Planning and Environment Committee v Lesquende Ltd

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Le Quesne, Southwell and Smith, JJ.A.:
• Judgment Date: 01 November 1996
• Date: 01 November 1996

COURT OF APPEAL

Le Quesne, Southwell and Smith, JJ.A.:

W.J. Bailhache, Crown Advocate, for the defendant-appellant;

M.M.G. Voisin for the plaintiff-respondent.

Cases cited:

(1) Baker (ne Knott) v. Public Works Cttee., 1968 J.J. 965, overruled.

(2) Horn v. Sunderland Corp., [1941] 2 K.B. 26; [1941] 1 All E.R. 480; (1941), 165 L.T. 298; 57 T.L.R. 404; 110 L.J.K.B. 353; 105 J.P. 223; 39 L.G.R. 367; 85 Sol. Jo. 212, dictum of Scott, L.J. considered.

(3) London County Council v. Tobin, [1959] 1 W.L.R. 354; [1959] 1 All E.R. 649; (1959), 10 P. & C.R. 79; 123 J.P. 250; 57 L.G.R. 113; 103 Sol. Jo. 272.

Additional cases cited by counsel:

Aberdeen (City) D.C. v. Sim (1982), 47 P. & C.R. 278.

Aldora, The, [1975] 2 All E.R. 69.

B.P. Exploration Co. (Libya) Ltd. v. Hunt (No. 2), [1982] 1 All E.R. 925.

Birmingham Corp. v. West Midland Baptist (Trust) Assn. (Inc.), [1970] A.C. 874.

Harbutt's "Plasticine" Ltd. v. Wayne Tank & Pump Co. Ltd., [1970] 1 Q.B. 447.

Jefford v. Gee, [1970] 2 Q.B. 130.

Matthews v. Inland Revenue Commrs., [1914] 3 K.B. 192.

Pajama Ltd. v. Ferpet Invs. Ltd., 1982 J.J. 137.

Public Trustee v. Pearlberg, [1940] 2 K.B. 1.

R. v. Swabey (No. 2), [1973] 1 All E.R. 711.

Rattan Singh v. Income Tax Commr., [1967] 1 All E.R. 999.

Simpson v. Inland Rev. Commrs., [1914] 2 K.B. 842.

Legislation construed:

Compulsory Purchase of Land (Procedure) (Jersey) Law 1953, art. 13: The relevant terms of this article are set out at page 325, lines 17-18.

Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, art. 9(1):

"In assessing compensation, the Board shall act in accordance with the following rules

...

(b) the value of the land shall, subject as hereinafter provided, be taken to be the amount which the land, if sold in the open market by a willing seller, might be expected to realise ...

...

(g) the provisions of sub-paragraph (b) shall not affect the assessment of compensation for disturbance or any other matter not directly based on the value of land."

art. 9(2): The relevant terms of this paragraph are set out at page 327, lines 19-22.

art. 14: The relevant terms of this article are set out at page 324, lines 22-26.

Royal Court (Jersey) Law 1948, art. 11(1)(g): The relevant terms of this sub-paragraph are set out at page 328, lines 27-33.

Royal Court Rules 1992 (R. & O. 8509), r.9/7(1): The relevant terms of this sub-rule are set out at page 328, lines 37-38.

Planning Lawcompulsory purchasesettlement of price by arbitrationseller's legal costs not recoverable under Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, art. 14(2), art. 9(1)(g) or otherwise"expenses" in art. 14(2) limited to those of Board itself

Planning Lawcompulsory purchasesettlement of price by arbitrationnot possible for Greffier to tax legal costs incurred before Board of Arbitrators, since no power to do so under Royal Court Rules 1992, r.9/7(1)inappropriate for Greffier to hear, e.g. questions of reasonableness of conduct of parties before Board

Civil Procedurejudgments and ordersinterest on judgment debtinclusion of interest in judgment debtaward discretionary and depends, e.g. on conduct of claiming partynot possible to award interest before reasonableness of principal claim established

The plaintiff-respondent sought an order that its costs incurred in statutory arbitration proceedings be paid by the defendant-appellant.

The States wished to purchase land owned by the respondent company compulsorily on behalf of the Public of the Island and a price was determined by the Board of Arbitrators pursuant to the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961. The respondent then sought an order that the appellant Committee pay its costs incurred in the arbitration, including its legal costs, since the Board had made no order in that respect. The Royal Court (Hamon, Deputy Bailiff) ordered that its legitimate expenses, including legal costs reasonably incurred, should be paid by the appellant since by art. 14(2) of the 1961 Law "the fees of the Board and all expenses shall be paid by the acquiring authority" and "expenses" included legal costs. The court did not go on to consider whether the respondent's costs were also payable under art. 9(1)(g) of the 1961 Law, by which "compensation for ... any other matter not directly based on the value of land" was left open. This judgment is reported at 1996 JLR 68. In the same Order of Justice, the respondent claimed that it was entitled to interest on the sum awarded (which had not yet been quantified by the Judicial Greffier). This claim was dismissed (in proceedings reported at 1996 JLR 254).

The appellant appealed against the award of costs and the respondent appealed against the refusal to award interest. The appellant submitted, inter alia, that (a) the words "all expenses" in art. 14(2) covered only expenses incurred by the Board and not those of the respondent; were this not the case, the acquiring authority in compulsory purchase proceedings would always have to pay the legal costs of the owner, no matter how unreasonably incurred, which was not the intention behind the 1961 Law; (b) similarly, if such a claim were allowed, it would be left to the Greffier to tax the costs, which would be both inappropriate and contrary to law because under r.9/7(1) of the Royal Court Rules 1992, the Greffier only had power to tax in cases (i) which had been heard before the Royal Court; or (ii) in which the court had made an order for the taxation of any other costs, neither of which were true in the present arbitration proceedings; (c) a claim for costs of contesting a compulsory purchase was not a matter envisaged by art. 9(1)(g); and (d) because the claim for costs must fail, there could be no interest thereupon.

The respondent submitted in reply, inter alia, that (a) because art. 14(2) referred to the "fees of the Board and all expenses," it was clear that "all expenses" referred to expenses other than those of the Board itself, which had to include the legal costs of the owner of the land; this did not require that the acquiring authority pay all costs, no matter how unreasonably incurred, because the implication of art. 14(2) was that only all reasonable costs be paid; (b) in this way, if the costs payable were not agreed, they could be taxed in the normal way by the Greffier; (c) in the alternative, its costs were payable within art. 9(1)(g) of the Law, in particular, because the purpose behind the Law was to compensate the owner completely for the land sold, which would not be the case if its legal costs were not included; and (d) although not yet quantified, there was a judgment debt in its favour once the court had found it to be entitled to its legal costs, upon which it was proper to award interest.

Held, allowing the appellant's appeal and dismissing the respondent's appeal:

(1) The respondent's legal costs incurred in the arbitration proceedings could not be recovered because the "fees of the Board and all expenses" to be paid by the acquiring authority under art. 14(2) did not include the legal costs, however legitimate, of the owner of land compulsorily purchased; indeed, such costs were not recoverable under the 1961 Law at all. The "expenses" referred only to the expenses of the Board itself and any payments made or liabilities incurred to enable it to perform its duties under the Law. In view of the nature of these matters envisaged as "expenses" under art. 14(2), it was unnecessary that the phrase "all expenses" be impliedly limited to all "reasonable" expenses in the manner suggested by the respondent (page 326, line 29 - page 328, line 6; page 329, line 21 - page 330, line 2).

(2) In any case, it would be both inappropriate and without legal basis to require the Judicial Greffier to tax an...