Jersey Unreported Judgments

[2004]JCA204

court OF APPEAL

(Samedi Division)

22^nd November, 2004

In the matter of the Judgment delivered this day in an appeal by the Appellant against the Judgment of the Royal Court of 4^th June, 2004, dismissing the Appellant's Order of Justice [2004]JCA203.

Judgment of the Court in relation to an application for leave to appeal to the Queen in Council and in relation to costs.

Advocate J. Martin on behalf of Advocate N.M. Santos Costa for the Appellant.

Advocate D.M. Cadin for the Respondent.

judgment

the PRESIDENT:

1.        Today, the 22^nd November, 2004, this Court dismissed the appeal by the appellant against the judgment of the Royal Court of the 4^th June, 2004, which itself dismissed the appellant's order of justice.  The reasons were contained in a written judgment which was handed down.

2.        We have before us an application by the appellant for leave to appeal to Her Majesty in Council.  Appeals to Her Majesty in Council, or as I shall say for brevity, "the Privy Council" are dealt with under two legal instruments. 

3.        The first is the Court of Appeal (Jersey) Law 1961 Article 14 which 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 £10,000 or more." 

4.        The second instrument is the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982.  (The Schedule to that Order contains procedural rules which govern appeals to the Privy Council).  Rule 2 provides:

"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"

5.        It is accepted that the proper interpretation of those provisions is that the Court of Appeal is bound to grant leave to appeal to the Privy Council in a matter where the value of the matter in dispute £10,000 is more but that, nonetheless, such leave should be sought. 

6.        We have no doubt at all that the value of the matter in dispute between the parties in this case exceeds the stipulated sum and accordingly leave to appeal must be granted on that basis automatically.  But, even if that were not so we take the view that the importance of the issue between the parties - not only particular to them, but in the context of the general law of medical negligence - is such that, in the exercise of any discretion that we enjoyed, we would have granted leave to appeal in any event.

7.        It is the established practice of this Court, as illustrated by, amongst other cases, the case of Forster (trading as Airport Business Centre) -v- Harbours and Airports Committee [1990] JLR82 that when leave to appeal to the Privy Council is granted conditions ought ordinarily to be attached.

8.        The condition that we propose to attach to the leave to appeal is that the Appellants transmit the Record, as defined in Rule 1 of the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982, within a period of three months from today's date, to the Registrar of the Privy Council.  We were advised by Advocate Martin, appearing today for the Appellant in place of Advocate Santos Costa, that an application will need to be made to the legal aid authorities in Jersey to instruct London counsel to advise upon the merits of pursuing the appeal in the light of the leave which we have granted, and it is for that reason that we have extended the period allowed for transmitting the Record from what might otherwise be a conventional period of 2 months to a period of 3 months.  We would add that if a decision were taken, pursuant to the advice received from such counsel, that the leave to appeal should not be exploited, then the Appellant should be under an obligation to notify the Respondent of that decision forthwith.

9.        The other matter which falls to be considered is whether, as Advocate Cadin submits, a security ought to be ordered in relation to the costs of any proposed appeal.  It is accepted by both parties that we have here a discretion, unfettered by any particular provision of any rules, and furthermore, that there is no jurisprudence binding upon us that compels us to exercise that discretion one way or another.

10.      It seems to us - having been advised about the exceptionally limited means that are available to the Appellant, a young man, we remind ourselves, who has sustained serious brain damage - that to order such security would in effect be to stifle the appeal, since any sum which adequately represented the potential costs of the Respondent would not be one that could be provided by an Appellant circumstanced as we have described. 

11.      We were helpfully and properly reminded by Advocate Martin that in the case of Snell -v- Beadle [1999]JLR1 an appellant who was, like the appellant in this case, in receipt of public funds was ordered to provide security to pursue an appeal to the Privy Council.  That case can be distinguished from the present, in that there was a third party sponsor who was prepared to provide the relevant sum.

12.      The other issue that remains, is the issue of costs.  Because the matter was pursued from the Royal Court to us, it appears that it was agreed between the parties that it was premature for any earlier order for costs to be made.  We have, however, determined the matter, in conformity with the Royal Court, adversely to the Appellant (the appeal having been dismissed) and we consider that in the circumstances, and in particular, since there is no certainty that the matter will necessarily proceed to the Privy Council that it would be both just and convenient now to make an order for costs.

13.      The order we propose to make is that the Appellant do pay the Respondent's costs of and incidental to the proceedings both before the Royal Court and ourselves, such costs to be taxed on a standard basis if not agreed, but that such order be not enforced without the leave of the Royal Court.  We make such order in favour of the Respondent upon the following terms: that the Appellant will undertake by his curator, at the moment Mrs Canavan of the firm of advocates who are presently representing the Appellant, and by Mrs Nicholson, the mother of the Appellant, as and when Mrs Canavan ceases to enjoy the office of curator, to notify Bedell Cristin, the firm who are representing the Respondents, of all or any changes in the Appellant's circumstances, such as might be relevant to the question of the enforceability of the order for costs which we have made and further to provide such assistance as may be required, whether by acknowledgement of the debt, or otherwise, to ensure that the order for costs and/or the moneys due thereunder remain enforceable.  We add that Mrs Nicholson is present before the Court and accepts the obligation to provide such an undertaking, the significance of it having been expressed to her by the President on behalf of the Court.

14.      Finally we should guard against some presently unforeseeable contingency.  It therefore seems to us to be prudent to add to the order we have made an order that the parties be at liberty to apply to the Royal Court.

Authorities

Court of Appeal (Jersey) Law, 1961: Article 14.

Judicial Committee (General Appellate Jurisdiction) Rules Order 1982: Rule 2.

Forster (trading as Airport Business Centre) -v- Harbours & Airports Committee [1990]JLR82.

Snell -v- Beadle [1999]JLR1.