[2008]JCA036
COURT OF aPPEAL
6th March 2008
Before : |
The Hon. Michael Beloff, Q.C., Commissioner (sitting as a Single Judge). |
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Between |
A P Black (Jersey) Limited |
Appellant/First Plaintiff |
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Mr Alistair P Black |
Appellant/Second Plaintiff |
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Mrs Eila A Black |
Appellant/Third Plaintiff |
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A P Black Limited (UK) |
Appellant/Fourth Plaintiff |
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And |
The Jersey Financial Services Commission |
Respondent |
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Application by the Appellants to a Single Judge of the Court of Appeal for a stay of the order of the Court of Appeal dated 23rd January, 2008, [2008] JCA 008.
Mr A. P. Black for the Appellant.
Advocate M. L. A. Pallot for the Respondent.
judgment
the COMMISSIONER:
1. The Black Appellants applied, on 11th February, 2008, to stay an order of the Court of Appeal made on 23rd January, 2008 in [2008] JCA 008 which itself refused to stay an order by Mr Commissioner Page of 23rd August, 2007, that they should provide security for costs in connection with their appeal against various costs orders he had made at earlier stages of the proceedings (for a full history see my Judgment of 7th January, 2008), although they extended time for compliance for a further 28 days from the date of their judgment.
2. On 22nd February I directed that both parties (treating the Applicants for this purpose as one) file and exchange any written submissions in the application by 5pm on 26th February and both parties file and exchange any written submissions in response by 5pm on 28th February, and indicated that I would determine the application on the papers unless persuaded that there were compelling reasons to deal with it otherwise. I also ordered a further stay of the Court of Appeal's order until my determination.
3. I have received and read comprehensive parties' written submissions (each dated 29th February, 2008), and the parties' written submissions in response (each dated 4th March, 2008).
4. The Applicants have amply and eloquently rehearsed their sense of injustice about the Respondents conduct from the inception of proceedings to date. In their written submissions dated 29th February, 2008, they deal only at the last two pages with the issue of stay and focus in this context on their claim to £50,000 held in the name of A P Black (Jersey) Limited at Abbey International, Jersey. On 11th February, 2008, the Applicant belatedly sought orders which would release those funds to the Applicants, in particular, to meet their legal costs including the security in respect of which the stay has been ordered (see paragraph 1.0; 2.0; 30.10) although the funds have been frozen since 6th December, 2006, and the Commissioner (Howard Page Q.C.) made it clear on that date that separate proceedings would need to be instituted in respect of any claim to it.
5. During the hearing before the Court of Appeal (as is recorded in paragraph 2.1 of the Judgment) it was admitted that the Applicants did possess assets which could be used to satisfy the security for costs orders. The Applicants cannot go behind the finding but in their summons they seek to qualify it. They assert in paragraph 3:
"3.0 that although the Second Appellant declared to the Court of Appeal that regarding the Third Appellant that it was "not impossible to" ("can") provide the Security of Costs so requested there is a difference between "can" (not impossible) and "can afford" and "should be limited to the capacity of the Third Applicant" who was struck out in 2005. Consequently all of the Appellants have need of the funds so restrained in the name of A P Black (Jersey) Limited by Abbey International Jersey to meet the demand for Security of Costs by the Court of Appeal"
6. I do not find this qualification (which is not an attempt to deny the words attributed to Mr Black) nor their ordinary and natural meaning persuasive. The assets of the Third Applicant will be available to satisfy the Court of Appeal's order for all the Applicants - and "can afford", in context, seem to mean no more than that the Applicants prefer to spend the money on other desiderata rather than by way of provision of security. It remains conceded however, that it would be possible for them to provide such security. No evidence in any event has been addressed in elaboration of their somewhat Delphic statement.
7. In their submissions the Commission say:
"20. Prior to the expiry of the deadline for the provision of security, the Applicants served, inter alia, a summons seeking the release of the funds held with Abbey. These funds represent the only means by which the Commission will be able to recover the wasted costs orders which have been made in its favour together with further and other costs orders which have been made in the course of these now discontinued proceedings. The Court of Appeal should note that the costs orders made by the Royal Court are unappealable and final and therefore all that remains is for them to be quantified and the amounts awarded enforced against the money retained, as a result of an injunction imposed by the Court, at Abbey. Allegations and comments concerning the funds held by Abbey being on constructive trust are, in those circumstances, just irrelevant.
21. Furthermore, the funds at Abbey were explicitly excluded by Commissioner Page as being eligible for the Applicants to utilise as security for costs because the learned Commissioner saw that those funds had been taken up in full by unappealable costs orders of the Royal Court and the Royal Court's summary award of costs in respect thereof, which summary award is not the subject of any appeal. Therefore, in his judgment of 19 June 2007 at Paragraph 13 Commissioner Page made clear in this regard that the source of any security should be a source other than the funds held by Abbey.
22. This summons, if allowed to be heard as requested by the Applicants, will have the effect of bypassing all of the orders made by both the Royal Court and Court of Appeal at the further expense of the Commission. This in circumstances where they have neither raised nor canvassed the issue of releasing the funds held by Abbey National before either Court prior to issuing the summons and despite having had ample opportunity to do so. This is an abuse."
8. The facts in paragraph 20 and 21 of the Commission's submissions are indisputable. The belated summons of 11th February made to the Royal Court appears destined to lead to a cul de sac, not a road to recovery. In any event I am not minded to grant the stay in order to allow the Applicants so late in the day to see if they can procure the unencumbered release of the funds held at Abbey.
9. Absent any other reason for staying the Court of Appeal's order it must be complied with by the Applicants as the price of pursuing the appeal within the limits so far prescribed. The application is without conceivable merit.
10. For the reasons set out above I order that:
(i) the application for a stay be refused; and
(ii) unless the security for costs awarded by the Court of Appeal in favour of the Commission are paid as previously required by the Court of Appeal within 36 hours of my decision not to order any stay or extension of time then all the appeals and/or applications lodged by the Applicants before the Court of Appeal be immediately dismissed; and
(iii) unless security is provided as required above, leave to appeal on any of the grounds put forward by the Applicants, if leave to appeal and/or consideration of the issues is a matter which could have come before the Court of Appeal, is refused; and
(iv) the costs of and incidental to this application for a stay be awarded to the Commission on an indemnity basis.
Authorities
Black and Others v JFSC [2008] JCA 008 (also containing Judgment of Beloff JA on 7th January, 2008).