Jersey Unreported Judgments

[2011]JCA084

COURT OF APPEAL

19^th April 2011

Before     :

Dame Heather Steel, D.B.E., President; M. S. Jones Esq., Q.C., and; Sir Hugh Bennett.

 

Application for leave to appeal the Orders made by the Royal Court on 19^th January, 2011 and application for an extension of time in which to comply with said Orders.

Mr R Weston, Director of The Phone-In Trading Post Ltd.

Advocate P. Sinel for the Respondent.

JUDGMENT

Jones JA:

 

Introduction

1.        This is the Judgment of the Court.

2.        Proceedings in this case were issued in December 2005. The litigation has had a lengthy, complicated and most unsatisfactory procedural history. That history has been fully chronicled in previous Judgments given in this Court and in the Court below, and we need only go back to 26th October 2010 to take up the story.

3.        On that date, the Royal Court sat to consider an application by the Plaintiffs to enter judgment in their favour. The grounds advanced in support of the application were that the Defendant's "continued actions/inactions" constituted an abuse of process. In particular, on 17th December 2009, the Defendant had been ordered to lodge a re-amended answer to re-amended particulars of claim, by 1st February 2010, and a revised affidavit of discovery, by 15th February. Further, on 19th January 2010, the Defendant had become liable to pay to the Plaintiffs a taxed award of costs in the sum of £63,529.79. By the date of the October 2010 hearing, neither document had been filed, and the costs remained unpaid.

4.        The Court below refused the Plaintiffs' strike out application. Instead, the Bailiff gave the Defendant what he described in his Judgment of 19th January of this year, as "a final opportunity" to pay the outstanding costs. With regard to the failure to lodge the re-amended particulars of claim and the revised affidavit of discovery, the Bailiff noted that they should have been filed in February 2010, but did not consider that the failure to file, even taken together with other failures by the Defendant to comply with orders of the Court, would justify "the draconian measure of striking out". He gave the Defendant a period of five weeks from the formal date of the delivery of his Judgment to lodge these documents, in line with what Mr Weston had estimated would be needed.

5.        By Act of Court, dated 19th January 2011, the following order was pronounced:-

"1. That unless the Defendant files its re-amended answer to the re-amended particulars of claim (as described in paragraphs 2 and 3 of the Act of Court dated 17th December, 2009) and the revised affidavit of discovery (as described in paragraphs 5 to 8 of the said Act) by the close of business on 23rd February, 2011, (being 5 weeks from the date hereof), the answer of the Defendant shall be struck out without further order and the Plaintiffs will be entitled to judgment;

2. That unless the Defendant pays to the Plaintiffs the outstanding costs in the sum of sixty three thousand, five hundred and twenty-nine pounds and seventy-nine pence, by the close of business on 23rd February, 2011, the Defendant's answer shall be struck out without further order and the Plaintiffs will be entitled to judgment; and

3. That the costs of and incidental to this application shall be standard costs in the cause.

On the same day, the Royal Court refused the Defendant's application for leave to appeal.

6.        On 18th February 2011, the Defendant served on the Plaintiffs a Notice of Appeal, challenging the unless orders and the refusal of leave to appeal. The Notice (which was wrongly dated "18th March 2011") contained an application for a stay of execution of the unless orders. On 21st February, what bore to be a "Supplementary/Revised Notice of Appeal" was served.

7.        By Act of Court, dated 23rd February, a single judge of this Court ordered a stay of the unless orders until the conclusion of his consideration of an application to him by the Defendant for leave to appeal. By Act of Court of 25th February, the single judge referred the application for leave to appeal to the full Court and extended the stay of the unless orders until the conclusion of the hearing before us.

8.        On 1st March 2011, Mr Weston, a director and substantial shareholder of the Defendant company, spoke to the acting Assistant Judicial Greffier of this Court and posed a number of questions about the effect of the stay. By email dated 2nd March, he was given the following information:-

"Following our telephone conversation yesterday the following queries were placed before Mr Pleming [the single judge].

1. With regard to the stay order, this has stayed the unless orders, does this also mean that the Defendant does not have to comply with the unless orders until the end of the matter before the full Court?

2. Therefore in effect if the Defendant wants more time, after the Court of Appeal has ruled, it will have to apply to the full court for that extra time?

3. The filing of any amendments and revised affidavit would be in relation to this application for an extension of time?

The response of the Court is as follows.

1. The effect of the 25th February Order is to extend the stay of the unless orders (made on 19th January) to the conclusion of the hearing of the application for leave to appeal, now to be heard by the full Plenary Court this month. The dates in the "unless orders" have not been extended, merely the effect. If leave to appeal is not granted, and there is no variation of the Order of 19th January, and there was no compliance with the unless orders by "close of business on 23rd February 2011" (the time and date in the unless order) then the striking out consequences will follow.

2. The Defendant will have to persuade the Court of Appeal to grant it further time to comply with the terms of the 19th January Order. If leave to appeal is granted, the Court of Appeal will also have to consider what additional orders to grant to ensure that the Defendant's answer is not struck out pending the hearing of the appeal.

3. Yes, unless the decision of the full Court of Appeal having granted permission, sets aside or otherwise varies the Order of 19th January 2011 so that the 23rd February 2011 date no longer applies.

9.        Thereafter, a "Revised/2nd Supplementary Notice of Appeal", bearing the date 7th March 2011, was served.

10.      At the hearing before us, which took place on 22nd March 2011, the Plaintiffs were represented by Advocate Sinel, and the Defendant was represented by Mr Weston. He explained that the Revised/2nd Supplementary Notice of Appeal should be regarded as superseding the earlier Notices, and he advised us that he was content to rely on the terms of the documents which he had lodged in support of his application and to answer any questions from the bench. On that day, we refused the Defendant's application for leave to appeal, and made no further order. The consequences of our decision are that the stay which was granted by the single judge expired when we refused leave to appeal on 22nd March and, in terms of the unless orders, the answer of the Defendant was struck out and the Plaintiffs became entitled to judgment. Our reasons for refusing leave to appeal are given below.

Summary of Grounds on which Application for Leave to Appeal is Made

11.      The Defendant challenges the Royal Court's disposal of the Plaintiff's application on a number of grounds which are summarised in its Notice of 7th March, as follows:-

"S1 The Appellant, not either of the Respondents, is the Defendant in this substantive action. Whereas a Plaintiff may choose whether or not to litigate, a Defendant (whatever its financial circumstances) has little choice but to participate in such litigation [Bailiff's judgment para 45] or lose it by default. Generally, therefore, an "Unless Order" against a Defendant is a too "draconian remedy" [Bailiff's judgment paras 34, 44, 46 & 48] to the timescale problems encountered in bringing an action such as this particular action to trial; especially where the root causes of the said problems have (according to the Appellant and, to a lesser degree, according to the Royal Court) been of the Plaintiffs' making rather than of the Defendant's making. A list of the Plaintiffs' delays up to October 2010 (particularly as regards each of the five vacated trial dates) are in the Bundle [TAB 25]. There have been more delays since then; such as have been generated by the new action begun by the Second Plaintiffs in December 2010 against Messrs Weston and Levi personally and referred to in paragraphs S2 and A6a below.

S2 In any event, the said orders of the Court below did not take into account THREE material changes in circumstances for the Appellant (and also for the Appellant's representative, Mr Weston, who was, for the first time, drawn personally into the matter by the Court below in its judgment). Whilst the third of these changes was consequential upon the judgment itself, the first TWO, which were the much more important changes, had taken place during the twelve weeks between the October 2010 hearing date and the formal delivery of the Court's judgment in January 2011. They are explained in more detail at paragraph A6 below but relate, firstly, to a totally new action instituted by the Second Plaintiff in mid-December 2010 and, secondly, to the Defendant's inability to raise funds to pay the costs as ordered within the timescale as ordered, or at all. However, the parties had received a few days' notice of the intended judgment, to enable factual and typographical errors to be corrected. Accordingly:

(a) on 17th January 2011, the Defendant wrote to the Court proposing that delivery of the judgment might be postponed for a short while so that the Court could first hear of the changed circumstances (as well as certain other matters being raised by Advocate Sinel on behalf of the Plaintiffs). On 18th January, a reply was received refusing any postponement.

(b) before the judgment was handed down (on 19th January 2011), the Defendant asked for permission to address the Court in order to bring the most important changed circumstances formally and fully to the Court's attention. Regrettably, the learned Bailiff summarily refused this request. His refusal was, firstly, on the grounds that he had already made his decision and, secondly, that having already heard something of the "changed circumstances", thought they appeared to be a matter for the Defendant to seek some other way of resolving. (Original emphasis)

(c) the Appellant respectfully submits that this second observation was much too simplistic. It was especially inappropriate as the course of action suggested by the Court (namely to seek an alternative solution) was far beyond the capability of the Defendant and its representative within the allotted 5-week timescale. Had the Court heard the full facts of the materially changed circumstances, the Appellant contends that it would have made a very different decision, especially in light of the very last sentence of the Court's own judgment, which was addressed specifically to the Plaintiffs. (Original emphasis)

(d) the Court's concluding advice [Bailiff's supplementary undistributed judgment page 2], which the Defendant has reluctantly been obliged to adopt, was:-

"You must go to the Court of Appeal and see if you can persuade them I was wrong." (Original emphasis)

Consequently, this new appeal has, itself, become a third relevant change in circumstances for the Defendant, for reasons described more fully at paragraph A6c below; but, in particular, because of the time that an appeal takes up.

By seeking to raise the first two important and relevant circumstance changes before the formal delivery of the judgment, the Defendant had naturally hoped to avoid the need for any appeal at all and thus, itself, comply with the Court's strong exhortation, advising the Plaintiffs to desist from further collateral litigation [Bailiff's judgment para 50], which the Plaintiffs had already disregarded before the judgment and continue to disregard since the judgment.

S3 The learned Bailiff also appears, from his judgment, to have misdirected himself in two respects:

FIRSTLY, regarding certain aspects of the evidence placed before him during the previous five years of this litigation, as well as during the October hearing itself, which he therefore took inappropriately into account when reaching his decision; and SECONDLY, as regards the Law, particularly as to the correct and fair balance between:

(a) in the absence of fraud or reckless management, the extent of:

(i) any financial obligations and/or personal liability which may reasonably be imposed by a court on a company director, in respect of a company he owns and manages and is representing personally in court; and

(ii) the limitation on personal liability upon which any director or shareholder of a limited liability company may reasonably expect to be able to rely, and

(b) the right of an impecunious company (whether as Plaintiff or Defendant) to a fair trial under Article 6 of the ECHR, as complemented and reinforced by the Article 14 right not to be subjected to any form of discrimination.

S4 Although 12 weeks had passed between the October 2010 hearing and the January 2011 judgment, the parties had been advised by the Court at the end of the October hearing that a decision would take "not less than two weeks". This timescale was taken at face value by the Defendant and was anticipated to take up to perhaps a month. Whilst some further work was subsequently carried out on the Defendant's required Re-Re-amended Answer, it was a big task for its representative (Mr Weston), who was still unwell and significantly restricted on work-hours and there was, in any event, serious uncertainty as to whether the Defendant would be permitted to remain in the Action. In the meantime, as mentioned in paragraphs S2 above and A6c.ii below, the Plaintiffs were also exerting pressures on the Defendant from other directions, such as their time-consuming appeal against costs (heard and dismissed on 23rd November 2010) and the commencement of their new action against Messrs Weston and Levi begun in mid-December 2010. In other words, it simply was not a practical option to spend valuable and scarce time on persevering with a Revised Answer that may never be required if the defence was to be struck out, when other serious Court issues were more pressing.

S5 After the judgment had been handed down, the Court also refused the Defendant's  requests:

(a) for liberty to apply;

(b) for leave to appeal; and

(c) for the Defendant's costs of and incidental to the Plaintiff's application to be awarded in such manner as reasonably followed the event (the Plaintiffs' application for strike-out having been refused).

Reasons for Refusal of Leave to Appeal

Misdirection

12.      The unless orders were pronounced by the Court below in the exercise of a discretionary power. It is trite law that this Court can interfere with such exercise only where the judge has misdirected himself with regard to the principles in accordance with which his discretion has been exercised; or where the judge, in exercising his discretion, has taken into account matters which he ought not to have taken into account or has failed to take into account matters which he ought to have taken into account; or where his decision is plainly wrong. The most recent recognition of these principles by this Court was in this case. ([2010]JCA217)

13.      As we have noted above, the issue which the Bailiff was called upon to decide was whether or not the defence should be struck out because of the Defendant's failure to comply with orders of the Royal Court. He decided that issue in favour of the Defendant, by affording it one last chance. We find no misdirection on any matter of principle in the Bailiff's judgment. The considerations referred to by the Defendant in section S1 of the summary of grounds, such as the draconian nature of a strike out, were fully recognised and taken into account by the Bailiff. The Defendant points to no relevant matter which the Bailiff left out of account or any irrelevant matter that he took into account in making his determination. It is not contended by the Defendant that the decision was plainly wrong, nor, in our judgment, could it be. A litigant's Article 6 and Article 14 rights do not entitle that party to disobey with impunity orders of the Court which are pronounced in its management of the case. If a party were able to do so, the rights of the other party to the litigation would be violated.

Passage of Time between the Hearing and the Judgment

14.      The Defendant asserts that the Bailiff's estimate that it would take him "not less than two weeks" to issue a decision gave rise to the belief that it would "take up to perhaps a month." In fact, says the Defendant, there was an interval of twelve weeks rather than four between hearing and Judgment. The significance which the Defendant attaches to the length of that interval appears to be that, during that time, circumstances changed.

15.      As a matter of principle, where a material change of circumstances occurs following an interlocutory hearing, such that a different decision would have been justified had these circumstances been known to the judge at the time of the hearing, justice may require that the decision on that hearing falls to be reviewed. (See, e.g., Abdel Rahman v. Chase Bank (C.I.) Trust Company Limited (1984) J.J. 127). With that principle in mind, we turn to what the Defendant claims are "three material changes in circumstances" in this case.

"The first material change"

16.      It is not a matter of dispute that the second Plaintiff instituted a new action against Mr Weston and a business colleague, Mr Levi, in mid-December 2010.

17.      In the detailed grounds in support of its application, at section A6 of the Notice of 7th March, the Defendant quotes from that part of the conclusion of Bailiff's written Judgment where he expresses this view:-

"So far as the Plaintiffs are concerned, they should stop litigating collateral issues (which enables Mr Weston to argue that this is a deliberate tactic to overwhelm him) and concentrate on bringing the matter to trial as soon as possible."

The Defendant continues:-

"However, on 17th December 2010, Mr Weston was served with an Order of Justice ... ... in a completely new, but directly related, action at the instance of Leeds United ... ..."

18.      If, by the use of the word "however", the Defendant intends to imply that the Plaintiffs deliberately flouted the Bailiff's admonition by bringing the new proceedings, we reject such implication. The Bailiff's draft judgment was circulated in January 2011, some weeks after the new action was raised.

19.      Further, it is clear to us that the reference to collateral issues was a reference to collateral issues in this litigation. In his Judgment of 12th December, 2008, ([2008] JRC 214) on the topic of security for costs, the Bailiff expressed the view that time spent by both parties on this matter was out of all proportion to what was at stake and that this has been caused "by all the interlocutory battles which have been fought on almost anything which can be fought over." The Bailiff expressed his reluctance "to see any further time and money spent on collateral matters unless they are essential."

20.      In our view, the raising of the new action could amount to a relevant material change of circumstances only if it would have justified the making of no unless order, or the making of an unless order in different terms.

21.      The Defendant argues that, if the Bailiff had been "fully aware of the degree and serious nature of this extra pressure from the Plaintiffs' advocate, all timed to coincide precisely with the five-week period of the Court's Unless Orders, the Court would have taken a materially different view."

22.      We have no doubt that, by the date of the October 2010 hearing, the Bailiff was entitled to take appropriate steps to impress on the Defendant that it could no longer fail to comply with the orders of the Court, without suffering the most serious consequences. In principle, the making of unless orders was an appropriate, perhaps the only practical, way of doing that.

23.      We reject the Defendant's claim that the new action was "timed to coincide precisely with the five-week period of the Court's Unless Orders .. ..." As we have already noticed, the new action was raised some weeks before the Bailiff's determination was known and, therefore, without any knowledge on the part of the Plaintiffs of the five week period.

24.      The substance of the Defendant's submission on the materiality of the new action is that it has put the Defendant under "extra pressure" such that, had the Bailiff been fully aware of its degree and serious nature, he would have taken a materially different view. (Section A6(a)(iv)) The Defendant asks the Court to bear in mind that Mr Weston is unwell and on medication "and restricted, under medical advice, to four hours or so of working time per day to prevent excessive stress and strain likely to cause a recurrence of the serious ill-health suffered during the period from December 2010 to September 2011." The Defendant refers to the terms of a doctor's letter, which has been lodged. (Section A6(a)(v)) It is submitted, further, that, if the defence in this case were to be struck out, Mr Weston and Mr Levi would be prejudiced. It is asserted that they and their wives and families are "in a constant state of stress and suffering". (Section A6(a)(vi))

25.      It is to be noticed that the first claimed change of circumstances is advanced only in support of the Defendant's application for leave to appeal the unless order in respect of the lodging of documents. The state of Mr Weston's health is said to be relevant, because he has undertaken the task of representing the Defendant.

26.      Mr Weston's state of health and its effect on his ability to represent the Defendant has been the subject of discussion on a number of occasions during the course of this action. The Plaintiffs' strike out application was originally due to be heard on 8th April 2010. On that date, the Bailiff received a brief medical report from his General Practitioner confirming that, in his opinion, Mr Weston was unable through medical difficulties to represent the company in Court. The Bailiff agreed to adjourn the hearing of the summons at that time but said this:-

"If prior to the adjourned date it becomes clear to the Defendant Company that Mr Weston is not able to represent the Company because his condition is continuing then I shall require a full report from a specialist ... ...  it is going to have to be something of real substance to show me why Mr Weston is unable to represent the Company and what prospects of his improvement are ... ... If I am satisfied at the adjourned hearing that he is still not fit then at that stage I will need to give consideration as to how to deal with the matter. What is clear is that the Defendant can not adjourn these matters indefinitely or for long. If it becomes clear that Mr Weston is not going to be in a position to represent the Defendant, then the Defendant must instruct someone else or if they do not then the matter will then proceed in their absence. It is simply not acceptable that because of the illness of a single director these proceedings be put on hold indefinitely and I will not agree to that happening. So the Defendant will have a clear choice. Either Mr Weston gets well or it has to find someone else, whether a lawyer or another director to represent it. Now as to the exact amount of time that I will give for this, this will be considered at the next hearing but this matter will not be allowed to drift indefinitely."

27.      The next hearing took place on 10th June 2010. A specialist's report was put before the Court, in which it was said that Mr Weston was not currently well enough to resume his representation of the Defendant company and that, while his prognosis was good, the writer was not able to state with confidence when he would be fit to resume it. Mrs Weston appeared for the Defendant and sought a further adjournment of the hearing on the summons. The Bailiff granted the adjournment, but said this:-

"I accept of course, that the Defendant is the Company not Mr Weston personally, and that the Company can and should ultimately find alternative ways of being represented. But in the present circumstances, I would regard it as being unfair and unjust to proceed to the strike out application in the absence of Mr Weston who is the director who has the entire conduct of the case. So I am prepared to adjourn today's application, but I wish to make the position absolutely clear and to, in effect, reiterate what I said last time. I indicated then that this matter could not be allowed to drift on indefinitely. Now that this is a further application I go further. This is the Defendant's last opportunity. (Emphasis supplied) I am going to direct that a new hearing date be fixed and, given the information available to me, I am going to direct that it be the first available date after the 1st October, 2010, but I can not envisage any circumstances in which I would grant a further adjournment then in relation to Mr Weston's illness if it is continuing at that stage or indeed if he has only recently recovered and he alleges that he hasn't had time to prepare properly. I will not adjourn it further on such grounds. The Defendant is the Company. It is up to the Company to ensure that it is adequately represented at the next hearing date, whether this is by Mr Weston if he is well enough, whether it is by Mrs Weston if she feels up to it, whether it is by another director or whether it is by a lawyer. The Plaintiff is entitled to get its summons before the Court. I will have granted two adjournments on the grounds of the illness of Mr Weston. I will not be willing to grant a further one. So the choice is now very much up to the Defendant. I also wish to make it clear that, although there is no unless order in existence, the Defendant has had ample opportunity to comply with the orders of December, 2009, and if it has still not done so by the date of the hearing, and if it has still not paid the taxed costs, it will clearly be disadvantaging itself in relation to that hearing. I say no more on that aspect. So in summary I do adjourn this case to a date to be fixed as I have described but I make it clear that no further adjournment will be granted on the grounds of ill health."

28.      During the hearing on 26th October, the Court's views on the effect of Mr Weston's health on the Defendant's ability to be properly represented were again made known. The Bailiff said, in terms, that Mr Weston's continued ill-health was not an excuse for not complying with Court orders or for seeking adjournments. He continued, "The Defendant is the company and if you are not well enough to do it, it must get somebody else to do it. I do not wish to hear anything more about that." (Emphasis supplied)

29.      Finally, in his Judgment of 19th January of this year, the Bailiff said this about the effect on these proceedings of Mr Weston's continuing ill-health:-

"The Court made it clear in its judgment of 10th June 2010 that it would grant no further adjournments on the grounds of the ill health of Mr Weston. The Defendant is the company and it is up to the company to ensure that it is adequately represented in this case, whether this is by Mr Weston, by Mrs Weston if she feels up to it, by another director or by a lawyer. The same principle will apply going forward. The Defendant must appreciate that the orders of the Court must be complied with. If it does not comply with the unless orders, I find it hard to imagine any circumstances in which further time would be granted. Assuming that it complies with those orders, there is no reason why the Court should not fix a timetable to bring this matter to trial in early course." (Emphasis supplied)

30.      When the Judgment of 19th January was distributed in draft, it was clear that the Defendant company had a choice. It could comply with the unless orders and the action would continue towards trial, or it could fail to comply, in which case the defence would be struck out. If Mr Weston's continued ill-health posed any sort of obstacle to compliance with the unless order in respect of the lodging of the documents, it was open to the Defendant to engage legal representation. The Defendant does not claim that there would have been any difficulty in lodging the required documents by 23^rd February, if it had instructed lawyers to do so. Such a claim would have been untenable. The Defendant chose not to engage legal representation. We have no hesitation in holding that it is not seriously arguable that the raising of the new action in December against Mr Weston and Mr Levi was a change of circumstances which would have justified a decision different from that which the Royal Court reached following the hearing of 26th October.

"The second material change"

31.      During the hearing on 26th October, the Bailiff advised Mr Weston that it would be open to the Court to order that, unless the Defendant pays the taxed costs within a certain period, the answer would be struck out. He continued:-

"That then gives you, Mr Weston, a choice. You either put the money in so that the costs are paid, in which case the Defendant can continue to defend this case, assuming you comply with all the other things to [do], or you choose not to put the money in [in] which case judgment will be taken."

32.      In his Judgment, on the matter of the outstanding costs, the Bailiff says this:-

"It is strongly arguable that the Defendant should have retained the £190,000 pending resolution of the dispute. If it had done so, there would have been monies from which the outstanding costs order might have been paid, although it would clearly have been argued by the Plaintiffs that these were proprietary funds and could not therefore be used for such a purpose. It was Mr Weston's decision, as director and shareholder of the Defendant, to allow these monies to be transferred to one or more of his other companies, so that they have had the benefit of it. In the circumstances, it would in my judgment be an abuse for the Defendant to be allowed to continue to defend notwithstanding a failure to pay an outstanding costs order, when the monies in question were paid away to Mr Weston and/or his other companies."

33.      On that reasoning, the Royal Court would have been entitled to grant the strike out application. Instead, the Court gave the Defendant a further opportunity to meet the outstanding costs order. At page 44(iii) of his Judgment, the Bailiff says this:-

"On the basis of the evidence before me, I conclude that there should be no difficulty in Mr Weston and/or his companies funding the Defendant to the extent of £63,529. In the first place, in an e-mail dated 24th October 2008 to the Plaintiffs' previous advocates, Mr Weston, on the topic of whether the Defendant would be able to satisfy any judgment against it for the £190,400, said "If it makes the Plaintiff feel more comfortable, you may be assured that if there were to be any shortfall in the Defendant's funds, I could personally afford to make up the shortfall if I choose to do so". Secondly, at paragraph 57 of his affidavit, Mr Mistry lists various other hotels and properties which he says are owned by companies owned by Mr Weston and these have a very substantial gross value. I accept, as Mr Weston asserted during the course of argument, that there are borrowings which are not referred to in these figures and that the valuations may be inaccurate. Nevertheless, it is clear that, through his various companies, Mr Weston has very substantial property and hotel interests and, in the absence of any evidence from Mr Weston to the contrary, I consider it highly unlikely that he or one of his companies will not be able to come up with the necessary sum. Thus no question of stifling the Defendant's defence arises."

34.      Mr Mistry's affidavit was sworn on 1st April 2010. The gross value of Mr Weston's properties is estimated at £13,790,000.

35.      In its Revised/2nd Supplementary Notice of Appeal, the Defendant contends that, in concluding that it was highly unlikely that Mr Weston or one of his companies will not be able to come up with the necessary sum, "the Bailiff, regrettably, got this very wrong." There then follows a lengthy dissertation about the effects of the global banking crisis, after which it is said:-

"Nevertheless, arrangements have been made to sell some assets (namely family savings bonds and some shares) but it will take at least a further three weeks or so for the proceeds to become available as cleared funds. In the meantime, the sum of £21,529.79 (being a short-term family loan) will have been lodged with the Court (the Judicial Greffier's Dept) before the hearing of the application for leave to appeal, together with a cheque for £42,000, being the remainder of the sum of ordered by the Royal Court. The Greffier has accepted that this latter cheque will not be available for clearance until the aforementioned sale proceeds have been received and he has undertaken to hold it temporarily (subject to the Court's consent) pending cleared funds becoming available."

36.      As we have noted in paragraph 31 above, the possibility of payment of the taxed costs being funded by Mr Weston or one of his companies was raised with him during the hearing on 26th October. It was not suggested by Mr Weston that that could not be done or might be difficult, or might take longer than the one or two months mooted by the Bailiff. This Court was provided with no documentary evidence to vouch the proposition that the sum of £63,529.79 could not be raised by 23^rd February.

37.      To the contrary, the Defendant has lodged two documents described as "Copies of Savings Bonds / Shares being cashed / sold". One bears to be an application to cash in £30,000 worth of premium bonds held in the name of Mrs Weston. The form is dated 17th February 2011, four weeks after the date of the January 2011 Judgment. The Notes on the form advise that payment will normally be made within 8 working days of the receipt of the application. Thirty thousand pounds could, therefore, have been paid towards the outstanding costs well within the time allowed. The second document bears the date 20th February 2011, and appears to vouch a shareholding in Standard Life in the name of Mr Weston, with an indicative valuation of £25,585.42. It was not suggested to us that there was any reason why these funds could not have been realised and paid to the plaintiffs by 23rd February.

38.      Even when funds were available to be applied to the outstanding costs, the Defendant chose not to do so, and instead lodged them with the Judicial Greffier. 

39.      In the whole circumstances set out above and having regard to the papers before us, we are of the opinion that it is not seriously arguable that there has been a material change of circumstances which affects the unless order in respect of the payment of costs and which would have justified the Bailiff in coming to a different decision.

"A third material change"

40.      The Defendant argues that this appeal is, itself, a third relevant change of circumstances.  The Defendant's complaint centres, once again, on the amount of work that is required of Mr Weston and his wife in meeting the various demands of compliance with the unless orders, the new litigation and this appeal. As the Defendant puts it in the Revised/2nd Supplementary Notice of Appeal, "The Defendant/Appellant is represented by one lay-person and wife, who cannot hope to compete with the work output of a team of professional lawyers who have all the necessary resources to assist them."

41.      In our view, it is not seriously arguable that this appeal constitutes a change of circumstances that would have justified a different decision from the one to which the Bailiff came. That decision was reached in the full knowledge that either party might wish to appeal. In any event, to the extent that this application has added to the workload undertaken by Mr Weston and his wife, it was the Defendant's choice not to engage legal representation to ensure compliance with the unless order in respect of the lodging of documents. Further, any need to work on this application is not a factor relevant to the imposition of the unless order in respect of the outstanding costs.

42.      For the foregoing reasons, we were of the opinion that it was not seriously arguable that the Bailiff had erred in the exercise of his discretion, or that there had been any material change of circumstances that would have justified a different decision. Consequently, we refused leave to appeal.

Costs

43.      We shall issue a decision on costs separately.

Authorities

Leeds Utd v Admatch [2010] JCA 217

Abdel Rahman v. Chase Bank (C.I.) Trust Company Limited (1984) J.J. 127.

Leeds Utd v Admatch [2008] JRC 214.