Jersey Unreported Judgments

Debts - reasons for dismissal of applications with costs on indemnity basis.

[2014]JRC209

Royal Court

(Samedi)

29 October 2014

Advocate M. H. D. Taylor for all of the Respondents.

judgment

the commissioner:

1.        On 15^th October, 2014, the date fixed for the hearing of the representors' applications for leave to appeal certain orders of the Judicial Greffier in relation to costs, the representors failed to appear and the applications were therefore dismissed with costs on the indemnity basis.  I now set out my reasons. 

Background

2.        The history of this matter is not straightforward.  Home Farm Developments Limited ("Home Farm") commenced proceedings by way of representation on 8^th February, 2013.  This is matter No 2013/46.  It concerned the sale of units 2 and 5 at Home Farm.  The matter was dealt with by a consent order on 22^nd February, 2013. 

3.        An award of costs was made on 7^th August, 2013, in favour of the representor, following an appeal application.  Costs totalling £14,435 (the representor claiming for his own time) were submitted by Home Farm for taxation in September 2013 with both Home Farm and the respondents filing written submissions in October and December 2013.  The Judicial Greffier taxed the costs claimed by Home Farm and made an award to Home Farm in the sum of £279 on 4^th February, 2014.  An appeal of that order was required to be filed no later than 14^th February, 2014, failing which leave had to be sought.  No appeal was issued by that date. 

4.        Home Farm and Mr Shane Holmes (who is a director of Home Farm and we assume either the/or a beneficial owner of it) commenced a separate action concerning Unit 5 at Home Farm by representation dated 22^nd August, 2013.  This is matter 2013/341.  This was concluded by an order dated 4^th October, 2013, and costs were awarded to the respondents to that representation on the indemnity basis. 

5.        A bill of costs was submitted by the respondents to the Judicial Greffier in November 2013 to which Home Farm and Mr Holmes filed written objections.  The taxation process was undertaken and a certificate issued by the Judicial Greffier on 6^th February, 2014, in favour of the respondents in the sum of £2,971.70.  An award for the costs of the taxation process in the sum of £1282.50 was made in favour of the respondents on 21^st February, 2013. 

6.        The representors sought to appeal all of these costs orders filing documentation out of time and which was unclear.  The confusion was remedied at a directions hearing held before the Deputy Bailiff on 4^th May, 2014, following which one summons (covering both actions) dated 19^th May, 2014, was issued by the representors seeking leave to appeal the orders of the Judicial Greffier out of time, together with two notices of appeal setting out the grounds of appeal, both signed by Mr Holmes.  Subsequently, skeleton arguments were filed on behalf of the representors again signed by Mr Holmes in advance of the hearing that had been fixed for 8^th September, 2014. 

7.        On 4^th September, 2014, Mr Holmes requested an adjournment, on the basis of a doctor's note which said that he was "unwell".  That application was granted and the 29^th September was then fixed by the Court for the hearing.  

8.        On 22^nd September, 2014, Mr Holmes requested another adjournment on the same grounds, supported by another letter from his doctor.  That letter simply said "This man is unwell and will not be able to attend work for the next two weeks".  That application was granted by the Deputy Bailiff and the 15^th October, 2014, fixed for the hearing. 

9.        On 13^th October, 2014, Mr Holmes applied again for an adjournment, attaching another letter from his doctor which was in these terms.  "This man is currently taking some medication which affects his thinking and performance and it would be unwise for him to represent himself in Court at this point in time". 

10.      In his email seeking the adjournment, Mr Holmes also stated that being aware of the incapacity caused by his medical treatment, he had been seeking legal representation to conduct the hearing on his behalf, in an effort to avoid any potential further adjournment and inconvenience to the Court.  He stated that he had made contact with the Legal Aid office on 22^nd September, 2014, with the request that the hearing could be included under an existing Legal Aid certificate that had been issued to Viberts.  That would appear to have been granted by the Legal Aid office, but was successfully challenged by Viberts with a fresh certificate being issued to Carey Olsen.  Prior to sitting on 15^th October, 2014, the Court had ascertained from the Legal Aid office that Carey Olsen were appealing their appointment and the matter was currently before the Bâtonnier. 

11.      In my experience, advocates who challenge the issuing of a Legal Aid certificate (which presumably remains valid until withdrawn by the Bâtonnier) would always appear in Court as a matter of simple courtesy in order to explain their position.  Carey Olsen had neither written to the Court nor appeared before it, although to be fair to that firm, it was not clear whether it had been made aware of the hearing on the 15^th October fixed by the Court.  

12.      At 17:05 on 14^th October, 2014, the Bailiff's Judicial Secretary informed Mr Holmes by email that I had received all of the emails on the subject of his application for an adjournment and that unless she heard back from me prior to 10:00 am on 15^th October, 2014, he was to attend Court at 10:00 a.m.  She did not hear back from me. 

13.      At 9:31 a.m. on 15^th October, 2014, the Bailiff's Judicial Secretary received an email from Mr Holmes, saying that the doctor's letter he had provided did not include the fact that he was again signed off from work from 2^nd October, 2014, through to 13^th October, 2014, subject to review on 13^th October.  He had contacted the surgery that morning to ask them to email him the correct letter for forwarding to the Court.  He went on to say that he was attempting to provide "a backstop by way of seeking representation via the Legal Aid certificate.  This is currently falling into place".  Well after the hearing was over an email was received by the Bailiff's Judicial Secretary from the surgery stating that Mr Holmes was "too ill to work, between the 2^nd October until 13^th November, 2014".  It did not elaborate further. 

14.      Shortly before the hearing at 10:00 a.m. on 15^th October, 2014, when I was informed that Mr Holmes was not in Court, I asked the Greffier to phone him on his mobile number, to which there was no response.  When the Court sat, Mr Holmes was not present and Home Farm was not represented.  

15.      Advocate Taylor pointed to the very vague nature of the medical evidence provided by Mr Holmes and to the fact that this was the third application for an adjournment.  He applied for the applications to be dismissed in default of the representors' appearance. 

16.      During the course of the short hearing, I was informed that Mr Holmes had contacted the Bailiff's Judicial Secretary explaining that he was on medication and on driving to the Court had hit a hedge.  He had therefore returned home and was feeling dizzy. 

Decision

17.      Whilst the Court is always conscious that conducting civil litigation can be daunting for litigants in person, it was clear that Mr Holmes was perfectly capable of doing so.  He had attended numerous hearings in the past and in this matter had filed a summons in due form with clear and well set out notices of appeal and skeleton arguments.  In any event we were not dealing with difficult points of law or procedure but the most basic obligation to actually appear in his own applications.   

18.      There had already been two adjournments on the grounds that Mr Holmes was unwell.  If an adjournment is to be granted on medical grounds, then it needs to be supported by proper medical evidence.  The letter from his doctor was woefully inadequate.  I was told that Mr Holmes was taking medication - what medication and for what condition?  I was told that this medication affected his thinking and performance - in what way?  It did not seem to affect his ability to communicate with the Court lucidly by email and by telephone.  I was told that it would be "unwise" for Mr Holmes to represent himself-why?

19.      If the medication Mr Holmes was taking affected his ability to drive, then he had no business attempting to drive to Court.  He should have organised a lift, used a taxi or public transport.  In short, these were his applications and his duty was to be there unless genuinely prevented from attending. 

20.      To grant a further adjournment of these applications in these circumstances was both unfair to the respondents and, if granted, would in my opinion bring the administration of justice in this Island into disrepute.  I therefore dismissed them. 

21.      The Deputy Bailiff had expressed concerns about the merits of the applications, certainly in respect of action 2013/046 and having read the notices of appeal and skeleton arguments on both sides, I share those concerns in relation to both applications, but as the representors were not before me, it would not be appropriate to expand further.  Suffice to say that the sums involved in both applications are small and relate to actions which have long since troubled the Court as substantive matters. 

22.      As to costs, these were the representors' applications and to fail to appear without reasonable excuse after two adjournments is sufficiently unreasonable to justify the imposition of indemnity costs. 

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