Loan - appellants seek leave to appeal out of time against summary judgment given by the Master.
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone. |
Between |
Jayne Grant |
First Appellant |
|
Reva Holdings Limited |
Second Appellant |
And |
Michael Dineen |
First Respondent |
|
Paul Dineen |
Second Respondent |
The First Appellant appeared in person.
Advocate R. Amy for the Respondents.
judgment
the deputy bailiff:
1. The appellants seek leave to appeal out of time against the summary judgment given by the Master on 11th July, 2012, in proceedings commenced by the respondents by an Order of Justice issued on 1st July, 2011, for the recovery of loans and damages allegedly due by the appellants. Advocate Goulborn originally acted for the appellants/defendants and he entered an answer on their behalf to the Order of Justice. A reply was filed at the end of August 2011. In July 2012 an application for summary judgment was made to the Master. It was heard inter parties on 11th July, and the respondents were successful. No written judgment appears to have been given. On 18th April, 2013, the appellants sought leave to appeal out of time. A hearing date was fixed for argument before me on 15th May, 2013. Having heard argument I reserved my decision, and judgment is now given.
2. The principles for extending time to appeal in the Court of Appeal have recently been set out in Pitman and Another-v-Jersey Evening Post Limited and Another [2013] JCA 149. I consider the same principles apply on an appeal to the Royal Court from a decision of the Master. Taking a summary of paragraph 4 of the judgment of Beloff JA in Pitman (supra) the relevant factors are these:-
(i) It is in the discretion of the Court to grant or refuse an extension of time.
(ii) The factors which are normally taken into account include the length of the delay, the reasons for the delay, the chances of the appeal succeeding if time for appeal is extended and the degree of prejudice to the potential respondent if the application is granted.
(iii) Where the delay in serving notice of appeal is short and there is an acceptable excuse for not bringing the application in time, an extension of time will not be refused on the merits unless the appeal is hopeless.
(iv) 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.
3. The Master's judgment was given on 11th July, 2012. An application for an extension of time was made on 19th March, 2013, some eight months later. That is a considerable delay.
4. In the Court bundle was a copy of an unsworn affidavit of the first appellant. I have proceeded upon the basis that the affidavit has been sworn. In her affidavit, the first appellant indicates that she was represented by Advocate Goulborn on legal aid as from 11th April, 2012. He had previously been retained on a paid basis. She was not present at the hearing before the Master on 11th July, 2012, but she was informed by Advocate Goulborn on the same day that the Court had given judgment against her. It appears there was some difficulty between the first appellant and Advocate Goulborn in the sense that the Advocate considered that the legal aid certificate should be withdrawn. On 18th July, the first appellant claims she contacted the Assistant Bâtonnier to appeal against the withdrawal of her legal aid certificate. In doing so, she asserts that she thought she was appealing the Master's decision. She was under the impression that an appeal had already been made to the Court and she was awaiting a decision. As time passed, she became worried about the situation but she did not wish to pester the legal aid department. By December 2012, she says that she had started to ask questions in relation to the appeal, and then learned that her appeal was in fact against the withdrawal of legal aid and she had not entered an appeal against the decision in Court. In her affidavit she continues that "I waited again to see if my legal aid would be re-instated so I could then make an appeal with legal representation. By 23rd January, 2013, I decided to contact States departments to find out if I could in fact make the appeal without legal representation."
5. As I say the application for leave to appeal out of time was in fact made on 19th March.
6. I note that on an appeal from a decision of the Master, the Court is to consider the matter afresh, whilst taking due note of the decision of the Master and the reasons for his decision - see Irish Nationwide Building Society-v-Volaw Corporate Trustees Limited [2012] JRC 035, applying Garfield-Bennett-v-Phillips [2002] JLR N 42. In this case it is very difficult to identify what the reasons for the Master's decision were, because no reasoned decision was given. I have had to consider the merits of the application for summary judgment therefore merely on the papers which are in the Court bundle put before me on this application for an extension of time.
7. The test on an application for summary judgment is whether the plaintiff can show that he can prove his claim clearly without trial in circumstances where the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried. If the Court is satisfied that there is no defence and no fairly arguable point to be argued on behalf of the defendant, it is its duty to give judgment for the plaintiff. The underlying policy is to prevent the delay in cases where there is no defence. Where it is clear that a decision as to whether or not to give judgment will be dependent upon facts which are in dispute, that of course would self-evidently be the case which would not be appropriate for summary judgment.
8. It is usual on an application for summary judgment to provide an affidavit in support, and equally a defendant will frequently submit an affidavit in support of his assertion that he has a genuine defence to the proceeding.
9. In this case, the first respondent swore an affidavit in support on 19th April, 2012. It was a lengthy affidavit running to 36 paragraphs, with exhibits of approximately 40 pages. No affidavit in reply was submitted by the appellants. The first appellant submitted to me that she did not have time to prepare such an affidavit. The first respondent's affidavit was sent to her on 3rd April. She was having difficulties ascertaining her legal aid position, and although Advocate Goulborn sent her an email at the end of June to indicate that she needed to swear an affidavit, she did not read that because of some personal family difficulties. In any event however, she thought that she had given Advocate Goulborn instructions on what she would be able to say and she thought that he could sign an affidavit on behalf of the company.
10. Advocate Amy agreed that I should look at the draft affidavit on the basis that the Master would not have given summary judgment if the only issue had been the fact that the draft had not been sworn by the first appellant at the time. He of course also made the point very fairly that he had not seen all the correspondence between the appellant and Advocate Goulborn and it was impossible to determine where the fault lay as between them. What he was clear about was that the fault was not that of his client.
11. The starting point for the Master was what dispute was revealed by the pleadings. The Order of Justice shows the respondents' claims to be the following:-
(i) There is a claim that the respondents lent to the appellants the sum of £45,206.97 ("the loans") which have not been repaid. £5,000 was claimed to be due to the first plaintiff, and £40,206.97 was claimed to be due to the second respondent.
(ii) There is a claim that the second respondent undertook various electrical and building works for the appellants for which he had been paid only in part. The monies outstanding were asserted to be £23,833.54.
12. The answer filed by the appellants acknowledged that the first appellant had received a loan of £43,600 from the plaintiff, which did not bear interest, and of this sum, £38,600 would be repayable only when certain insurance claims as between the Appellants and the Insurance Corporation of the Channel Islands Limited had been settled. In relation to the claim for monies outstanding in respect of electrical and building works, that claim was denied. In relation to loans outstanding, the appellants asserted that the amount due was reduced by virtue of a payment to Advocate Amy in the sum of £5,000. When he appeared before us, Advocate Amy indicated that he had lent some money personally to the first appellants which had been repaid. He asserted that what was outstanding was a loan due by the first appellant to the respondents. I was not entirely sure at one stage whether he appeared before me as counsel or as a witness.
13. The unsworn affidavit which was prepared, apparently by Advocate Goulborn on instructions from the first appellant as a defence to the summary judgment application shows that the first appellant and the first respondent were in a boyfriend/girlfriend relationship, and indeed that the first respondent moved in with the first appellant early in 2009. The content of the affidavit is closer to the type of affidavit one is accustomed to see in matrimonial proceedings. If such an affidavit had been sworn, it appears to me that the Master would have found it impossible to give a summary judgment. In relation to the loans, the first appellant makes it clear that firstly there was no written loan documentation; secondly the second respondent gave money to the first respondent, then the partner of the first appellant, and he lent the money to her upon the basis that it would not be due for repayment, whether they were together or not, until an insurance claim had been concluded. Whether that is or is not the case is typically the sort of factual dispute which can only be settled by a hearing in Court where evidence is given and challenged in the usual way.
14. There is no doubt that there is some prejudice to the respondents. However, this is not a case where the effluxion of time will disable them from continuing with their claim. The real issues between the parties seem to me to centre upon whether they had any intention to create contractual relations or whether the claims between them fall to be determined under the rules applicable to unjust enrichment. I have noted the first appellant admitting before me that she considers she owes the first respondent as a personal debt the sum of £40,000 albeit it is not due for repayment until the relevant insurance claim is settled.
15. I am aware that since the hearing before me in May, the property of the appellants has been adjudged renounced at the instance of their secured creditor. That increases the prejudice to the respondents because, if this judgment were set aside, they will not be able to participate in the dégrèvement and réatisation proceedings in the same way as judgment creditors. I consider I must disregard this factor as, firstly, it did not exist at the time this application was argued; secondly, the appellants may yet reach agreement with their secured creditor; and thirdly there may be other creditors whose interests might be affected.
16. Taking all these matters into account, I find that the first appellant has approached this litigation in a chaotic way. She should have treated it more seriously. I consider it surprising that she should assert that when she made an application to the legal aid office for legal aid, she thought she was appealing against the Master's judgment. It is also surprising that, notwithstanding her difficulties over legal aid, she left the matter for some five to six months without taking any appropriate steps. Even having discovered, by 5th January, 2013, that judgment had been entered against her, she did nothing for two months to apply for an extension of time to appeal that judgment.
17. On the other hand, the giving of summary judgment has deprived her of the opportunity of arguing before the Court defences which are in theory capable of being maintained. This was not a case for summary judgment, not just because application was made so late but also because the factual differences between the parties needed to be assessed in order that the claims be determined.
18. With some reluctance, it seems to me on balance that it is appropriate to give the appellant leave to appeal out of time, and to allow the appeal thus setting aside the summary judgment which has been obtained for the reasons given.
Authorities
Pitman and Another-v-Jersey Evening Post Limited and Another [2013] JCA 149.
Irish Nationwide Building Society-v-Volaw Corporate Trustees Limited [2012] JRC 035.
Garfield-Bennett-v-Phillips [2002] JLR N 42.