Jersey Unreported Judgments

Appeal against a costs judgment dated 2 June 2016 handed down by the Royal Court.

[2017]JCA075

Court of Appeal

23 May 2017

The Appellant appeared on his own behalf.

Advocate S. A. Meiklejohn for the Respondent.

THIS IS THE judgment OF THE COURT

logan martin ja:

Introduction

1.        On the 23rd June 2016, the Appellant filed a Notice of Appeal by which he sought to challenge (among other things) a costs judgment given on the 2nd June 2016 by the Royal Court (Bailhache, Bailiff, sitting alone) Pearce-v-Treasurer of the States [2016] JRC 101).  On the 21st February 2017, the Judicial Greffe duly issued a 'timings letter' which stated that the appeal was to be heard in the week of the 22nd May, and that the Court had ordered (among other things) the Appellant's contentions and bundles to be filed by 12 noon on the 7th April.  The letter concluded with the following:

"Finally, please note that these are the final dates for the delivery of bundles and the Court will not grant any extension of time unless the circumstances are exceptional. If you believe that you will require an extension please provide us with an application for an extension of time with full reasons for the request: a copy should be provided to all other parties to the appeal.

Please contact this office if you require any further information or clarification of the above."

2.        The timings letter was issued pursuant to Rule 8(1) and (2) of the Court of Appeal (Civil) Rules 1964 ("the 1964 Rules") and the contents of the appeal bundle to be provided by an appellant are specified in Rule 8(4).  Rule 10 states:

"Subject to Rule 16, if the appellant has not complied with Rule 8(4), the appellant's appeal shall be deemed to have been abandoned."

Rule 16 provides power to the Court or a judge thereof "to enlarge the time appointed by these Rules, or fixed by an order enlarging time..."

3.        The 7th April came and went, and yet the Appellant's contentions and bundles were not filed, nor was any application made by the Appellant for an extension of time.  On the 13th April, the Appellant sent an e-mail to the Judicial Greffe saying that he presumed the appeal had been adjourned.  The reply on the 18th April informed him that the appeal had not been adjourned and ended by saying this: "Should you wish to seek an adjournment, you must file a formal written application with the Court of Appeal."  The Appellant replied later the same day: "Many thanks, I shall do this ASAP."  In the event, no application to adjourn the appeal was issued. 

4.        As the due date for the appeal approached, Advocate Meiklejohn for the Respondent wrote to the Judicial Greffe on the 2nd May, pointing out that the Appellant had failed to comply with the timings letter, with the result that the appeal was deemed to have been abandoned by virtue of Rule 10 of the 1964 Rules.  The Appellant responded the next day by letter to the Court asking for the appeal to be adjourned sine die.  Advocate Meiklejohn provided a written response headed 'Respondent's Answer to Application for Adjournment' dated the 4th May, arguing that the appeal should not be reinstated, and that the application for an adjournment should be refused. 

5.        In these circumstances, it was apparent that both sides agreed that the appeal should not be heard in the week of the 22nd May, albeit each for different reasons - the Appellant because he said the appeal should be adjourned, and the Respondent because he said it had been abandoned.  The Court accordingly notified the parties that the substantive appeal would come out of the list for the week of the 22nd May, but that the Appellant's letter of the 3rd May would be treated as an application by him (i) for the appeal to be reinstated, (ii) for an extension of time (under rule 16 of the 1964 Rules) in which to file his contentions and bundles, and (iii) for the appeal to be adjourned sine die. 

6.        We heard oral submissions from the Appellant and from Advocate Meiklejohn on those matters.

The applicable test

7.        The case of Leeds United Association Football Club Limited-v-Admatch [2009] JCA 097 concerned an appellant which had abandoned its appeal and then sought to re-instate it out of time.  At paragraph 9 of the judgment of the Court, Sumption JA said:

"... this court has an inherent power to allow a party to reinstate an abandoned appeal, thereby reviving both the appeal and the leave.  We think that it would normally be right to do so in any case where we would have granted leave to bring an entirely fresh appeal out of time."

This is direct authority for the proposition that we can entertain an application by the Appellant to restore his appeal, and it also offers some guidance as to the circumstances in which the jurisdiction might be exercised. 

8.        Before us, Advocate Meiklejohn referred to the applicable test as being provided by the decision of the Royal Court (Birt, Bailiff) in Walker v Downes [2009] JRC 238, noted at [2009] JLR Note 60].  The circumstances in that case concerned a failure by a respondent in divorce proceedings who was seeking to appeal to attend before the Bailiff's Secretary to fix a date for hearing as required by rule 62(8) of the Matrimonial Causes Rules 2005, as a consequence of which the appeal was deemed to be abandoned pursuant to rule 62(9).  The Royal Court referred to what had been said by Sumption JA in Leeds United Association Football Club Limited-v-Admatch and in the circumstances before it exercised its inherent discretion to reinstate the appeal and to extend the time limit to fix a hearing. 

9.        In describing the circumstances in which that discretion should be exercised in favour of reinstating an appeal, Birt B said at paragraph 17 of his judgment:

"... I took note in particular of the fact that the husband had made it clear from an early stage that he was considering an appeal, the failure to obtain a date was entirely the fault of the husband's Advocate, the delay was minimal (in that the error was realised within two weeks of the expiration of the time limit), the husband acted promptly once the issue arose and the prejudice caused to the wife by such a delay would be minimal."

10.      We were presented with no detailed argument as to how any actual test for the exercise of the relevant discretion might be phrased, nor were we referred to any other case where the circumstances for the exercise of such a discretion or a similar discretion have been considered by the Court of Appeal.  Nevertheless, we are satisfied that what was said by Birt B gives a reasonable indication of the sort of factors which may justify the reinstatement of an appeal in a particular case. 

The exercise of the discretion

11.      We can deal with the position shortly.  The Appellant did not put forward any factors of the sort described in Walker v Downes.  (i) He was made aware in the timings letter of the need to file his contentions and the appeal bundle with the Court by a stated date and time.  The letter was clearly worded, and the Appellant did not suggest that he misunderstood its meaning.  (ii) He was warned in the timings letter that the date for the delivery of his contentions and the appeal bundle was final and that no extension of time would be granted unless "the circumstances are exceptional".  Accordingly, he had been clearly warned as to the importance of complying with the timings letter, and the consequences of not doing so.  (iii) He was advised that if he wished to seek an extension of time, he should submit an application "with full reasons for the request".  In the circumstances, he was fully aware of the remedial steps he needed to take if he failed to comply with the timings letter, and he was reminded again on the 18th April, and his reply showed that he clearly understood.  (iv) He was given a general indication that if he wished any further information, he should make contact with the office of the Judicial Greffe.  He did not do so.  (v) The Appellant did not file his contentions or the appeal bundle in time.  He has not suggested that this was the result of any oversight on his part.  (vi) The Appellant did not issue an application for an extension of time.  (vii) When the Appellant wrote to the Court on the 3rd May, he did not set out any reasons, let alone any exceptional circumstances, justifying his failure to comply with the timings letter.  (viii) The delay between the due date for filing his contentions and the appeal bundle (the 7th April) and the date on which the Appellant wrote to the Court indicating that he would like to have the appeal adjourned sine die (the 3rd May) is in context substantial.  (ix) The inconvenience caused to the Respondent and to the Court is substantial, because the appeal hearing has had to be vacated at short notice. 

12.      We also observe that the Appellant was already aware of the consequences of failing to comply with time limits having previously been refused an extension of time by McNeill JA sitting alone (Pearce-v-Treasurer of the States [2016] JCA 200) within which to apply for leave to appeal against the substantive decision of the Royal Court (Pearce-v-Treasurer of the States [2014] JRC 139B) in the matter in respect of which the costs order which is the subject of this judgment was made. 

13.      The Appellant clearly feels aggrieved about the substance of the decision against which he sought to appeal, and he attempted before us to refer to the circumstances of that and other decisions: in particular, he said that it was premature for any costs orders to be made against him while the substance of his complaint had not (he claimed) been substantively resolved.  He referred to certain health problems he has had.  He also indicated that he realised some time ago that he was getting too emotionally involved in the case and had decided to "step back" from it: however, it turned out that that was a reference to circumstances arising in 2014.  In any event, it does not go any way to meet the requirements which would be necessary before we could exercise our discretion to reinstate his appeal.  Before we could consider doing so, we would need to be presented with reasons why the Appellant failed or was unable to do what the timings letter required him to do, and in the absence of any such reasons his application for the reinstatement of his appeal must fail.  As a result of this, the further applications which we have identified, namely for an extension of time for the filing of bundles and the Appellant's application for an adjournment of his appeal, do not arise. 

Conclusion

14.      For the reasons set out above, we are satisfied that the Appellant's appeal was abandoned by the operation of Rule 10 of the 1964 Rules and that the Appellant's applications (i) for the appeal to be reinstated, (ii) for an extension of time in which to file his contentions and bundles, and (iii) for the appeal to be adjourned sine die should be dismissed. 

15.      The parties are invited to agree, within 7 days of the date on which this judgment is handed down (that is by 4pm on the 30th May), any consequential order as to costs in relation to (i) the abandonment of the substantive appeal, and (ii) the applications which we have dismissed.  In the absence of such agreement within the specified time limit, the parties are directed to make written submissions as to the appropriate costs order within 14 days of the date on which this judgment is delivered (that is by 4pm on the 6th June), with liberty to each party to reply in writing within a further 7 days thereafter (that is by 4pm on the 13th June).  The Court will then make any necessary ruling on costs in writing.  

Authorities

Pearce-v-Treasurer of the States [2016] JRC 101.

Court of Appeal (Civil) Rules 1964.

Leeds United Association Football Club Limited-v-Admatch [2009] JCA 097.

Walker v Downes [2009] JRC 238.

Matrimonial Causes Rules 2005.

Pearce-v-Treasurer of the States [2016] JCA 200.

Pearce-v-Treasurer of the States [2014] JRC 139B.