1999/117 - Picot v Veka AG [1999] UR 117 (28 June 1999)

Application by the Defendant/APPELLANTS, under Rule 15 of the Court of Appeal (Civil)(Jersey) Rules, 1964,

for a stay of execution of the costs order in the court below and of the taxation of the said costs, pending

determination of the appeal.

Mr T A Picot on his own behalf and as a director of the first, second and third Defendants/Appellants.

THE BAILIFF: This is an application by the appellants in this cause for a stay of the Order of the Royal Court dated 13 December 1998, ordering the payment of the costs of that hearing by the appellants. The appellants further apply for a stay of the taxation of the costs pending appeal.

Mr Picot, who represented himself and the three other appellants, told me that the principal ground for seeking a stay of the taxation and payment of the costs was that the respondent was a foreign corporate body. He asserted therefore that if the appellants were to win the appeal and the costs of the hearing below had already been paid to the respondent it might be difficult to recover those costs. Mr Picot drew attention to the fact that there was some question as to whether the respondent in this case was the appropriate party to the action or whether it was some different but related legal entity.

Mr Thacker for the respondent submitted that there was no local authority directly in point. He did, however, draw my attention to a passage in the Rules of the Supreme Court (1999 Ed’n) Vol. 1, O. 62/30/9 where the editors under the heading "Stay of taxation pending appeal" state:

There is then a reference to the case of Minnesota Mining & Manufacturing Company & Anor -v- Rennicks (UK) Ltd & Ors [1992] RPC 331. Mr Thacker relied upon a passage from the judgment of Aldous J in that case where the learned Judge stated:

"Costs

Under my order, the defendants will have to pay the majority of the plaintiffs’ costs of the action and counterclaim. I understand that the plaintiffs’ costs exceed £2 million. Taxation of the plaintiffs’ costs will be expensive and difficult. For the purpose of this judgment, I believe it right to assume that after taxation the defendants will have to pay between £1 and £2 million, say, £1.5 million.

The defendants submitted that the order for taxation and payment should be stayed, as the result of the appeal could mean that the costs of the taxation would be wasted. That is correct in that a successful appeal is likely to reverse the order as to costs that I made. The practice is that an order for taxation and payment of costs is normally ordered providing that repayment is secured. In this case, the plaintiffs accept that any money ordered will be paid to their solicitors upon their solicitors and their joint undertaking to repay it if so ordered. Thus, repayment will be made if necessary.

I conclude that the defendants have not made out any special circumstances for staying the order for taxation. It may turn out that the costs will be wasted, but the court can ensure that the plaintiffs pay the defendants reasonable costs. Further delay in taxation could mean that the plaintiffs would never recover their costs. I conclude that no stay should be granted."

Mr Thacker also drew my attention to a judgment of this Court in Jean v Murfitt (24 September 1996) Jersey Unreported CofA where the Court did in fact stay the order for costs pending the determination of Mr Murfitt’s petition for leave to appeal to the Judicial Committee of the Privy Council.

No authority was, however, cited in that judgment and it appears that the Court exercised the discretion which it undoubtedly has on the particular facts of that case.

Mr Picot in this application has drawn to my attention no special circumstance which, in my judgment, ought to persuade me not to order the process of taxation to follow its ordinary course. Mr Thacker has undertaken both on his own behalf and on behalf of the respondent that the monies should not be released to the respondent in Germany until the outcome of the appeal. That appears to me to constitute sufficient security so far as the appellants are concerned. The Greffier will note that undertaking in the Act of the Court and the application of the appellants is accordingly dismissed.

Minnesota Mining & Manufacturing Co & Anor -v- Rennicks (UK) Ltd & Ors [1992] RPC 331.

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