Jersey Unreported Judgments

Application for leave to extend time in which to appeal - dismissed.

[2014]JCA185

Court of Appeal

1 October 2014

Before: James Walker McNeill, Esq., Q.C.

Application for leave for extension of time in which to appeal judgments made by the Royal Court on 5^th March, 2104, 19^th April, 2014 and 25th July, 2014.

Mr. Syvret representing himself.

Advocate G. G. P. White for the Respondent.

JUDGMENT

MCNEILL ja:

Introduction

1.             This is an application for an extension of time in which to serve a Notice of Appeal, and comes before me as a single judge of the Court of Appeal. 

Background

2.             The applicant, Mr Stuart Syvret, is the defendant in proceedings at the instance of the Treasurer of the States, in which judgment was sought in the amount of £67,859.80 in respect of costs ordered by the Royal Court and the Court of Appeal.  The summons was dated 31st January, 2014, and gave rise, among other matters, to three orders against which the applicant wishes to appeal. 

3.             The first is an Act of Court of 5^th March, 2014.  By that Act, as explained in a reasoned judgment dated 17^th March, 2014, the Royal Court (HWB Page, QC, Commissioner, with Jurats Kerley and Blampied) (i) dismissed an application by the present applicant that the Commissioner should recuse himself from the proceedings, (ii) ordered the plaintiff to serve full Particulars of Claim within twenty one days and (iii) allowed the present applicant three months from receipt of the Particulars of Claim in which to file any Answer upon the specific issue that the underlying costs orders might have been invalidated by the effect of communications between the Data Protection Commissioner and Google from November 2008. 

4.             The second is referred to as an order on 19^th April, 2014.  Although it is not clear either from the application for leave to appeal out of time or from the proposed Notice of Appeal to which order the applicant is referring, there is reference in a judgment by the learned Commissioner dated 29^th July, 2014, to an order, in his name, issued on 9^th April, 2014.  As narrated at paragraph 10 of that judgment, the order (i) directed release to the present Applicant of a copy of the transcript of proceedings of the hearing which took place on 5^th March, 2014, and (ii) restricted the use, reproduction or distribution of any part of that transcript to the purposes of obtaining legal advice in connection with any appeal and use in connection with any appeal. 

5.             The third order is one of 25^th July, 2014.  By Act of Court of that date, as explained in the judgment of the Commissioner dated 29^th July, 2014, to which reference has already been made, the Royal Court noted the principal events in this litigation during 2014.  The Court also observed that the time set down for filing an Answer to the Particulars of Claim had expired with no Answer having been filed.  The court then dismissed the applications by the present applicant (a) that the Deputy Judicial Greffier should not sit as Greffier to the court in these proceedings, (b) that the Commissioner should recuse himself from the proceedings, (c) that there should be an extension of time within which to obtain disclosure from Google and the Data Protection Commissioner, (d) for an extension of time within which to file an Answer to the Particulars of Claim and (e) for leave to appeal the foregoing orders.  The court then ordered the present applicant to pay the sum of £67,859.80 and fixed costs of the action and authorised the plaintiff to cause the present applicant's movables to be distrained on and sold. 

Proposed Appeal

6.             The applicant's proposed appeal, as set out in the Notice of Appeal, is wide ranging and, indeed, seeks to have further parties joined to the proceedings, namely, "the Offices of Bailiff and Deputy Bailiff", the "Offices of the Judicial Greffier/Viscount and Deputy Judicial Greffier", the Attorney General, the Data Protection Commissioner and the Treasury and Resources Minister. 

7.             Whilst in the Notice of Appeal the proposed points to be taken on appeal have not been set out by specific reference to a particular order, the applicant, who represents himself, has set out his proposed points with clarity in some twenty-five separate proposals.  Doing the best that I can, it seems to me that they fall into the following categories:-

(i)        As regards the order of 5th March, 2014 the applicant would wish to appeal (a) the Commissioner's failure to recuse himself and (b) the Commissioner's failure to allow the applicant to make a detailed and reasoned application in support of recusal.

(ii)       As regards the April order the applicant would wish to appeal the imposition of secrecy on the distribution of any part of the transcript of 5th March.

(iii)      As regards the order of 25th July, 2014 the applicant would again wish to take issue with the failure of the presiding judge to recuse himself and also with the refusal to grant a further extension of time.  As regards that order, the applicant also wishes to contend that the purported debt was not owed as it arose from fraudulent actions concluded for improper motives and improper purposes and arose from actions and decisions by individuals who were expressly conflicted. 

8.             The other matters raised in the Notice of Appeal are potential orders either against or in respect of the additional parties to whom I have referred and whom the applicant would wish to see joined to the present proceedings.  The potential orders fall into the following categories. 

9.             The first proposed contention appears to be that the participation of the Commissioner in the proceedings was void ab initio because his appointment was at the hand of the Bailiff and Deputy Bailiff.  It would appear that this line of argument would run both upon the basis that the Bailiff and Deputy Bailiff were conflicted in the matter and, separately, in general. 

10.          Separately, the applicant would seek an order that the offices of Bailiff and Deputy Bailiff be ordered to cease all and any involvement in the present litigation and any and all other cases involving the applicant. 

11.          Separately again, there are numerous proposed applications for disclosure of information.  The applicant would propose seeking orders that the Offices of Bailiff and of Deputy Bailiff be ordered to give full disclosure of information as to actions taken in respect of the Applicant in respect of his Web log and in respect of communications with Google.  Similar orders would be sought in respect of the Judicial Greffier, Viscount and Deputy Judicial Greffier.  The applicant would also seek an order that court charges for him be waived as he has no financial resources and is a litigant in person. 

12.          Orders would also be sought against the Attorney General for similar disclosure of information together with disclosure of complete accounts for the Criminal Offices Compensation Fund.  Such disclosure orders would be sought against the Data Protection Commissioner and the Treasury and Resources Minister, the latter also to be ordered to disclose any monies from the Criminal Offences Compensation Fund which in any way resourced or involved any actions taken against the applicant. 

The Legal Test

13.          In deciding whether or not to grant an extension of time within which an appeal may be lodged, this Court must consider (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success, and (d) the risk of prejudice: see Crichton v Parker-Smith [2008] JCA 039 at paragraph 19; following B v N [2002] JLR N-29.  In cases where the delay in serving a Notice of Appeal is short and there is an acceptable excuse, an extension of time will not be refused on the basis of merits unless the prospective appeal appears to be hopeless: Palata Investments Limited v Burt & Sinfield Limited [1985] 1 WLR 942; Pitmans v Jersey Evening Post and Another [2013] JCA 149. 

14.          Rule 6 of the Court of Appeal (Civil) (Judicial Review) Rules 2000 provides, among other matters, that every notice of appeal is to be served upon all other parties who appeared before the court below and are directly affected by the appeal within fourteen days from the date on which the order was made. 

Discussion

15.          In his application for leave to appeal out of time, the applicant indicates that his Notice of Appeal was emailed to the Judicial Greffier at 16:39 on Monday 1 September 2014.  However, he gives no explanation as to why the various points which he has now set out in his proposed notice of appeal could not have been set out and served within the prescribed time limit as it applies to each order.  The applicant has been involved in much litigation in the courts of this jurisdiction.  That involvement includes applications to this court: see Syvret v AG [2011] JCA 146.  Indeed, the decision in that case included a determination not only that the application was well out of time in respect of certain matters but also emphasises the need for explanation for any delays: see paragraph 29.  Accordingly the applicant, albeit an applicant in person, is well aware of the important procedures of courts which exist for the benefit of all court users.

16.          I have identified above my understanding from the papers of the relationship between the various points proposed to be taken upon appeal and the orders which the applicant wishes to bring under the attention of this Court.  As regards the order of 5th March, 2014, there can be no reason - absent debilitating illness or some form of incarceration - why the issue of recusal could not, immediately, have been made the subject matter of a Notice of Appeal.  The issue had arisen during the hearing below, no further investigation was required and, indeed, the earlier application to this court to which I have already referred itself included an application for recusal: see paragraph 2. 

17.          As regards the order of April 2014 again there appears no reason why a Notice of Appeal could not have been lodged well within the specified time limit.  The matter had been raised below, there was no further investigation to be carried out and a Notice of Appeal could have been prepared immediately. 

18.          As to the order of 25th July, 2014, the same observations which I have made in respect of the order of 5th March, 2014 are germane for the issue of recusal.  Turning to the proposed contention that there was in fact no debt, this proposed argument appears, on the information available to this court, to proceed upon the information provided by March 2014 that there had been communication between the Data Protection Commissioner and Google in November 2008: see paragraphs 7 and 8 of the judgment of 17th March, 2014.  Further, paragraph 10 of that judgment made it clear that the purpose of affording the present applicant a three month period within which to file his Answer was precisely to allow him an opportunity to seek leave to appeal, out of time, such of the proceedings with which the Royal Court was concerned as he might think were affected by the issue of communication between the Data Protection Commissioner and Google.  Manifestly, the applicant decided not to take such a step.  Having known, at latest by March 2014, that there might be an issue arising from the communications between the Data Protection Commissioner and Google, and having decided not to take that step within the time specifically allotted to him, it seems to me that there can be no justification, absent a clear and cogent explanation, for this court to permit a further extension of time from the July order.  At best for the applicant it might be said that it was not until the July order that there was an order for payment which would affect him; but the issue as to the potential effect of the November 2008 communications on the debt had been known since March 2014.  Further, the Act of Court of 5^th March, 2014 having permitted liberty to apply, and the applicant having been refused a further extension, the latter determination should have been the subject of an immediate appeal were the Applicant so minded. 

19.          It therefore follows that, in respect of the proposed issues which can be seen to be related directly to the three orders made below, there have been significant delays for which no relevant explanation has been offered. 

20.          Upon the assumption that the other matters raised in the proposed Notice of Appeal also arise out of the orders to which the Notice refers, the same observations which I have just made apply: a significant amount of time has elapsed, no special explanation has been given as to why the delay occurred and there is no obvious reason why the applications could not have been made within time.  Indeed, all the of the further matters appear to be issues which, if they were to be countenanced at all by the Applicant, had been identified by the Royal Court as within the range of possible applications within the three month period permitted by the order of 5th March, 2014. 

Conclusion

21.          For all these reasons I conclude that the application for leave to appeal out of time should be refused. 

Authorities

Crichton v Parker-Smith [2008] JCA 039.

B v N [2002] JLR N-29.

Palata Investments Limited v Burt & Sinfield Limited [1985] 1 WLR 942.

Pitmans v Jersey Evening Post and Another [2013] JCA 149.

Syvret v HM Attorney General [