Jersey Unreported Judgments

Debt - application for extension of time and leave to appeal.

[2015]JCA146A

Court of Appeal

(Unknown)

2 July 2015

Mr Shane Holmes appeared for the Plaintiffs.

Advocate M. H. D. Taylor for the Defendant.

judgment

the deputy bailiff:

1.        This is an application by Mr Shane Holmes on his own behalf and on behalf of Home Farm Development Limited and Strata Development Limited for directions or orders relating to the service of their notice of appeal on Mr Le Sueur.  The notice of appeal relates to two judgments of the Royal Court, both handed down on 21^st May, 2015. 

2.        In accordance with Rule 3 of the Court of Appeal Civil (Jersey) Rules 1964 the appellants had until 22^nd June, 2015, (the 21^st being a Sunday), to serve their notice of appeal.  Mr Holmes purported to serve that notice of appeal on Friday 19^th May by email; he did not effect service as required by Rule 17 which requires service through the medium of the Viscount's Department.  When apprised of this failure, he sought to serve on Advocate Taylor for Mr Le Sueur through the Viscount's Department on 23^rd June, but Advocate Taylor refused service as being out of time. 

3.        Mr Holmes accordingly applies either for a direction under Rule 17 that email service on the 19^th was sufficient or for an enlargement of time under Rule 16(1).  I have considered this matter under Rule 16(1) as Rule 17 is not, to my mind, appropriate in the circumstances. 

4.        Mr Holmes explains to me that he had not fully read the Rules and that he had assumed that service by email, as he had done in the Royal Court, was appropriate for the service of the notice of appeal and he thereby fell into error. 

5.        As I have said, he served his email on 19^th June and attempted to serve through the Viscounts department on 23^rd of June.  Therefore in my view, his failure was of a minor and technical nature and is unlikely of itself to prejudic the respondents were I to grant an extension. 

6.        Mr Holmes has put before me the case of Pitman and Pitman-v-Jersey Evening Post and Another [2013] (2) JLR 293 which is a judgment of the Court of Appeal.  In considering the basis for an extension of time within which to lodge an appeal, Beloff JA said this at paragraph 4:-

"4       Guidance has been given by the Court of Appeal in England in Sayers v. Clarke Walker (9) as to the factors taken into account under the pre-CPR regime ([2002] 1 WLR 3095, at para. 10):

"Under the pre-CPR regime the practice of this court was conveniently summarized in The Supreme Court Practice 1999, vol. 1, p. 1031, para. 59/4/17 in these terms:

'It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are:

(1)       the length of the delay;

(2)       the reasons for the delay;

(3)       the chances of the appeal succeeding if time for appealing is extended; and

(4)       the degree of prejudice to the potential respondent if the application is granted; (see CM Van Stillevoldt BV v. EL Carriers Inc. [1983] 1 W.L.R. 207 .-‰.-‰. Where the delay in serving notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless: Palata Investments Ltd. v. Burt & Sinfield Ltd. [1985] 1 W.L.R. 942. In Norwich & Peterborough Building Society v. Steed [1991] 1 W.L.R. 449 and Mallory v. Butler [1991] 1 W.L.R. 458, the Court of Appeal held that .-‰.-‰.

(4)       The settled practice of the court is to assess and take into account the merits of the proposed appeal in deciding whether or not to grant an extension of time for appealing (subject to the qualification in the Palata case [1985] 1 W.L.R. 942.'"

7.        We are, in my view, clearly in Palata territory with this application.  Mr Holmes says that, in terms of the merits of his appeal, there was no meeting of minds, there was a misunderstanding which vitiated the agreement entered into on 31^st May, 2012.  That agreement underpinned both judgments of the Royal Court and, before that, the judgment of the Master whose decision was the subject of one of the cases before the Royal Court.  He says that he did not have the evidence available when before the Master and did not deploy it fully when before the Royal Court.  He referred me to a number of emails as supplementing his case on this aspect. 

8.        Advocate Taylor, on the other hand, points to the fact that the Court now, because of Mr Holmes' failure, has a discretion to exercise; that it should therefore look at the merits.  Mr Holmes has already, in effect, been struck out twice by courts who have considered the matter fully.  He says that Mr Holmes' appeal would be hopeless and that Mr Holmes, rather than failing to put the matters before the Courts below, that he would now seek to put before this Court, did in fact do so.  It is clear from reading the judgment of the Royal Court that some parts of what Mr Holmes wished to say were said by him before the Royal Court.  

9.        I am left with the position that, firstly the law permits appeals in cases such as this to the Court of Appeal.  Secondly, Mr Holmes' ability to do so would be unassailable had he not made the technical error that he did.  Thirdly, he is a litigant in person.  In the circumstances should I, in the exercise of my discretion carefully review what the merits of his appeal might be?  I think not.  I cannot say that it is so clearly hopeless that I should block it out for such a marginal failure on Mr Holmes' part. 

10.      Accordingly I exercise my discretion and extend the time within which service of the notice of appeal may be made until close of business on Monday next (6^th July, 2015).  I leave over, although they were not formally raised before me, other questions and applications which may follow on from the service of a notice of appeal, such as applications for security for costs or a stay.  Those are for another day and perhaps another judge. 

Authorities

Court of Appeal Civil (Jersey) Rules 1964

Pitman and Pitman-v-Jersey Evening Post and Another [2013] (2) JLR 293