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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/134A - In re a settlement [1999] UR 134A (27 July 1999)
URL: http://www.bailii.org/je/cases/UR/1999/134A.html
Cite as: [1999] UR 134A
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COURT OF APPEAL
27 July 1999
Before: R C Southwell Esq. Q C Single Judge
IN THE MATTER OF A SETTLEMENT
and
IN THE MATTER OF
An application by one of the parties for an
abridgement of the time periods set out in the
Court of Appeal (Civil)(Jersey) Rules, 1964, to allow an
expedited hearing of the application for leave to appeal/appeal.
Preliminary issues: does the Court of Appeal have power to abridge as well as to extend periods of time laid down for the taking of steps relating to a civil appeal or an application for leave to appeal; and if so, can that power be exercised by a Single Judge.
Advocate P.C. Sinel.
Advocate J.A. Clyde-Smith.
Advocate A.P. Begg.
Advocate M.P.G. Lewis on behalf of Advocate M. St.J O’Connell,.
JUDGMENT.
SOUTHWELL JA: This is my judgment, sitting as a single judge of the Court of Appeal, on questions of procedure which were raised during an in camera hearing in relation to a Jersey trust. It is important that the trust and the parties are not identified. But it may be important that my decision on the questions of procedure is made known to the legal profession in Jersey.
The questions are these:
(1)does the Court of Appeal have power to abridge, as well as to extend, periods of time laid down for the taking of steps relating to a civil appeal or an application for leave to appeal; and
(2)if so, can that power be exercised by a single judge.
The relevant provisions of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law") are as follows:
"Article 11
Where, under this Law, the powers of the Court of Appeal may be exercised by a single judge of the Court, such power may be exercised in any place whether within or without the Island.
Article 12
(1) There shall be vested in the Court of Appeal all jurisdiction and powers hitherto vested in the Superior Number of the Royal Court when exercising appellate jurisdiction in any civil cause or matter.......
(3) For all the purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the Royal Court, and shall have power, if it appears to the Court that a new trial ought to be had, to order that the verdict and judgment be set aside and that a new trial be had.
Article 15
The jurisdiction vested in the Court of Appeal under this Part of this Law shall, so far as regards procedure and practice, be exercised in the manner provided by this Law or by rules of court, and, where no special provision is contained in this Law or in rules of court with reference thereto, any such jurisdiction shall be exercised as nearly as may be in the same manner as that in which the Superior Number of the Royal Court might hitherto have exercised jurisdiction on an appeal from the Inferior Number thereof.
Article 18
(1) In any appeal pending before the Court of Appeal under this Part of this Law, any matter incidental thereto not involving the decision of the appeal may be decided by a single judge of the Court, and a single judge may at any time make any interim order to prevent prejudice to the claims of any parties pending an appeal, as he may think fit.
(2) Every order made by a single judge of the Court of Appeal in pursuance of this Article may be discharged or varied by any judges of the Court having power to hear and determine the appeal."
As appears from Articles 12 and 15, the Court of Appeal in civil causes or matters exercises the jurisdiction and powers previously vested in the Superior Number of the Royal Court when exercising appellate jurisdiction. The Court of Appeal exercises such jurisdiction and powers, so far as regards procedure and practice, in the manner provided by the 1961 Law and the Court of Appeal (Civil) (Jersey) Rules 1964 as amended ("the 1964 Rules"), but when there is no "special provision" in the 1961 Law or the 1964 Rules, then the Court of Appeal exercises such jurisdiction and powers "as nearly as may be in the same manner" as the Superior Number would have done in relation to an appeal from the Inferior Number.
The 1964 Rules contain no provision concerning abridgement of time, but do contain a provision concerning extension of time in Rule 16, which provides:
"(1) The Court or a judge thereof shall have power to enlarge the time appointed by these Rules, or fixed by an order enlarging time, for doing any act or taking any proceeding, on such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
(2) Without prejudice to the power of the Court or a judge thereof under paragraph (1) of this Rule to enlarge the time prescribed by any provision of these Rules, the period for serving notice of appeal under Rule 3 may be extended by the court below on application made before the expiration of that period."
In Warwick v Callaghan (19th July 1991) Jersey Unreported) the Royal Court held that it had power under the Court’s inherent jurisdiction to rule that the case should be treated as a "cause de brièveté" and that all time periods prior to and including the date for trial should be abridged, relying on (inter alia) Le Gros: "Traité du Droit Coûtumier de l’Ile de Jersey", pages 164-165. That decision was upheld by the Court of Appeal (25th July 1991) Jersey Unreported, subject to some observations on the detail of the procedure by Sir Godfray Le Quesne, QC, President.
It is in my judgment clear from the authorities placed before me that before 1964 the Superior Number of the Royal Court had power to abridge time periods in connection with appeals from the Inferior Number. This power is available, and has been since 1964, to the Court of Appeal.
It would in any event be a power available in the exercise of the inherent jurisdiction of the Court of Appeal, defining "inherent jurisdiction" for this purpose as a power which the Court of Appeal possesses by virtue both of being a court and of being an appellate court. Inability to reduce time periods so as to enable the Court of Appeal to hear appeals or applications for leave as speedily as circumstances and justice may require would not be consonant with the effective exercise of the jurisdiction of the Court of Appeal.
The only issue which arises is whether the existence of a rule, Rule 16, dealing expressly with extensions of time, but not with abridgements, excludes an inherent power to abridge time. In my judgment there is no such exclusion. There might be if the suggested inherent power were inconsistent with or contrary to an express provision of the 1964 Rules (see "The Inherent Jurisdiction to Regulate Civil Proceedings" by Professor Dockray in January 1997, 113 LQR at page 128 and footnote 70). But the express power in Rule 16 to extend time is not inconsistent with or contrary to an inherent power to abridge time.
So I conclude that the Court of Appeal does have an inherent power to abridge time, and this is a discretionary power to be exercised where its exercise is necessary or appropriate to ensure a just determination of an appeal or application for leave.
Such power to abridge time falls within Article 18 and can be exercised by a Single Judge pursuant to Articles 11 and 18.
However, it may be desirable to expand Rule 16 in the current review of the 1961 Law and the 1964 Rules so as to make it abundantly clear that any alteration of time periods can be made by the Court of Appeal, and to clarify Article 18 so as to avoid any doubt that an appeal is pending for the purposes of Article 18 when an application for leave has been lodged.
Authorities.
Court of Appeal (Jersey) Law, 1961: Articles 11,12,15, and 18.
Court of Appeal (Civil)(Jersey) Rules, 1964: Rule 16.
Warwick-v-Callaghan (19th July, 1991) Jersey Unreported.
Warwick-v-Callaghan (25th July, 1991) Jersey Unreported CofA.
Dockray: "The Inherent Jurisdiction to Regulate Civil Proceedings" (January, 1997) 113 LQR 128, footnote 70.