Jersey Unreported Judgments

Debt - application by the Plaintiff for leave to appeal against the Order of the Royal Court of 28th September, 2011.

[2011]JCA221

Court of Appeal

22 November 2011

Application by the Plaintiff for leave to appeal against the Order of the Royal Court of 28^th September, 2011.

Advocate S. Chiddicks for the Applicant.

Advocate W. A. F. Redgrave for the Respondents.

JUDGMENT

MCNeill JA:

1.        In this application, which is made before me sitting as a single judge of the Court of Appeal, the Plaintiff seeks leave to appeal a decision of the Royal Court whereby, under an Act of 28 September 2011, it was ordered, among other matters that the proceedings below should be stayed, England being the more appropriate forum.  The plaintiff wishes to argue that the decision was flawed by reason of misdirections in law, by failure to take into account relevant factors and by the taking into account of irrelevant factors. It further wishes to argue that the decision was outwith the proper spectrum of reasonableness.

2.        Advocate Chiddicks for the plaintiff submitted that leave should be granted as the appeal concerned an important point of law in respect of which there were conflicting views. In addition he argued that the present was a clear case of something having gone wrong: it was manifest that the action had its closest and most real connection with Jersey.

3.        Advocate Redgrave for the defendants opposed the application with submissions which sought to show that the learned Bailiff had ruled correctly as to the law and exercised his discretion upon a basis which was not susceptible to appeal. 

4.        In Spiliada Maritime Corporation v Cansulex  Ltd [1987] 1 AC 460 Lord Templeman, with whom Lords Griffiths and Mackay of Clashfern agreed, made it plain that the solution of disputes about the relative merits of trial in one jurisdiction and trial abroad is pre-eminently a matter for the trial judge: see 465F. In my own view therefore it is only appropriate for a single judge to grant leave in respect of a decision relating to appropriate forum where matters very plainly fell within the appropriate test for granting leave. Potential arguments as to errors in the exercise of discretion, for example, will probably require the detailed examination of the full appellate court.

5.        The general test is that set out in Glazebrook v Housing Committee 2001 JLR Note 43, namely that there must be shown either a clear case of something having gone wrong, that the case involves a question of general principle being decided for the first time, or there being an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage. 

6.        As to misdirection, the submissions for the plaintiffs in this application seek to make two principal points. The first is that Rule 6/7(3) of the Royal Court Rules applies, albeit the application below was for stay rather than for the proceedings to be expatriated. As Advocate Redgrave submitted, however, that Rule refers to an application by a party who wishes to dispute the jurisdiction; there is no reference to applications for a stay on the grounds of inconvenient forum. Whilst it is clear how the plaintiff's argument on this point might be developed, the wording of the Rule runs against the contention that there has been a plain misdirection and I would not be  persuaded that, on this ground, I should grant leave.

7.        Advocate Chiddicks' second principal point on misdirection is that the learned Bailiff had misdirected himself on the issue as to the law on the effect of a person's participation in proceedings upon the availability to him of an application for a stay in preferring the views of the Court of Appeal in Jaiswal v Jaiswal [2007] JLR 305 and Durant International Corp. v The Federal Republic of Brazil [2010] JCA 214 over certain differently expressed views given by Lord Walker of Gestingthorpe in Gheewala v Compendium Trust Co Ltd [2003] JLR 627 and by Collins JA in Wright v Rockway Ltd  [1994] JLR 321. Advocate Chiddicks accepted that the two latter views were expressed obiter but contended that less weight than usual should be accorded to the views in Jaiswal (at paragraphs 77 and 78) because the Court addressed the issue as to inconvenient forum in respect of a grant of stay even although there was no appeal against the refusal to grant stay and because, in paragraph 78, this Court had not addressed the particular problem of excessive delay.

8.        The Learned Bailiff, below, noted the conflicting statements and observed that he had to decide which to follow. Whilst indicating the proper respect to be attached to any judicial statement by Lord Walker, he concluded, at paragraph 35 (i):-

"The Court of Appeal has in both Jaiswal and Durant held that such a defendant is not to be prevented from applying for a stay. In both cases the point was taken by the plaintiff and the Court of Appeal had to decide whether the application for a stay should therefore fail on that ground. The rulings therefore formed part of the ratio of each Court's decision. They are therefore binding upon me."

9.        From my own consideration of those authorities - and my participation in Jaiswal - the learned Bailiff's observation in the passage above is correct: that in each of the two authorities the point had been taken and required decision.  In the somewhat complex Jaiswal case, although the appeal itself was - in curious circumstances - not pursued, the Court was seized of the Respondent's Notice, part of which raised the issue as to what activities might preclude the availability of the inconvenient forum argument.

10.      Upon that basis it would be my opinion the circumstances do not disclose a manifest misdirection by the court below which properly found itself bound by the views expressed by this court in Jaiswal and Durant.  As the point has already been the subject of discussion and determination in the Court of Appeal, the second and third potential heads of the Glazebrook test cannot be prayed in aid by the plaintiffs.

11.      Advocate Chidddicks' supplementary point in relation to paragraph 78 does not go to support a misdirection as to which authority to follow. It merely emphasises that, whilst not precluded by action or inaction from seeking a stay, other factors may require to be addressed. As the learned Bailiff indicated at paragraph 29, the decision in England in Mansour-v-Mansour [1990] FCR 17 does not support the argument that where there has been participation there is no jurisdiction to grant a stay, albeit the circumstances will doubtless be of importance in the exercise of discretion.

12.      Turning to Advocate Chiddicks' submissions as to the Learned Bailiff having taken into account irrelevant matters, having failed to take into account relevant matters, and having reached a decision outwith the proper spectrum of reasonableness, I have considered each of his complaints as set out in paragraphs 8, 9 and 10 of his Grounds of Appeal, numerous of the assertions in which are disputed by the Respondents or contended by the Respondents to be newly raised before this court. In my opinion none shows on its face an instance of something having so plainly gone wrong that the plaintiff should, at this stage, be allowed leave to argue that the decision below is vitiated. 

13.      I am particularly conscious that this application comes, in effect, as part of a litigation as to which the learned Bailiff is well aware of the history. At first sight few would be better placed than him to evaluate the issues placed before him. 

14.      Advocate Chiddicks sought to lay particular stress on the terms of paragraph 4 of the Respondents' original Answers which, at first sight, give an indication that the convenience of the jurisdiction is not being challenged. However, this line of argument, which sought to press effective preclusion of a request for a stay, cannot be sustained to that degree for the reasons which the learned Bailiff gave at paragraph 29. Once that is understood, it seems to me that the terms of the answer merely become part of the whole panoply of facts and issues which the decision maker, faced with considering the exercise of a discretionary power, ought to have in mind, assess as to relevance, evaluate, and apply. 

15.      The matters are of importance and the plaintiff can renew its application for leave to the full court for which purpose I refer the whole application to the full Court of Appeal for decision as, for the reasons which I have given, I am not prepared, sitting as a single judge, to grant leave.

Authorities

Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460.

Glazebrook v Housing Committee [2002] JLR Note 43.

Jaiswal v Jaiswal [2007] JLR 305.

Durant International Corp. v The Federal Republic of Brazil [2010] JCA 214.

Gheewala v Compendium Trust Co Ltd [2003] JLR 627.

Wright v Rockway Ltd [1994] JLR 321.

Mansour-v-Mansour [1990] FCR 17.