Court of Appeal
14 December 1999
Before: R C Southwell, QC, (President);
Sir John Nutting, QC, and
P D Smith, QC.
Between: Veka AGPlaintiff/Respondent
And:(1) TA Picot (CI) Ltd
(2) Vekaplast Windows (CI) Ltd
(3) Vekaplast Windows (Export) Ltd
(4) Terence Alan PicotDefendants/appellants
IN THE MATTER OF the appeal of the Defendants/Appellants - that was dismissed by the Court of Appeal on 30 September 1999 - against the Orders of the Royal Court of 30 December 1998, that:
Application by the Defendant/APPELLANTS, under Article 14 of the Court of Appeal (Jersey) Law, 1961, for leave to appeal to Her Majesty in Council.
Advocate C M B Thacker for the Plaintiff/Respondent
Mr TA Picot on his own behalf and as a director of the first, second and third Defendants/appellants
JUDGMENT
THE PRESIDENT: This action was tried before a Commissioner and two Jurats in the Royal Court in late 1998. Judgment was delivered on 30 December 1998. [1998.257] The effect of the judgment was that the Defendants (Mr. Picot and three of his companies) were ordered to cease using the names "Veka", "Vekaplast", "Veka Windows" and "Vekaplast Windows" in the Island of Jersey (including removing the last two of these names from the Jersey Registry of Business Names), to pay general damages to be assessed, and to pay the Plaintiff’s (Veka AG’s) costs. Leave to appeal was given. The appeal came before this Court in September 1999, [1999.162]when Mr. Picot, as before, appeared for himself and his three defendant companies. Meanwhile on 28 June 1999 [1999.117] a Single Judge of this Court had heard an application by Mr Picot for a stay of execution of the Royal Court’s costs order and of taxation of those costs, pending the appeal; and, having received a personal undertaking by Advocate Thacker, acting for Veka AG, not to release any moneys paid to him by virtue of the costs order pending determination of the appeal, dismissed the stay application. Judgments were delivered by the Court of Appeal on 30 September 1999. It held that on the facts in evidence before the Royal Court and the relevant law the appeal failed. It also held that, though the conduct of the trial by the Commissioner was open to serious criticism, it was not appropriate to order a new trial, since there was little dispute about the facts, and Mr. Picot (though a litigant in person) had been a robust litigant. After the judgments had been delivered, Mr. Picot indicated that he wished to appeal to the Privy Council. Views were expressed by the Members of this Court as to his chances of success. But the questions of leave and of any stay pending an appeal to the Privy Council were put over to the next sitting of this Court, execution of the Royal Court’s order being stayed until 31 December 1999, but with this Court warning Mr. Picot that there might be no further stay ordered.
These questions have accordingly been argued before us. As regards leave to appeal, it is common ground that under the Jersey legislation Mr. Picot and his companies are entitled to appeal. There was argument as to the conditions on which leave should be given for the purposes of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982. Having regard to other current appeals, we are satisfied that leave should be conditional on the Defendants paying to the Judicial Greffier the sum of £10,000 as security for the costs of the appeal, within a period which will be indicated in a moment. The Defendants must also transmit the Record (as defined in Rule 1 of the Rules already referred to) within a similar period. Advocate Thacker argued for a period of only one month, because on 30 September 1999 this Court told Mr Picot that he should proceed with preparation of the Record forthwith, and Mr Picot has already largely prepared the Record, though it needs still to be checked and paginated. Mr. Picot argued for the more usual three months, because of the nearness of the Christmas and New Year holiday, and the likelihood that he may have to undergo a cataract operation in mid-January. Our conclusion is that both steps (the provision of security and the transmission of the Record) should be taken within two months, that is, on or before 15 February 2000.
The major matters argued before us concerned Mr. Picot’s application for a stay of (1) enforcement of the Orders of the Royal Court as regards the cessation of use of the four trade names already referred to; (2) the enquiry as to damages; (3) completion of the taxation of the costs in the Royal Court; and (4) taxation of the costs in the Court of Appeal.
Where there is an appeal by an unsuccessful party, the usual approach to be adopted in the Courts of Jersey is to make whatever orders, including an order staying proceedings under the judgment appealed from, as will prevent the appeal, if successful, from being nugatory, unless the Court is satisfied that the appeal is not bona fide, or has no realistic chance of success, or there are other exceptional circumstances. That has been the approach adopted by the Courts of England and Wales in a number of the cases cited to us including Wilson -v- Church (No. 2) (1879) 12 ChD 454; Polini -v- Gray; Sturla -v- Freccia (1879) 12 Ch.D. 438 CA; Erven Warnink BV & Anor -v- Townsend & Sons (Hull) Limited & Anor [1978] FSR 1 CA; Minnesota Mining & Manufacturing Co -v- Rennicks (UK) Ltd [1992] RPC 331. A more restricted approach has recently been adopted by the English Court of Appeal in Ketchum International plc -v- Group Public Relations Holdings Ltd [1996] 4 All ER 374. The Court held that an application for injunctive relief, equivalent to a stay, should not be granted unless (1) the party seeking this relief had a good arguable appeal; and (2) where leave to appeal was not required, leave would have been granted if it had been required. In Ketchum the English Court departed from the previous approach for reasons which are not wholly clear. The potential effect of the Court’s order in Ketchum was that the appeal, if successful, would be nugatory. We consider that Ketchum should not be followed in Jersey, and that the approach should be the one which we have already indicated.
The main considerations which we take into account in relation to Mr. Picot’s applications are these:
(1)The chances of success on the appeal are not high but, especially in relation to the question of a new trial because of the Commissioner’s conduct of the trial, it cannot be said to be insufficient to justify refusal of a stay.
(2)Mr. Picot and his companies are unlikely to be able to pay damages, if the Royal Court’s order is upheld, in any substantial sum, but that position has been the case throughout the period of ten years which it took Veka AG to bring the action to trial, and it is unlikely to change materially while the appeal is pending.
(3)Advocate Thacker for Veka AG has given this Court his personal undertaking to retain any costs paid to him following the taxation of the costs in the Royal Court, pending the appeal to the Court of Appeal. But no other undertaking has been offered or given by Veka AG. The primary order of the Royal Court against Mr. Picot and his companies is of the nature of an injunction against use of Veka’s trade names. But Veka has not offered any cross-undertaking in damages, in the event that this Court permitted enforcement of that order pending the appeal, and the appeal proved to be successful. In the absence of such an undertaking, potentially serious damage could be done to the Defendant’s businesses, for which they would have no means of redress against Veka AG.
(4)Given the unnecessarily long time taken to bring this action to trial, and the relatively short periods of time (a) taken to bring the appeal before this Court, and (b) likely to be taken in bringing the further appeal before the Privy Council, some further delay pending the further appeal will be fair to the Defendants and not unduly unfair to Veka AG.
Having regard to these considerations, and particularly the absence of undertakings by Veka, the conclusions of this Court are as follows:
(1)Enforcement of the orders of the Royal Court as regards cessation of use of the trade names is stayed until after determination of the appeal to the Privy Council, subject to the condition that that appeal must be proceeded with due diligence.
(2)The enquiry as to damages is stayed on the same terms and subject to the same conditions as stated in (1).
(3)The taxation of the costs in the Royal Court is not stayed, and is to be completed. On completion of the taxation, the sum found due is to be paid to Veka’s Advocate, Mr. Thacker, who has, as already stated, confirmed to this Court his personal undertaking to retain that sum pending the final disposal of the action.
(4)Taxation of the costs in the Court of Appeal is stayed on the same terms and subject to the same condition, as stated in relation to (1) above.
Costs in the cause.
Authorities
Wilson -v- Church (No. 2) (1879) 12 ChD 454 CA.
Polini -v- Gray; Sturla -v- Freccia (1879) 12 Ch.D. 438 CA.
Erven Warnink BV & Anor -v- J Townsend & Sons (Hull) Limited & Anor. [1978] FSR 1 CA.
Minnesota Mining & Manufacturing Co -v- Rennicks (UK) Ltd [1992] RPC 331.
Ketchum International plc -v- Group Public Relations Holdings Ltd [1996] 4 All ER 374.
RSC (1999 Ed’n): Vol 1 O. 59 r.13: pp.1077-9.
Dawnay Day & Ors -v- Cantor Fitzgerald International (19th December, 1997) Unreported Judgment of Chancery Division of High Court of England.