Jersey Unreported Judgments

Debt - application for leave to appeal - application for a temporary stay.

[2014]JCA097

Court of Appeal

23 April 2014

	Before     :		Robert Logan Martin Q.C., sitting as a Single Judge.
Between		The Phone-In-Trading-Post (t/a Admatch)		APPLICANT/Defendant
And		Leeds United Association Football Club Limited		FIRST RESPONDENT/First Plaintiff
		Leeds United Football Club Limited (formerly Leeds United 2007 Limited)		SECOND RESONDENT/Second Plaintiff

Application for leave to appeal and an application for a temporary stay.

Mr R. L. Weston on his own behalf.

Advocate S. M. Chiddicks for the Second Respondent.

JUDGMENT

logan martin JA:

INTRODUCTION

1.        This is a Notice of Appeal which relates to a judgment of the learned Bailiff which was given on 27 March, 2014. The judgment was given in proceedings brought by the respondents and plaintiffs against the applicant/defendant (hereafter "AdMatch").  By a Summons dated 22 August, 2013, the second respondent/second plaintiff (hereafter "Leeds") sought an order that Admatch and Mr Robert Weston ("Mr Weston") "be ordered, on a joint and several basis, to pay the costs of the proceedings on an indemnity basis."  AdMatch was dissolved on 1 October, 2012 and has not been represented in the proceedings. 

2.        The background to the proceedings is summarised in the judgment of the Bailiff.  Leeds claimed payment by AdMatch of a sum of £190,400.  AdMatch defended the claim upon the basis that it was entitled to exercise a right of set-off as a result of an agreement between the applicant and the first respondent/first plaintiff which is the predecessor of Leeds. The merits of the proceedings were resolved by a judgment in favour of Leeds for the sum of £190,400 which was given because AdMatch failed to comply with an unless order. 

3.        The dispute between the parties has been a long-running one.  Other proceedings were commenced in Jersey by Leeds against Mr Weston and a business associate of his, a Mr Levi.  These proceedings were stayed and what may be described as parallel proceedings were instituted in the High Court in England by Leeds.  Those proceedings came to end because Leeds failed to provide security for costs in the sum of £240,000 by a specified date and default judgment against Leeds was apparently given on 27 March, 2014.

4.        The hearing of the application for an order for costs against Mr Weston is due to be heard by the Royal Court on 24 and 25 April, 2014.  It had originally been due to be heard on 6, 7 and 8 January, 2014 but in a judgment dated 24 December, 2013 the Bailiff granted an adjournment upon an application by Mr Weston.  This adjournment was granted because Advocate Redgrave who was representing Mr Weston was not available on the dates set down.  In a subsequent judgment of the same date, the Bailiff ordered that Leeds should pay one-half of the costs of the hearing.

5.        At the hearing on 27 March, the Bailiff considered two applications which had been made by Mr Weston.  The first was for an adjournment of the hearing set down for 24 and 25 April and the second was for an order for security for costs against Leeds.  In his judgment, the Bailiff refused the adjournment and granted an order for security for costs in the sum of £30,000 to be paid by 7 April.  He decided that as the hearing was on costs the matter should be decided on submissions and that he should not receive any new evidence.  He made no order for costs in respect of the hearing.  Mr Weston sought leave to appeal from the Bailiff but leave was refused.

6.        The Notice of Appeal which is before this Court refers to two applications.  In the first, Mr Weston seeks the leave of this Court to appeal against the decisions of the Bailiff, and in the second, he seeks a temporary stay of further proceedings in the Royal Court pending determination of the appeal.

7.        Mr Weston seeks leave to appeal in five respects.  First, he submits that the Bailiff should have granted an adjournment of the hearing to take place on 24 and 25 April.  Secondly, the Bailiff should have fixed security for costs by Leeds at a substantially greater amount which reflected the sums for which they remain liable in the other proceedings in Jersey and England.  Thirdly, the Bailiff should not have made no order for the costs of the hearing on 27 March.  Fourthly, the Bailiff should not have made an order at the hearing on 24 December, 2013 for payment by Leeds of only half of Mr Weston's costs, and in that respect Mr Weston also seeks the permission of his Court for leave to appeal out of time.  Fifthly, the Bailiff erred in making case management decisions when he decided that the costs hearing should take place over only two days and when he decided that no evidence was to be adduced at the hearing.

8.        The Notice of Appeal was served on 17 April, 2014 which was the Thursday before the Easter Weekend.  Given the imminence of the hearing before the Bailiff which was due to commence on 24 April, it was decided that the Court should proceed immediately to oral submissions on the applications and the hearing was arranged to take place before me by video link on the afternoon of 23 April.  It should be noted that during the course of the hearing the video link failed several times and had to be reconnected, and it was conducted in sound only for part of the proceedings, but I am satisfied that I was able properly to receive and consider the contentions for the parties and neither party complained at any point that the difficulties of communication had caused prejudice to their case.  These difficulties were a consequence of the date of service of the Notice of Appeal and the imminence of the hearing before the Bailiff.

9.        The submissions for Mr Weston were provided in a document entitled Written Submissions which was attached to his Notice of Appeal and in his oral submissions which were made to me.  It is not necessary to summarise these because in large part they referred to the background to the litigation and to the alleged conduct of Leads and those representing them which was said to justify the position being adopted by Mr Weston.  These are matters which may have been relevant to the decisions made by the Bailiff on 27 March but they did not address what were the appropriate considerations for me in deciding whether I should grant leave to appeal and a temporary stay.  Insofar as particular submissions did relate to my consideration of the issues, I identify these by reference to the individual respects discussed below.

10.      The submissions for Leeds were made in a document entitled Opposition to Notice of Appeal and in Advocate Chiddicks' oral submissions.  Once again, I note those which are relevant by reference to the individual aspects described below.  In preliminary communication with the Court, Advocate Chiddicks had challenged the form of the Notice of Appeal and had submitted that it did not comply with the requirements related to the Court of Appeal (Civil Rules) 1964 ("the Rules").  He also submitted that the Notice of Appeal did not actually contain any formal application or grounds for a temporary stay.  I did not find it necessary to rule on this matter and it was not the subject of any discussion at the hearing.  Whatever may be the technical position, I heard and took into account the submissions which were made by Mr Weston on the merits of his applications without regard to the technical competency of the form in which they had been presented.

11.      I refused the applications at the end of the hearing and I indicated that this judgment would be provided subsequently. I also awarded costs in favour of Leeds upon an indemnity basis.

THE APPLICATION FOR LEAVE TO APPEAL

12.      There was no dispute about the test to be applied by this Court in deciding whether to grant leave to appeal.  In his judgment in United Capital Corporation-v-Bender [2006] JLR 269, Beloff JA said:-

"23  In order to obtain leave to appeal from this court, it is well established that a party must show, where the Royal Court has the relevant principles and the relevant facts well in mind, that there is a "clear case of something having gone wrong" (Glazebrook v Housing Cttee [2002 JLR N [43]].

24  The decision against which permission to appeal is sought is, as the Deputy Bailiff himself observed, "a matter of judicial discretion having regard to the particular facts of the case.""

At paragraph 25, Beloff JA referred to two leading decisions in England namely The Abidin Daver [1984] AC 398 and Hadmor Prods Ltd v Hamilton [1983] 1 AC 191.  Beloff JA continued:-

"26  In Hadmor, Lord Diplock described the correct approach by an appellate court on an appeal against a discretionary decision as follows ([1983] 1 AC at 220):

"An interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge by whom the application for it is heard. Upon an appeal from the judge's grant or refusal of an interlocutory injunction the function of an appellate court, whether it be the Court of Appeal or your Lordships' House, is not to exercise an independent discretion of its own. It must defer to the judge's exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only. It may set aside the judge's exercise of his discretion on the ground that it was based upon a misunderstanding of the law or of the evidence before him or upon an inference that particular facts existed or did not exist, which, although it was one that might legitimately have been drawn upon the evidence that was before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground that there has been a change of circumstances after the judge made his order that would have justified his acceding to an application to vary it. Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes be sketchy, there may also be occasional cases where even though no erroneous assumption of law or fact can be identified the judge's decision to grant or refuse the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after the appellate court has reached the conclusion that the judge's exercise of his discretion must be set aside for one or other of these reasons, that it becomes entitled to exercise an original discretion of its own.""

At paragraph 27, Beloff JA confirmed that the statements of principle derived from the authorities which he had referred to represented the law of Jersey by reference to the decision of the Court of Appeal in Abdel Rahman-v-Chase Bank (CI) Trust Co Ltd [1984] JJ 127.

13.      In his speech in the The Abidin Daver, Lord Brandon said:-

"My Lords, as I indicated earlier, the decision whether to allow or refuse an application for the stay of an action, even though the court has jurisdiction to try and determine it, is a discretionary decision for the judge of first instance to whom the application is made.  It follows that, whether the judge of first instance has exercised his discretion in one way or the other, the grounds on which an appellate court is entitled to interfere with a decision which he has made are of a limited character.  It cannot interfere simply because its members consider that they would, if themselves sitting at first instance, have reached a different conclusion.  It can only interfere in three cases: (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done or failed to take into account matters which he ought to have done; or (3) where his decision is plainly wrong."

This passage was quoted in Alhamrani-v-Alhamrani [2008] JCA 187A (which is noted at [2008] JLR Note 45) in which McNeill JA in his judgment at paragraphs 56 to 63 considered the relevant decisions of this Court and of the courts in England.  He concluded "that the opinion expressed in United Capital Corporation is applicable not just to interlocutory matters, but also to any discretionary matter."

14.      Advocate Chiddicks referred to Alhamrani as demonstrating the principles to be applied and I am satisfied upon a consideration of the authorities referred to that that is the case.  In order to succeed in obtaining leave to appeal, Mr Weston must establish that in respect of each of the decisions which he challenges, the learned Bailiff erred in one of the three respects described by Lord Brandon in The Abidin Daver.

15.      It is my judgment that the standard for granting leave to appeal has not been satisfied on any of the aspects put forward by Mr Weston.  In summary, I am satisfied that the decisions made by the Bailiff on 27 March were properly matters of case management which the judge who has control of the management of the case is best able to make and I have not identified any error on his part which would justify consideration of an appeal by this Court.

16.      In respect of the refusal of an adjournment, Mr Weston in his submissions referred to the history of the litigation and to previous decisions of the Court of Appeal.  He referred to his own health issues and those of his wife as affecting his ability properly to prepare for the hearing and to the volume of material with which his wife was most familiar.  He referred to a change of circumstances since the decision of the Bailiff because of the acquisition of Leeds by a Mr Cellino which had taken place as recently as 10 April, 2014.  In my opinion, the history of matters is not material to my consideration of whether or not leave to appeal should be granted.  These are matters which clearly concern Mr Weston, and they may be relevant for the consideration of the Bailiff (although that is a matter for him), but I do not discern that they are relevant in order to demonstrate that the Bailiff erred when he refused to grant an adjournment.  In his judgment, the Bailiff does refer to the history of matters, including the judgment against Leeds in the English proceedings, and he proceeded upon the basis that the English proceedings were not going to take place which was and remains the position.

17.      The Bailiff was fully aware of both Mr and Mrs Weston's medical conditions including her recent surgery and these circumstances are referred to in the judgment as a factor which the Bailiff took into account.  He determined that the amount of time which would be necessary to prepare for the hearing was not as much as Mr Weston claimed.  The Bailiff considered that the matter was one to be determined on submission and Mr Weston would be represented by Advocate Redgrave which remains the case.

18.      It is also apparent that the dates for the hearing on 24 and 25 April were fixed shortly after the decision of the Bailiff to grant an adjournment on 27 December, 2013.  This was done as a result of the direction of the Bailiff that parties attend before his Judicial Secretary before 8 January, 2014.  Although the precise date when the dates for the hearing were fixed was not identified, it is apparent that Mr Weston has known that there was to be hearing on 24 and 25 April for a period of more than three months and he did not take any step to question that until he sought the adjournment from the Bailiff on 27 March. 

19.      Insofar as the change of circumstances is concerned, Mr Weston relied upon this to suggest that the new owner should have an opportunity to decide what was to be the position of Leeds in the present proceedings.  Mr Weston also claimed that there was a doubt about Advocate Chiddicks' instructions, not least because the new owner had dispensed immediately with the services of the Chief Executive of Leeds who had been responsible previously for giving instructions.  I do not regard these matters as relevant to the application for leave to appeal, and I do not regard it as appropriate in the circumstances of this case for me to investigate the basis of the instructions of his opposing advocate as Mr Weston suggested.  I proceed upon the basis that Advocate Chiddicks is acting properly on instructions and there is no reason to doubt that.

20.      In all these circumstances, I have identified nothing in the decision of the Bailiff to refuse an adjournment which would fall within any of the three cases described by Lord Brandon in The Abidin Daver.  By reference to the Bailiff's judgment, he did not misdirect himself, he took into account the factors which were presented to him, he exercised his judgment having regard to the knowledge which he had of the proceedings and his responsibility for its management, and it cannot be said that in any sense his decision to refuse an adjournment was "plainly wrong".

21.      In respect of the second aspect relied upon by Mr Weston, I have identified no basis upon which it could be said that the Bailiff erred in requiring security for costs in the sum of £30,000.  Mr Weston made an application for security for costs and that application was granted.  Mr Weston had originally suggested a figure of £150,000 which the Bailiff described as "clearly way over the top" and nothing has been presented to me which would suggest that that was not an accurate categorisation.  In any event, Advocate Redgrave who appeared for Mr Weston suggested a figure of £50,000 although he provided no draft bill to justify that.  Advocate Chiddicks suggested a figure of £10,640.  The Bailiff carried out an estimation of the costs likely to be incurred in respect of a two day hearing and he struck a balance between these figures.

22.      In his submissions to this Court , Mr Weston now submits that the sum to be fixed in respect of security for costs should take into account costs which had already become payable in the other proceedings in Jersey and England.  It is not said that this was a factor urged upon the Bailiff and that it is something that he left out of account.  Mr Weston presented no authority which would justify the making of an order for security for costs in proceedings which took into account liabilities for costs in other proceedings.  I do not regard it as a factor which would justify the granting of leave to appeal in a situation where I am satisfied that the Bailiff properly exercised his discretion upon the matters of fact presented to him.

23.      In respect of the third aspect, I have no hesitation in not granting leave to appeal the decision of the Bailiff that there be no award of the costs of the hearing on 27 March.  I received no particular submissions directed to this aspect and nothing that I have seen would suggest that the Bailiff exercised his discretion in a way which would justify interference by this Court.

24.      In respect of the fourth aspect of the application for leave to appeal, this relates to the decision made by the Bailiff on 24 December, 2013 that Leeds pay one half of Mr Weston's costs for the hearing on that day.  Mr Weston explained that this had not been the subject of an application for leave to appeal within the time limit of twenty eight days specified in the Rules because his total costs amounted to £12,000 to £14,000, and proceedings in respect to an order which would amount to only about £6,000 were not justified economically.  He referred to the Overriding Objective provided in Part 1 of the Civil Procedure Rules of England and Wales which includes the principle that cases should be dealt with in a way which is proportionate. 

25.      In order to allow this aspect of an appeal to proceed, I would require to be satisfied that Mr Weston should be granted an extension of time to seek leave some three months after the last date when it should have been sought.  I am satisfied that I should not grant such an extension.  Whilst I do understand the economic considerations which Mr Weston referred to, these are not unique to him or to a potential appeal of this sort.  The existence of a time limit for initiating an appeal is not just an administrative requirement which a potential appellant may choose to ignore.  The need for an appeal to be commenced within the stated time provides certainty for a competing party that a decision of the court will not be impugned after the specified period has passed.  It is also of interest to the court whose decision might be impugned, in particular in a case where the possibility of appeal exists in an ongoing litigation for which the court remains responsible as is the position here. There may be situations where the time limit for appeal will be extended, such as where a potential appellant can demonstrate some particular factor which prevented the initiation of the appeal in time, but I do not consider that it would be reasonable to do so in a situation where the potential appellant has simply decided not to proceed with an appeal at the appropriate time even if that may be explained by economic considerations.

26.      It is therefore unnecessary for me to consider whether leave should be granted in relation to this aspect of the application but I would observe that nothing of which I was made aware would have satisfied me that the Bailiff had erred in the exercise of his discretion when he made the award of costs which he did.

27.      The final aspect upon which Mr Weston seeks leave relates to the case management decisions made by the Bailiff.  This is said to have been done at the two hearings on 24 December, 2013 and 27 March, 2014 although Mr Weston does not seek any extension of time to make an appeal in respect of the first of those hearings.  The identification of the likely length of a hearing is clearly a matter which the judge who has the management of proceedings is best able to judge.  In respect of the Bailiff's decision on the length of the hearing, Mr Weston submits that the Bailiff "reduced the length of the Costs Hearing from three days to two".  In the course of oral submissions, it became apparent that that was not the subject of a discrete decision by the Bailiff because the fixing of the two days on 24 and 25 April was done as an administrative act by the Bailiff's Judicial Secretary in consultation with the parties.  Mr Weston had certain complaints about this procedure because it had taken place at a time which was not convenient to him and because the Bailiff had apparently indicated that two days would be sufficient.  Nevertheless, Mr Weston accepted that he had been represented by a solicitor when the dates were fixed.

28.      As noted above, the dates were fixed in about the early part of January and Mr Weston was therefore aware that the hearing was to be for only two days for at least two months before the matter came before the Bailiff on 27 March.  On that date, the Bailiff confirmed that the hearing was scheduled for two days although he also expressed the hope that it could be concluded within a shorter period.  In considering that period, the Bailiff took into account the likely conduct of the hearing and the fact that Mr Weston would be represented by an experienced advocate.  To the extent that it may be said that the Bailiff determined on 27 March that the hearing would last for no more than two days, and that Mr Weston should be entitled to seek leave to appeal that decision, I have no hesitation in deciding that such leave would not be justified.  Nothing has suggested that as the judge who is responsible for the management of the case, the Bailiff erred in the exercise of his discretion in any respect which would justify reconsideration by this Court on the likely length of the hearing.  Furthermore, if it were to be the case that two days turned out not to be sufficient, a further hearing before the Bailiff could be arranged.  There would be nothing unusual about such a procedure and the possibility that a hearing which has been fixed after reasonable consideration may be too short does not provide any basis for reconsideration by the Court of Appeal.

29.      In respect of the decision of the Bailiff that he will not receive any new evidence at the hearing, that again is a matter primarily for the judge who has management of the case.  Mr Weston may wish to lead evidence and he has suggested that the matters in dispute have never been the subject of factual resolution because the present proceedings and the proceedings in England ended as a result of default judgments.  Whilst this may be so the Bailiff is in the best position to judge how the merits of the order for costs which is being sought against Mr Weston should be determined and I have identified no error which would justify the granting of leave by reference once again to the test set out by Lord Brandon.

30.      For these reasons, I have refused leave to appeal in all respects.  In doing so, I am satisfied that Mr Weston has put forward no substantial ground to support leave in any of the respects considered. 

THE APPLICATION FOR A TEMPORARY STAY

31.      Having decided that leave to appeal should not be granted in any respect, I am satisfied that there would be no justification for the granting of a temporary stay.  As I have found that there are no grounds to interfere with the decision of learned Bailiff not to adjourn the hearing due to commence on 24 April, it would be illogical in that situation to consider granting a temporary stay which would have precisely the opposite effect.  In the course of the hearing, there was discussion about whether a temporary stay would be justified even if leave to appeal had been granted but that aspect does not arise.  The submissions which were made by Mr Weston and by Advocate Chiddicks regarding the prejudice which would be suffered by each party in the event that a stay was either refused or granted are not relevant in a situation where I have already decided that leave to appeal should be refused.

COSTS

32.      Having stated my decision at the hearing, Advocate Chiddicks applied for an order for indemnity costs against Mr Weston in respect of the Notice of Appeal.  Mr Weston did not dispute his liability for costs but he submitted that these should not be on an indemnity basis.

33.      Advocate Chiddicks submitted that the Notice of Appeal had been served extremely late and that there was nothing to justify the delay.  It was entirely without merit and it had required him to consider new materials which had not been before the Bailiff.  It had been served only on 17 April which had meant that the hearing on the Notice of Appeal could not take place until 23 April which was the day before the start of the hearing before the Bailiff.  This hearing had been conducted by Mr Weston personally notwithstanding that he was legally represented and would be represented as the hearing before the Bailiff.  Advocate Chiddicks inferred that the Notice of Appeal was a tactical application which had been designed to disrupt his preparation.

34.      Mr Weston denied that there had been any ulterior motive in the presenting of the Notice of Appeal.  He explained that it had been served only on 17 March because he was permitted to work only 4 hours a day for medical reasons.  He had not received the Bailiff's judgment until 11 April.  There was also no point in initiating an appeal until Leeds had lodged the sum of £30,000 as security for costs because, if they had failed to do so, the hearing before the Bailiff would not have taken place.  The sum was lodged only on the last permitted day.

35.      In my judgment, Leeds are entitled to their costs of the Notice of Appeal upon an indemnity basis.  I am satisfied that Mr Weston provided no reasonable basis for leave to be granted on any of the aspects upon which he sought leave to appeal.  Whether or not the serving of his Notice of Appeal as late as 17 to March was done deliberately for tactical reasons, and I have no information to suggest that to be so, nevertheless leaving service until such a late stage had the inevitable practical consequence of requiring Advocate Chiddicks to devote time to responding to the Notice of Appeal at a point when Mr Weston must have been aware that he would have been likely to be preparing for the hearing before the Bailiff.  I am also not satisfied that Mr Weston was entitled to rely upon the fact that he did not see the judgment of the Bailiff until sometime after his application for an adjournment was refused.  Mr Weston knew that he could have appealed that decision because he sought leave from the Bailiff himself.  He knew that leave had been refused by the Bailiff and it ought to have been self-evident, as the Bailiff stated in his judgment, that leave should be sought from this Court "as a matter of urgency".  Finally, I do not regard it as reasonable for Mr Weston not to have commenced his preparations for his Notice of Appeal until the sum for security for costs had been lodged and to rely upon the fact that that only occurred on the last permitted day.  As I have said above, the need to initiate an appeal promptly is in the interests of both parties and the court, and Mr Weston was not entitled to choose to delay his preparations for an appeal until Leeds fulfilled an order of the Bailiff which was not necessary in order to justify the grounds for his appeal. 

36.      In these circumstances, it is my judgment that the conduct of Mr Weston in relation to his Notice of Appeal has been unreasonable such as to justify an award of costs in favour of Leeds upon an indemnity basis.

Authorities

Court of Appeal (Civil Rules) 1964.

United Capital Corporation-v-Bender [2006] JLR 269.

The Abidin Daver [1984] AC 398 and Hadmor Prods Ltd v Hamilton [1983] 1 AC 191.

Abdel Rahman-v-Chase Bank (CI) Trust Co Ltd [1984] JJ 127.

Alhamrani-v-Alhamrani [2008] JCA 187A.

Alhamrani-v-Alhamrani [2008] JLR N 45.

Civil Procedure Rules.