Minister would be at the behest of the Court, or whether the Court was inviting the present Second Respondent to make an application for the Minister to attend. He recognised that the convening of the Minister was in his client's interests if all or any of his client's costs' liability could be passed on; but he was concerned that an unsuccessful application against the Minister might lead to a costs order against his clients. After discussion, the Bailiff specifically exercised the power under the Royal Court Rules and convened the Minister in relation to costs arising from the proceedings brought by the First Respondents against the Second Respondent.

10

A hearing took place on 29 April 2008 at which each of the present First Respondents, the Second Respondent and the Minister for Planning and Environment were represented. Judgment was issued on 3 June 2008 (the “June Judgment”); by which time this court had heard and dismissed the present Second Respondent's appeal against the grant of injunction: see Yates v Reg's Skips Limited [2008] JCA 077B.

11

In the June Judgment, the learned Bailiff noted that jurisdiction to order a non-party to pay costs was not in dispute, having regard to the provisions of Article 2 of the Civil Proceedings (Jersey) Law 1956 (the “1956 Law”). So far as relevant, that Article provides:-

“the costs of and incidental to all proceedings in the Royal Court shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.” .

12

Reference was then made to the decision of the Royal Court in Drake v Gouveia [2000] JLR 411, where, in delivering the judgment of the court, the learned Bailiff (Bailhache, B) had said (at 418):-

“In our judgment, the principles laid down in Aiden Shipping and Gupta are equally applicable in Jersey. The words “by whom” in art. 2(1) of the Civil Procedure (Jersey) Law 1956 are wide enough to embrace any non-party whom the court, in the exercise of its discretion, considers ought justly to be ordered to pay the costs.”

13

The Court then noted the submission for the Minister that an order against a non-party was exceptional and that the Minister had no real connection with the action or, at the lowest, no sufficient nexus to justify the making of an order for costs against him and referred to views expressed in the speech of Lord Goff of Chieveley in Aiden Shipping Co Limited v. Interbulk Limited, “The Vimeira” [1986] AC 965; 980E – 981B.

14

The learned Bailiff then summarised the relevant planning history and noted that the application eventually granted in May 2005 (and submitted by the owner of Heatherbrae Farm) was granted subject to a condition, among others, that “the use of the site shall operate in the same way as the current site as a skip sorting yard only and for no other purpose”.

15

The learned Bailiff then continued:-

“9. It is not in dispute that the phrase “in the same way as the current site [i.e. La Prairie]” is ambiguous and incapable of enforcement in that insufficient evidence exists as to the nature and mode of operation of the business at La Prairie. The Minister attempted to prevent the use of mechanical sorting at...

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