Jersey Unreported Judgments

[2010]JCA143

COURT OF APPEAL

2^nd August 2010

Advocate P. C. Sinel for the Appellant.

Mr R. L. Weston as Director of the Respondent Company did not appear and was not represented.

JUDGMENT

Pleming JA:

1.        This is a renewed application for leave to appeal from an order of the Royal Court of the 10^th June, 2010, adjourning the hearing of the plaintiff's summons itself dated 15^th February, 2010. 

2.        By that summons the plaintiffs applied to strike out the defendant's Answer on the grounds of abuse of process and non-compliance with various orders of the Royal Court.  The details are summarised in paragraph 15 of Advocate Sinel's written submissions dated 29^th July, 2010 - the allegations of abuse are set out in some detail elsewhere in that document, and summarised in oral submissions made to me this morning. 

3.        The very brief procedural history in relation to the summons to strike out can be taken from paragraphs 7 and 8 of the Notice of Appeal. 

"The summons was due to be heard on 8^th April, 2010.  On 1^st April, 2010, the Defendant applied to adjourn the hearing on the grounds that Mr Weston was suffering from illness.  This application was opposed by the Plaintiffs on the grounds that they had not received information about Mr Weston's illness, the prejudice to the Plaintiff's for being unable to have their application heard on the date fixed and that the Defendant is a corporate person and could get another person to represent it.  The Learned Bailiff granted an adjournment on 8^th April,2010. 

The adjourned hearing of the Summons was due to take place on 10^th June, 2010.  On 3^rd June, 2010, the Defendant, by Mrs Weston, applied for an adjournment of the hearing on the same grounds as previously.  On this occasion also, the Learned Bailiff granted an adjournment."

4.        An application for permission to appeal the June decision has been refused on the papers by the Deputy Bailiff sitting as a single judge of the Court of Appeal.  His decision is dated 20^th July, 2010.

5.        I have been provided with, and have read, a detailed Notice of Appeal to which I have just referred, the written submissions (or skeleton argument) also referred to already and the decision of the Royal Court made on 10^th June, 2010.  I have also read a transcript of the 10^th June hearing and an email from Mrs Weston, writing on behalf of the defendant company and timed at 8:13am on 26^th July, 2010.  I have also seen and read an affidavit of Leah Susan Fulford an office manager at Sinels, who produces an attendance note of an appointment to fix a date for the adjourned strike out hearing.  My attention has been drawn to an exchange between Advocate Sinel and Mrs Weston as follows:-

Advocate Sinel - "I see that the company has still not appointed a lawyer"

Mrs Weston - "No and it will not be appointing a lawyer". 

The Court was invited, in the written submissions, to consider this after-the-event evidence on Ladd and Marshall principles but there is no need to go down that path as Mrs Weston has said in her email that the defendant company considers it unreasonable to appoint a lawyer to represent its interests: " apart from having the absolute right to represent itself, the sole shareholder and director of the defendant company (my husband) believes that it would be a breach of a director's duty to the creditors of an insolvent company if they were to appoint a lawyer that the company cannot afford." 

6.        The latest procedural position is that on 19^th July, 2010, the Royal Court fixed the hearing date for the strike out summons at 26^th October, 2010.  When the Royal Court made its decision on 10^th June the Court made it clear in the course of argument, (page 28 of the transcript) and in the judgment that no further adjournments would be granted on the grounds of ill health. 

7.        Advocate Sinel invites me to grant leave to appeal on three grounds: (i) the Bailiff in exercising his discretion has taken into account matters which he ought not to have done and has failed to take into account matters which he ought to have done; (ii) his decision is plainly wrong; and (iii) injustice would result.  The reference to injustice, in summary, is the ongoing prejudice to the plaintiffs and also prejudice to other litigants who are being inconvenienced by the continuation of these proceedings and the adjournments. 

8.        Advocate Sinel relies on the familiar principles set out in Abdul Rahman-v-Chase Bank (CI) Trust Company Limited [1984] JJ 127 and also United Capital Corporation-v-Bender [2006] JLR 269.  Advocate Sinel also observes that there is a matter of some importance here and the Court of Appeal should be invited to express its views.  Perhaps the plaintiffs case can be summarised if I read from paragraph 37 of their written submissions:-

"In these circumstances, it may be asked rhetorically: what is the purpose of the Defendants continued participation in these proceedings?  The Defendant is litigating these proceedings, knowing that it has no assets to meet any costs orders against it or any judgment, which itself is an abuse.  The proceedings cannot sensibly be regarded on any view as for the benefit for the insolvent company; the only reasonable inference is that the proceedings are being run not in good faith in its interests, but for some purpose of Mr and/or Mrs Weston, it may be inferred to prevent their conduct of the Defendants business (and in particular their removal from the Defendant of the substantial sums claimed in these proceedings) from being subject to any scrutiny.  This again is an abuse." 

9.        Let me observe at this point that it seems to me that that paragraph, and indeed the various other allegations of abuse in the plaintiffs' written submissions, including the "no defence" argument are, in my view, matters for the hearing of the strike out summons.  They were clearly put before the Bailiff and considered by him. 

10.      I am satisfied on consideration of all the papers that the Bailiff was very well aware of all relevant matters and had them well in mind when making his decision.  I am also not persuaded at all that the Bailiff failed to have regard to the "number of crucial factors" listed by Advocate Sinel in his written submissions.  In my opinion there is nothing in this first ground. 

11.      Was the decision plainly wrong?  This is not a question of whether I or another judge would have reached the same decision, but whether the decision actually made was so erroneous, so plainly wrong, that the Court should interfere or, as this is an application for leave, arguably so plainly wrong that the Court of Appeal may reverse the decision.  Before I reach my conclusion on this issue, I am asked by Advocate Sinel also to consider whether or not this is a case where the Court of Appeal should be invited or allowed to consider the matter by the grant of leave, on the basis that there is here an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.  Advocate Sinel puts it as follows and I here read from paragraphs 50 and 51 of the plaintiffs' written submissions:-

"The present appeal raises an important question of law, namely whether a party which (i) is in contempt of court with no intention of purging that contempt, (ii) is insolvent and conducting the litigation not in good faith for its own benefit but for the benefit of its owners; and (iii) is abusing the process by failing to make proper arrangements for its own representation, should be granted on a last minute application, the indulgence of an adjournment by the Court in circumstances where the innocent other party will be prejudiced. 

Particularly now that the Court does not favour a leisurely approach to litigation and expects parties to co-operate to ensure that cases progress with all due despatch it is both desirable and necessary that the Court of Appeal give guidelines as to what factors should be taken into account when an adjournment is sought at a late, (or any) stage, and what conduct will or will not merit the refusal of the application."

I am not persuaded that this application raises an important question of law.  This is a particularly fact sensitive case and, notwithstanding the passage of time and inactivity by the defendant company, the essential basis for the Learned Bailiff's decision was ill health.  It is, in my view, not the type of case in which the Court of Appeal would want to express general views but if I am wrong on that point, an opportunity may arise in the costs appeal in which the plaintiffs are inviting the Court of Appeal to order they be paid their costs on an indemnity basis. 

12.      I return then to the main argument.  In my view the 10^th June decision, a case management decision, was not arguably plainly wrong nor would there be injustice to the plaintiffs if the decision was upheld.  I agree completely that the final three paragraphs of the Deputy Bailiff's decision on the papers of 20^th July, 2010, and notwithstanding the force of some of the points made by Advocate Sinel (also recognised by the Learned Bailiff in June) I would refuse leave to appeal. 

13.      Arising from exchanges during the course of oral submissions, I should also mention that I am comforted that this decision is correct by the timetable for the further conduct of this case.  The hearing of the strike out summons is now fixed for 26^th October, 2010, and is very unlikely to be adjourned again.  If leave to appeal was granted today the Court of Appeal would not hear the substantive appeal until the third week of September or possibly later.  Even if the Court of Appeal were to find in the plaintiffs' favour and overturn the decision of 10^th June, 2010, it is unlikely that the hearing of the strike out summons would take place before the presently listed date of 26^th October, 2010, unless, which I consider to be so unlikely as to be discounted, the Court of Appeal treated the hearing before it as a hearing of the merits of the strike out application.  There is therefore little or no practical utility in the appeal, which underlines my firm view that this is a case management decision and the Court of Appeal should be very reluctant to interfere. 

14.      Again for all these reasons, I refuse leave to appeal and do not refer the application to the full Court. 

15.      I also conclude that there should be no order for costs in this renewed application. 

Authorities

Ladd and Marshall [1954] 3 All ER 745. 

Abdul Rahman-v-Chase Bank (CI) Trust Company Limited [1984] JJ 127. 

United Capital Corporation-v-Bender [2006] JLR 269.