COURT OF APPEAL
Sir Richard Collas, Bailiff of Guernsey., sitting alone.
IN THE MATTER OF L (MATRIMONIAL)
Advocate C. R. Dutot for the Respondent.
Advocate I. C. Jones for the Applicant.
1. This is my decision as a Single Judge of Appeal in relation to an application for leave to appeal lodged by A to whom I will refer as the husband, rather than the Appellant, because in the substantive proceedings he is the Respondent whereas in these appeal proceedings it is the wife who is the Respondent so it will be helpful if I do not use the terminology Petitioner/Respondent and Appellant/Respondent. I will instead refer to parties as "the husband" and "the wife".
2. I have before me a notice of appeal and some written submissions comprising three pages dated this day signed by Advocate Jones on behalf of the husband; a document entitled "Petitioner's submissions in response to the Respondent's application for leave to appeal", also dated this day and consisting of three pages signed by Advocate Dutot on behalf of the wife, attached to which are four authorities; the decision of Commissioner Blair and Jurats Clapham and Nicolle also dated 8th October which is sought to be appealed; and an earlier judgment of the Commissioner dated 11th September which gives the background to the matter as set out in paragraphs 5 -16 of that earlier judgment. I will not repeat the background in full but essentially the substantive case involves a re-hearing of the wife's application for ancillary relief. This was a marriage of 4 years duration from 1994 until the parties separated in 1998. The marriage was dissolved in 2001. A final ancillary relief order was made on 14th January, 2002, by Registrar Obbard which, 7 years later on 5th May, 2009, was set aside by the Royal Court (with the Bailiff presiding) on the grounds of material non-disclosure. Now more than 5 years after that original order was set aside, the Court over which Commissioner Blair is presiding has the task of determining the award to the wife which, in fairness and in law, will be appropriate.
3. The case was part heard in August and adjourned for further hearing this week. The parties in their submissions to me are not entirely in agreement as to why the case was adjourned but certainly one factor is that a medical expert, Dr Vellore, was not available to give evidence in August due to ill-health. It was hoped at that time that he would be available in October but as circumstances have developed, his health does not yet enable him to attend and we are told he will not be able to attend at least until December and it is possible that he may not even be fit then. Dr Vellore is a jointly-instructed expert according to an Act of Court of 10th October, 2013, and a further consent order signed by the advocates on behalf of the two parties on 18th and 19th December, 2013, respectively, which amended the date by which Dr Vellore was to file his report. He was also instructed pursuant to a joint letter of instruction amended by both parties. In his submissions to me Advocate Jones made it very clear that the husband does not accept the medical expert's report; hence, the report is not agreed by the parties and the husband wishes to cross-examine the expert. Advocate Jones' presented his submissions almost as if Dr Vellore was being called by the wife as her expert and as part of her case but Advocate Dutot explained he was definitely a jointly-appointed expert.
4. Yesterday in the hearing before the Commissioner, Advocate Jones made an application for the hearing to be adjourned to enable Dr Vellore's evidence to be given and to enable him to be cross-examined before the husband gives his evidence in the proceedings. That application for an adjournment was refused by the Court and it is that order refusing an adjournment which it is sought to appeal. Leave to appeal is required under Section 13(1)(e) of the Court of Appeal (Jersey) Law which provides that no appeal shall lie without leave of the Court below or the Court of Appeal, (I paraphrase.) Section 13(2) also makes provision that application to the Court of Appeal for leave shall be made to a single judge, hence the application that has come before me today.
5. Advocate Jones said that he made no application to the Judge at first instance for leave to appeal and considered he did not need to do so because there exists a right to make the application to a single judge and he felt that was the appropriate way to proceed. Glazebrook-v-Housing Committee  JLR N 43 is authority for the principle that an applicant should initially apply for leave to appeal to the court of trial as the resources of the Court of Appeal are to be concentrated as far as possible on final orders and judgments. I understand that decision may have been handed down before the Court of Appeal Law was amended to enable applications to be made to a single judge. If so, the position may have changed but I would still regard it as preferable that, in the first instance, any application for leave to appeal should be made to the Judge of the Court below if at all possible before it comes before a single judge of the Court of Appeal.
6. In a written judgment handed down today Commissioner Blair refused leave to appeal. That was criticised by Advocate Jones on the grounds that he did not formally make such an application to Commissioner Blair. I think there is concern on the husband's part that I might be in some way prejudiced or I might regard the issues having been prejudged by Commissioner Blair in a way that might influence me in my decision. I wish to emphasise that I am not influenced by Commissioner Blair's decision to refuse leave to appeal. It is always helpful for the Court of Appeal to know the reasons why the Court below may have refused leave to appeal or why it may have granted leave to appeal, if that is the case. But whenever an application comes before a single judge or indeed comes before the plenary court , the single judge, or the plenary court, are well familiar with the need to look at it afresh and to form the judge's own opinion, or the court's own opinion, on the application. So I am not influenced by Commissioner Blair's conclusion. What I find most helpful in his judgment is that it essentially concentrates on the reasons why the Court refused the adjournment that was being requested. I read it essentially as a judgment giving reasons for that refusal of an adjournment, rather than a judgment refusing leave to appeal.
7. Turning then to the application for leave to appeal, both parties are agreed as to the legal test that has to be applied. Advocate Jones relied on Tomes-v-Coke-Wallis 2002/10 which gave a three-headed test:-
(i) The judge has misdirected himself with regard to the principles in accordance with which his discretion was exercised; and/or
(ii) The judge in exercising his discretion has taken into account matters which he ought not to have done or has failed to take into account matters which he ought to have done; and/or
(iii) The judge's decision is plainly wrong.
8. Advocate Dutot referred to Crichton-v-Parker-Smith  JLR N 13 which sets out the same three heads but adds a fourth head namely that there has been a change of salient circumstances. That fourth head is not applicable on the facts of the present application. I am only concerned with the first three heads.
9. Advocate Jones' criticism is principally that, in the lower Court, the Commissioner set out the wrong test when deciding whether or not to grant an adjournment. He placed great emphasis on what the Commissioner apparently said in Court yesterday which, it appears, may be different from what is written in paragraph 9 of the judgment. Paragraph 9 is as follows:-
"Mr Jones submitted that that was quite wrong, that in some way the husband should not have to, as he put it, present his case until, effectively, Dr Vellore or whomsoever might substitute for him had given evidence. He said that there would be prejudice for the husband but without, in the estimation of the Court, articulating at all persuasively precisely what such prejudice would be. The Court can see no prejudice whatsoever, and it would be ensured that no prejudice would possibly occur to the husband."
10. I emphasise that (in paragraph 9 of the judgment) the Court said that it could see "no prejudice whatsoever" to the husband if he had to present his case before the expert evidence had been heard. I understand from Advocate Jones' submissions that yesterday in Court the Commissioner may have given the impression that he could see that there might be some prejudice. I have to deal with this application on the basis of the written judgment not what might have been said in Court, a transcript of which I do not have before me.
11. In applying the first head of the test, I have to ask myself whether the Commissioner has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised. This decision was a case management decision. Case management decisions are essentially decisions for the judge at first instance and are rarely interfered with by an appellate court because the judge at first instance is given a wide discretion as to how he must handle the case. If something goes seriously wrong at the trial that is normally dealt with by way of a substantive appeal. If something has gone so seriously wrong that the decision has to be set aside and a fresh trial take place, that would be the order that the Court of Appeal would make.
12. But here I come back to the question did Commissioner Blair misdirect himself with regard to the principles? In my view he did not, he had to conduct a balancing exercise with, on one side of the balance, the question of prejudice to the husband. He found that Advocate Jones had not been able to articulate at all precisely what any such prejudice would be and the Court reached its own decision saying that it could see no prejudice whatsoever and added that if it was wrong in relation to that, it would ensure at the trial that no prejudice would in fact occur. In other words, any prejudice that might arise would be managed at the hearing. To my mind that was an appropriate factor to take into account and balanced against that the Court looked at the delay that would result. Again, in my view, that was an appropriate factor to weigh in the balance. I do not accept Advocate Jones' submission that the Court in effect started from the point of view that it did not want to have any delay. The Court was entitled to take into account the delay and the proper use of court time.
13. Advocate Jones criticised the Court for having formed a view that the husband might be seeking to waste time and to delay the point at which he has to take the witness box. That was a conclusion the Court was entitled to reach if, on the facts, it believed that there was evidence of time-wasting. In paragraph 12 of the judgment the Court gave an example of what it considered to be time-wasting when it said that the husband had requested an adjournment of 2 to 3 hours in order to make an open offer, the first one that he had ever made, and waited until Monday of this week to do so, with no explanation as to why he could not have done it earlier, the offer was rejected by the wife and described by the Commissioner as being "fanciful". Given the delays that have taken place of which the Commissioner has greater knowledge than I do, he was entitled to form a view as to whether the husband was time-wasting or not and I am not in a position to say that his view was wrong.
14. So in relation to that first head of the test, I conclude that the Commissioner did have regard to the correct principles on which to exercise his discretion, and in regard to the second head I am satisfied that he took into account matters which he ought to have taken into account. Advocate Jones had sought to persuade the Commissioner to take (what he called) the neutral option of adjourning the hearing to ensure that the medical expert gave his evidence before the husband thereby ensuring that there could be absolutely no risk of prejudice. The Commissioner balanced the risk of any prejudice against the proper use of the Court's time and those were, in my view, factors which it was proper for him to consider. He exercised his discretion in a way that he was entitled to do and it is not for me to interfere with that decision as I am not persuaded that his decision was plainly wrong. It may also be material that this was a jointly-instructed expert (despite what Advocate Jones sought to argue). If the Commissioner had said that he was going to deny any opportunity whatsoever to cross-examine the medical expert then yes that decision would have been plainly wrong, but the Commissioner did not decide that, he merely said that the medical expert's evidence will be delayed and given at a later point in the trial. Having looked at all of the circumstances of the case, which he knows better than I do, he formed the view no prejudice would result from that or in the unlikely event there was any prejudice it could be properly managed and handled. That is the sort of case management decision which judges at first instance have to take, they are entitled to do so and unless their decision is plainly wrong, or comes under one of the other heads referred to, no Court of Appeal interferes with it.
15. As a final submission Advocate Jones sought to argue that there is a general principle of public importance here and hence leave to appeal should be granted. What he is saying , as I understand it, is that there is a lack of procedural rules in matrimonial matters, rules are needed as to proper procedural conduct and because a question like this has not arisen before, it would be helpful for the Court of Appeal to give guidance. I do not know whether that is the case but if an appeal is brought at the conclusion of this trial, and if the Court of Appeal considers it necessary to do so, it can give some procedural guidance at that stage. If not and if it is thought that rules of procedure are needed, that is a matter that can be taken up separately but I do not see that that it is an issue that justifies granting leave to appeal and delaying further this case which the Royal Court is keen to hear.
16. So for those reasons I refuse leave to appeal.
17. I make an order for the wife's costs, taxed if not agreed.
Court of Appeal (Jersey) Law.
Glazebrook-v-Housing Committee  JLR N 43.
Crichton-v-Parker-Smith  JLR N 13.