Access to justice and the costs of litigation are items high on
the agenda for the States, the judiciary and the legal profession
and are currently the subject of review and consultation. Out of
that, the Court has recently taken a further step to bringing
efficiency to the litigation process and to facilitating the speedy
recovery of costs by a party who succeeds at a hearing prior to
Before it gets to a full-blown trial in front of the Royal
Court, a civil claim will almost invariably involve contested
applications heard by lower-court judges known as the Royal Court
Master or Judicial Greffier. For instance, those applications might
concern the disclosure of documents or applications to strike out
parts of the claim. The costs of those interlocutory battles can
rack up. The 'taxation' process, by which the amount of
costs recoverable by the winner of the particular battle would
historically be assessed, could itself get quite expensive and
complex, with the parties waiting a long time for a conclusion.
Ultimately, the winner of an application could have found
themselves out of pocket for a long time.
By a new practice direction effective from 5 January 2015 [https://www.jerseylaw.
in connection with contested hearings before the Master/ Greffier
lasting not more than one day the rules have changed inasmuch as
the judge is now under an obligation immediately to assess the
amount of costs to be awarded to the winner, unless in all the
circumstances he considers it would be inappropriate to do so (and
one may expect the 'unless' exceptions to be rare). Parties
who hope or expect to win must go armed with and be ready to
justify a summary schedule of the costs they intend to claim,
otherwise the judge may take a failure to do so into account when
dealing with costs. Although this summary assessment procedure is
much abbreviated as compared with the taxation regime, the
Master/Greffier will have regard to taxation principles when
deciding the amount of costs to be awarded.
It must be acknowledged that the new practice direction does not
establish a summary assessment power for the first time: a similar
one for interlocutory hearings before the Master/Greffier was
introduced by earlier practice direction in February 2009 and, more
generally, the Royal Court has the power to assess costs summarily
at the invitation of the parties. But up to now those powers do not
seem to have been much deployed: the February 2009 direction was
watered down as compared with the new one, requiring the
Master/Greffier merely to consider whether to make a summary
assessment and, in practice, such assessments were uncommon.
The new practice direction ought to enable winners to recover
costs much more quickly and easily. Further, and as apparently
intended by the Royal Court Rules Review Group, the now clear and
present threat of summary assessment may further deter litigants
from bringing unnecessary applications.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The claim followed the conclusion of two years of litigation (ORD 12/0035 & ORD 12/0034) between the parties in respect of the Bank's contractual claim for amounts owed by TSEL to the Bank pursuant to certain business loans.
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