Jersey Unreported Judgments

[2005]JCA056

COURT OF APPEAL

                                                                 25th April, 2005

IN THE MATTER OF

An appeal by the Plaintiff/APPELLANT against the Order of the Royal Court of 6th December, 2004, whereby the Royal Court ordered that certain paragraphs of the Plaintiff/APPELLANT's Order of Justice be struck out as disclosing no reasonable cause of action.

Application by the Second, Third, Eighth, and Ninth Defendants for a further adjournment of the appeal, which, at the hearing on the 28th February, the Court had directed be adjourned to the Sitting taking place in the week beginning Monday, 16th May, 2005.

Advocate N.M. Santos Costa for the Plaintiff/ APPELLANT.

Advocate J.P. Speck for the First Defendant/ RESPONDENT.

Advocate C.G.P. Lakeman for the Second, Third, Eighth and Ninth Defendants.

Advocate M.L. Preston for the Fourth, Fifth, Sixth, and Seventh Defendants.

JUDGMENT

SOUTHWELL JA:

1.        The Court of Appeal had before it on the 28^th February 2005 an appeal by Mr Andrew Mackinnon against the decision of the Royal Court striking out part of his Order of Justice which put forward a second head of claim, or cause of action, and which the Court thought was bound to fail.

2.        On 28^th February 2005 the Court of Appeal adjourned the appeal to the next ordinary sitting of the Court taking place in the week beginning 16th May 2005 because it was informed that the adjournment was desirable so as to enable Mr Andrew Mackinnon and Regent Trustees to enter into an agreement, if they could, and they asked the Court to adjourn the case until after they had made such an agreement and taken it before the Royal Court for approval.  There was also the question whether the brothers, Andrew and James, might reach an agreement with their children as well, but that seemed a rather more distant possibility.  On the basis of the discussions which were taking place between Andrew Mackinnon and Regent Trust the Court of Appeal directed the parties to fix a date for the possible hearing before the Royal Court to take place not later than the 30^th April 2005.

3.        The matter has gone before the Royal Court and the application has been allowed for the approval of the agreement, with the exception of one clause of the agreement, which apparently relates to the possibility of certain persons giving evidence at trial.  That being so there are a number of possibilities.  It is possible that the agreement not having been approved in toto, there may be an appeal against that decision of the Royal Court, or indeed Regent Trust may decide that, on the hearing of the appeal before the Court of Appeal, they will not take the neutral role which had been anticipated, but may feel that it is necessary for them to pursue their resistance to the appeal as respondents.

4.        The position, which Mr Lakeman has very fairly put in front of me, is that Mr James Mackinnon, faced with the possibility of this appeal going ahead and his having to be, in effect, the main respondent, has decided only this last weekend that on account of costs he should fight the appeal before the Court of Appeal himself and not engage Mr Lakeman for that purpose, though Mr Lakeman is going to come back in thereafter for the conduct of the action. 

5.        Mr Lakeman has urged that Mr James Mackinnon will not be able, in the time available, to get ready to argue what are in effect legal points.  He also urges that there is uncertainty as to exactly what the position will be now that the Royal Court has declined to approve the agreement in its entirety.

6.        In those circumstances I have to think about what is the most appropriate way for this matter to be taken forward.  As a Member of the Court of Appeal who sat on the 28^th February 2005, I retain very firmly in my mind the need for these proceedings to get on.  If they are to be fought then the sooner they are decided the better.

7.        It is highly regrettable that Mr Andrew Mackinnon and Mr James Mackinnon cannot between them, with the help of Regent, reach a sensible agreement.  I am disturbed to see that in the Royal Court judgment there is reference to 'vitriolic correspondence' between those acting for Andrew Mackinnon and those acting for Regent.  That, with the greatest respect to the parties concerned, is wholly inappropriate, and I would hope there will be no further such correspondence.  These are matters which in the interests of the family should be resolved sensibly and not with the exchange of silly correspondence.

8.        Now coming to the question of an adjournment I am satisfied that the correct order is that there should be no adjournment.  The Court of Appeal made it abundantly clear on 28^th February 2005, that it was only adjourning in order to enable the possibility of an agreement between Mr Andrew Mackinnon and Regent Trust to be taken to fruition (as we were assured was likely to happen within a short time).  That is why we directed that the sitting of the Royal Court must be not later than the 30^th April 2005 so as to give those who had to conduct the appeal before the Court of Appeal on 16^th May 2005 sufficient time to be ready, that is to say 2 weeks.  In fact there was more than two weeks; and more than that, it has been open to Mr Lakeman and his client Mr James Mackinnon to take steps to make themselves ready for the likelihood that they might have to adopt the full respondents role in the appeal since the 28^th February 2005, and certainly since the agreement was in the hand of Mr James Mackinnon on apparently 13^th April 2005. 

9.        Those being the circumstances, and, in addition, first, the fact that Mr James Mackinnon is not in the position of appellant but that of a respondent, and secondly there being very full skeleton arguments as to the question whether this was a good or bad cause of action already available and before the Court (and indeed the Court has read them), I see no real difficulty in the matter being decided by the Court of Appeal on 16^th May 2005 or whenever in that week the matter is called on.  Mr James Mackinnon will himself, I am afraid, have the greatest difficulty in presenting any of the legal arguments involved, but as I say there are already before the Court detailed submissions in writing on the cause of action question which he can adopt (if indeed he does not change his mind, and decide that Mr Lakeman can take an appropriate part in the appeal). 

10.      So far as the position of Regent Trust is concerned, they will have to decide before 16^th May 2005 what attitude they are going to adopt.  They will have to decide whether they are going to appeal against the present Order of the Royal Court on the agreement, or indeed whether they are going to fight the appeal before the Court of Appeal.   But none of that seems to be to be a reason for granting any application for leave to adjourn now.  Everybody has known what the position was probably going to be. 

11.      It is necessary and essential for the conduct of these proceedings that everybody knows whether one of the two main causes of action is, or is not, to depart from the case; and that in my judgment needs to be decided in the week of 16^th May 2005 and no later.  In those circumstances I refuse Mr Lakeman's application for an adjournment.

There followed a discussion on costs.

No Authorities