Jersey Unreported Judgments

Court of Appeal

10 February 1998

Sir Philip Bailhache Bailiff (President)

J M Collins Esq Q C and R C Southwell Esq Q C

Between David Eves Plaintiff And The Viscount Defendant

Application by the Plaintiff, under Article 13 (e) of the Court of Appeal (Jersey) Law 1961 for leave to appeal from the Order of the Royal Court (Samedi Division) of 20^th June, 1997, dismissing the Plaintiff’s application, under Rule 6/7 (5) of the Royal Court Rules, 1992, as amended, for judgment against the Defendant.

The Plaintiff on his own behalf

Advocate P de C Mourant for the Defendant

JUDGMENT

COLLINS JA: Mr. Eves, having not made any formal application for leave, now applies to this Court for leave to appeal against the decision of the Royal Court of 20^th June,1997, whereby it refused an application by him, for judgment against the defendant.

The short history was that the plaintiff issued a summons on 25^th April, 1997, and served it on the defendant who took the appropriate steps so that the action was brought before the Royal Court and placed on the pending list on Friday, 2^nd May, 1997. Thereafter the plaintiff filed a Statement of Claim on Wednesday, 21^st May, 1997, which was served on the defendant and the defendant’s advocate in accordance with the Royal Court Rules. That service put in train a 21 day period within which the answer should have been served in accordance with the Rules. In fact it was not so served and on Wednesday, 18^th June, the plaintiff wrote to the Judicial Greffier asking to have the matter returned to the Royal Court list on Friday, 20^th June, so that the plaintiff could obtain judgment. Notice was given to the Greffier, as I have said, but it was not given to the defendant. The defendant’s advocate, however, learned of the matter from another list and so, on Thursday, 19^th June, the answer was delivered to the plaintiff. It is accepted by the defendant that it was out of time. The significant fact, though, is that the delivery did take place - and this is acknowledged by Mr. Eves - on Thursday 19^th June. And so it was that on Friday, 20^th June, the plaintiff came to attend the Royal Court to obtain judgment against the background that the answer had been delivered the previous day.

The terms of Rule 6/7(5) of the Royal Court Rules, 1992 provide that:

This Court has, on two occasions, once in relation to a previous rule and once in relation to this rule, explained that where an answer has been filed by the time the plaintiff comes before the Court (as distinct from making an application) to ask for judgment, then his application for judgment must fail because of the terms in which sub-rule (a) is expressed. The requirements of sub-rule (a) are not satisfied, in any case, where an answer has been filed before the application comes to be made in the face of the Court. The two authorities are identified towards the end of my judgment.

I would add that, in this instance, it is accepted by Mr. Eves that he had failed to give notice to the defendant or to the defendant’s advocate. For that breach of the rule he apologises and he says that the same was just an error on his part. He is not so generous so far as the defendant is concerned and has maintained before us that there was a deliberate flouting of the rules by the defendant and a blatant abuse of the Royal Court Rules. For that it appeared on further inquiry that there was no basis whatsoever; those were allegations which should never have been made, albeit by a party appearing in person. Likewise, in the case of the notice of appeal, he made similar remarks addressed to the Royal Court itself and stated that the Royal Court had been biased and prejudiced. There was again no basis for such an assertion and for that he has apologised before us.

Therefore the circumstances are that on the terms of the Rule as explained on authority there was no basis upon which the Royal Court could have come to any other conclusion than that which it did. Accordingly there would be no point in granting leave; the matter is a hopeless one. I am disturbed also by the fact that Mr. Eves, who is an experienced litigant by now has taken no notice of the letter which he received from the Assistant Judicial Greffier of 26^th June, 1997, which drew his attention to the authorities of Bates -v- Bradley (1982) JJ 59 and Woolley -v- Forest (28^th September, 1992) Jersey Unreported CofA, each of which makes it quite plain that the rule is to be construed in the terms which I have expressed above. Allowing for the fact that Mr. Eves is appearing in person, it seems to me that in making an application today, having received that information, Mr. Eves must have realised that he was mounting an attack which was bound to fail and which, in the light of the information which he had received, he should never have put himself in the position of making. Accordingly, the application for leave to appeal, in my judgment, is to be refused.

THE PRESIDENT: I agree and have nothing to add.

SOUTHWELL, JA: I agree. I only add this, that I trust Mr. Eves will pay close attention to what has happened in the Court today, will in future not make applications of this kind which are wholly without foundation, and instead will concentrate on the substance of any complaint that he may have against the defendant, and not spend time and money on applications which, as I say, are wholly misconceived.

Authorities

Royal Court Rules, 1992: Article 6/7(5).

Bates -v- Bradley (1982) JJ 59.

Woolley -v- Forrest (28^th September, 1992) Jersey Unreported CofA.