2000/206
5 pages
COURT OF APPEAL
25th October, 2000.
Before: |
Sir David Calcutt, Q.C., President; |
|
R.C. Southwell, Esq., Q.C., and; P.D. Smith, Esq., Q.C. |
Between: Veka AG Plaintiff/RESPONDENT.
And: (1) TA Picot (CI) Ltd
(2) Vekaplast Windows (CI) Ltd
(3) Vekaplast Windows (Export) Ltd
(4) Terence Alan Picot Defendants/APPELLANTS.
IN THE MATTER OF
the appeal of the
Defendants/APPELLANTS - that was dismissed by the Court of Appeal on 30th
September, 1999 - against the Orders of the Royal Court of 30th
December, 1998, that:
1. the
first Defendant/APPELLANT shall within 8 weeks remove the names 'Veka
Windows' and 'Vekaplast Windows' from the business names
registry in the Commercial Relations Department, and that the second
Defendant/APPELLANT shall not, in Jersey, continue to use the word
'Vekaplast' in its advertising, brochures, and promotional
material; and
2. the first, second, and third Defendants/APPELLANTS shall cease to use the names 'Veka', 'Veka Windows' and 'Vekaplast Windows' to describe their products and refrain from any further publication of those names in Jersey, or from passing off or doing anything calculated/intended to lead to the passing off of their goods as those of the Plaintiff/RESPONDENT
AND IN THE MATTER OF
the 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, heard on 14th December, 1999, when the Court:
(1) granted the application, conditional upon:
(a) the Defendants/Appellants paying to the Judicial Greffier the sum of ten thousand pounds (£10,000) within two months of the date hereof by way of security for the costs of the appeal, in such form as the Judicial Greffier shall require; and
(b) the Defendants/Appellants transmitting the Record (as defined in Rule 1 of the Judicial Committee (General Appellate Jurisdiction) Rules Order, 1982) within the said two month period to the Registrar of the Privy Council.
(2) directed that there be a stay:
(a) of the enforcement of so much of the Royal Court Order of 30th December, 1998, as regards the cessation of the use of the trade names;
(b) of the inquiry as to damages ordered by the Royal Court on 30th December 1998; and
(c) of the taxation of the costs ordered by the Court of Appeal on 30th September ,1999;
pending determination of the said appeal to Her Majesty in Council, provided that such appeal is pursued with all due diligence; and
(3) directed that there be no stay of the taxation of the costs Order of the Royal Court on 30th December, 1998, which is to be completed and upon completion the sum found due is to be paid to the Plaintiff/RESPONDENT's Advocate, the Court having first noted the said Advocate's personal undertaking to retain that sum pending the final disposition of the action
Application to the Court of Appeal by the Plaintiff/RESPONDENT for an Order discharging the grant to the Defendants/APPELLANTS on 14th December, 1999, by the Court of:
a) leave to appeal to Her Majesty in Council; and
b) the stay of enforcement of the Royal Court Order of 30th December, 1998, pending determination of the said appeal to Her Majesty in Council.
Advocate C.M.B. Thacker for the Plaintiff/RESPONDENT;
The first, second, and third Defendants/APPELLANTS did not appear and were not represented;
The fourth Defendant/APPELLANT on his own behalf.
JUDGMENT
SMITH, JA: (delivering the Judgment of the Court):
1. In this matter the Plaintiff/Respondent applies for an order:
(a) discontinuing the leave to appeal to Her Majesty in Council granted on 14th December, 1999, by this Court, differently constituted, to the Defendants/ Appellants under Article 14 of the Court of Appeal (Jersey) Law 1961 and under Rule 2 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982; and
(b) that the stays granted on that date by this Court be discharged.
2. The background to the leave application is set out in the judgment of Southwell, JA of 14th December, 1999, and we will not repeat it. Suffice to say that the Defendants/ Appellants were granted leave to appeal conditional on payment to the Judicial Greffier of the sum of £10,000 within two months (i.e. by 14th February, 2000) by way of security for the costs of the appeal and the Defendants/Appellants transmitting the Record within the same period to the Registrar of the Privy Council. In addition the Court granted a stay of certain steps previously ordered by the Royal Court and the Court of Appeal and made further provision for the receipt and retention of costs taxable on foot of an Order of the Royal Court.
3. The basis of the Plaintiff/Respondent's present application is the fact that the Defendants/Appellants have not complied with either of the conditions. The first, second and third Defendants/Appellants have not responded to this application. The fourth Defendant/Appellant appeared before us solely on his own behalf. He informed us that he no longer wishes to appeal to the Privy Council. Accordingly, the Plaintiff/Respondent sought no relief from us in relation to him.
4. As far as the first, second and third Defendant/Appellants are concerned, consideration of this application must start with reference to the legal rules prescribing the requirements to be met to enable a party to prosecute an appeal from this Court to the Privy Council. These are set out and elucidated in the judgment of Le Quesne, JA in Forster (trading as Airport Business Centre) v. Harbours and Airport Committee (1990) JLR 82 CofA at pages 84-85 in the following terms:
"We think it will be useful in the first place to say something generally about the provisions governing the grant of leave to appeal from decisions of this court.
Article 14 of the Court of Appeal (Jersey) Law, 1961 provides:
"No appeal shall lie from a decision of the Court of Appeal under this Part of this Law without the leave of the Court or the special leave of Her Majesty in Council, except where the value of the matter in dispute is five hundred pounds or more."
"This Part of this Law" is dealing with civil as opposed to criminal appeals, and this article is therefore dealing with all decisions of the Court of Appeal in civil matters.
The effect of the article appears to be, and in our judgment in fact is, to confer upon the unsuccessful party in a case in this court, in which the value of the matter in dispute is £500 or more, a right to appeal. The question then arises of how that is to be related to the Privy Council Rules. I turn to the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982. The Schedule to that Order contains the procedural rules which govern appeals to the Judicial Committee, and rule 2 reads:
"No appeal shall be admitted unless either -
(a) leave to appeal has been granted by the court appealed from; or
(b) in the absence of such leave, special leave to appeal has been granted by Her Majesty in Council."
Article 14 of the Court of Appeal Law resembles very closely provisions which exist in all territories in which appeal lies to Her Majesty in Council. The language used is somewhat puzzling; article 14 provides that in civil cases in which there is £500 or more in issue, there shall be an appeal without leave, whereas rule 2 of the Privy Council Rules appears to be saying the opposite.
However, these provisions, as far as we are aware, have always been interpreted and reconciled in the same way. The substantive right to appeal is granted in this jurisdiction by article 14 of the Court of Appeal Law. In a case in which the matter is dispute is worth £500 or more, there is therefore a right of appeal to Her Majesty in Council. The Judicial Committee Rules are simply laying down the procedure by which that right is to be pursued, or, to use the language which has been used recently by Judicial Committee itself, are merely machinery for putting into effect the substantive right of appeal conferred.
The Judicial Committee Rules therefore provide that, as a matter of procedure, no appeal shall be admitted unless leave to appeal has been obtained, either from the court below, or from the Judicial Committee itself. The effect of this is that the unsuccessful party to a case in this court in which the matter in dispute is worth £500 or more has right of appeal but in order to pursue that right of appeal he must get leave to appeal. The effect of that is that if such a party comes to this court asking for leave to appeal he is entitled to leave, and the court, if satisfied that the judgment is otherwise within the terms of article 14 and the sum in dispute exceeds £500, has no option but to grant the leave. It will grant it in accordance with well-established procedure, in the first place, conditionally. The usual conditions are that the record is prepared within a stated period and security for the Respondent's costs is lodged in a stated sum and also within a stated period. When these two conditions have been fulfilled a further application is made to the court on which an order granting final leave to appeal is made."
5. Subject to pointing out that the £500 threshold has been increased to £10,000 we respectfully adopt these dicta. But they do not deal with crucial question in this case: What is the position if the conditions laid down are not complied with? There does not appear to be any Jersey authority on this particular point.
6. The Plaintiff/Respondent drew our attention to two decisions of the English Court of Appeal: Rennell v. Inland Revenue Commissioners [1961] 3 All ER 1028 and Hunt & Winterbotham (West of England) Ltd v. B.R.S. (Parcels) Ltd [1962] 1 All ER 111. However there is a crucial difference between the powers of the Court of Appeal in England in relation to appeals to the House of Lords and of the Court of Appeal in this Island in relation to appeals to the Judicial Committee of the Privy Council: The English Court of Appeal can refuse leave: The Court of Appeal in Jersey cannot. What, then, is the status of conditional leave granted by this court?
7. In our judgment where this court grants leave subject to conditions which are not met (or are not met within any time limit set) the effect is that the leave granted is no longer operative; it has lapsed. Accordingly in the instant case the position now is that the first, second and third Defendants/Appellants do not have leave to appeal to Her Majesty in Council. As they have chosen not to appear before us on this application we say nothing more on this aspect of the matter.
8. As far as the stays are concerned they were granted to ensure that the effect of the appeal, if successful, would not be nugatory. Furthermore, they were made conditional on the appeal being pursued with all due diligence. As the first, second and third Defendants/Appellants have not pursued the appeal and as they no longer have leave these stays must now be discharged with immediate effect.
9. On the same grounds and for the avoidance of doubt we relieve the Plaintiff/ Respondent's advocate of his personal undertaking to retain costs paid to him on foot of the taxation Order of the Royal Court of 30 December 1998.
10. The effect of the above is that, in substance, we accede to the Plaintiff/Respondent's application.
Authorities
Forster -v- Harbours and Airports Committee and Anor (6th April, 1990) Jersey Unreported CofA.
Rennell -v- Inland Revenue Commissioners [1961] 3 All ER 1028-1041.
Hunt & Winterbotham (West of England) Ltd -v- B.R.S. (Parcels) Ltd [1962] 1 All ER
111-120.
4 Halsbury 10 para.789: pp.369-70.
Judicial Committee (General Appellate Jurisdiction) Rules Order 1982: Rule 11.