COURT OF APPEAL
10 February 1998
Before: Sir Philip Bailhache, Bailiff, President,
JM Collins Esq., QC, and
RC Southwell Esq., QC
Between(1) David Eves (2) Helga Maria Eves (née Buchel) (3) Richard Charles EvesPlaintiffs
AndSt Brelades Bay Hotel Limited Defendant
IN THE MATTER OF an Appeal by the Plaintiffs from the Order of Royal Court (Samedi Division) of 25 May 1995, striking out their Order of Justice.
IN THE MATTER OF an Application by the Plaintiffs, under Rule 16 of the Court of Appeal (Civil) (Jersey) rules 1964, for an extension of time within which to lodge with the Judicial Greffier the documents set out in Rule 8 (1) of the said Rules.
Application of the Plaintiffs to the plenary Court, under Article 18 (2) of the Court of Appeal (Jersey) Law 1961, for a discharge of the Order of the Single Judge of 14 April 1997, refusing the said extension of time.
The First Plaintiff on his own behalf
and on behalf of the Second and Third Plaintiffs.
Advocate RJ Michel for the Defendant
JUDGMENT
COLLINS, JA: This is an application by Mr David Eves, and his wife and Mr Richard Eves for an extension of time within which to lodge their case with the supporting documentation in an appeal brought by them against the judgment of the Royal Court of 25 May 1995, striking out their Order of Justice. The notice of appeal was given more or less on time but there has been a very substantial delay in the lodging of the case.
The application was made initially to Sir Peter Crill, a member of this Court sitting as a Single Judge and exercising the powers of a Single Judge under the appeal laws.
We have considered the terms of his detailed judgment which runs into six pages and we have gone through the terms of that judgment with Mr Eves who has presented the case on behalf of himself and his co-plaintiffs. Having listened with care to Mr Eves observations and criticisms of the conclusions to which Sir Peter Crill has come, we consider that there is nothing which we can usefully add to the reasons given by Sir Peter in his rejection of that application of 14 April 1997. Accordingly, this application for an extension of time fails.
THE PRESIDENT: I agree with what Mr Collins has said and I have nothing to add.
SOUTHWELL, JA: I also agree but I do want to add some personal observations of my own. It is a matter of concern that in cases of this kind litigants in person may pursue too large a number of applications or actions and appear before the Courts on too many occasions, without good effect. I say that, not specifically in relation to Mr Eves, but as a general matter. I think that there would be something to be said for the authorities looking generally at the position of litigants in person, and considering whether there should be any filter by which they are enabled to come to the Courts to pursue actions and applications. I say that generally, and I am not applying it specifically to Mr Eves on this occasion but I think it is important that some consideration should be given to this with a view to seeing whether the process of the Court would be assisted by imposing some form of filter on such proceedings.
COLLINS, JA: Yes, Mr Michel
ADVOCATE MICHEL: Can I say two things, Sir? In what Mr. Richard Southwell has just said, as Chairman of the Rules sub-Committee I wrote only last Friday to my fellow members trying to formulate a new rule which would import the section 61 of the Supreme Court Act, I can’t remember the name of the … is it 21? I can’t remember which one now which is in relation to vexatious litigants and to amend our rules in relation to the issuing of proceedings whereby at the moment they have to be signed by the Bailiff or Deputy Bailiff if its a litigant in person. So, yes, Sir, thank you very much - thats a very useful pressure to our elbow to enable it to move forward. Having said that, Sir, the second point I want to say was I think, Sir, it is fair to say that my client company has spent a lot of money defending these actions in the last four years now, not quite to the day but nearly and I think taxed costs would be an appropriate award in favour of my client company.
COLLINS, JA: I think so, subject … Mr Eves, an application is being made that you pay the costs of this matter.
MR EVES: Well, I refute that, Sir, I mean, the whole basis of this case is because the defendant in this action has taken away my livelihood and I’ve earned no - had no income for the last four years, so I’m not in any position to pay taxed costs or any other sort of costs, Sir. I think the defendant should have thought about that before he decided to put us out of business over a £1,700 debt which, to most people, which to him is 2½p and which to most people is a lot of money. If he considered the action more carefully before getting himself involved in lengthy litigation then he could have avoided these taxed costs. Its alright to say that one can make an application to lift an en désastre but the moment the hammer has fallen that is the end of it, really. Its like shooting somebody when they’re not looking and getting away with commercial murder on a technicality which seems to be the basis of the situation here. I mean because theres no other way to describe it, its commercial murder and the defendant is being allowed to get away with it because of technicalities and the rule in Foss -v- Harbottle and I think for the benefit of everybody living in this society that no application for an en désastre should be made without the defendant first of all being informed and secondly being there to defend himself if he thinks that he’s got a defence. I’d like to stand here and protect every small businessman and every sweet shop and every corner shop that this never happens again because many business people have come to me and said they’re absolutely amazed that a guy can just walk in a courtroom over a petty debt court amount and officially declare somebody en désastre and deprive them of their livelihood and I think I would like to make my point as a litigant in person and on behalf of a lot of other people who have been exposed to certain situations like this that it must never happen again but the defendant must have a right to be there and defend himself and be informed that an application is being brought and given a chance to meet the debt that he’s supposed to pay. I believe that in the Courts in England that if such a situation arose the defendant is given something like 21 days to meet the payment. And I think a similar situation should exist over here because to me it’s an absolute outrage that a guy can do this and then get away ….
COLLINS, JA: Mr Eves, this is turning into a political speech, you know. Have you anything to say why you shouldn’t pay the costs. You just think it’s unfair because the whole system’s wrong. Thats what it comes to?
MR EVES: Yes, basically, Sir, yes, and I think it’s an important point of law, Sir.
COLLINS, JA: Yes, well we grant your application, Mr Michel. Mr Michel, it did occur to me that in the course of our judgment of last year, we made a number of general observations with regard to steps which could be taken on ex parte proceedings, didn’t we? And I wondered whether those had had any circulation or not. I don’t know that its reported.
ADVOCATE MICHEL: The judgment will be reported, Sir.
COLLINS, JA: Will it, in the Jersey Law Reports?
ADVOCATE MICHEL: Yes, it will be. We had the first quarters judgment and therefore you - because you’re April, Sir, you will be in the second tranche. Mr Sergeant, Sir, is the font of all knowledge in that respect, because he …
COLLINS, JA: Its not that I’m seeking publicity and fame, Mr Michel, its mainly that …
ADVOCATE MICHEL:The other point, Sir which …
COLLINS, JA: and general observations which might be helpful to practitioners.
ADVOCATE MICHEL: Sir, it is also fair to say that the unreported series are very widely circulated. Mr Sergeant will tell you how many, I presume every single firm takes at least one set. We take one set but we duplicate it within the firm. We actually put it on computer as well. So, yes, your judgment is already circulated and it will be reported in three months’ time, I imagine thats when the next one …
COLLINS, JA: Yes, we already are subject to the … we’re subject to adverse comment in the Jersey Law Review I notice, from time to time as well.
ADVOCATE MICHEL:I’m glad, Sir, I didn’t write that article.
COLLINS, JA: Yes, very good, well, we’ll adjourn now until 2.30. Thank you so much.
Authorities
Foss -v- Harbottle [1843] 2 Hare 461
Ayra Holdings -v- Minories Finance (31 March 1992) Jersey Unreported