[2008]JRC087
royal court
(Samedi Division)
29th May 2008
Before : |
M. C. St. J. Birt, Esq., Deputy Bailiff, sitting as a single Judge. |
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Between |
Michael M. G. Voisin Ian W.S. Strang John P Kendall Ashley D. Hoy Simon J. Habin Nigel G. A. Pearmain Michael L. Preston Trading under the name Voisin & Co. |
Defendants/APPLICANT |
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And |
Romy Kerschbaumer, curator of Valerie Kathleen Kerschbaumer, nee Baal |
Plaintiff/RESPONDENT |
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Advocate D. J. Benest for the Applicant.
Advocate C. Hall for the Respondent.
judgment
the deputy bailiff:
1. The way this hearing has gone, I have not heard argument on the facts concerning whether the Royal Court was entitled to find that the inordinate delay in this case was excusable; however I would have required some persuasion that that would have been a proper ground to grant leave to appeal. That is clearly a matter for the discretion of the Royal Court and it is only in very limited circumstances that a Court of Appeal will interfere with such a finding.
2. However I do not need to consider that here because Mr Benest says that there is a matter of general importance which should be addressed by the Court of Appeal and he also says that there is clear evidence of something having gone wrong in the Court below, in that the Royal Court did not deal with his argument on this important point. The point he seeks to make is that until recently the ground for striking out was the well known ground laid down in Birkett v James [1978] A.C. 297 as elaborated in this jurisdiction in the case of Garfield-Bennett v Phillips [2002] JLR N42. The test contains three limbs, namely:-
(i) whether there has been inordinate delay
(ii) whether the delay is excusable
(iii) if there has been inexcusable delay, whether there has been prejudice or whether a fair trial is no longer possible.
I have not cited these tests in their exact form.
3. He says that the position is now in the process of change as, in the cases of Citco (Jersey) Limited and Bowden v Bank of Ireland (Jersey) Limited [2005] JLR N28 and, Ybanez and Mompo v BBVA Privanza Bank (Jersey) Limited [2007] JRC 199, the Court has indicated that, on any view, the third requirement may no longer be necessary and that where there is inordinate and inexcusable delay that may of itself give rise to an abuse of process justifying a striking out.
4. Now in those two cases it was agreed that there had been inordinate delay which had also been inexcusable. Accordingly the Courts in those cases did not have to consider whether inexcusability was an essential ingredient.
5. However Mr Benest argued before the Royal Court and wishes to argue before the Court of Appeal that simple delay may in some circumstances give rise to an abuse of process such that the proceedings should be struck out. He wishes in effect to mount a wholesale attack on the Birkett v James test and say that, in these modern days, a more flexible approach is required and this has been foreshadowed in Citco, Ybanez and some of the English cases to which he referred me, and this is a case in which an authoritative ruling from the Court of Appeal should be obtained.
6. For my own part I do not express any view on the likelihood of success but I do think that it is an argument that should properly be brought before the Court of Appeal. Furthermore I do think that the Royal Court did not deal with that particular argument in its judgment and accordingly Mr Benest has not had a decision from the Royal Court on that argument.
7. The Royal Court's decision was based simply upon its conclusion that the delay was excusable and that, therefore, determined the outcome of the case. However, if Mr Benest's argument were to be accepted, a finding that the delay was excusable would not necessarily determine the outcome of the case although, no doubt, it would be a highly relevant factor.
8. In all the circumstances I think there is sufficient to justify this matter going to the Court of Appeal and I grant leave.
9. Costs ordered in the appeal.
Authorities
Birkett v James [1978] A.C. 297.
Garfield-Bennett v Phillips [2002] JLR N42.
Citco (Jersey) Limited and Bowden v Bank of Ireland (Jersey) Limited [2005] JLR N28.
Ybanez and Mompo v BBVA Privanza Bank (Jersey) Limited [2007] JRC 199.