Jersey Unreported Judgments

Taxis- application seeking leave to appeal against consent order dated 23 December, 2014.

[2015]JRC084

Royal Court

(Samedi)

27 April 2015

Erin Bisson appeared on his own behalf.

Advocate G. G. P. White for the Minister.

judgment

the commissioner:

1.        Erin Robyn Bisson (formerly Robert) ("Erin") seeks leave to appeal against the consent order entered into by him and the Minister of Transport and Technical Services ("the Minister") on 23^rd December, 2013, and approved by the Royal Court by Act of Court of that date ("the consent order"). 

2.        On 18^th February, 2013, the Minister granted a Public Service Vehicle ("PSV") licence (the "Licence") to Erin Bisson pursuant to Article 9 of the Motor Traffic (Jersey) Law 1935 (the "Motor Traffic Law") to operate a pet taxi service, increasing the number of licenses available to do so.  The licence was granted subject to conditions that were set out in the Licence, including in particular condition 11 which stated "Carrying of passengers must be directly associated with the welfare of any animal to be carried in the vehicle."  

3.        On 1^st October, 2013, Erin Bisson, through his advocate, served a notice of appeal under Article 9(7)(b) of the Motor Traffic Law.  The grounds of appeal were stated as being that "Condition 11 is unclear and unenforceable and should be struck out in its entirety or alternatively varied to make the said condition clear and enforceable."

4.        The notice of appeal was lodged with the Court outside the ordinary statutory timeframe allowed for by Article 9(8) (i.e. 29 days of the grant of the licence).  However, on 10^th October, 2013, the Royal Court extended time so that Erin Bisson could bring the appeal. 

5.        The appeal was listed for hearing by the Royal Court on 23^rd December, 2013.  The Minister's position was that condition 11 of the Licence should be upheld and that the appeal should be dismissed for inter alia the following reasons:-

(i)        The Minister only agreed to increase the number of taxi-cab licences by one, and to grant the newly available licence to Erin Bisson, on the understanding that Erin Bisson would only provide a specialist pre-booked and animal-related service that would not impact on the existing taxi-cab industry.  Conditions were therefore approved by the Minister to reflect that position. 

(ii)       Had Erin Bisson simply applied for a normal restricted taxi-cab licence his application would almost certainly have been refused, because the maximum number of relevant licences had already been issued (there were approximately 180 people ahead of Erin Bisson on the waiting list for a normal restricted taxi-cab licence).  That had been made clear to Erin Bisson. 

(iii)      The precise conditions to be imposed on the Licence were known to Erin Bisson well in advance of the date on which he submitted the formal application for the Licence.  As well as the wording of the conditions, it had also been explained to Erin Bisson, prior to his formal application for the Licence, what was expected from the service and what would not be acceptable, and example scenarios of what would be considered a legitimate journey for the purposes of condition 11, and what would not, had been provided.  The licence would not have been granted were it not for a voluntary restriction that was being put upon it. 

(iv)      If condition 11 had been removed then Erin Bisson would have been in possession of a PSV licence with conditions akin to those on the licences issued in respect of "normal" restricted taxi-cabs.  The Minister could not justify Erin Bisson being granted a normal restricted taxi-cab licence, the desirable number of such normal restricted taxi-cabs (in accordance with policy set in 2006) having been reached.  The Minister could have faced applications for judicial review had he allowed someone nearly 180 places below the top of the "waiting list" to be granted a normal restricted taxi-cab licence. 

(v)       Article 9(6) of the Motor Traffic Law provides that "The Minister may, in respect of a class of public service vehicles, determine that public service vehicles shall not be granted in excess of such number the Minister considers desirable" and the effect of Article 9(1)(d) of that Law is that the Minister would not be able to grant a public service vehicle licence where the desirable number of licences have already been issued in accordance with Article 9 (6).  In practice this works by the "waiting list". 

6.        On 23^rd December, 2013, the parties attended Court for the appeal hearing.  Prior to the commencement of the hearing, it was agreed between the parties that the wording of the conditions of the Licence would be varied so as to be acceptable to both parties.  Erin Bisson was legally represented by Advocate Le Guillou and a consent order was signed.  At the hearing the Court approved the re-worded condition 11, but also suggested that certain terms of the consent order would be better included as conditions of the Licence, for procedural/enforcement purposes.  Both parties confirmed to their respective advocates that the Court's suggested amendments were agreed, and the Court made orders, by consent, varying the conditions of the Licence.  The consent order was in these terms:-

"Upon hearing the advocates on behalf of the parties, the Court, ordered by the consent of the parties that:-

1.        Clause 11 of the Conditions of Licence attached to a public service vehicle licence issued to R.E Bisson t/a Pet Taxi- Cab on 18 February 2013 shall be deleted and replaced with the following clause:-

"The carrying of passengers in the vehicle is restricted to persons who are or will be accompanying or have accompanied and who are directly associated with the welfare of any animal or animals being carried or to be carried in the vehicle".

2.        Clause 6 of the said Conditions of Licence shall be deleted and replaced with the following clause:-

"All work must be pre booked. The licence holder shall maintain a hand written or computerised Booking Log which shall contain the following information in respect of each booking for the service:-

a.        the date the booking was made;

b.        when the booking is for;

c.        who the booking is for;

d.        how the journey is associated with the welfare of an animal".

3.        In all other respects the remaining conditions of the said licence shall remain unchanged and in force.

4.        There shall be no order as to costs with both parties bearing their own costs.

5.        The terms of this consent order are in full and final settlement of all or any claims of whatsoever nature that either party shall have against the other arising out of the granting of the licence."

7.        Since then Erin Bisson has brought unsuccessful applications to the Bailiff to sign orders of justice to be issued against the Minister and against the Chief Officer of the States of Jersey Police challenging, inter alia, the court order. 

8.        Article 13(1)(c)(i) of the Court of Appeal (Jersey) Law 1961 provides that no appeal shall lie under Part 2 of that Law (Part 2 concerns appeals in civil causes and matters) from any order made with consent of the parties, without the leave of the court making the order. 

9.        The consent order was made on 23^rd December, 2013.  Rule 3 of the Court of Appeal (Civil) Rules 1964 provides that:-

"Subject to paragraphs (2) and (3) of Rule 16, a notice of appeal must be served or, if leave to appeal is required, an application for leave to appeal must be made, within 28 days from the date on which the judgment or order of the court below was pronounced."

Paragraph (2) of the said Rule 16 gives the Royal Court discretion at any time to extend the 28 day period.  Erin Bisson has therefore brought his application for leave to appeal well after the expiry of the 28 day period ordinarily permitted by Rule 3. 

10.      In the case of Vekaplast-v-Picot (CI) Ltd [1989] JLR 269, the Royal Court held that an application for leave to appeal against a consent order must be "viewed with extreme caution and should not be granted except in a case which clearly called for interference with the order made", and that this was especially true when "the consent order evidenced a real contract between the parties which was being ratified by the order."  Advocate White for the Minister submitted that in the present case, as in Vekaplast, the consent order evidenced a real contract between the parties which has been ratified by the order, and that this is not a case which "clearly" calls for interference with the order made by the Court. 

11.      It was also held in Vekaplast that although there was no rule that every application for leave to appeal had to be supported by affidavit, an affidavit should be sworn if the application involved a serious allegation of unprofessional conduct against an advocate, and that in those circumstances the advocate should be given the opportunity to appear or to put in his own affidavit to counter the allegation.  The affidavit sworn by Erin Bisson on 21^st April, 2015, in support of the application fails to particularise any unprofessional conduct on the part of Advocate Le Guillou or anyone else, save to say that he felt intimidated as he was surrounded by lawyers who earned considerably more than him and that he was coerced by his lawyer into accepting the consent order. 

12.      In an unpublished judgment dated 29^th December, 2014, the Deputy Bailiff found Erin Bisson's draft order of justice to be "completely unsustainable" and refused to sign it.  At paragraph 3 of the judgment he states that "I cannot see anything in the draft Order of justice which gives rise to a sustainable cause of action in the Royal Court...In legal language, the order of justice is vexatious - it means that there is no identifiable cause of action here which can be sustained." 

13.      He went on to set out "fundamental objections" to any proceedings to vary or set aside the consent order:-

"To the extent that there is a complaint that the consent order of 23^rd December 2013 (which dealt with the amendment to the conditions attached to the grant of the public services vehicle licence granted in February 2013) ought to be varied or set aside there are two fundamental objections to any such proceedings.  The first is that the proceedings are procedurally hopeless.  The application would have to be framed as an application to set aside the consent order of 23^rd December 2013, which if successful would result in the Applicant's appeal against the conditions attached to the grant of the permit in February 2013 being reinstated.  That appeal would then have to proceed to a hearing. It is clear to the extent that the Applicant complains of loss or damage which flow from the consent order conditions attached to that licence; no such claim can be brought.  The Court made an order in December 2013 which must be taken as having been valid until such time as it was varied, if indeed the very high threshold for varying a consent order has been passed.  I pause there simply to add that I see nothing on the papers put before me which would justify a departure from the consent order of 23^rd December 2013.  Secondly, and in any event, the proceedings around the grant of a permit in February 2013 which expired in February 2014 are clearly spent."

14.      At the hearing today Erin Bisson has filed a further affidavit, sworn today, responding to the skeleton argument filed by Advocate White (for the Minister) in which inter alia he goes into more detail as to his dealings with Advocate Le Guillou.  From his affidavits and his oral submissions it is clear that Erin Bisson has a deep sense of grievance about events which followed the consent order and his treatment by both other taxi drivers, indeed there is an allegation of sexual assault by another taxi driver, and the Transport and Technical Services Department ("TTSD"). 

15.      The papers he has filed show that in February 2014 his application to renew his licence was refused on the grounds that he was not a fit and proper person to operate such a service and this because of derogatory and abusive emails sent to Ministers and staff, indeed Erin Bisson informed me that in January 2014 he was convicted in the Magistrate's Court of making abusive telephone calls to the Housing Department.  He was told by the TTSD that he could appeal its decision.  That has not been done because of what seems to have been the wise advice of Advocate Grace that he would be best served by addressing the reasons for that refusal.  This I am told he has done and following psychological reports, amongst other things, he now has his PSV badge back and is at the top or very close to the top of the waiting list for a restricted taxi-cab licence.  Advocate White was not aware of any reason why that licence would not be granted although it will, of course, be for the TTSD at the relevant time. 

16.      The difficulty in this application, apart from the delay in bringing it, is that the appeal, if reopened, will relate to conditions imposed on a licence that has long since expired.  As the Deputy Bailiff said, it is procedurally spent.  I asked Erin Bisson what he would be expecting the Court to order if leave was granted and he was successful in his appeal.  He said he would expect orders, firstly condemning the behaviour of the taxi drivers and others in the period following the consent order, and secondly, permitting him to operate the pet taxi service now.  Such orders would not be within the powers of the Court when entertaining an appeal against the conditions imposed on his 2013 licence. 

17.      Turning to the conduct of Advocate Le Guillou, he told me that she ceased representing him shortly after the consent order because of an email he sent her which she said was rude.  He did not proffer a copy of that email but he did confirm that he had not subsequently made any complaint about her professional conduct to the Law Society or anyone else.  He did proffer copies of emails between them prior to the consent order from which it is clear firstly the Minister had agreed the changes to condition 11 that Erin Bisson had wanted; secondly on his instructions, Advocate Le Guillou had agreed to that change, and thirdly, Erin Bisson was now trying to raise new matters which were not relevant to the appeal, which was professionally embarrassing for her.  Advocate Le Guillou, contrary to the guidance in Vekaplast, has not been given the opportunity to respond to Erin Bisson's complaints of coercion or bullying but from the emails I have seen she was acting very professionally in his interests.  Indeed he did say in one of the emails that she had done a "wonderful job".  Advocate White confirmed that Advocate Le Guillou fought Erin Bisson's corner robustly.  It would be possible for me to adjourn the application to allow Advocate Le Guillou to respond to Erin Bisson's complaints but I decline to do so because he has not, in my view, raised a serious allegation of professional misconduct which would justify such a course.  The evidence is to the contrary. 

18.      Erin Bisson's submissions constitute an emotional plea for justice over events that have taken place since the consent order was made.  He feels no-one is listening to him and sees the Court as a place where he can seek general address for all of the ills that he says have befallen him.  Unfortunately the appeal which he wishes to reopen is narrowly confined to the conditions imposed on the now expired 2013 licence and it would simply not be open to the Court to address any of the issues that have arisen since.  In any event it is important that a consent order can be relied upon and there is, rightly, a heavy burden upon anyone seeking to have the Court interfere with it.  There is no evidence of anything having gone wrong before the Court when the consent order was made and Erin Bisson has gone nowhere near discharging the burden upon him. 

19.      The application for leave to appeal is therefore refused. 

Authorities

Motor Traffic (Jersey) Law 1935

Court of Appeal (Jersey) Law 1961.

Court of Appeal (Civil) Rules 1964.

Vekaplast-v-Picot (CI) Ltd [1989] JLR 269.