Jersey Unreported Judgments

Defamation - application for leave to appeal out of time.

[2013]JCA149

Court of Appeal

30 July 2013

Application for leave to appeal out of time.

The Applicants on their own behalf.

Advocate D. P. Le Maistre for the First Respondent.

Advocate D. S. Steenson for the Second Respondent.

JUDGMENT

beloff ja:

1.        The Applicants apply pursuant to the provisions of the Court of Appeal (Civil Rules) 1964 (''the Rules'') Rule 16 for leave to appeal out of time the decision of the Royal Court (Commissioner Sir Charles Gray and Jurats Le Breton and Milner) dated 4^th April 2012 dismissing the Applicants' claim for damages for defamation against the First and Second Respondents arising out of a cartoon published in the Christmas Eve 2008 edition of the First Respondent.  As explained in the reasoned judgment handed down by the Commissioner on 10 May 2012 "the Court ultimately decided that the cartoon was not defamatory of either of the (Applicants)" (para 33) "The meaning and import of the words or images complained of was a matter for the Jurats" (para 26).

2.        The grounds of the proposed appeal set out in the Notice dated 9^th July 2013 do not assert any misdirection by the Commissioner or perversity in the finding of the Jurats; rather - and more fundamentally - they assert that the Applicants were denied a fair trial by reason of an undisclosed personal, social and working relationship between Jurat Le Breton and a former Jurat Mrs Sally Le Brocq, said to be the longest serving director of the owners of the First Defendant the Guiton Group, and, as it is put ,"a matter seriously compounded" by the fact that Jurat Le Breton was said in another context to have displayed "a disturbingly malleable commitment to justice and consideration of evidence relating to an individual who was a close colleague and friend" Affidavits paras 3 and 5, said to be evidenced by the 1999 Sharp report into child abuse at Victoria College

3.        The time limit for an appeal, set down in the Rules is one month from the date on which the judgment or order of the Court below was pronounced (Article 3); the application was not made until 5^th July 2013 i.e. 14 months after date of the order.  However, as a single judge I have power to enlarge time see, generally Court of Appeal (Jersey) Law 1961 (''the Law'') Article 18(1) and, particularly, the Court of Appeal (Civil) Rules 1964 ("the Rules") Rule 16(1).  Axiomatically such power must be exercised to achieve justice.

4.        Guidance has been given by the Court of Appeal in England as to the factors taken into account under the pre CPR regime, Sayers v Clarke Walker [2002] 1 WLR 3095 (''Sayers'') at paragraph 10:-

"10. Under the pre-CPR regime the practice of this court was conveniently summarised in The Supreme Court Practice 1999 , vol 1, p 1031, para 59/4/17 in these terms:

"It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the application is granted; (see  C M Van Stillevoldt BV v EL Carriers Inc  [1983] 1 WLR 207 ... ) ... Where the delay in serving notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless:  Palata Investments Ltd v Burt & Sinfield Ltd  [1985] 1 WLR 942. In Norwich and Peterborough Building Society v Steed  [1991] 1 WLR 449 and Mallory v Butler  [1991] 1 WLR 458, the Court of Appeal held that ... (4) The settled practice of the court is to assess and take into account the merits of the proposed appeal in deciding whether or not to grant an extension of time for appealing (subject to the qualification in the  Palata  case [1985] 1 WLR 942.""

The Court of Appeal in Jersey appears consistently to have adopted a similar approach, see Barker v Barclays Bank plc [1989] JLR N2B, B v N 2002/135.  I shall examine the four factors in sequence.

5.        As to (i) The Applicants' affidavits, which are in identical form, make clear that the facts of the relationship complained of between Jurat Le Breton and Jurat Le Brocq came to light "over the summer of 2012" (para 5) as is confirmed by the fact that the matter complained of was taken up with the Deputy Bailiff as early as June 2012 (see Applicants' affidavits para 5 and their letter to Lord McNally dated 5^th December 2012 p.4).  So the delay measured from knowledge of the ground of appeal now relied on is also over a year.

6.        As to (ii) The reason for the delay since the time that the matter complained of came to light is that, in lieu of immediately seeking leave to appeal, they chose to make representations by their advocate or themselves, about the alleged miscarriage of justice to the Deputy Bailiff, the Bailiff, the Chief Minister, the Lieutenant Governor and the UK Minister of Justice i.e. Lord McNally (Applicants' affidavits paras 7, 9-12).  Although they provide an explanation that lack of funds disabled them from engaging further legal representation, which they enjoyed before the Royal Court, (ditto para 8) nonetheless, as their present application shows, they were not disabled from seeking to pursue an appeal as litigants in person.  In the field of judicial review there is authority for the proposition that a choice to pursue political as distinct from legal means of achieving redress does not justify delay or an extension of time within which to apply for leave R v London Borough of Redbridge ex p G [1991] COD 393.

7.        Given the significant length of delay, however measured, it is hard to see that it can justified, even taking into account the sad family circumstances which afflicted the Applicants (see affidavits para 8).  Those circumstances could not in any event explain why a political rather than a legal route was chosen (as distinct from why the Applicants might have been disabled from taking any action at all.)  The Applicants, as their correspondence with Lord McNally dating from 27 July 2012 illustrates, were not content to focus on their own libel suit but to treat it rather as an example of what they perceived to be failings in the Bailiwick's systems of checks and balances.  Moreover it was a constant and correct refrain of the addressees listed in the last paragraph (see letters from the Deputy Bailiff dated 13^th June 2012, the Bailiff 25^th July and 24^th August 2012, the Assistant Chief Minister 14^th November 2012) that they should, if aggrieved by the order, pursue the constitutionally proper route.  The Lieutenant Governor in his letter of 28^th May 2013 wrote-that "it would seem that the only avenue open to you in pursuit of redress is the Court of Appeal."  Indeed no person or body other than the Court of Appeal could undo the Royal Court's order.  Despite that unambiguous and unassailable advice, consistent with the views previously and authoritatively expressed by others, more than a month was allowed to pass by the Applicants before the present application was filed.  I do not ignore the concerns that the Applicants had about costs; but the Bailiff had given them accurate information about the options in that regard (letter of 24^th August 2012) and their constitutional right of access to the Court was not dependent upon legal assistance.

8.        As to (iii) i.e. the merits of the grounds of Appeal I recognize how important it is that justice not only be done but be seen to be done; and that the appearance is nowadays as vital as the actuality of justice.  Hence the fact by itself that a member of a court has by some appropriate formula sworn to administer justice impartially or is subject to a Code of Conduct indicating the circumstances for recusal (see in Jersey the Code of Conduct paragraph 15) or indeed has been appointed -as are Jurats - by an electoral college on the basis of his or her integrity and ability cannot be dispositive.  The modern test is that set out by Lord Hope in Porter v Magill [2002] 2 AC 357 at (103) "whether a fair minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased."  It was applied in this jurisdiction in Syvret v Chief Minister [2011] JLR 343 and I shall follow it.

9.        In the Bailiwick the chances that persons (Jurat, jurors or judges) may have encountered someone involved in proceedings before them will be greater than in other larger territories; see Drew v Attorney-General [1994] JLR 1 at para 33 cf, Barette v AG [2006] JCA 128 at paras 53-61.  This reality may require, if not disapplication, at any rate adaptation in application of the general principle, but in any event I do not consider that the single fact that someone has served as a Jurat at the same time as someone involved in proceedings before him or her can by itself be a basis for recusal; otherwise it might on occasion be impossible to find anyone eligible to sit on a case where a Jurat was involved as a party or key witness, see Fordham Judicial Review 6^th ed para 6.1.37 (apparent bias and function/necessity/reality) and the cases there cited.  Nor indeed do the Applicants appear to rely merely upon the fact that both Jurat Le Breton and Jurat Le Brocq held that important office for overlapping periods, Jurat Le Brocq retiring in 2010.  In a helpful letter addressed to me on 25^thJuly 2013 the Applicants explained that objection made to the sitting of particular Jurats in advance of the hearing was based on matters other than, indeed over and above, their tenure of that office, and noted that other Jurats were putatively eligible to sit.

10.      The suggestion of personal friendship between the two Jurats prompts closer inquiry.  It is cited as an example of a real danger of bias in Locabail (UK) Ltd v Bayfield Properties Limited [2000] QB 451 para 25 at p.480 and deployed as a disqualifying feature in AWG Group Limited [2006] 1 WLR 1163 where the Judge and a key witness had not a "fleeting acquaintance" but had "known each other for thirty years" (para 22).  The evidence of mutual hospitality of Jurats Le Breton and Le Brocq amounts to one occasion in 2008, none in 2009, two in 2011 and none in 2012.  Jurat Le Breton and his wife played host only on one of the occasions in 2011.  There is no evidence that these visits were on a one to one basis.

11.      In any event such friendship or relationship would only be significant if Jurat Le Brocq had at the material time such a link with the Respondents as could make a verdict against them adversely to affect - or reasonably be thought to affect - her own interest.  As to this, the facts are that she was a non-executive director of the Guiton Group, the parent of the First Respondent; that her role as a non-executive director was to oversee the affairs of the Group as a whole whose interest extended into many areas unconnected with publishing; that she retired from that post in 2012; and that she was never a director of the First Respondent itself.  I cannot see how a reasonable and fair minded observer informed of those facts could conclude that there was any real possibility that Jurat Le Breton would have been biased in the Respondent's favour even if aware of so diluted a connection between - on this hypothesis - his friend and colleague and that entity.  (In fairness I should add that Jurat Le Breton disclaims that at the material time he had any knowledge about the nature and subsistence of Jurat Le Brocq's connection with the Guiton Group, although it was common knowledge that she had once had some connection with it).  Had, hypothetically, Jurat Le Brocq herself been the respondent to a civil suit brought by the Applicants and Jurat Le Breton been a member of the Royal Court to hear that suit, a different conclusion might be reached.  I would certainly have expected Jurat Le Breton to have disclosed the nature of any relationship, professional or social, with Jurat Le Brocq.  But the facts of the present case are, as I have explained, materially different.

12.      As to the subsidiary allegation I cannot ascribe weight to it.  Jurat Le Breton was appointed by the electoral college.  I have no basis to doubt what the Bailiff said in his letter to the Applicants dated 24^th August 2012 that over his lengthy period of service - he retired that same month - Jurat Le Breton has attracted the unanimous approval of those who have sat with him as being scrupulously fair and careful.  It is not in any event for the Court of Appeal to pronounce upon anyone's suitability to serve as a Jurat; others have that responsibility, and have exercised it in Jurat Le Breton's favour.  The Applicants complaint in this context, moreover, is parasitic, not free standing.  It is that if Jurat Le Breton displayed bias towards a friend once (albeit not in a quasi-judicial capacity), he might do so again.  Given my conclusions on the main allegation, the subsidiary allegation has no purchase.  In so saying I emphasise that my observations are not to be taken as endorsing the allegations made against Jurat Le Breton on the basis of a paragraph of the Sharp report which I have read.

13.      As to (iv) prejudice to the Respondents, this is not a case where the efflux of time would disable the Respondents from defending themselves against the libel if the case were ever re-opened; what the cartoon, the subject matter of the complainant, meant cannot change from year to year.  Nor are the facts upon which the challenge to the fairness of the trial is based, subject to any law of diminishing recollection; they are known and constant.  I appreciate that there is an unsatisfied order for costs against the Applicants, in favour of the Respondents.  The Respondents claim that this application is a device to postpone the evil day when payment has to be made.  The Applicants claim, that the Respondents' lawyers are seeking to use the costs order as a means of stifling the appeal.  Suffice it to say that to grant the application could expose the Respondents to further delays in recovering their costs and to further potentially irrecoverable costs, but only if, at the end of the day any substantive appeal were to fail.  I prefer to note that indisputably there is inevitable prejudice when a claim long thought to be extinct is belatedly sought to be resuscitated.

14.      I would have dismissed this application by reference to factors (i) and (ii) i.e. extreme and unjustified delay alone, unless the merits of the proposed ground of appeal were overwhelming.  In my view they are, on the contrary, insubstantial.  I have addressed all four matters only in case the Applicants seek to take the matter elsewhere, and in order to assure them that their objections to Jurat Le Breton have been carefully weighed, if ultimately found wanting.

15.      I dismiss the application for the reasons set out above.  Any submissions as to costs or otherwise, arising out of my determination, must be sent to me in writing within 7 days.

Authorities

Court of Appeal (Civil Rules) 1964.

Pitman v Jersey Evening Post and 1^st Jersey Limited [2012] JRC 092.

Court of Appeal (Jersey) Law 1961.

Sayers v Clarke Walker [2002] 1 WLR 3095.

Barker v Barclays Bank plc [1989] JLR N2B.

B v N 2002/135.

R v London Borough of Redbridge ex p G [1991] COD 393.

Porter v Magill [2002] 2 AC 357.

Syvret v Chief Minister [2011] JLR 343.

Drew v Attorney-General [1994] JLR 1.

Barette v AG [2006] JCA 128.

Fordham Judicial Review 6^th ed.

Locabail (UK) Ltd v Bayfield Properties Limited [2000] QB 451.

AWG Group Limited [2006] 1 WLR 1163.