Court of Appeal
23rd November, 1998
Before: J M Collins Esq Q C (President)
R C Southwell Esq Q C and
M G Clarke Esq Q C
Between (1) Mayo Associates S.A.
(2) Troy Associates Limited
(3)TTS International SA Plaintiffs
And (1) Cantrade Private Bank Switzerland (C.I.) Limited
(2) Touche Ross & Co Defendants
(being the persons listed in Exhibit A to the Order of Justice)
And (1) Robert John Young
(joined at the instance of the First Defendant)
(2) Anagram (Bermuda) Limited
(joined at the instance of the First Defendant)
(3) Myles Tweedale Stott
(joined at the instance of the First Defendant)
(4)Michael Gordon Marsh
(joined at the instance of the First Defendant)
(5) Monica Gabrielli
(joined at the instance of the First Defendant)
(6) Touche Ross & Co
(joined at the instance of the First Defendant)
(7) Cantrade Private Bank Switzerland (C.I.) Limited
(joined at the instance of the Second Defendant) Third Parties
Appeal by the Plaintiffs against the Order of the Royal Court of 29th May, 1998, dismissing their appeal, under Rule 15 (2) of the Royal Court Rules, 1992, against the Order of the Judicial Greffier of 3rd February, 1998, on an application by the First Defendant for specific discovery of various documents by the Plaintiffs and the third, fourth, and fifth Third Parties.
Advocate P C Sinel for the Plaintiffs and the Third Parties
Advocate A R Binnington for the Defendants
JUDGMENT
THE PRESIDENT: By their Amended Order of Justice the Plaintiffs in this action seek damages and other relief in very substantial sums against two Defendants who in their turn have joined seven Third Parties.
It is not necessary to do more by way of describing the general nature of the proceedings than to quote the initial words of the Greffier Substitute (the Greffier") in giving his reasons for making the order for specific discovery which became in part the subject of an appeal to the Samedi Division and then to this Court.
"The first plaintiff acted as trustee in relation to investments being made by various investors in a scheme which was based around geared speculation in the foreign exchange markets and the third plaintiff their nominee company in whose name various bank accounts representing the invested monies were held. The second plaintiff was the company responsible for the running of the investment programme.
The first defendant is a bank in which the moneys relating to investments were held in Jersey and which handled the foreign exchange dealings. The third Third Party is a director of the first plaintiff and the beneficial owner thereof and the fourth and fifth third parties are directors of the second plaintiff and between them the beneficial owners thereof. There are numerous allegations against the first defendant relating to the assertion that although the investment programmes were losing money the impression was being given to the investors that the programmes were profitable"
The order for discovery in question was obtained (subject to certain deletions) at the instance of the First Defendant, Cantrade, (the Respondent to this appeal) against the Plaintiffs and the Third, Fourth and Fifth Third Parties (together being the Applicants in this appeal), the Order of the Greffier having been dated the 3rd February 1998 and being supported by a fully reasoned judgment. There was then an appeal by the unsuccessful parties to the Samedi Division of the Royal Court in respect of certain items, which appeal was dismissed on the 29th May 1998 and again a reasoned judgment was given.
The Greffier had ordered discovery as to items contained in paragraphs 1,2,4,6,7 & 11 of the Summons with some amendments, and by the time the matter came before the Royal Court on appeal the Applicants on the 16th April, 1998, had served an affidavit giving specific discovery as to items 7 & 11, and by letter of the 28th May, 1989, had undertaken to comply with items 4 & 6 . Thus items 1 & 2 only were left as a live issue before the Samedi Court.
No application to the Royal Court was made for leave to appeal to the Court of Appeal, and the grounds of appeal were stated in bare terms, asserting that the documents were irrelevant and that all relevant documents had been disclosed. An amended Notice dated the 6th November, 1998, was accompanied by an application for leave of the same date, but were never the subject of an application to us.
On the 9th September, 1998, Mr. Stott one of the Applicants swore and served a further affidavit on their behalf, by which they in substance gave discovery in respect of those remaining items 1 & 2, dividing the same up into 28 categories, deposing as to some that the same were not and never had been in existence and as to others that they were of no relevance.
The Respondent both in correspondence and in this Court has accepted that this affidavit is an adequate compliance with the Order, but subject to the observation that it will reserve the right to challenge it at the trial, having doubts at least as to its veracity.
Thus the Respondent, while commenting on what it alleged were certain formal defects in the notice of appeal to this Court, submit that the appeal, to use Mr. Binnington’s words, "falls away".
Despite the foregoing, Mr. Sinel has been so bold as to apply to this Court for the costs of the Appeal. He has submitted that the affidavit of Mr. Stott, who is the Third Third Party, of the 16th April, 1998, had already deposed to the twin contentions of irrelevance and non-existence of the classes of documents embraced by the two items. It was his contention before us that the affidavit was no more than a "forensic disassembly" of the items which had been spoken to by Mr. Wilson in his affidavit which was the basis of the Greffier’s Order.
We reject that argument in that Mr. Stott’s affidavit of the 9th September, 1989, was couched in terms which made it obvious that it was in express compliance with the Order as upheld in the Royal Court. We refer to the terms of the Affidavit itself as follows:-
"2. This affidavit is sworn in respect of the Order of the learned Greffier dated the 3rd February 1998, the Order of the Royal Court of 29th May 1989 and the Appellants appeals from those orders.
5. In so far as the remaining categories ...are concerned we are satisfied after due and mature reflection, having examined very carefully these requests and having taken legal advice, that these documents have no relevance to the matters in issue in this litigation"
Having regard to the effect of the authorities cited before and referred to by the Greffier and the Royal Court we are satisfied that the Applicants thereby complied with the Orders referred to. We further refer to the fact that Mr. Stott’s earlier affidavit of the 16th April 1998 had raised points of contention (for example as to the period of time relevant to certain of the documentation) which were not accepted by the Greffier, so that there was a change of situation by the time that the affidavit of the 9th September 1998 was sworn.
Mr. Sinel raised a surprising point as to the terms of the Greffier’s Order in that it referred to discovery by List; we reject his suggestion that it was, in his words, a "nonsense", in that it called for discovery by list. The form of Order is standard and is appropriate whether or not points of relevance or non-existence had been raised in answer to the application. Further this contention is not within the terms of the unamended Notice of Appeal, which was itself so sparse in its terms as to give little guidance as to the reasons why the Royal Court were said to have fallen into error in the respects outlined in a few lines, nor of the amendment which was never in fact allowed.
For the above reasons we have rejected the Applicants’ application for costs and have awarded costs of the appeal to the Respondent.
Finally, by Article 13(e) of the Court of Appeal (Jersey) Law 1961 it is provided that, with certain specified exceptions, no appeal is to lie against an interlocutory Order without the leave of the Court whose decision is sought to be appealed from or of the Court of Appeal. The Applicants made no such application to the Royal Court. In view of the circumstances described above it is not necessary for this Court to decide whether the making of an unsuccessful application for leave to appeal to the lower Court is a necessary precursor to the making of an application to this Court; it is certainly desirable and it may well be that failure to make such an application to the lower Court may be held to be a relevant factor in the exercise of the discretion of this Court.
No Authorities