Jersey Unreported Judgments

[2006]JCA064

Court of Appeal

28^th April 2006 

Court File No. 89/15

Court File No 91/74

Court File No. 91/184

Court File No 93/317

Court File No. 95/182

Court File No.95/195

Court File No.96/85

Advocate M. C. Goulborn for Advocate M. L. Sinel, Advocate M. C. St. J. Birt and

Advocate M. S. D. Yates.

Advocate A. P. Begg on his own behalf.

Advocate S. M. Baker for Mr James Barker.

judgment

bailiff:

1.        On 18^th July 2005 I refused leave, as a single judge, to Mr Barker to appeal against a decision of the Royal Court striking out a number of actions in which Mr Barker was plaintiff.  I also refused his application for an enlargement of time within which to file the notice of appeal.

2.        On 8^th March 2006 I ordered Mr Barker to pay the costs of those applications on an indemnity basis.

3.        On the same day, 8^th March 2006, an application was made by Mr Goulborn on behalf of the third, fourth, and fifth defendants in Action 89/15 and the fourth, fifth, and sixth defendants in Action 91/74 for security for the costs of any further applications for leave to appeal to the plenary court, or alternatively, a stay of any application that Mr Barker might make to the plenary court pending payment of outstanding costs' orders.

4.        A similar application was made by Advocate Begg on his own behalf as the defendant in Action 95/182.

5.        Mr Barker was on this occasion represented by Counsel.  Mr Baker made two points on his client's behalf.  First he submitted that these applications were premature in that no formal notice of appeal had yet been lodged following the judgment which I delivered on 18^th July 2005.  The appropriate time for making such applications was, in Mr Baker's submission, after the notice had been filed.  Secondly, he submitted that it might be better if a different judge were to consider whether there were special circumstances rendering it just to order security for costs.

6.        Neither of these points has, in my judgment, any substance against a background of conduct which now amounts to an abuse of the process of this Court and of the Court below.

7.        The relevant circumstances appear to me to be as follows:-

(i)        Seven different actions involving nineteen defendants or respondents have been struck out for want of prosecution pursuant to the Royal Court Rules 1992.  Appeals against those strikings-out have been dismissed by the Royal Court and by a single judge of this Court.

(ii)       The actions are stale, having been commenced between ten and seventeen years ago.

(iii)      At almost every stage of these lengthy proceedings Mr Barker has ignored procedural rules and time limits, failed to comply with practice directions regarding the production of documents and skeleton arguments and ignored advice given freely and conscientiously by officers of this Court and of the Royal Court.

(iv)      Costs' orders have been made against him, generally on an indemnity basis, both by the Royal Court and this Court.  It seems that none of those costs' orders has been met but, at the lowest, the costs' orders involving those parties represented by Counsel in these proceedings and by Mr Begg remain unsettled.

8.        Mr Barker seems, in my judgment, to have adopted the viewpoint that he can continue to engage the judicial process without paying any regard to the adverse consequences of losing the argument and being ordered to pay the costs of his opponents.  In the meantime the defendants have been put to the considerable expense of engaging Counsel or, in the case of the advocate defendant, expending time on preparing for different hearings and being unable to recover the costs which they have expended.  In relation to certain costs' orders, bills have been prepared and taxed.  Mr Goulborn told me that his clients had sued in the Petty Debts Court and obtained a judgment on 23^rd February 2005.  The relevant Act of the Court had however been returned by the Viscount who had been unable to execute it.  No evidence has however been placed before me of any impecuniosity on the part of Mr Barker.  Taken in the round, I have had no hesitation in concluding that Mr Barker is now abusing the process of the courts.

9.      In my judgment the appropriate order is one staying any further application which may be made to the plenary court for leave to appeal out of time against the judgment of the Royal Court of 18^th March 2004 pending payment of all or any orders for costs made in respect of the hearings before a single judge of this Court and all or any orders for costs made by the Royal Court in Actions 89/15, 91/74 and 95/182 in favour of those parties who have applied for this relief.  I so order.

10.      Finally, with regard to the costs of these applications, it seems to me that they must follow the event.  I order Mr Barker to pay the costs of the applicants on the standard basis. 

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