National Trust v Planning Appeals Tribunal

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 26 February 2002
• Court: Grand Court (Cayman Islands)
• Date: 26 February 2002

Grand Court

(Sanderson, J.)

NATIONAL TRUST FOR CAYMAN ISLANDS

and

PLANNING APPEALS TRIBUNAL, CENTRAL PLANNING AUTHORITY and HUMPHREYS (CAYMAN) LIMITED

W.L. DaCosta for the appellant;

D.S. Schofield for the third respondent.

Cases cited:

(1) Awwad v. Geraghty & Co., [2001] Q.B. 570; [2000] 1 All E.R. 608, distinguished.

(2) de Lasala v. de Lasala, [1980] A.C. 546; [1979] 2 All E.R. 1146, followed.

(3) Miller v. R., 1998 CILR 161, referred to.

(4) Quayum v. Hexagon Trust Co. (C.I.) Ltd., Grand Ct., 2001, CILR 161, referred to.

(5) Thai Trading Co. v. Taylor, [1998] Q.B. 781; [1998] 3 All E.R. 65, followed.

(6) Wallersteiner v. Moir (No. 2), [1975] Q.B. 373; [1975] 1 All E.R. 849, considered.

Legislation construed:

Judicature Law (1995 Revision) (Law 11 of 1975, revised 1995), s.24(2):

‘Where in any proceedings in any court an advocate has been employed or other costs or charges have been incurred then . . . the awarding of such costs and charges shall be in the discretion of the court which may, by its judgment, award them to the successful party in accordance with the prescribed scale.’

Penal Code (1995 Revision) (Law 12 of 1975, revised 1995), s.2(a):

‘Nothing in this Law shall affect-

(a) the liability, trial or punishment of a person for an offence against the common law or any other law in force in the Islands . . .’

Attorneys-at-Law-remuneration-conditional fee agreement-valid and enforceable subject to court”s approval and taxation of costs-objections based on champerty and maintenance inapplicable if no agreement to share court”s award and no premium on fees if successful-representation of meritorious causes on conditional fee basis to be encouraged

Jurisprudence-precedent-English Court of Appeal-decisions not binding on Grand Court, though of persuasive authority-local circumstances may require that common law be developed differently in Islands

The appellant appealed to the court against a decision of the Planning Appeals Tribunal.

The Planning Appeals Tribunal dismissed the National Trust”s application for a declaration that the Central Planning Authority had unlawfully delegated its discretion in granting planning permission to the third respondent subject to the approval of the Department of Environment and Planning. The Grand Court allowed the appellant”s further appeal, holding that the Authority had a duty to reach an independent decision. The proceedings are reported at 2000 CILR 521.

The third respondent applied for an order that the appellant was not entitled to its costs of the proceedings, since the appellant had no contract with its counsel for the payment of his fees or, alternatively, that a conditional fee agreement contract existed, which was unenforceable or void, being contrary to public policy.

The appellant submitted in reply that (a) since it was a non-profitmaking, self-funding organization established for the public good for which counsel had agreed to act on a no win, no fee basis, public policy concerns relating to maintenance and champerty did not apply to the present case; and (b) the English authorities in which such arrangements had been held to be unlawful were inapplicable here.

Held, awarding the appellant its costs:

(1) The court was satisfied that the appellant”s counsel had agreed not to charge any fee unless the appellant were successful, and if so that fee would not exceed the amount of taxed costs (para. 3).

(2) Subject to the approval of the court (which could impose checks and conditions) and to taxation by the Registrar as to reasonableness, conditional fee agreements were not against public policy. The objection based on maintenance and champerty assumed that the arrangement entailed a division of the financial rewards of an action between the successful party and the maintainer, the concern being that counsel should not acquire a personal interest in the outcome of litigation which might conflict with his duties to advise his client in an impartial way and to present his case with fairness and integrity. English case law to the effect that conditional fee agreements were unlawful had been heard in the context of the prohibition on contingency fees in the Solicitors” Practice Rules 1990. It recognized that contingent fees (by which a proportion of the court”s award was shared) and so-called ‘conditional uplift’ fees (by which a premium was added to the normal fee in the event of success) were more objectionable than ordinary conditional fees (the arrangement here). Moreover, although they were of persuasive authority, such decisions of the English Court of Appeal were not binding on the Grand Court, particularly where local circumstances dictated that the common law should be developed differently here (paras. 5–7; paras. 10–11; para. 16; para. 19).

(3) The fee agreement was not void or unenforceable. The appellant had no...