Court of Appeal
4 June 1998
Before: Sir Philip Bailhache, Bailiff, Single Judge
Between The Greffier of the States Applicant
And Les Pas Holdings Ltd The Landowner
And The Waterfront Enterprise Board The Intervener
In the matter of the Compulsory Purchase of Land (Procedure)(Jersey) Law 1961
And in the matter of the application to the Royal Court by the Applicant for a vesting order of part of the foreshore West of Albert Pier St Helier
And in the matter of an application to the Royal Court by the Landowner for an adjournment of the vesting order
Application of the Landowner for leave to appeal against the Order of the Royal Court of 4th June, 1998, directing that the vesting order application be heard at 9.00.am. on 5th June, 1998; and for a stay of the said Direction until the reasons for refusing the Landowner's application for an adjournment are delivered by the Royal Court.
The Solicitor General for the Applicant
Advocate RA Falle for the Landowner
Advocate M StJ O' Connell for the Intervener
JUDGMENT
THE BAILIFF The hour is late, and I do not intend to gild the lily. The issue which I have to determine is, however, one of importance, and it is necessary to set the scene on the submissions which I have just heard sitting as a single Judge of the Court of Appeal. I draw for this background on the very helpful chronology prepared by the Solicitor General.
In November, 1997, there was lodged a proposition for compulsory purchase of an interest in land said to belong to Les Pas Investments Limited, to which I shall refer as the "Company". The Company wrote to the Chief Adviser of the States taking issue with the proposition which had been laid before the States. The proposition was withdrawn and in January, 1998, a new proposition was lodged. That proposition was debated on the 3rd February,1998, and the States decided to their exercise powers of compulsory purchase of the interest of the Company, such as it might be.
The three statutory notices were served on the Company at the prescribed intervals on the 11th March, 5th May, and 18th May, 1998 respectively. The third notice gave the Company the necessary warning of the date when the application would be made for the vesting order, which was 29th May.
At all material times the Company asserted an intention to challenge the vires of the decision of the States and the application for the vesting order.
On 29th May 1998, the Greffier of the States applied for the vesting order. On the same day the Company obtained an injunction in an Order of Justice preventing the Greffier from proceeding further until the determination of a representation which was appended to the Order of Justice, or until further Order of the Court. The representation itself sought judicial review of the decision of the States.
The Royal Court gave leave for the Waterfront Enterprise Board to intervene, and the Board did in fact do so. After hearing argument from the parties the Court refused the application for judicial review, gave the Company leave to oppose the application for a vesting order, fixed 4th June for the hearing of the application and the opposition to it, and fixed a timetable.
By that timetable affidavits were to be filed by noon on 2nd June, and skeleton arguments and authorities were to be filed by noon on 3rd June. The Company did not object to the timetable and did not seek to appeal the order .
On 4th June, the Company applied to the Royal Court for an adjournment. The Company was given - I think it is fair to say - every opportunity to develop its application in full. The hearing began at 10.00 o'clock this morning, when the application was made. At 10.55, Counsel for the Company was granted an adjournment of his application to adjourn the hearing in order to have time to clarify what further evidence he would wish to submit The Court returned at 11.20.am. At 11.40.am., the Court adjourned further until 2.30.pm, requiring Counsel for the Company to put in an affidavit specifying the further evidence which was to be sought.
At 2.30.pm the affidavit was not ready and the application for the adjournment eventually resumed at 3.45pm. The affidavit, which was then available, was studied in Chambers by the Court and subsequently submissions were made by Counsel in open Court, pursuant to the Company's application for an adjournment.
The Court then announced its decision. I have not listened to the tape recording because both the Solicitor General, and Counsel for the Waterfront Enterprise Board and the Company were in substantial agreement as to what happened. The Deputy Bailiff announced the decision of the Court to refuse the application for an adjournment, and further announced that the hearing would continue at 9.00am tomorrow. The Deputy Bailiff indicated that the Court's reasons for that decision would follow.
Mr Falle, Counsel for the Company, asked for leave to appeal, the Deputy Bailiff stated that leave was refused, and the Court withdrew. Mr Falle submitted that that withdrawal was abrupt, and did not give him the opportunity to pursue any further submission. That was not the recollection of the Solicitor General nor of Mr O'Connell. It is unnecessary to resolve that difference of recollection, although it is probably fair to say that Counsel were in broad agreement that it had been a difficult day.
The Company now applies, through Counsel, for leave to appeal against the Order of the Royal Court that the hearing proceed at 9.00am tomorrow, and further asks for a stay pending delivery by the Deputy Bailiff of the Court's reasons for refusing the Company's application for an adjournment
Mr Falle emphasised that he was not applying for leave to appeal against the refusal of the adjournment; he could not do that - he submitted - because without the reasons for the Court's decision, the Company could not decide whether there were grounds for appeal.
The Solicitor General submitted that no order was made for the hearing to continue at 9.00am tomorrow because that was merely a consequence of the Court's order to refuse the application for the adjournment. With some hesitation, I have concluded, that the Court's order can be divided into the two component parts for which Mr Falle has argued. In my judgment there was an order that the hearing continue at 9.00am tomorrow, and that order is one which it is open to the Company to seek to appeal.
The next question is whether I should, in the exercise of my discretion, grant the application and order a stay. Mr Falle submitted - although this did not emerge clearly at first - that the effect of the Company's application was narrow. The effect would be to prevent the hearing from continuing until the reasons of the Royal Court had been given. The delivery of the reasons would bring the stay to an end, and it would then be open to the Company to consider whether it should apply again to a single Judge of the Court of Appeal for leave to appeal against the refusal of the adjournment, and it would equally be open to the Solicitor General to apply to the Royal Court for a date for the continuation of the hearing.
I do not, of course, know when the Royal Court's reasons will be delivered, but the likelihood is that they will be delivered in short order. The delay necessarily involved in granting the Company's application could therefore be fairly short.
Mr O'Connell argued that this would achieve, by 'sleight of hand' as it were, what the Company had been unable to achieve in its application for an adjournment. The Royal Court had exercised its discretion after a long and careful consideration, and the exercise of that discretion should not be lightly overturned. Matters of case management were, he submitted, for the trial court and not for the Court of Appeal. Although there had been some suggestion that the hearing might resume on the 8th and 9th July, that could not be certain, because there were unresolved issues between the parties as to whether discovery and other interlocutory orders should be made.
These are indeed powerful arguments. At the end of the day, however, I am persuaded that serious issues are at stake, and that the Company should be permitted to consider whether it has grounds for seeking leave to appeal against an Order, which from its perspective, would prevent it from putting its case against the making of a vesting order, adequately and properly to the Royal Court.
I do so only on balance, because it is clear from the chronology which I have recited that the Company had ample opportunity to prepare to mount its challenge to the making of the vesting order, and failed to take advantage of that opportunity. Nevertheless, I am persuaded that, in the interests of justice, I should grant the Company's application for leave to appeal against the order that the hearing proceed at 9.00am tomorrow and furthermore order a stay pending the delivery by the Royal Court of its reasons for refusing the Company's application for an adjournment.
No Authorities