Jersey Unreported Judgments

Appeal - Costs.

[2017]JCA203

Court of Appeal

4 December 2017

The Second Appellant appeared in person.

Advocate C. Hall for the Respondents.

judgment

bompas ja:

This is the Judgment of the Court

1.        On 3 November 2017 we handed down a judgment on the appeals brought in the name of the First Appellant, Hong Kong Foods Ltd ("Hong Kong"), a dissolved company, and by the Second Appellant, Mr Robert Gibbons (the beneficial owner of Hong Kong), against a judgment of the Royal Court given on 28 March 2017.  We dismissed the appeal by Mr Gibbons personally, and decided that further consideration of the appeal in the name of Hong Kong should be deferred until such time, if ever, as Hong Kong is restored to the register and is again in existence. 

2.        At the conclusion of our judgment we gave it as our provisional view, subject to any further submissions from the parties, that Mr Gibbons should be ordered to pay to the Respondents their costs of his appeal; and we directed that any submissions on this issue should be made within 21 days. 

3.        There have been no submissions from Mr Gibbons.  The Respondents have proposed, as regards costs, that the order which we had indicated that we were provisionally minded to give is in fact the appropriate order.  Their point is that, on Mr Gibbons appeal, they are the successful parties, and that therefore in principle he should pay their costs of his appeal.  There is no circumstance, they submit, to displace that result. 

4.        We agree, and therefore order Mr Gibbons to pay the Respondents' costs of his appeal on the standard basis. 

5.        The Respondents have also submitted that, as regards the appeal in the name of Hong Kong, it would be appropriate for us to order that there should be a time limit fixed by us if there are to be any further proceedings.  They suggest, in this regard, that if Hong Kong were to proceed with its appeal it would first need to seek permission to appeal out of time. 

6.        We sympathise with the Respondents' argument that further proceedings on the Hong Kong appeal should not be allowed to be in abeyance indefinitely, until the period prescribed for reviving Hong Kong has passed (that is, under article 213 of the Companies (Jersey) Law 1991, ten years from Hong Kong's dissolution). 

7.        However, contrary to the Respondents' contention, we do not think that, on Hong Kong's dissolution being avoided, there would be any need for Hong Kong to be given permission to appeal out of time, or that we could impose any such requirement.  The position would depend on the order made at the time by the Royal Court pursuant to article 213(1) of the Companies (Jersey) Law 1991, when the Royal Court would have power to "make an order, on such terms as the court thinks fit, declaring the dissolution to have been void", and further to "make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the company had not been dissolved".  If the judgment and orders given and made by the Royal Court against Hong Kong on 28 March 2017, matters which are at present of no effect, were ordered to be validated on Hong Kong's restoration, leaving Hong Kong substantially indebted to the Respondents, logically so too could be the steps taken in the name of Hong Kong to appeal the judgment, steps which were taken in due time. 

8.        As it seems to us, the answer to the Respondents' concern should be that, if ever any application is made to have Hong Kong's dissolution declared void, it will be for the Royal Court at that time to decide whether to make any order and if so on what terms, and in particular to decide what directions and provisions might seem just for achieving the relevant purpose.  In this regard we would expect the Royal Court to have regard to delay on the part of anyone who sought to have the proceedings started in 2010 revived, so as to allow the Hong Kong to pursue an appeal against the judgment against it and thereafter to try to pursue the Respondents on the original claims.  Of course, it is not for us to prescribe the considerations to be weighed by the Royal Court; but we think it likely that, in the circumstances of this case, the Royal Court would regard as material, and pointing against allowing further pursuit of these proceedings, anything more than a short delay in an application to have Hong Kong's dissolution avoided. 

Authorities

Companies (Jersey) Law 1991.