Jersey Unreported Judgments

[2008]JCA159A

COURT OF APPEAL

24^th September 2008

Mr Harry Cole

-v-

The Chief Officer of the States of Jersey Police

Application for an extension of time in which to appeal against the judgment of the Royal Court of 13^th December, 2007.

Application originally heard and refused on 22^nd July, 2008 before Sumption JA sitting as a single judge.

Mr. H. Cole as a litigant in person.

Advocate M. P. Cushing for the Respondent.

JUDGMENT

Beloff JA, president:

1.        This is an application for an extension of time in which to appeal against the judgment of the Royal Court of 17^th December 2007 ([2007] JLR 606).  The application was originally heard and refused on July 22^nd 2008 by Sumption JA sitting as a single judge.  An application to set aside the decision of a single judge is procedurally misconceived: Taylor v Taylor [1987-88] JLR 65.  With the sensible concurrence of the Respondent we treat this as a new application to us, which is permissible under the rules.

2.        The action brought by the Applicant was for misuse of private information or breach of confidence.  The basis for the claim was the disclosure by the Respondent in November 2001 to the Jersey Post of the Applicant's then criminal record, which resulted in the withdrawal by the Post of a provisional offer of employment.  It was common ground that there was no public interest in the disclosure since the offences were minor, stale and would soon, as a matter of legislative reform, become spent.  However although the Applicant claimed, inter alia, £75,000 for injury to feelings (now upgraded to £150,000) the Royal Court awarded him only £750.  They found that any humiliation sustained by the Applicant's convictions becoming known in a small community such as Jersey, was entirely the consequence of his own actions in making a variety of well publicised complaints in a variety of fora, and issuing a variety of unsustainable proceedings, whereas the Police disclosure was to a single person only.  He was in short in the view of the Royal Court substantially the author of his own misfortune.

3.        The time limits as to appeal in civil matters from the Royal Court to this Court are set out in Rule 3 of the Court of Appeal (Civil Rules) 1964 which provides for service of the Notice of Appeal within one month from the date of the order of the Court below. 

4.        Accordingly the time for service of the Applicant's Notice of Appeal expired on 13^th January 2008.  However, the Notice of Appeal was in fact served on 3^rd July 2008.

5.        It is, of course, important that time limits are observed: their purpose is to ensure the swift and effective despatch of the Courts business and to bring peace of mind to the disputant parties.  It is also the case that from time to time there is good and sufficient reason for a failure on the part of a litigant to observe those limits, hence the discretion vested in the Court to forgive non-compliance.  (Rule 16(1)).  The factors which should inform the Courts discretion are set out in Barkev v Barclays Bank 5^th April 1989 (CA):-

"the extent of the delay; any explanation  that is offered for the delay; the purpose of the appeal which is proposed and any prejudice which may be suffered by other parties to the proceedings"

6.        In refusing leave to appeal Sumption JA said, inter alia:-

"The explanation which the Court has been given of the delay is one in which I am happy to take as correct as set out in Mr Cole's submissions:-that some three weeks after the judgment in December 2007 he went into hospital for knee replacement surgery where he remained for some 12 days.  He was then recovering from that surgery for some 3 -4 months.  He then took a holiday and notwithstanding his awareness, according to his own evidence, that a month was the time allowed for service of a Notice of Appeal he took some 5 ½ months to serve one. 

It appears to me that the general effect of Mr Cole's explanation is that he was not prepared to give the drafting of a Notice of Appeal a particularly high priority in his life and I do not regard that as a very convincing explanation for a delay of this extent. 

It is fair to say that there is no obvious prejudice to the defendant in a late appeal and I would undoubtedly have been sympathetic to the application if I had felt that the appeal had much in the way of merits.  However the only matter in respect of which Mr Cole is entitled to complain is that damages were not awarded to him on the scale that he had hoped to receive, since he actually won on the question of liability. 

In the course of the hearing he abandoned his claim for damages for loss of earnings, leaving a claim for damages for injured feelings in respect of which he obtained the sum £750.  In this area the assessment of damages for hurt feelings is generally on a modest scale and is very much a matter of impression for the trial judge.  "

7.        Sumption JA was not overly sympathetic to the Applicant's predicament.  An e-mail from the Applicant's wife to Counsel for the Respondent dated 14^th January 2008 notes that "before (he) went into hospital, he started drawing up his appeal documents but that has had to go by the wayside in view of his upcoming operation and recovery".  This is expanded in the Applicant's grounds of appeal which refers to his preparations "for a serious operation and after being hospitalised for 12 days, ... a long recovery process 1. and that "following his operation the Applicant was constantly under medication which caused him extreme tiredness to the extent that he was mentally incapable of drafting important legal documents."  This was again repeated in his written submissions paras (17) and (19).

8.         Even allowing for the fact that the Applicant took a recuperative holiday for the benefit of himself and his exhausted wife, in May in the USA, Sumption JA's conclusion that the Applicant was "not prepared to give the Notice of Appeal a particularly high priority in his life", could arguably be described as more critical than was warranted by an explanation he had accepted, coming as it did from someone who had been for several years vigilant to protect what he perceived to be an infringement of his rights.

9.        However it is clear that Sumption JA would not have dismissed the application on that basis, alone especially since, as he also found, no prejudice was caused to the Respondent by the delay.

10.      What was critical for Sumption JA was the absence of "anything substantial by way of merits".  The only issue in the proposed appeal is as to the quantum of damages for injury to feelings.  We can detect no misdirection of law in the Royal Court's exposition and like Sumption JA, we find the Royal Court's assessment well within the appropriate target area.  We cannot accept the Applicant's submission, forcefully advanced, that all the publicity given to his convictions was to be attributed to that original unlawful disclosure, by the police rather than to his own actions in seeking redress.  The Applicant said both eloquently and pithily "I had no choice."  But as the Royal Court said "For obvious reasons no litigant can claim damages for hurt feelings suffered as a result of publicity caused by his own proceedings" (Para 41).  We must endorse that analysis.  The choice to seek redress was the Applicant's: the Respondent could not control that choice and it would be unfair to hold him responsible for it.  The risk of adding fuel to the fire (or even a single flame) by instituting proceedings is one that many litigants take.  Sometimes the risk proves worthwhile: and sometimes it does not.

11.        The Applicant's Notice of Appeal refers to (i)  "other awards which would have supported his claim that the award was unjust and derisory".  We know of none: and none has been shown to us.  Although the Jurats' award was an exercise in judgment, not discretion, it is well established that the Court of Appeal will only interfere if such exercise was contaminated by mistake of law, of fact or perversity (cf: Santos v Eaton Square Garage 2007 EWCA 225).  The function of an Appellate Court is to correct error, not to substitute its own view for that of the Court of first instance where no error is detectable.

12.      The Applicant (significantly) asserts in the Notice of Appeal (k) that the "compelling reason why he filed his appeal in the first instance did not pivot on his low award of damages" but more importantly that his human rights were abused, inter alia, under Article 6 in that he did not receive a fair and impartial trial - the source of his grievance being that he was required to be cross-examined in open court on his spent convictions.

13.      It seems to us, as it seemed to Sumption JA (para 7) that the proceedings could not have been sensibly conducted without reference being made to those convictions: they lay at the heart of the case.  There was no application by the Applicant for the trial to take place in camera: and, as we have already noted, the fact of the conviction had become widely known in consequence of press coverage of the Applicant's own complaints.

14.      In any event the matter of which we are seized is the disclosure made by the police, not the disclosure received by the Court.  In so saying we are not to be taken as endorsing any suggestion that Commissioner Clyde-Smith was not an impartial judge dispensing impartial justice.  As Sumption JA pertinently pointed out, the Applicant actually won his case on liability.

15.      We should also add that, whatever may have been Applicant's perception of Sumption JA, we can not accept for a moment that his judgment was the product of anything other than a fair consideration of the application before him. It raised a short issue shortly dealt with.

16.      There is in our view no benefit to the Applicant in allowing a case on such a limited and particular point as quantum, with no real prospect of success to proceed to a full hearing. 

17.      We refuse the application.  It may be a small consolation to the Applicant that he has by his proceedings illuminated the law on breach of confidence in Jersey.

18.      The costs before us and Sumption JA are to be to the Respondent.  If leave is both available and required to take this matter to the Privy Council, it is refused.

Authorities

Cole v States of Jersey Police [2007] JLR 606.

Taylor v Taylor [1987-88] JLR 65.

Court of Appeal (Civil Rules) 1964.

Santos v Eaton Square Garage 2007 EWCA 225.