Jersey Unreported Judgments

2002/217

COURT OF APPEAL

 

13^th November, 2002.

 

 

 

 

Application for leave to appeal, under Article 13(e) of the Court of Appeal (Jersey) Law, 1961, and appeal by the Appellant from so much of the Order of the Royal Court 17th July, 2002, as ordered that the Appellant shall not adduce evidence in relation to other applications made to the Respondent under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations, 1970, and in particular, applications made by Mrs. Ozouf and Mrs. Sculthorp.

 

Advocate P.C. Sinel for the APPELLANT.

The Solicitor General for the RESPONDENT.

 

 

judgment

 

SMITH ja (delivering the Judgment of the Court):

1.        This case arises out of an application by Catherine Adele Glazebrook ("Mrs. Glazebrook") for the consent of the Housing Committee of the States of Jersey ("the Committee") to a proposed lease to her of a dwelling house at St. Martin called "Church End."  The application was made on 16 November 2000 under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations 1970 ("the 1970 Regulations") which reads as follows:

"Subject to the provisions of this Regulation, for the purposes of the Housing (Jersey) Law 1949 ["the 1949 Law"], consent to the sales or transfers of land or registered contracts of lease shall be granted by the Housing Committee in any case where -

. . . (g) the Committee is satisfied that the hardship (other than financial hardship) which would be caused to the purchaser, transferee or lessee or to persons ordinarily resident in the Island if consent were not to be granted outweighs the fact that he does not fall within any subparagraph of this paragraph . . . "

2.        The application had a history which is set out by Southwell JA, delivering the judgment of this Court, in Glazebrook-v-Housing Committee of the States of Jersey (2000) JLR 381 (which we shall describe hereafter as "Glazebrook 2000").  That appeal concerned an application made by Mrs. Glazebrook to the Committee in 1997.  The Committee had treated it as an application under Regulation 1(1)(g) and had rejected it.  Mrs. Glazebrook appealed to the Royal Court under Article 12 of the 1949 Law.  At that stage, and for the first time, the point was taken on the Committee's behalf that as Mrs. Glazebrook's application and the refusal of consent were merely "in principle" (i.e., not in relation to any specific property transaction) no appeal could be brought under Article 12 of the 1949 Law.

3.        In relation to that appeal the Royal Court ruled that the notice of appeal was informe on the basis of the point raised on the Committee's behalf.  However, by consent, it decided to treat the matter as if an application for judicial review had been brought and dismissed the application.  Mrs. Glazebrook appealed to the Court of Appeal.

4.        The Court of Appeal held that every decision of the Committee in relation to Mrs. Glazebrook was null and of no effect, declared that any further application by her must be in respect of a specific transaction relating to a specific property and ordered that, provided Mrs. Glazebrook made a further, valid, application under Regulation 1(1)(g) within twenty-eight days, it should be considered by the Committee in the light of all the circumstances existing in June 1999 (at that stage the last purported decision of the Committee in relation to Mrs. Glazebrook had been made on 14 June 1999).  As to this last point Southwell JA gave the following explanation (at pp. 393-394):

"Next, I turn to Mr. Sinel's submission that a fresh application should be viewed in the light of the circumstances as they were in June 1999, and not in the light of changed circumstances in 2000 and 2001.  This is a point of some potential importance to Mrs. Glazebrook, because it is her case that she had to leave the Island in December 1999 to live in England because of the conduct of the Housing Committee in failing to advise her that she was pursuing a legally ineffective course until the lawyers acting for the Committee did so at the eleventh hour in August 1999.  In my judgment fairness requires that a fresh application, if made by her without undue delay, should be considered by the Committee as if it were being considered in June 1999 . . . [F]air treatment of her as an applicant requires that the Committee does not rely on a change of circumstances which, to a material degree, was caused by the Committee itself in adopting a procedure which did not comply with the statutory requirements . . ."

5.        On foot of the decision of the Court of Appeal in Glazebrook 2000 Mrs. Glazebrook made her application of 16 November 2000.  The Committee rejected it and Mrs. Glazebrook appealed to the Royal Court, exercising the right of appeal to which we have referred - that conferred by Article 12 of the 1949 Law.  Thereafter the Committee filed a statement setting out its reasons for its decision.  Other steps followed and eventually Mrs. Glazebrook's legal representatives sought the Committee's agreement to proposed amendments to the case filed on Mrs. Glazebrook's behalf.  The Committee refused to so agree in the absence of agreement or a decision as to the nature and extent of the evidence Mrs. Glazebrook would be permitted to adduce at the appeal hearing.

6.        The parties sought to resolve this apparent impasse by reaching an agreement which they set out in a letter dated 10 July 2002 addressed to the Judicial Greffier and signed by Advocate P.C. Sinel for Mrs. Glazebrook and the Solicitor General for the Committee and which is in the following terms:

"1.       That a Judge of the Royal Court (sitting alone) should determine the following preliminary issue:-

(a)       the nature and extent of the evidence, which may be adduced by the parties at the hearing of this appeal . . . "

This agreement was incorporated by reference into an order made by Master Wheeler on 12 July 2002 and on 17 July 2002 the Bailiff, sitting in Chambers, gave judgment and issued an Act of Court dealing with a number of items of contested evidence and comprising, in addition, a number of directions.

7.        Mrs. Glazebrook seeks to appeal only against paragraph 1(b) of the Act of Court which reads as follows:

" . . . the Appellant shall not adduce evidence in relation to applications made to the Respondent under regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations, 1970, by Mrs. Ozouf and Mrs. [Sculthorp] . . . "

8.        The Act of Court constitutes an interlocutory order within the meaning of Article 13(e) of the Court of Appeal (Jersey) Law 1961 and, therefore, in order to appeal Mrs. Glazebrook requires ". . . the leave of the court whose decision is sought to be appealed from, or of the Court of Appeal . . . "  Leave to appeal was not sought from the Bailiff on Mrs. Glazebrook's behalf.  Leave is now sought from this court and that ". . . paragraph 1(b) of the [Act of Court] be overturned and that [Mrs. Glazebrook] be permitted to adduce at the hearing of the substantive appeal evidence in relation to the applications made by Mrs. Ozouf and Mrs. Sculthorp to the Housing Committee for consent under Regulation 1(1)(g) of the Housing (General Provisions) (Jersey) Regulations 1970."

9.        In support of her application for leave to appeal Mrs. Glazebrook, in the contentions filed on her behalf, explains that an application was not made at the hearing before the Bailiff because Mrs. Glazebrook was not present " . . . and it was necessary to take further instructions from her to deal with the unforeseen eventuality namely those parts of the Bailiff's decision reflected by paragraph 1(b) of the Act of Court . . . "  While it is understandable that Mrs. Glazebrook's instructions would have been required in order to prosecute an appeal the words quoted do not make it clear why input, or what input, would have been required or expected of her in relation to a leave application which would have committed her to nothing and which would have been based on factors solely within the scope of the expertise of counsel.

10.      Before us, Advocate Sinel, for Mrs. Glazebrook, candidly admitted that, with hindsight, he ought to have applied to the Bailiff for leave at the time that the latter delivered his decision.  However, he had understood that it would be acceptable to this Court for him to apply for leave directly to us.   Mr. Sinel said that he based this misunderstanding on a letter from the Assistant Judicial Greffier dated 23 August 2002.

11.      We take this opportunity to emphasise that the proper procedure in relation to leave to appeal to this Court is that application be made initially to the lower court (see Mayo Associates -v- Cantrade Private Bank, Switzerland (23^rd November, 1998) Jersey Unreported; [1998/233] and States Greffier -v- Les Pas Holdings Ltd (1998) JLR 196 at page 203.)  In our judgment the statutory requirement of leave in relation to interlocutory matters indicates, among other things, that the resources of the Court of Appeal are to be concentrated, as far as possible, on dealing with final orders and judgments leaving it to the court of trial to regulate its own proceedings free of easily invoked interventions from the court above at the interlocutory stage.  It would be inconsistent with this interpretation if parties were to be at liberty to choose to clutter sittings of the Court of Appeal with applications for leave which could, and ought, to have been made to and quite possibly disposed of before the lower court.

12.      As far as the letter of 23 August 2002 is concerned, in our opinion all that that document does is to state the very sensible point that an applicant who comes to a plenary session of this Court seeking leave to appeal should normally prepare for the leave application as if it were a full appeal.  This is because, first, the merits of the appeal are usually a factor to be considered in relation to leave and, secondly, it is desirable to avoid unnecessary waste of time and money in the event that the Court of Appeal does grant leave.  The letter cannot be construed as encouraging the view that it is a matter of indifference as to whether applications for leave are made to this Court or to the lower court.

13.      Having said this, it should not be assumed that the corollary of preparation for the possibility that the Court of Appeal may entertain the substantive appeal is that it will consider it on a leave application.  It will be a matter for the Court of Appeal to consider on each application for leave brought before it how far, if at all, it may be necessary or desirable to consider the merits save for the limited purpose of deciding whether or not to give leave.

14.      While making it clear that initially at any rate an application for leave to appeal should be made to the lower court, we recognise that the statute does not prohibit an application being made directly to the Court of Appeal but the proper practice is as stated and where a direct application to this Court is made a cogent explanation for failure to apply at first instance will be required and, if not forthcoming, the applicant may expect to be penalised in costs (see Mayo Associates -v- Cantrade Private Bank, op cit).

15.      Turning to the decision of the Bailiff which Mrs. Glazebrook seeks to challenge, that decision is explained in the Bailiff's judgment in the following terms:

" . . . Mr. Sinel wishes to refer to other applications made to the Respondent Committee under regulation 1(1)(g) and in particular applications made by Mrs. Ozouf and Mrs. [Sculthorp].  These cases arose after June 1999 and it seems to me that they failed a time barrier test set down by the Court of Appeal.  The Court will be assessing the matter as at June 1999 and what the Committee did after that date cannot, in my judgment, be relevant.  This evidence is . . . disallowed."

The "time barrier test" to which the Bailiff referred was his description of that part of the order made by this Court in Glazebrook 2000, to which we have already referred, and which required that Mrs. Glazebrook's fresh application be considered "in the light of all the circumstances existing in June 1999."

16.      Mr. Sinel did not dispute that the Ozouf and Sculthorp applications were dealt with by the Committee after June 1999 but contended that they are highly relevant to Mrs. Glazebrook's appeal.  She relies on them not as going to "her circumstances" (Mr. Sinel's phrase) in 1999 but as indicative of the types of cases in which the Committee has been prepared to grant consent.  He referred to "the limited number of comparables".  Mr. Sinel explained why he contended that the cases were relevant.

17.      In our judgment the Bailiff was right to rule that evidence of the Ozouf and Sculthorp cases was precluded by the order made in Glazebrook 2000.  That order was made at the request of Mrs. Glazebrook's advocate, Mr. Sinel.  Contrary to Mr. Sinel's contentions before us, the order as described in the judgment of Southwell JA (at p. 395) extends expressly to "all the circumstances existing in June 1999."  It is true that in the passage at pages 393-394 quoted above Southwell JA, when explaining why the Court of Appeal intended to make the order in question, referred explicitly to a change in Mrs. Glazebrook's circumstances.  But included in that passage is the statement that "fairness requires that a fresh application ... should be considered by the Committee as if it were being considered in June 1999."  In our opinion, both the words of the order as described in the judgment of Southwell JA and the words last quoted above make it clear beyond peradventure that the Court of Appeal was not intending to limit the "time barrier" to any change in Mrs. Glazebrook's circumstances.  In our view it extended to evidence of everything that has happened since June 1999.  Accordingly this application for leave to appeal must be rejected.

18.      In the course of this application there was some discussion as to the principles applicable to applications for leave to appeal under Article 13(e) of the Court of Appeal (Jersey) Law, 1961.  It occurs to us that it may be helpful to practitioners if we set out our views as to what those principles are.

19.      In Vekaplast-v-Picot (1989) JLR 269, Tomes DB considered (at p.274 et seq) the statement of the principles relating to the grant of leave to appeal by the English Court of Appeal set out in the Supreme Court Practice 1988.  These are:

"... a prima facie case that an error has been made (see (1907) 123 L.T.J.202) or if the question is one of general principle, decided for the first time (Ex p. Gilchrist, re Armstrong (1886) 17 Q.B.D.521, per Lord Esher M.R., p. 528) or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (see per Bankes L.J., in Buckle v. Holmes [1926] 2 K.B.125, p. 127)."

However, when one examines the authorities upon which these principles were purportedly based (as did Tomes DB) it becomes apparent that they do not entirely support what is stated in the White Book.  The "prima facie case" principle was allegedly derived from remarks of Vaughan Williams LJ in an unidentified case quoted in "Occasional Notes" appearing in the Law Times of 29 June 1907.  The relevant extract does not use the words purportedly extrapolated but refers to the judge saying that " ... it was not sufficient for giving leave to appeal that this Court might have come to a different conclusion.  In his opinion, unless they could see that there was a clear case of something having gone wrong, they ought not to give leave to appeal."

20.      In our opinion the "clear case of something having gone wrong" test is to be preferred to "a prima facie case that an error has been made."  We adopt the second principle as accurately based on Lord Esher's statement.  As to the third, it is clear from the judgment of Bankes LJ that his remarks were confined to a question of law and we adopt that principle subject to this restriction.

21.      If the principles adopted by us are applied to the present case it will be observed that it could not have met any one of them.  It is clear from the passages in the judgment of Southwell JA in Glazebrook 2000 which we have quoted that there was no basis on which it could have been said that this was a case, never mind a clear case, of something having gone wrong in the Royal Court.  No question of general principle arose nor did any question of law, whether important or otherwise.

Authorities.

Housing (General Provisions) (Jersey) Regulations, 1970: Regulation 1(1)(g

Glazebrook -v- Housing Committee of the States of Jersey (2000) JLR 381.

Glazebrook -v- Housing Committee of the States of Jersey (31^st January, 2000) Jersey Unreported; [2000/18].

Mayo Associates -v- Cantrade Private Bank, Switzerland (23^rd November, 1998) Jersey Unreported; [1998/233]

States Greffier -v- Les Pas Holdings Ltd (1998) JLR 196 at 203.

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

Vekaplast-v-Picot (1989) JLR 269.

Buckle -v- Holmes (1926) 2 KB 125.

Farley-v-Takilla, Ltd (1984) JJ 123.

Hambros Bank-v-Eves & Anor (1994) JLR 315 CofA.