XY and A Limited v Chief Officer of the States of the States of Jersey Police

It is also clear that from an early stage the Applicants were aware that no action was going to be taken in relation to the material which had been seized. It is true that it was many months before the Applicants were given full details as to how their devices and documents were treated as a result of the execution of the warrants, but they had been told at an early stage that work on the devices and documents had stopped and indeed the original devices were returned shortly after the letter of 27 th April.

Furthermore, by 6 th July, the Law Officers' Department had made it plain that not only had the items been returned and proceedings would be issued under Article 16, but also that it proposed to vacate the proceedings under Article 15 which, Advocate Meiklejohn asserted, served no practical purpose. It is true that at that stage there was no offer of costs, but there was a without prejudice communication asking what damages the Applicants would seek in respect of the wrongful application for the warrants. This offer was rejected on the basis that there was no clarity as to what had happened to the material, no admission of illegality, and no admission of misleading the Court. Subsequently, on 14 th July, XY indicated the level of damages which might ultimately be sought.

In a 'Without prejudice save as to costs' letter of 4 th August, the Law Officers' Department confirmed to Advocate Heywood that it was accepted the warrants had been unlawfully obtained because of the likely presence of special procedure material, and Article 16 should therefore have been used. It was also confirmed that no copy of the materials in question had been retained. It was agreed that a sum in damages sought by XY, plus reasonable costs would be offered, albeit it was conditional upon the withdrawal of the judicial review proceedings, a similar agreement with A Limited, and Public Finance Law approval, which was necessary as a matter of internal procedures, because the sum was to be paid by way of voluntary settlement of the claim for damages.

In very broad summary, the responses both from Advocate Heywood and from Advocate Nicholls were to refuse the offer made unless:

I do not propose to go over the exchanges of correspondence between August and November in minute detail. Both parties moved their positions from time to time in the course of those exchanges. Both XY and A Limited ultimately provided more detailed breakdowns of their legal costs. XY indicated that his costs were in the region of £170,000.00. A Limited indicated that its legal costs were in the region of £175,000.00.

I well understand why Advocate Heywood did not want me to look at this correspondence. The extent of the costs claimed to have been incurred on an indemnity basis is, in the modern phrase, eyewatering. Costs at this level would inhibit any normal litigant from going to Court and having access to justice. The risk of such a costs order might inhibit a public authority such as the police from doing their duty to investigate crime. If it is right, which it undoubtedly is, to expect the police and other public authorities to act competently and lawfully, it is also right to acknowledge that the courts should not lightly pursue policies in costs which would have the effect of deterring the police and other public authorities from and not encouraging them to carry out their duties. I will apply the usual rules in costs, and I do not take the view that the police should here be faced with an indemnity costs order simply because they are the police, or because their recognition of a mistake in their application and thus its unlawfulness was later than it might have been, or because the search warrant involved XY's home. The extent of the costs claimed leave me unsurprised that there has been no agreement as to the basis on which they should be awarded.

I add that for my part, if I were the taxing officer - and I am not and I do not pretend to make any findings in that respect - I would take some persuasion that, whether on an indemnity or on a standard basis, it was reasonable to incur costs at this level, particularly so given that it was plain and obvious from at least the first week of August that the lawfulness of the warrants could not be maintained. Indeed, that prompts the question as to why A Limited resolved that it would apply to intervene in the proceedings. One would have expected the Respondent to agree that if the warrant was found to be unlawful as against XY, then it would also be set aside as against A Limited. Be that as it may, it was said to me that there were separate interests which XY and A Limited had; but the arguments which they would both run were in large measure identical albeit the claims for damages could have been in a different amount.

I accept that the nature of the underlying business activities which were being investigated is such that there is a high degree of cross-border activity which may require the coordination of legal advice in different jurisdictions. However, these judicial review proceedings were capable not only of being self-contained in Jersey but also capable of being successfully managed within a narrow compass; and while it may turn out that the costs have been properly incurred, the extent of them suggests an enquiry as to whether the Applicants did not exercise much if any restraint in relation to incurring costs in the litigation or whether the costs claimed were expended on wider issues such as the effect and extent of the sanctions, the lawfulness of the Minister's order or the saisie . Whatever the explanation, that was their choice, and it was and is a matter between them and their lawyers. It was not a choice for which the Respondent should necessarily pay bearing in mind the only costs awarded are those of and incidental to the proceedings. On taxation, if costs cannot be agreed, it will be for the Assistant Judicial Greffier to strike the right balance in his award in the light of that consideration and the overriding objective.

The consent order means that as a minimum I must award standard costs to be paid by the Respondent to each of the Applicants up to the date of the consent order. This order I make.