J -v- His Excellency the Lieutenant Governor

In other words Commissioner Clyde-Smith was saying in that case that in ordinary civil litigation he might have awarded indemnity costs, but the public function arguments were such that the order would only be made for standard costs.

In my judgment, Advocate Meiklejohn's submission that this means one has to cross the threshold for indemnity costs to get any costs order misconstrues the passage in Commissioner Clyde-Smith's judgment. On the facts of that case, having regard to all the circumstances, Commissioner Clyde-Smith considered that whereas an indemnity costs order might have been justified, he was in fact only going to make a standard costs order. He did so in all the circumstances of that case including the public function principle but that does not mean that there is a general principle that no costs order should be made at all unless the indemnity costs threshold were crossed. In my judgment, that is a different proposition. It may be so in some cases but it will not always be so.

Were it not for the fact that the Respondent was exercising a public function, in my judgment there is no doubt at all that the Applicant would have had standard costs of his application.

In ATF Overseas Holdings Limited v The Jersey Competition Regulatory Authority [2018] JRC 025 , the Court said:-

I might have taken the view in this case that, subject to the considerations in paragraph 11 above, the fact that the Applicant was on legal aid and making a nil contribution towards the costs of the judicial review application was sufficiently significant that no costs order would in fact be made as to do so would breach the indemnity principle, but more importantly, the balancing exercise referred to in ATF would also disentitle the Applicant on legal aid to a costs order. However, Flynn v Reid prevents me from considering this further.

Advocate Meiklejohn relied also on Re T [2012] UKSC 36 , the first costs only case to be heard by the Supreme Court, in connection with contested care proceedings brought by a local authority. At paragraph 34, Lord Phillips, delivering the judgment of the court said this:-

At paragraph 41, Lord Phillips said this:-

And at paragraph 44, he summarised in this way:-

Accordingly, the Supreme Court allowed the appeal and gave clear guidance that costs orders would not be made in similar circumstances in the future.

On the other hand, it is right to note that there have been numbers of cases where costs orders have been made against public authorities where the public authority was taken to court and unsuccessfully defended its position in judicial review proceedings. I say immediately that in my view care proceedings fall into a completely different category from the present. In care proceedings, it is the function of the local authority, or in our case the Minister, to consider the care and protection of children and where it might be appropriate to do so the Minister must invoke the jurisdiction of the court. It is absolutely essential as a matter of policy that the local authority, or in our case the Minister, is not constrained from bringing proceedings to protect children by the fear of an adverse costs order if he should be unsuccessful. If there is financial harm for the successful litigants in those cases who are able to rebuff the contentions of the Minister, that private damage is more than outweighed by the public concern that would follow from the Minister being unwilling to take the necessary legal steps to protect children in court where that seemed to be appropriate. I therefore regard Re T as unhelpful in the issues I now have to consider.

I refer also to the case of Minister for Planning and Environment and another v Hobson [2014] JCA 174 . In that case, an order made by the Royal Court for indemnity costs was set aside by the Court of Appeal on the grounds that there was nothing in the conduct of the proceedings by the Minister that would take the case out of the ordinary so as to justify an award of indemnity costs. In particular, however, the Court of Appeal was faced with a contention from the Minister that, as a Minister and public official, he was in a different position from the private litigant, and that an award of indemnity costs was unlikely to have anything but a negative effect on the department for which the Minister was responsible, increasing expenditure and therefore the burden on the public purse. It appears to me that the Court of Appeal cannot have accepted that submission in full because if it had done so, it would have set aside the costs order in its entirety. However it substituted an order for standard costs. The case demonstrates therefore that there is no reason not to make a costs order against a person exercising a statutory function, even one where the public official concerned was obliged to reach a substantive decision one way or another. Furthermore in my judgment there is a difference between that sort of case, where the public official must reach a decision and the instant case where the public official at its highest has only an obligation to consider whether to take a positive decision and make an order for deportation. The present case is one where the Respondent was not obligated to take any particular step, and any argument that the Respondent should not be penalised in costs for exercising a public function is weaker in such cases.

I accept that the Respondent did have a duty to consider the question of deportation at the end of the Applicant's sentence of imprisonment. I also accept that there is at least a possibility of the Minister who has to take these decisions in future being unprepared to take a controversial decision in circumstances where the departmental budget for the year was under pressure. The arguments which Advocate Meiklejohn raises are in those circumstances very properly raised.

On balance in this particular case, I do not however accept them. There are two reasons which stand individually as well as together. My reasons are as follows:-

I would like to add this, albeit it is not a reason for the costs order made. In making the decision for deportation, it seems reasonably clear that the Respondent applied the rules which arguably might have been applied in the United Kingdom although one would like to think that the human rights considerations there would also have been regarded as more than persuasive. An approach taken by politicians or officials in the United Kingdom does not necessarily translate, however, to an appropriate approach in Jersey. There may be particular insular features which would make that inappropriate, and I give two examples. The first is that the culture and practice of the Portuguese community in Jersey, is frequently not to seek out British nationality although they have been resident in the Island for a very long time and regard Jersey as their home; and the second is that in drugs cases the sentencing regime in Jersey is generally thought to be more severe on the offender than in the United Kingdom and it may well be the case that in such cases the application of the United Kingdom designed four year rule, which is reflected in the current rules on deportation in Jersey needs to be reconsidered.

In the premises, having regard to the particular circumstances of this case, and recognising that in future it is possible that no costs order would be made against the Minister who was unsuccessful in resisting a challenge by way of judicial review to a deportation order, I have exercised my discretion to award standard costs in favour of the Applicant. In default of agreement, the amount of such costs will be ascertained by taxation in the usual way.