[2005]JCA088
COURT OF APPEAL
6th July 2005
Before: |
P. D. Smith, Esq., Q.C., President; R. C. Southwell, Esq., Q.C.; and K. S. Rokison, Esq., Q.C. |
Between |
Gamlestaden Fastigheter AB. |
Representor/ APPELLANT |
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|
|
And |
Baltic Partners, Ltd. |
First Respondent |
|
David Paul Boléat |
Second Respondent/RESPONDENT |
|
Michael David de Figueiredo |
Third Respondent/ RESPONDENT |
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Peter Arthur Neil Bailey |
Fourth Respondent/ RESPONDENT |
IN THE MATTER OF
An appeal by the Representor/APPELLANT against the Judgment of the Royal Court of 22nd July, 2004, striking out the Re-Amended Representation.
AND IN THE MATTER OF
An appeal by Respondent's Notice, under Rule 5(2) of the Court of Appeal (Civil) (Jersey) Rules, 1964, by the Second, Third and Fourth Respondent/RESPONDENTS, contending that the decision of the court below should be affirmed, but that, if that decision is set aside, paragraphs A(1), (2), and (3) of the Prayer of the re-amended Representation should in any event be struck out on the grounds that such relief is unavailable under Article 143 of the Companies (Jersey) Law 1991.
On 10th February, 2005, the Court, in a reserved Judgment handed down on that day, [2005]JCA015: 1. dismissed the appeal insofar as it relates to ground that the Re-Amended Representation disclosed no reasonable cause of action; 2. allowed the appeal insofar as it relates to the ground that there had been a want of prosecution; 3. dismissed the appeal by Respondent's Notice; and 4. adjourned to another day: (a) any possible application, under Article 14 of the Court of Appeal (Jersey) Law, 1961, for leave to appeal to Her Majesty in Council; and (b) any submissions in relation to costs.
Applications: (a) under Article 14 of the Court of Appeal (Jersey) Law, 1961, by the Representor/ APPELLANT, for leave to appeal to Her Majesty in Council; and (b) in relation to costs.
Advocate M. St. J. O'Connell for the Representor/ APPELLANT
Advocate T. J. Le Cocq and Advocate R. MacRae for the Second, Third and Fourth Respondent/RESPONDENTS
judgment
THE PRESIDENT
1. This is the judgment of the Court on the Appellant's application for leave to appeal and as to the costs of the appeal to this Court and of the proceedings in the court below.
2. On 10 February 2005 this Court rejected the Appellant's appeal against an order made by the Bailiff striking out the Appellant's re-amended representation. The Appellant then sought leave to appeal to the Privy Council. This was resisted by the Respondents on the basis that this Court has no jurisdiction under Article 14 of the Court of Appeal (Jersey) Law 1961 ("the Law") to grant leave, or if it has, that leave should not be granted.
3. The Appellant's initial response was to concede that the Appellant had no right of appeal but to contend that this Court has jurisdiction to grant leave in its discretion.
4. Having studied the legislation and the authorities, the Court directed that the parties be informed that it had not been persuaded that the concession was properly made and, thinking it important that the true meaning of Article 14 be established as it may affect other litigants in the future, that the Appellant be invited to withdraw the concession.
5. The Appellant's response was that it was "prepared to withdraw the concession made and argue the matter but only on the strict understanding that it will not be exposed to any adverse costs order should the Court of Appeal rule against its submissions." To this the Court replied pointing out that it is not appropriate for a party seeking to withdraw a concession to purport to impose a condition and that if the Appellant did wish to withdraw the concession this must be done unconditionally. Failing that, the Court would deem it that the concession had not been withdrawn and would proceed to deal with the application on that basis. The Appellant's rejoinder was that it was not prepared to withdraw the concession unconditionally.
6. In these circumstances we deem it that the Appellant has not sought to withdraw its concession. However, as the question of entitlement to leave to appeal goes to jurisdiction and, in our view, it would be wrong to reach a decision which we did not believe to be right in law, we have decided of our own motion to refuse to accept the Appellant's concession and to decide this application as if it had not been made.
7. The Respondents' argument on jurisdiction proceeded on the basis that this Court may only grant leave if its decision is final and not interlocutory. It was contended that the decision in this case was interlocutory because it could not be said that the result would necessarily have disposed of the proceedings no matter in which way the appeal had been decided. As it happened, the decision did dispose of the proceedings but if the appeal had been decided the other way the proceedings would have continued. Reference was made to Planning and Environment Committee -v- Lesquende [2003] JLR 15; Order 59 Rule 1A(6)(k) of the Rules of the Supreme Court of England and Wales and White -v- Brunton [1984] 1 QB 570. Furthermore, the Respondents relied on the fact that the Appellant had applied for leave to appeal from the Bailiff, thereby accepting that the appeal to the Court of Appeal was interlocutory.
8. In our opinion neither the authorities mentioned above nor the now superseded English rule are germane to the point under consideration. Article 14 of the Law (as amended) reads as follows:
"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 ten thousand pounds or more ."
9. The meaning of the somewhat delphic wording of this Article was clarified by this Court in Forster (trading as Airport Business Centre) -v- Harbours and Airport Committee (1990) JLR 82 and which the Respondents have not contended is other than authoritative. Reference to the judgment of the Court delivered by Le Quesne JA makes it clear that the Court of Appeal must give leave to appeal where more than £10,000 is at issue and the order is final in the sense that it is a decision "... by which the rights of the parties are finally decided" (at p. 85, line 42 - see also Showlag -v- Mansour (1993) JLR 7 at p. 12, line 26). In other words, when it comes to appeals from the Court of Appeal to Her Majesty in Council it is the result that is the jurisdictionally determinative factor.
10. Planning and Environment Committee -v- Lesquende concerned Article 13 of the Law which deals with appeals from the Royal Court to the Court of Appeal. In that case the Royal Court held that whether a matter was final or interlocutory depended on the nature of the application and not on the nature of the order made on the application. If the application would determine the action whether it succeeded or failed it was final; it was interlocutory if it would not.
11. The question of the validity of the decision in Lesquende has not been argued before us and it would be inappropriate for us to express a conclusion as to whether or not that case was correctly decided. However, we would point out that Article 13 is very differently worded from Article 14 and, unlike Article 14 refers explicitly to both interlocutory and final decisions.
12. In delivering the judgment of the Royal Court in Lesquende the Deputy Bailiff did not make any comment on the true interpretation of Article 14 and there is no reason to believe that he was intending to cast any doubt on the validity of the reasoning in Forster, a case which does not seem to have been cited to the Royal Court. In Lesquende the Royal Court appears to have faced for the first time a choice of two competing interpretations of Article 13. The dilemma was resolved by choosing the interpretation consistent with the English jurisprudence (see White -v- Brunton op. cit.) and which, in turn, had been reflected in Order 59, Rule 1A which had been introduced in 1988. We mention in passing that Order 59 dealt with appeals to the Court of Appeal and not beyond and it, too, contained references to final and interlocutory orders.
13. The Respondents have pointed out that, if Lesquende is correctly decided and Article 14 is construed as covering any "decision" which finally determines the rights of the parties, in a case in which that decision is made on an interlocutory application there would be an anomaly, in as much as it would be easier to appeal from this Court to the Privy Council under Article 14 than to appeal to this Court from the decision of the Royal Court. Be that as it may, we observe that Forster has stood unchallenged for fifteen years and was itself based on a high authority of long standing (Esnouf v Attorney General (Jersey) (1883) 8 App. Cas. 304). In spite of the apparent anomaly we prefer to follow and apply the clear statement of the interpretation of Article 14 expounded by Le Quesne JA. Indeed, we would consider it inappropriate if a would-be appellant whose claim has finally been decided by the courts of this Island by an interlocutory decision were to be required to seek the leave of the Privy Council to appeal no matter how important the issue or how substantial the sum involved.
14. As our decision on this appeal does purport finally to decide the rights of the parties in this litigation we have jurisdiction to grant leave and, as the value of the matter in dispute is obviously more than £10,000, we must grant leave. The grant of leave is, of course, subject to the usual conditions as to security for costs and as to the time for transmitting the record to the Privy Council.
15. In the circumstances, we do not have to consider the Appellant's alternative argument in any detail. However, it seems to us to be clear from Forster and Showlag that if we are wrong and that the order made in the instant appeal is not final and, therefore, is not a decision within the meaning of Article 14, the Court of Appeal has no jurisdiction whatsoever to grant leave to appeal to the Privy Council (see Forster at p. 85, line 40; p. 87, line 18 and p. 88, line 7 and Showlag headnote at p. 8, line 37 and p. 15, line 29).
16. Turning to the question of costs, the Respondents having been substantially but not completely successful before this Court we order that the Appellant pay two-thirds of the costs of the appeal, excluding the costs of the application for leave to appeal. As to the costs in the Royal Court, the Bailiff ordered that these be in the cause and we order that the Appellant pay the Respondent's costs there.
17. As to the Appellant's application for leave to appeal we award the costs of this to the Respondents. The Appellant's application for leave to appeal would not have been successful had the Court accepted the concession and we consider that the Appellant should not gain any advantage from our fortuitous decision not to accept it. Furthermore, had the Appellant accepted our invitation to seek to withdraw the concession it might nevertheless have been fixed with the costs of the application as had it applied spontaneously to withdraw the concession the grant of leave to do so might well have been made subject to an adverse order as to costs.
Authorities
Forster -v- Harbours and Airports Committee (1990) JLR 82.
Showlag -v- Mansour [1993 JLR 7].
Planning and Environment Committee -v- Lesquende [2003] JLR 15.
Gamlestaden Fastigheter -v- Baltic Partners [2005]JCA015.
Albright -v- Hydro-Electric Commissioner of Ontario [1923] AC 167.
Thornton -v- The Police [1962] AC 339.
White -v- Brunton [1984] 1 QB 570 CA.
St. Sulpice de Montréal -v- The City of Montreal [1889] 16 SCR 399.
Hoi Shiu-Wing -v- Cheung Yuk-Lin [1968] HKLR 176.
Stininato -v- Auckland Boxing Association [1978] 1 NZLR 609.
Supreme Court Practice: Order 59, Rule 1(A)(6)(k).
Esnouf -v- Attorney General (Jersey) (1883) 8 App. Cas. 304)