Costs orders in a party's favour are, of course, always
welcome (by that party). The taxation process, however, can be long
and involved; on occasion potentially resulting in a party having
to wait many months to recover monies due to it pursuant to a costs
In the recent case of Re Centre Trustees (CI)
Limited  JRC 133, the Royal Court examined whether
the time had now come for the courts in Jersey to award interim
payments on account of costs.
Such a power is expressly provided for in the Civil Procedure
Rules in England, but there is no equivalent in Jersey. It was
noted by the Royal Court that in addition to the specific English
procedural rule, the High Court had an inherent power in any event
to make orders for interim payments on account of costs, as part of
its inherent jurisdiction to control its own process. The court
found that there was no reason to presume that the inherent
jurisdiction of the Royal Court was any narrower than that of the
English courts and it thus concluded that it had a similar inherent
jurisdiction to order interim payments on account of costs.
The court noted that in England following recent authorities
this year the general approach of the English courts was to order
approximately one half of the untaxed costs of the successful party
by way of an interim payment. The court accepted that in Jersey it
was not necessary to put forward any special reasons relating to
the circumstances, financial or otherwise of the winning party, in
support of an interim payment. It was sufficient to apply the
general principle that a successful party should not be deprived of
the fruits of any judgment in its favour without good reason.
The court determined that it would be unjust in circumstances
where a plaintiff was bound to recover a minimum sum through
taxation for it not to have the benefit of that amount immediately.
Whilst it was recognised that the successful party would receive
interest on any sums found due following a taxation process it was
felt that as a matter of fairness to the successful party there was
no good reason to keep it out of monies which it was likely to
recover on a conservative basis.
The court thus in Jersey made an award for interim costs. Given
that this was the first occasion, it did so on a cautious basis and
determined that the appropriate proportion of the costs should be
less than 50% of the untaxed estimate. It did so also because the
proceedings had been (quite properly) brought by way of
representation, which does not allege a cause of action but simply
raises an arguable basis for the making of the orders sought.
The court may have believed a more restrictive approach should
be adopted where it was not as appropriate to term one party the
"successful" party and the other the
"losing" party. However, in this case, what the
representor (the trustee of a Jersey settlement) was seeking the
removal of the protector due to an alleged conflict of interest.
Whilst at the hearing the protector eventually consented to that
form of relief it can reasonably be stated that the trustee was
clearly the successful party in relation to the issues raised by
The decision in Centre Trustees, whilst a
relatively straightforward one, is a very welcome and significant
development for all litigants anticipating the benefit of a costs
order. Indeed, the decision (handed down in June 2009) has already
been used as a precedent for a number of other interim costs
Centre Trustees is a further step towards the
acceleration of the determination (and thus payment) of costs
orders following the development, earlier in 2009, for the summary
assessment of costs at the conclusion of certain hearings before
This change was brought in by practice direction (RC09/03) which
provides that at any interlocutory hearing before the Master which
has lasted no more than a day, the Master shall (after making an
order for costs) consider whether to tax the costs ordered by him
by way of summary assessment at the end of the hearing.
This again is a potentially welcome development and will serve
to focus parties' minds when determining whether to make or
indeed resist interlocutory applications. That said, it appears
that whilst the Master is bound to consider whether to make a
summary assessment, he tends more often that not to decide against
a summary assessment.
(Advocate Robertson appeared on behalf of the beneficiaries in
Re Centre Trustees)
This article first appeared in the autumn 2009 issue of the
Appleby Jersey's Resolution newsletter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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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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