Jersey Unreported Judgments

Trust - applications for leave to appeal and stays pending determination of appeal.

[2013]JCA100

Court of Appeal

23 May 2013

Applications for leave to appeal paragraph 4 of the Act of the Royal Court dated 19^th April 2013 and paragraph 1 of the Act of the Royal Court dated 10^th May, 2013, and for stays in connection with both Orders pending determination of the appeal.

Advocate R. J. MacRae for the Appellants.

Advocate A. D. Robinson for the Respondents.

JUDGMENT

pleming JA:

Introduction

1.        There are two applications before me by the Appellants, following the refusal of leave by Commissioner Clyde Smith.  The applications are supported by a detailed Skeleton Argument from Advocate MacRae (with 7 Folders of documents and case-law and text book references), and by a Skeleton Argument from Advocate Robinson (with a further Folder).  Both advocates supplemented their written submissions with very helpful oral argument, although somewhat time-curtailed.

2.        First, the Appellants seek the grant of leave to appeal paragraph 4 of the Act of Court dated 19^th April 2013, and paragraph 25 of the decision on that date.  Second, they seek the grant of leave to appeal paragraph 1 of the Act of Court dated 10^th May 2013.  There are connected applications for the Court to order a stay of the Acts of Court (and extract from the decision), pending determination of the appeals.

3.        I have concluded that leave should not be granted in relation to the 19^th April Act of Court and decision.  It follows that the question of stay does not arise.  I have also concluded that leave should be granted to appeal paragraph 1 of the 10^th May Act of Court, but there should be no stay.  I set out below my brief reasons for rejecting the arguments in relation to the April 19^th order and decision.  As I am granting leave in relation to the May 10^th decision I will not give any reasons, but I will explain why I have declined to grant a stay. 

The April order and decision

4.        Paragraph 4 of the 19^th April 2013 Act of Court requires the Appellants to file a full answer to the Respondents' Order of Justice dated 18^th January 2013 on or before 29^th May 2013. The challenged part of the decision is in paragraph 25 and confined to the words "there should be (subject to on-going review) no interruption of the proper progress of the substantive case to trial".

5.        That decision was taken in the context of the proceedings in Jersey, an application by the Appellants challenging forum, and proceedings commenced by the Appellants in Mauritius.  Much of the history of the dispute and the litigation is set out in the judgment of Commissioner Clyde-Smith and Jurats on 15^th May 2013, explaining why the application by the Respondents to stay the Mauritius proceedings had been granted.  That history is not repeated here.

6.        The test to be applied on an application for leave to appeal is set out in Glazebrook v Housing Committee [2002] JLR Note 43, confirmed in United Capital Corporation v Bender [2006] JLR 269. Is there a realistic prospect of establishing before the full Court of Appeal that there is here a clear case of something having gone wrong; or:-

"(a) a question of general principle is being decided for the first time; or

(b) there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage"

From Bender, at paragraph 32, I also take the following guidance:

"The Court of Appeal conventionally respects a case management decision of the Royal Court unless the judgment was plainly flawed..."

See also, to like effect, Alhamrani v Alhamrani [2008] JCA 187A, and [2008] JLR Note 45, at paragraphs 57-61.

7.        As already noted the proceedings in Jersey were issued in January 2013.  This was after a period of several months' delay following the end of correspondence in the summer of 2012.  Much was made of this by the Appellants but it did not seem to me to be of any great significance, and in any event the Commissioner was very well aware of the chronology.  In early March 2013 (amended in April), the Appellants issued a summons challenging Jersey as the appropriate forum.  Later in March 2013, the Appellants commenced proceedings in Mauritius seeking, by a series of declarations, relief from that Court to justify and confirm the actions challenged in Jersey. 

8.        The 19^th April 2013 judgment addressed the issue of directions in relation to the Appellants' forum non conveniens summons, and also their application for an extension of time for the filing of an Answer to "42 days after the Court ruling on their application for a stay and any appeal of that ruling".

9.        The essence of the Appellants' complaint is that, in light of the forum challenge, and the existence of the 2 sets of proceedings, fairness and comity demanded that the timetable for progressing the litigation (both in Jersey and Mauritius) should be frozen.  The Appellants submit that the Commissioner erred in principle, reached a decision that was plainly wrong, by "preferring the Jersey Proceedings over the Mauritius Proceedings" and that the Commissioners' decision to compel the filing of a full Answer and directing that there should be "no interruption of the proper process of the substantive case to trial" was unreasonable and oppressive.  It was contended that the Appellants should not be put to "the cost, distraction and inconvenience of taking further substantive steps in Jersey" until the proper forum had been determined.  This theme was developed in written and oral contentions.

10.      Although, as already stated, I am not prepared to grant leave to appeal from the April Act of Court, I can here address the timetabling issues that arise.  The forum hearing, originally due to be heard on 29^th May, has now been fixed for 28^th-30^th August, and Directions have recently been set by the Commissioner for the filing of documents/evidence and skeleton arguments.  Advocate Robinson informed me that, in light of that timetable, there will be no time for the taking of other procedural steps in the substantive proceedings - such as Reply, Request for Further and Better Particulars etc.  Advocate MacRae, in response, points out the automatic need for an application by the Respondents for directions which will (or at least might) arise before August.  I am concerned that there should not be steps in the proceedings, other than the filing of the Answer, before the forum hearing/decision in August. Proceeding on the assumption that I have the necessary jurisdiction (which was accepted by the parties) I amend the date for the filing of the Answer from "on or before 29^th May" to "on or before 14^th June".  I also encourage the parties to agree that time should not run for the requirement of any further procedural steps in the substantive Jersey proceedings until the hearing in August when this topic can be revisited by the Commissioner.   This will enable the parties to concentrate their efforts over the next few weeks in preparing for the forum hearing, but with the benefit of the Order of Justice being formally responded to in the Answer - to which I now return.

11.      The Commissioner, having vacated the 29^th May date for the hearing of the forum challenge, then considered, as he put it, "the balance [of] the potential prejudice to the [Appellants] in having to file a full answer to the Order of Justice against the potential prejudice to the [Respondents] in their claim being very substantially delayed" - see paragraph 24 of his judgment.  The Commissioner expressly accepted that "it would be a very heavy burden for the [Appellants] to prepare a full (as opposed to a holding) answer and at the same time to prepare for the forum challenge hearing, some 6 weeks away" - see paragraph 12 of the April judgment.  But the "6 weeks" reference makes it clear that the "very heavy burden" was being linked to the forum hearing on 29^th May.  As that date has been postponed for 3 months, the burden is considerably lightened. In any event, it would be surprising if much of the work necessary for the drafting of the Answer has not already been done.

12.      The Appellants complain that the decision to direct that an Answer be filed indicated that the Commissioner was wrongly prejudging the forum challenge - "he proceeded as if it [i.e. the claim that Jersey was the proper forum] would succeed".  There is nothing in this point.  The Commissioner was clearly not so proceeding, although he was proceeding on the entirely sensible basis that it may succeed, and if it did, the Respondents should not be avoidably prejudiced by the forum challenge delay.  In any event, the Respondents gave an undertaking not to use the filing of the Answer (or any other procedural steps taken) against the Appellants at the forum challenge hearing.  This undertaking is included in the 19^th April Act of Court at paragraph 6(i) and was extended in the Respondents' letter of 25^th April 2013.

13.      The Appellants also complain that the Commissioner only determined that the Answer would "incidentally be of benefit to the Court dealing with the Forum Challenge Hearing", accepting that it was not a requirement.  This again seems to me to be a point that takes the Appellants nowhere.  An evaluation of the "nature of the case" may not be usually be necessary or even appropriate in a forum non conveniens dispute - see the decision of the Court of Appeal in Guernsey in Carlyle Capital Corporation Limited, and others v Conway, and others [2011-2012 GLR 562] at paragraph 69.  But in this case, there may well be some incidental benefit, and the contrary is not suggested. It is difficult to understand (apart from the effort involved) why the Appellants would not want to put before the Court their detailed and formal response to the Act of Justice so that the points of agreement and disagreement can be identified.  This is particularly so when it is accepted that the parties will be putting in evidence in the forum challenge, which may at least touch on the merits of the Respondents' claims.

14.      Finally, the Appellants complain that the Commissioner "wrongly took into account or gave excessive weight to what [he] referred to as 'the potential prejudice to [the Respondents] in their claim being very substantially delayed'".  It my opinion it is not wrong for such potential prejudice to be taken into account at all, and weight is a matter for the Commissioner.

15.      In my view, the Appellants have failed to demonstrate that it is arguable that the decision to compel the filing of the Answer was wrong or plainly flawed.  The other Glazebrook tests do not arise. I agree with the Commissioner when refusing leave to appeal that this decision was well within his discretion to make as the judge with responsibility for the management of the case.  I therefore refuse to grant leave.  The question of a stay does not arise.

The May anti-suit decision

16.      The Appellants' complaint in relation to the decision on 10^th May 2013 to grant an anti-suit injunction does raise matters of greater substance.  It is arguable that the Commissioner erred, in a case where the proper forum remains unresolved, in effectively denying the ability of the Supreme Court of Mauritius to make a similar determination in respect to the progress of the proceedings in that country.

17.      Although I accept that this point is arguable, in light of the fact that the Jersey forum challenge is due to be heard at the end of August, and the Mauritius proceedings have been adjourned to September (although only in response to the Jersey Court order), this is not a case where I should impose a stay pending an appeal.  I have read and considered the affidavit evidence of Mr Lee Mo Lin, where he argues that "unless [a stay] is granted the [Appellants'] appeal will become largely nugatory and the [Appellants] will be substantially and unfairly prejudiced".  I do not accept that there is any risk that the absence of a stay will have the consequences he describes.  In any event, the Court of Appeal hearing the appeal may conclude that the Commissioners' anti-suit order was correct, and it would be unfortunate if, in the meantime, unnecessary steps were taken in Mauritius.

18.      The Appellants set out in some detail in their Skeleton Argument the allegations of mis-match, and the prejudice they will suffer - see in particular, paragraph 67.4.  I am not impressed by the points made, and in any event do not accept that the Jersey proceedings "will soon be much further advanced".   By the date of the forum challenge hearing, or the hearing of the appeal against the anti-suit injunction, it will not.

Conclusion

19.      In summary therefore: I do not grant leave to appeal from paragraph 4 of the 19^th April 2013 Act of Court; I do grant leave to appeal from paragraph 1 of the 10^th May 2013 Act of Court.  I do not grant a stay of the 10^th May 2013 Act of Court.  I vary paragraph 4 of the 19^th April 2013 Act of Court so that the Appellants' full Answer must now be filed "on or before 14^th June 2013".

Authorities

Crociani v Crociani [2013] JRC 080.

Glazebrook v Housing Committee [2002] JLR Note 43.

United Capital Corporation v Bender [2006] JLR 269.

Alhamrani v Alhamrani [2008] JCA 187A.

Alhamrani v Alhamrani [2008] JLR Note 45.

Carlyle Capital Corporation Limited, and others v Conway, and others [2011-2012] GLR 562.