Stephen John Marett v Jonathan Charles Marett

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Matthew John Thompson
• Judgment Date: 28 April 2014
• Neutral Citation: [2014] JRC 100A
• Date: 28 April 2014

[2014] JRC 100A

ROYAL COURT

(Samedi)

Before:

Advocate Matthew John Thompson, Master of the Royal Court, sitting alone

Between

Stephen John Marett

Plaintiff

and

Jonathan Charles Marett

Defendant

Advocate N. F. Journeaux for the Plaintiff.

The Defendant appeared on his own behalf.

Authorities

Pell Frischmann v Bow Valley & Ors [2007] JLR 479 .

C v P-S [2010] JLR 645 .

Marett v Marett [2008] JLR 384 .

Select Health (UK) Limited v Crompton Health Care Limited & Anor [2010] EWH C3055 .

National Westminster Bank Plc v Rabobank Bank Nede [2007] EWHC 3163 .

Costs — costs judgment and an order for possession.

THE MASTER:

Introduction

1 This judgment follows on from the main decision given by me in relation to Stephen's application to strike out Jonathan's counterclaim and for summary judgment in respect of Stephen's application for possession of the Property. For ease of reference I will use the same definitions as in the main judgment.

2 The two issues I have to consider are:–

• (i) What order for possession should I make;

• (ii) Costs.

3 I will deal with each of these in turn.

An order for possession

4 Stephen in his application seeks an immediate order for possession. By an affidavit dated 2 ^nd April, 2014 he asks for an order for Jonathan to vacate the Property within 48 hours. He also argues that he is suffering loss of rent of £2,000 per month in relation to the Property. While this is a matter I have decided is arguable for the period Jonathan has been in occupation of the Property up to now, as Stephen has succeeded in his application for possession, if an order for possession is stayed, Stephen will not be able to let the property or have the benefit of it.

5 In relation to the location of the Property, this adjoins the office premises of Stephen. Stephen in his latest affidavit also identified a number of incidents that have occurred since 2012, including subsequent to the handing down of a judgment by me in draft, where he complains about the conduct of Jonathan's and his partner Rita Bell. Some of those complaints have been referred to the Police. Also attached to Stephen's affidavit were letters sent from Sinels about some events in 2012 together with correspondence in response from Jonathan and Rita Bell where they dispute the allegations.

6 For the purposes of exercising the discretion vested in me, it is not necessary for me to decide the respective claims and counterclaims of Stephen, Jonathan and his partner. If it was not already clear from my previous judgment, it is clear that the relationship has broken down in a significant way and will not be repaired in the near future, if at all. As long as Stephen and Jonathan are in close proximity to each other the more likely it is that further incidents of one kind or another will occur. I have therefore reached the view that Jonathan should leave the Property sooner rather than later.

7 In exercising my judgment, I have also reminded myself that the basis of Jonathan's occupation is a licence. He has never therefore enjoyed the security of tenure enjoyed by a tenant. Against that, Jonathan has been in occupation of the Property since the beginning of 2008. Although he occupied the Property under a licence, to all intents and purposes, the Property has been his home since that time. I do not therefore consider it realistic to expect to him to vacate the Property within 48 hours, as asked for by Stephen.

8 Ultimately, what I am required to do is to strike a balance between Stephen's desire to have the Property returned to him sooner rather than later and a need for Jonathan to find a new home. The decision I have reached is that Jonathan must vacate the Property by 12 noon Friday, 2 ^nd May 2014. This allows Jonathan one month to move out. In reaching this view I have taken into account the fact that at the conclusion of the submissions to me on 20 ^th March, 2014, I warned Jonathan that if Stephen's application was successful (and I had not reached any decision at that time) then I would deal immediately with an application for possession. The possibility of an order for possession being made has therefore been known to Jonathan for nearly 2 weeks.

9 I also require Jonathan to pay £1000 on account of rent into court pending assessment of what rent might be due to Stephen from the expiry of the licence until 2 ^nd May, 2014. I do not consider it fair for Jonathan to pay nothing at all for the next month. I have therefore ordered him to pay half the amount claimed. If Jonathan cannot pay this sum then he must apply to me with an affidavit of means before 2 ^nd May, 2014, setting out his financial position. In making such an application, I will consider any application by Jonathan that any such affidavit will not be shared with Stephen and his legal adviser, on the grounds that it may contain commercially sensitive information. Stephen will however be entitled to be made aware of such an application through Advocate Journeaux and will be entitled to address me on it, albeit without seeing the affidavit itself, until a ruling is made.

10 If Jonathan does not vacate the Property by 12 noon on Friday, 2 ^nd May, 2014, Stephen will be able to enforce the order for possession I have made but only with the assistance of the Viscount's Department. Stephen must not otherwise seek to take the law into his own hands by seeking to evict Jonathan himself or to repossess the Property. In the meantime, both parties as far as possible should not seek to communicate with each other, apart from arrangements for possession, and there should not be any repetition of the matters that led to the allegations referred to in Stephen's latest affidavit.

11 Any failure by any party to adhere to the orders I have made may also be a contempt of court where the Royal Court is entitled to impose whatever sanctions it sees fit, including imprisonment.

12 Jonathan has indicated that he may appeal the main decision and this judgment. If he does then he will have to make an application to me for a stay of this order pending appeal. One of the issues that such an application may well give rise to is Jonathan's financial position. Any evidence on Jonathan's financial position should therefore be set out in an affidavit. If Jonathan is concerned that such an affidavit contains sensitive material, then I will adopt the same approach set out in paragraph 9 above. If on such an application, Jonathan has not paid £1,000 into Court, as I have ordered, that is a factor I will take into account in deciding whether or not to grant a stay.

Costs

13 I now turn to deal with the question of costs. It is clear that Stephen has been the successful party and should therefore as a starting point recover his costs.

14 The first application before me is for indemnity costs.

15 Advocate Journeaux contends, by reference to Pell Frischmann v Bow Valley & Ors [2007] JLR 479 and C v. P-S [2010] JLR 645, approving Pell Frischmann, that there is no longer a need for a “special or unusual feature” for the Court to make an order for indemnity costs, although he accepts that there is usually some special circumstance giving rise to the order. He also argues that unreasonable behaviour is enough for an indemnity costs order to be made and ultimately it is a question of what would be fair and reasonable in all the circumstances.

16 At paragraph 25 of Pell Frischmann, Commissioner Page noted:–

“the circumstances in which an award of indemnity costs may, as a matter of discretion, be ordered are less restrictive than they used to be; there must, ex hypothesi, still be something to take the case out of the ordinary, but the range of potentially relevant considerations, as described by Millett, J. (later Lord Millett) in Macmillan Inc. v. Bishopsgate Inv. Trust (11), is considerable and need not involve any finding of a lack of moral probity; the test, in a word, is unreasonableness; the purpose of such an award is to achieve a fairer result for the party in whose favour it is made than would be the case if he were only able to recover costs on the standard basis; in the end, it is a question of what would be fair and reasonable in all the circumstances.”

17 The extract from Pell Frischmann I have just cited was approved by the Court of Appeal C v. P-S At paragraph 8, the Court of Appeal stated:–

“The Commissioner's summary is entirely consistent with the English case law such as Excelsior Comm. & Ind. Holdings Ltd. v. Salisbury Hamer Aspden & Johnson (2), where, in the Court of Appeal in England and Wales, Lord Woolf of Barnes, C.J. said ( [2002] C.P. Rep. 67, at para. 32): “there is an infinite variety of situations which can come before the courts and which justify the making of an indemnity order.”

18 The Court of Appeal also referred to its own earlier decision in Marett v Marett [2008] JLR 384 at paragraph 73 where it stated:–

“A court may make an indemnity costs order only where there has been some culpability, some abuse of process such as deceit, underhanded or unreasonable behaviour, abuse of court procedures, or the submission of voluminous and unnecessary evidence.”

19 At paragraph 12 of its judgment in C v P-S the Court of Appeal stated:–

“We therefore approach the costs contentions on the understanding that in order for an indemnity award to be made there must be something to take the case out of the ordinary and a degree of unreasonableness (of which abuse of process is but an example) but recognizing that there is an “infinite variety” of circumstances where it may be right and proper for the court to make such an award.”

20 Advocate Journeaux contends that the defence put forward by Jonathan was unarguable and therefore must be deemed to be unreasonable. He relied on two cases, Select Health (UK) Limited v Crompton Health Care Limited & Anor...