Court of Appeal
12 February 1998
Before: The Bailiff (Single Judge)
BetweenLily Ellen Mary le MaistreRespondent/Plaintiff
AndRoger Sydney BenestAppellant/Defendant
IN THE MATTER OF an appeal by the Appellant/Defendant from the Order of the Royal Court (Samedi Division) of 26 March 1996: (1) granting the application of the Plaintiff/Respondent for an Acte à peine de Prison; and (2) directing the Appellant/Defendant to pay the Plaintiff/Respondents costs of and incidental to the said Order.
Application by the Appellant/Defendant, under Rule 15 of the Court of Appeal (Civil)(Jersey) Rules, 1964, to a Single Judge for a stay of execution of the Order of the Royal Court of 26 March 1996, pending determination of the said appeal.
Advocate A P Begg for the Appellant/Defendant
Advocate Mrs ME Whittaker for the Respondent/Plaintiff
JUDGMENT
THE BAILIFF: This is an application for a stay pending appeal of the Acte à peine de Prison ordered by the Royal Court as long ago as 26 March 1996. Since that date and until November 1997, the respondent has not sought to enforce the Order on the basis that periodical payments were to be made in settlement of the judgment debt. Such periodical payments appear to have ceased and the Respondent accordingly instructed her legal adviser to transmit the Act of the Court to the Viscount for execution.
During this interim period the appeal process has slumbered, although both the Appellants Case and the Respondents Case have now been filed. Mr Begg told me that he would ensure that the appeal was set down for hearing by the Court of Appeal at the earliest possible juncture. Upon hearing that the Viscount had been instructed to enforce the Act, the Appellant has remained outside the jurisdiction in order to avoid arrest.
The relevant principles which I have to apply were set out in Seale Street Developments Ltd -v- Chapman (1993) JLR 243 where Machin JA referred with approval to a dictum of Cotton LJ in Polini -v- Gray (1879) 12 Ch.D. 438
"On what principle does it do so? It does so on this ground, that when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say, would deprive the Appellant, if successful, of the results of the appeal, then it is the duty of the court to interfere and suspend the right of the party who, so far as the litigation has gone, has established his rights".
Machin JA continued:
"Despite some observations which have been made by a single judge sitting in the Jersey Court of Appeal in Barker -v- Merchant Vintners Ltd and In re Barker, we do not consider that it is for the applicant to show special circumstances justifying the stay; so to state the principle is to invert the general guideline laid down in Wilson -v- Church (No.2). Our opinion is that once it is shown that if no stay be granted the right of appeal would be likely to be rendered nugatory, and that once a reasonable ground of appeal has been shown to exist, then special (that is to say, exceptional) circumstances have to be advanced to justify a refusal of the stay.
……
We do not propose to set out in this judgment all those factors which may be taken into account in deciding whether to grant or to refuse a stay. The discretion of the court is ex facie unfettered and it may take into consideration any matter which it properly considers material to the exercise of its jurisdiction. Plainly, the factors referred to by Cotton, LJ in Polini -v- Gray are of first importance; but there may in a particular case be other factors, such as the consequences to the parties respectively of the grant or refusal of a stay, which require also to be weighed in the balance"
Mr Begg submitted that he proposed to advance two arguments on appeal. First, that in this age of enlightenment, judicial recourse to the debtors prison was no longer appropriate; and, secondly, that if the first argument failed, the Court below wrongly exercised its discretion in all the circumstances of this case. It would be inappropriate for me to express any concluded view as to the strength of these grounds of appeal. It is sufficient to state that, in the context of the liberty of the individual, it seems to me that there is a reasonable ground of appeal.
If the appeal were to succeed and the appellant had, in the meantime, been held in custody it could be said that, to that extent, the appeal would have been rendered nugatory.
On the other hand the conduct of the Appellant has been far from blameless. Reasonable requests for information as to his means and for documentary evidence of those means have been effectively ignored. Notwithstanding an abatement of the contractual interest rate volunteered by the Respondent, the Appellant has failed to make payment of instalments with any regularity. It is not surprising that the Respondent has been driven to abandon her indulgence and to seek to enforce the Acte à peine de Prison. However, apart from continuing frustration at the conduct of the Appellant, it was not argued by Mrs Whittaker that the granting of a stay would cause any particular hardship to the Respondent.
Taken in the round it seems to me that a limited stay should be granted. The limit is that the stay will expire on 24 September 1998. It will be a condition of the stay that the appeal be brought forward for hearing on the first available date which may well be significantly before the regular sitting of the Court of Appeal in September.
Authorities
AG -v- Maxwell (9 December 1996) Jersey Unreported
AG -v- Maxwell (19 December 1996) Jersey Unreported
Seale Street Developments -v- Chapman (1992) JLR 243 CofA
Court of Appeal (Jersey) Law, 1961: Article 13
Birbeck -v- New Guarantee Trust (1980) JJ 183
Polini -v- Gray (1879) 12 Ch.D. 438
Porteous (née Perrée) -v- Porteous (28 February 1992) Jersey Unreported
Bianchi -v- Gentili (12 July 1990) Jersey Unreported
Lowndes Lambert Group Limited -v- RJ Benzon Edwards (19 August 1997) Jersey Unreported
Dixon, Richardson & Reeb Investments Ltd -v- Jefferson Seal Ltd (6 October 1997) Jersey Unreported
In re Dégrévement of immoveable property of Barker (1985-86) JLR 186 Cof A
Selby -v- Romeril (1996) JLR 210 @ 218