Mubarik v Mubarak

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: McNeill JA,Beloff JA,Montgomery JA
• Judgment Date: 05 February 2009
• Neutral Citation: [2009] JCA 16
• Date: 05 February 2009

[2009] JCA 16

COURT OF APPEAL

Before:

The Hon Michael Beloff, Q.C., President; J. W. McNeill, Esq., Q.C., and; Miss C. Montgomery, Q.C.

Aaliya Mubarak

Representor/First Respondent

and

Iqbal Mubarik

First Respondent/Appellant

The Craven Trust Company Limited

Second Respondent

Salem Mubarak and Noor Mubarak

Third Respondent

Advocate M. P. Renouf (as guardian ad litem of the minor beneficiairies Osman Mubarak and Hamza Mubarak and representative of the unborn or unascertained beneficiaries)

Fourth Respondent

Advocate A. P. Begg for the Appellant.

Advocate C. G. P. Lakeman for the First Respondent.

Advocate J. M. P. Gleeson for the Second Respondent.

Advocate M. P. Renouf in person.

Authorities

Court of Appeal (Jersey) Law 1961.

Court of Appeal (Civil) Rules 1964.

In Re Elgindata Limited [1992] 1 WLR 1207.

Maçon v Quérée [2001] JLR 187.

Dixon v Jefferson Seal Limited [1998] JLR 47.

Abdel Rahman v Chase Bank (C.I.) Trust Company Limited [1990] JLR 136.

Pallot Limited v. Gechena Limited [1996] JLR 241.

Cepheus Shipping Corp v Guardian Royal Exchange Assurance plc [1995] Lloyd's Rep. 647, 648.

Macmillan v Bishopsgate (unreported, 1994).

Drake v Gouveia [2000] JLR 411.

Ridehalgh v Horsefield [1994] Ch 205.

Civil Procedure (Jersey) Law 1956.

Jersey Financial Services Commission v A P Black (Jersey) Limited [2007] JLR 1.

Bland v First National Commercial Bank [1997] JLR 80.

In Re Esteem Settlement [2000] JLR N 41A.

Costs judgment.

McNeill JA

1 By Act of Court of 19 November 2008 this court directed that submissions on costs pursuant to the decision of this court should be made in writing. This judgment deals with those submissions.

Submissions for the First Respondent

2 Advocate Lakeman presented submissions said to be joint submissions on behalf of the First Respondent and the Fourth Respondents. Standing submissions made by Advocate Renouf, as guardian ad litem of the minor beneficiaries, and as representative of the unborn and unascertained beneficiaries, I understand Advocate Lakeman's submissions to be on behalf of the First Respondent and on behalf of Advocate Renouf as guardian ad litem and representative. I shall, however, deal with Advocate Renouf's individual submissions separately.

3 Advocate Lakeman sought orders that:

• (i) In relation to the costs of the Appellant's appeal, the Appellant should pay costs on the indemnity basis;

• (ii) In the alternative there should be an order that, in relation to the main body of the Appellant's appeal, the Appellant should pay costs on the standard basis; and

• (iii) The Appellant's advocate should bear part of the costs personally upon the indemnity basis.

4 In addition, Advocate Lakeman sought an award of costs by way of summary assessment both for the appeal and for the hearing of 13 June 2008. He also sought an order that the court release the sum of £50,000 paid into Court as security of costs, to the First, Second, Third and Fourth Respondents as the Court saw fit. Advocate Lakeman suggested that the First Respondent should receive two-thirds of the amount.

5 Mr. Lakeman reminded the Court that costs in this Court are in the discretion of the court: see the Court of Appeal (Jersey) Law 1961, Article 16. He also pointed out that costs could be awarded on an indemnity basis: see Rule 18 of the Court of Appeal (Civil) Rules 1964.

6 He submitted that the principles to be applied, when considering costs orders, were to be found in the decision of the Court of Appeal in England and Wales in In Re Elgindata Limited [1992] 1 WLR 1207; those principles having previously been considered and applied by the Royal Court in the reported case of Maçon v Quérée [2001] JLR 187, 193.

7 Like the learned Commissioner (Page QC) in Maçon v Quérée, I propose to adopt the summary of relevant principles in relation to awards of costs set out by Nourse, L.J. in In Re Elgindata which are conformable with justice and therefore appropriate to this jurisdiction. These are:

“(i) Costs are in the discretion of the court.

(ii) They should follow the event, except when it appears to the court that in the circumstances of the case some other order should be made.

(iii) The general rule does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, but where that has caused a significant increase in the length or cost of the proceedings he may be deprived of the whole or a part of his costs.

(iv) Where the successful party raises issues or makes allegations improperly or unreasonably, the court may not only deprive him of his costs but may order him to pay the whole or a part of the unsuccessful party's costs.”

8 I would only add, as did Nourse, L.J. (at page 1215D) that what was the “event” of the proceedings and what were the issues in it are matters for debate; but that if there is to be a special order for costs in respect of a particular part, there must be justification for separating out that part of the subject matter.

9 As regards the basis upon which indemnity costs might (unusually) be awarded, Advocate Lakeman referred us to Dixon v Jefferson Seal Limited [1998] JLR 47, Abdel Rahman v Chase Bank (C.I.) Trust Company Limited [1990] JLR 136 and to Pallot Limited v. Gechena Limited [1996] JLR 241.

10 As did this Court in Dixon v Jefferson Seal Limited, I rely upon the views expressed by Mance, J. (as he then was) in Cepheus Shipping Corp v Guardian Royal Exchange Assurance plc [1995] Lloyd's Rep. 647, 648.

11 In that case, Mance, J. adopted as a useful summary views expressed by Millett J. (as he then was) in Macmillan v Bishopsgate (unreported, 1994) in the following terms:

“The power to order taxation on an indemnity basis is not confined to cases which have been brought with an ulterior motive or for an improper purpose. Litigants who conduct their cases in bad faith, or as a personal vendetta, or in an improper or oppressive manner, or who cause costs to be incurred irrationally or out of all proportion to what is at stake, may also expect to be ordered to pay costs on an indemnity basis if they lose, and to have part of their costs disallowed if they win. Nor are these necessarily the only situations where the jurisdiction may be exercised; the discretion is not to be fended or circumscribed beyond the requirement that taxation on an indemnity basis must be ‘appropriate’.”

12 In preparing the ground for his application that an award of costs should be made personally against the appellant's advocate, Advocate Lakeman referred this court to Drake v Gouveia [2000] JLR 411 and to Ridehalgh v Horsefield [1994] Ch 205. Whilst an award against counsel will be exceptional, there is no doubt but that it can be made: see Drake v Gouveia, Article 2(1) of the Civil Procedure (Jersey) Law 1956 and Article 16 of the Court of Appeal (Jersey) Law 1961.

13 Advocate Lakeman reminded us that the appellant had filed two Notices of Appeal. The first appealed against a decision of the Royal Court to exclude the appellant's advocate's legal assistant from the hearing. The second notice appealed against to the substantive orders made by that court.

14 As regards the first notice, Advocate Lakeman observed that the appellant himself had decided not to participate in the Royal Court hearing in April 2008, that the points made in the notice of appeal were academic and that the notice of appeal was abandoned only at the very last moment (indeed, during the Appeal Hearing itself).

15 As regards the second notice, Advocate Lakeman submitted that, taken in the round, it was without merit as were its individually challenged components, to the extent that they had been comprehensibly identified. The argument that the proposals constituted a complete resettlement had been held not well founded. The argument that there ought not to be reinstatement of an excluded person was not properly developed. The argument that there had been no approval on behalf of the unascertained beneficiaries had been found to be without substance. The argument that there was no power to grant approval because there was no benefit for the Clause 8 or 9 beneficiaries had been wholly misconceived. The argument that there was no power to grant approval where there was an unreleased power had not been sustained. The argument in respect of the appellant's letter of 25 August 2006 had been rejected conclusively. The arguments in respect of there being no benefit to unborn beneficiaries had been rejected. The argument for the removal of trustees had only been faintly pressed. The argument as to why the appointment of receivers and the making of ancillary orders had been in excess of jurisdiction was barely advanced. In short in Advocate Lakeman's submission, the appellant's attitude to the deployment of argument in the Royal Court and Court of Appeal had been cavalier and chaotic.

16 As to the first respondent's application to debar the Appellant from the Court of Appeal hearing on the grounds of abuse of process Advocate Lakeman pointed out that, whilst the Court had found that there was no abuse of process, the findings indicated that the Appellant's conduct had been in its view unreasonable and designedly tactical, and not merely wrong or in hindsight misguided.

17 For all these reasons Advocate Lakeman sought costs on the indemnity basis, alternatively on the standard basis.

18 Advocate Lakeman also sought an award against Advocate Begg personally by way of a wasted costs order on an indemnity basis. Advocate Begg had not been at all properly rehearsed in his arguments or knowledge of the law. He had had to seek instructions either from his instructing solicitor or from English counsel on a wholly unacceptable number of occasions. His understanding of the general principles of trust law appeared questionable. Advocate Lakeman therefore submitted...