Jersey Unreported Judgments

[2009]JRC141

royal court

(Samedi Division)

22^nd July 2009

IN THE MATTER OF PLAINTIFF'S APPLICATION SEEKING LEAVE TO APPEAL

Advocate D. M. Cadin for the Plaintiff.

Advocate J. Harvey-Hills for the Defendant

judgment

the bailiff:

1.        This is an application by the plaintiff for leave to appeal against the Judgment which I gave on 19^th June, 2009, striking out the plaintiff's claim against the then second defendant Maison Anley Property Nominee Limited on the grounds that it disclosed no reasonable cause of action.  No application for leave to appeal was made when judgment was delivered on 19^th June although it had been circulated in draft a couple of days beforehand and it was only on 3^rd July, 2009, that the plaintiff issued a summons seeking leave to appeal.

2.        Mr Harvey-Hills takes a preliminary point that I should refuse to hear this application.  He refers me to the Practice Direction of the Court of Appeal and in particular paragraph 4.1(a) which says this:-

"Appellants in civil appeals who require leave to appeal must henceforth first make the application to the lower court (ie to the court whose decision is sought to be appealed from), such applications to be made, whenever possible, at the time when the decision of the lower court is delivered, and if unsuccessful, any renewal of the application to the Court of Appeal must be made in the first instance to a single judge before being brought before the plenary Court"

Mr Harvey-Hills argues that the words "whenever possible" mean that the lower Court should only hear a later application for leave to appeal where it was impossible to make the application at the time the judgment was delivered.  I do not interpret it in that way.  In my judgment the Royal Court has a discretion as to whether it should hear an application for leave to appeal which is made later than the time of delivery of the judgment.  Furthermore this is a Practice Direction not a Rule. 

3.        Mr Harvey-Hills referred me to two English cases, namely Balmoral Group Ltd-v-Borealis (UK) Ltd [2006] EWHC 2228 (Comm), a decision of Mr Justice Clarke, and Multiplex Construction (UK) Ltd-v- Honeywell Control Systems (UK) Ltd [2007] EWHC 236 (TCC), a decision of Mr Justice Jackson, from which he sought to draw assistance.  But those were cases concerned with the interpretation of a Rule under the English procedures.  I do not consider they assist me here. 

4.        However, the fact that the Court has a discretion does not mean that the Practice Direction can or should be ignored.  It is clearly right that applications for leave to appeal should normally be brought at the time the judgment is delivered.  This is for good reason.  The matter can usually be dealt with very briefly as all parties and the Court will be entirely familiar with the matter and will not need reminding of anything, so it does not add costs.  Furthermore, I do not think it is necessary that the advocate who wishes to appeal should necessarily have instructions.  In this case Mr Cadin said that he had been unable to contact his client for instructions; but in this context I would refer to paragraph 9 of the decision of the Court of Appeal in Glazebrook-v-The Housing Committee of the States of Jersey [2002] JLR N 43 and included in the unreported series at 2002/217.  Paragraph 9 of the judgment of Smith J. A. says this:-

"In support of her application for leave to appeal Mrs Glazebrook, in the contentions filed on her behalf, explains that an application was not made at the hearing before the Bailiff because Mrs Glazebrook was not present"... and it was necessary to take further instructions from her to deal with the unforeseen eventuality namely those parts of the Bailiff's decision reflected by paragraph 1 (b) of the Act of Court..." While it is understandable that Mrs Glazebrook's instructions would have been required in order to prosecute an appeal the words quoted do not make it clear why input, or what input, would have been required or expected of her in relation to a leave application which would have committed her to nothing and which would have been based on factors solely within the scope of the expertise of counsel".

It was certainly my experience when at the Bar that one would often seek leave to appeal if one thought that there were or might be grounds for it without instructions, on the basis that, as Smith J. A. says, it commits the client to nothing and the client cannot often add anything to what counsel can say.

5.        I repeat that the general practice should be that applications for leave to appeal should be made at the time of delivery of judgment.  However the Court has a discretion to hear it later.  One of the consequences of hearing it later is that additional costs are likely to be incurred.  I have already indicated that the costs of an application for leave to appeal at the time judgment is delivered are minimal if they exist at all.  Conversely, for today, each side has prepared a skeleton argument, bundles have been collated and presented to me and we have had a hearing which has lasted in all, together with this judgment, about 1 hour.  These were costs which would not have been incurred had the application been made at the time.  Accordingly it follows that, if an applicant fails to make the application for leave to appeal at the time that he should, the chances are that the costs of the extra hearing will in any event fall on the applicant, because they will have been incurred solely because of the applicant's failure to apply for leave to appeal at the proper time.

6.        I think that is all I wish to say on the question of whether I should hear this application.  I consider that, in my discretion, I should not refuse as a matter of principle to hear it despite the failure to apply at the time of delivery of the judgment.  I think that any prejudice can be dealt with by way of an order for costs.

7.        I turn to the merits. Both parties have reminded me of the test for interlocutory appeals as taken from Glazebrook.  There are the usual three headings:- i) is there a clear case of something having gone wrong, ii) is there a question of general principle to be decided for the first time and iii) is there an important question of law upon which further argument or a decision of the Court of Appeal would be to the public advantage.

8.        I take first the question of whether there is a clear case of something having gone wrong.  Mr Cadin argues that there is.  I hope I do not do him an injustice if I say that broadly speaking the arguments which he has put in support are much the same arguments as he put before me at the hearing itself.  It is always difficult for a judge who has just delivered a judgment to decide whether there is a clear case of something gone wrong, but nevertheless, doing the best I can, I am not convinced that there is an arguable case that there is a clear case of something having gone wrong.  Therefore I do not think that ground is made out. 

9.        As to the questions of general principle and important questions of law, Mr Cadin says that he wishes to argue that the law should be developed in order to provide that an agent of a trustee should owe duties in trust law and/or tort law to the beneficiaries.  In my judgment, as I indicated in the decision, the present position is absolutely clear and this is not a developing field.  Accordingly I do not think that this falls within categories (ii) or (iii).  For those reasons I refuse leave to appeal.

[The Bailiff then heard argument as to costs].

10.      I take the view that, insofar as this matter relates to the merits, the costs should fall on the applicant.  As I have indicated, this is a matter which should have been dealt with at the time; so the costs have been incurred solely because of the failure by the applicant to comply with the Practice Direction.  A more difficult issue is whether I should make some discount for the fact that part of the preparation and correspondence and part of the hearing was taken up with whether I should refuse to hear the applicant at all because he had not complied with the Practice Direction.  On that, I have, whilst endorsing the sentiments argued by Mr Harvey-Hills, decided, in my discretion, to hear it and to that extent have not gone along with his submissions.  I consider that it was perfectly proper for him to raise these matters in the light of the applicant's failure to comply with the Practice Direction; so I think in one sense that aspect too did arise out of the applicant's failure to comply with the Practice Direction and make the application for leave to appeal at the correct time. 

11.      As against that I must reflect the fact that I did ultimately hear the application.  Accordingly I am going to order that the applicant should pay 80% of the costs of and incidental to today's hearing on the standard basis.

Authorities

Glazebrook-v-The Housing Committee of the States of Jersey [2002] JLR N 43.

Glazebrook-v-The Housing Committee of the States of Jersey 2002/217.

Balmoral Group Ltd-v-Borealis (UK) Ltd [2006] EWHC 2228 (Comm).

Multiplex Construction (UK) Ltd-v- Honeywell Control Systems (UK) Ltd [2007] EWHC 236 (TCC).