Jersey Unreported Judgments

Application for an extension of time to appeal.

[2017]JRC082

Court of Appeal

26 May 2017

Mr Gibbons appeared in person.

Advocate H. Mistry for the Respondents/Defendants.

judgment

the bailiff:

1.        The applicants have applied for an extension of time within which to bring an appeal against a decision of the Royal Court handed down on 28^th March 2017 (Hong Kong Foods Ltd-v-Gibbons [2017] JRC 050).  The draft judgment was sent to the parties on 27^th February but after that draft was sent some other submissions were received in writing, as indeed the Court had indicated would be acceptable.  The application was filed with the Greffier on 10^th May, some two weeks late, because by virtue of Rule 3 of the Court of Appeal Civil Rules the applicants had 28 days from delivery of the judgment to serve their notice of appeal.  The application comes before me as a single judge of the Court of Appeal pursuant to Rule 16 of the Court of Appeal Rules.  Notice was given to the Respondents on 17^th May that the application being made and that I would sit yesterday for the purposes of receiving submissions but by reason of illness I put that off until today.  Advocate Mistry has appeared for the Respondents and the Applicants have appeared, Mr Gibbons in person for himself and on behalf of Hong Kong Foods Ltd. 

2.        The test for considering whether or not to grant an extension of time is well settled and most recently set out in Pitman-v-Jersey Evening Post Ltd and First Jersey Limited [2013] (2) JLR 293.  It is entirely in the discretion of the Court to grant or refuse an extension of time but the facts which are normally taken into account in deciding whether to grant such an extension are the length of the delay, the reasons for the delay, the chances of the appeal succeeding if time for appeal is extended, and the degree of prejudice to the potential respondents if the application is granted.  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 save that an extension of time will not normally be refused on the basis of the merits where the delay in serving the notice of appeal is short and there is an acceptable excuse for it unless the appeal is hopeless and I am applying that test to this present application. 

3.        As indicated the delay was some 14 days.  It is not excessive; the reasons for the delay are essentially twofold, first of all I have seen a letter from the second Applicant's General Practitioner confirming the second Applicant's taking medication which may have affected his ability to handle the Court case which went against him as well as the appeal.  Secondly, the Applicants are unrepresented and clearly intended to appeal.  On 25^th April, i.e. within time, Mr Gibbons lodged an application with the Judicial Greffier seeking leave to appeal the Royal Court's judgment.  He did not need leave because he had a right of appeal under the Court of Appeal (Jersey) Law 1961.  However, it cannot be said he has not taken steps promptly on the handing down of the relevant judgment.  It is simply that he took the wrong steps. 

4.        As far as prejudice is concerned there may of course be some degree of prejudice to the potential respondents if the application is granted, this is inevitable in the sense that they will be facing an appeal which hitherto they had considered they would not have had to face.  However there is no additional prejudice which I ought to take into account and indeed the fact that the judgment in their favour is against a company which has been dissolved rather emphasises that the appeal is unlikely to cause additional prejudice to them because the judgment of the Royal Court would not be easily enforceable in any event.  Furthermore Mr Gibbons has said to this Court that if he loses the appeal he would expect to be exposed personally to the costs of the appeal subject to taxation if appropriate. 

5.        The thing which has caused me the most difficulty on this application is the assessment of the chances of success.  I do not know what the chances of the appeal succeeding might be because I have not seen any draft notice of appeal.  From what Mr Gibbons says it appears to be that he wants to bring an appeal essentially on the facts and it is well-known that a Court of Appeal will very rarely interfere with a decision of the Royal Court on the facts because the Court of Appeal recognises that the Royal Court has had the advantage of hearing the witnesses and making an assessment of their credibility, credibility not just in terms of truthfulness but in terms of reliability.  Mr Gibbons takes exception to paragraph 126 of the Royal Court's judgment where Commissioner Birt said this:

"The Court has come to the clear conclusion that, in relation to the key events of 2008, it prefers the evidence of Mr Thirkell to Mr Gibbons.  We acquit Mr Gibbons of deliberate lying but we think he is someone who tends to convince himself that events have occurred as he wishes they had rather than as they in fact did."

6.        No doubt Mr Gibbons is pleased that he is acquitted of lying but he is not at all comfortable with that assessment by the Royal Court of the reliability of his evidence.  Frankly, that being so, there would seem to be a very uphill struggle indeed for the Applicants if the time is extended for granting this appeal. 

7.        On the other hand it is not a long delay and had the right course been taken at the right time the merits of the appeal would not have been considered by a court until the appeal was brought on.  It is very finely balanced as far as I am concerned but given that Mr Gibbons is a litigant in person I have resolved the doubts in his favour and I am prepared to extend time.  In extending time Mr Gibbons I make it clear to you that you must serve through the Viscount's Department with a copy then to the Greffier, the Notice of Appeal by close of business on 15^th June.  That will give you time to get a lawyer to advise you on whether or not you are not throwing good money after bad; I regret to say I think there is a strong chance of that.  And that of course is without seeing all the papers and having the transcript so that is just by way of guidance to you, you need to think very carefully about whether you should proceed with this. 

8.        For those reasons I have decided to extend time to the Applicants to bring their appeal.  It is clear that no particular points of law seem to be being urged on this appeal although it is not impossible that different judges would take different views about the content of the Royal Court's judgment particularly in relation to misrepresentation and at some point, it does not arise on this appeal, but at some point it would be desirable for that issue to go before the Court of Appeal. 

9.        The costs and incidental to today will be in the course of the appeal. 

10.      Mr Gibbons if you do not serve your notice of appeal in time then you are too late, it has gone. 

Authorities

Hong Kong Foods Ltd-v-Gibbons [2017] JRC 050.

Pitman-v-Jersey Evening Post Ltd [2013] (2) JLR 293.

Court of Appeal (Jersey) Law 1961.