Jersey Unreported Judgments

2002/173

royal court

(Samedi Division)

25th September 2002

Applications by the First Defendant: (1) under Article 13(e) of the Court of Appeal (Jersey) Law, 1961, for leave to appeal against the Order of the Royal Court of 17^th July, 2002; and (2) under Rule 15 of the Court of Appeal (Civil)(Jersey) Rules, 1964, for a stay of the Order of 17^th July, 2002, pending determination of the appeal.

Advocate A.J.D. Winchester for the plaintiff.

The First Defendant appeared on his own behalf.

The other parties did not appear and were not represented.

judgment

the bailiff:

1.        There are two summonses before the Court, both issued by the First Defendant following a judgment delivered by this Court on the 17^th July, 2002.  The first summons seeks leave to appeal against the summary judgment given in favour of the plaintiff in the sum of £5,200.00 plus interest and costs.  The second summons seeks a stay of execution in respect of those two sums, that is to say £5,200.00 plus interest and costs, payable under the Court's judgment.

2.        Dealing first with the application for leave to appeal, we raised with both parties the question whether leave to appeal was needed,  on the basis that the summary judgment appeared on the face of it to be a final judgment and was for a sum exceeding £3,000.  Counsel for the Plaintiff submitted that this was an interlocutory judgment and that leave was accordingly required under the provisions of Article 13 (e) of the Court of Appeal (Jersey) Law, 1961.  The First Defendant, who appeared on his own behalf expressed agreement with that submission by Counsel. 

3.        We make no finding on the point because the matter has not been fully argued before us, but we will proceed as requested by both parties upon the assumption that leave to appeal is required.  We have asked ourselves whether there is any realistic prospect of the appeal being successful.  The First Defendant submitted that the provision in the agreement dissolving his partnership with the Plaintiff, pursuant to which the summary judgment was given, was subject to the final adjustment of accounts in relation to the partnership.  He suggested that there was a right of set-off and that this had not been taken into account.

4.        This argument was put before us when the application for summary judgment was heard and was rejected.  We are satisfied that there is no realistic prospect of success in this appeal and we accordingly refuse leave.  If the matter is to proceed the First Defendant will have to pursue the matter by a fresh application to the Court of Appeal. 

5.        We turn to the question of the application for a stay.  In Veka AG v T A Picot (C.I) Limited, Vekaplast Windows (C.I.) Limited Vekaplast Windows (Export) Limited and Picot (1999) JLR 306 at page 309, the Court of Appeal stated:

"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 a 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, has no realistic chance of success, or there are other exceptional circumstances".

6.        We have already expressed our view that the appeal has no realistic chance of success.  In addition it seems to us that, if we are wrong in that respect, there is nothing indicating to us that the appeal would be rendered nugatory by a refusal to order a stay.  The sum of money in question is relatively small and there is no evidence that the First Defendant has failed to comply with judgments given against him or with other orders of this Court.  In the exercise of our discretion we accordingly refuse to grant a stay.  The summonses are accordingly dismissed.

[Discussion of costs followed].

7.        The First Defendant having been unsuccessful in relation to the applications brought before the Court this morning it seems to me that the question of costs should follow the event in the normal way.  I accordingly order that the First Defendant will pay the costs of the Plaintiff in relation to these summonses on the standard basis.

Authorities

Hotchkiss-v-Channel Islands Knitwear Company Limited (9th August, 2000) Jersey Unreported: [2000/160D].

Seale Street Developments Limited-v-Chapman 1992 JLR 243.

Veka A.G. v T.A. Picot (C.I) Limited, Vekaplast Windows (C.I.) Limited Vekaplast Windows (Export) Limited and Picot (1999) JLR 306

Vekaplast Heinrich Laumann KG -v- T A Picot (C I) Limited and Vekaplast Windows (C I) Limited (1989) JLR 269

Court of Appeal (Jersey) Law, 1961: Article 13.