Jersey Unreported Judgments

[2006]JRC143

royal court

(Samedi Division)

11^th October 2006 

IN THE MATTER OF APPLICATION BY THE DEFENDANT FOR AN EXTENSION OF TIME RETROSPECTIVELY PURSUANT TO ROYAL COURT RULE 1/5 TO CHALLENGE THE JURISDICTION OF THE ROYAL COURT OF JERSEY PURSUANT TO ROYAL COURT RULE 6/7

Advocate P. S. Landick for the Plaintiff.

Advocate S. A. Franckel for the Defendant.

judgment

the deputy bailiff:

1.        This concerns an action by the plaintiff against the defendant which came before the Court for the first time on 23^rd June 2006 when it was placed on the pending list.  The defendant at that stage gave an indication of an intention to challenge the jurisdiction.  This is because of the existence of what are said to be some parallel proceedings in the Southampton County Court about the same matter.

2.        Rule 6/7 (3) (a) (ii) provides that an application must be made to fix a date for the hearing of the challenge to the jurisdiction within 28 days thereafter. Furthermopre, the application is to be made to the Bailiff's Judicial Secretary, because this is one of those provisions where the Court does not include the Master.

3.        This provision was overlooked by both parties.  The primary error was that of the defendant.  When the summons was issued on 14^th July it was issued before the Master, but no objection was taken by the plaintiff's advocate and the hearing was fixed before the Master for 23^rd August.

4.        On 21^st August it was adjourned by consent because of the unfortunate illness of the defendant's wife, although it appears there may have been discussions taking place at the same time.

5.        Subsequently, the plaintiff made moves to apply for summary judgment and the result was that the summons for the challenge to the jurisdiction was re-issued on 14^th September and a hearing date fixed for 12^th October.

6.        On 25^th September Advocate Landick, on behalf of the plaintiff, realised that the Master had no jurisdiction and informed Advocate Franckel.  Mr Franckel then wrote to the Bailiff on 26^th September seeking leave to issue a summons out of time.

7.        That is the matter now before me.  The defendant applies for an extension of time to file the summons challenging the jurisdiction.

8.        The principles which I should bear in mind when considering an application for extension of time were helpfully set out in the case of De Gruchy v Planning & Environment Committee [2001/81A] and I have regard to those.

9.        Taking into account all the circumstances I think the interests of justice dictate that I should grant leave in this case.

(i)        There has been a clear intention from the very start to challenge the jurisdiction.  This is not one of those cases where there has been a change of stance by a party.  

(ii)       It was a mutual error.  As I have said, primary responsibility rests with the defendant's advocate but it was shared by the plaintiff's advocate until 25^th of September and thereafter the defendant's advocate moved with appropriate urgency and speed.

(iii)      I must consider the question of prejudice.  Undoubtedly there will be some delay and this will cause prejudice to the plaintiff, particularly given that he apparently wishes to make an application for summary judgment.  But one has to have regard to exactly what the prejudice is.  As Mr Franckel has rightly said, the delay caused by the challenge to the jurisdiction would be suffered in any event.  One is only considering here the extra delay caused by reason of the defendant having issued the summons, before the wrong part of the Court.  The hearing would have taken place on the 12^th October.  I am going to direct the parties to attend forthwith to fix a date, and there seems no reason why half a day should not be found within the next 1 to 2 months.  That is the extent of the delay and therefore the prejudice suffered by the plaintiff.  I have listened to Mr Landick's arguments and his skeleton on that point but I do not consider that that level of prejudice outweighs the interests of justice in allowing the defendant to continue with a challenge to the jurisdiction which he was always going to bring.

(iv)      Finally, I have had regard to the merits.  I accept that if the merits were all one way and that I would form the view on the papers that the defendant's application was hopeless and was perhaps some tactical ploy, then I would take that into account in reaching my decision.  But I do not consider that is the position.  I cannot form any view as to the merits but I do not consider that this is an obviously hopeless challenge to the jurisdiction on the part of the defendant.

10.      In the circumstances therefore I grant the extension of time and I direct the parties to attend this morning before the Judicial Secretary to fix a date.

Authorities

De Gruchy v Planning & Environment Committee [2001/81A].