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Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Harcourt Developments Limited and Ors v States of Jersey Development Company Limited [2017] JRC 205 (05 December 2017)
URL: http://www.bailii.org/je/cases/UR/2017/2017_205.html
Cite as: [2017] JRC 205
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Before : |
Sir Michael Birt, Commissioner, sitting alone |
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Between |
(1) Harcourt Developments Limited (2) Esplanade Financial Centre Limited (3) Les Jardins Residential Limited (4) Les Jardins Leisure Limited (5) Harcourt Developments (Jersey) Limited |
Plaintiffs |
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And |
The States of Jersey Development Company Limited |
Defendant |
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Mr R. Bourke, Director for the Plaintiffs.
Advocate J. D. Kelleher for the Defendant.
judgment
the COMMISSIONER:
1. This is an application by the plaintiffs for:-
(i) an extension of time in which to apply for leave to appeal against the decision of the Court ("the Decision") dated 26th July, 2017, whereby the Court ordered that the plaintiffs' appeal against the decision of the Judicial Greffier dated 18th January, 2017, was deemed abandoned for failing to comply with the unless order dated 14th June, 2017, (with the consequence that the proceedings as a whole remained struck out pursuant to the Judicial Greffier's said order); and
(ii) leave to appeal to the Court of Appeal against the Decision.
2. Article 13(1)(e) of the Court of Appeal (Jersey) Law 1961 provides that an appeal from any interlocutory order or judgment may only be brought with the leave of the Court whose decision is sought to be appealed from or of the Court of Appeal. The Decision is an interlocutory order and accordingly the plaintiffs require the leave of this Court or the Court of Appeal.
3. Rule 3 of the Court of Appeal (Civil) Rules 1964 ("the Appeal Rules") provides that 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 upon which the order of the court below was pronounced.
4. Rule 16(1) confers a power upon the Court of Appeal or a judge thereof to extend time for doing any act or taking any proceedings. Rule 16(2) provides as follows:-
"(2) Without prejudice to the power of the Court or a judge thereof under paragraph (1) to enlarge the time prescribed by any provision of these Rules, the period for serving notice of appeal or applying for leave to appeal under Rule 3 may be extended by the court below at any time."
5. The plaintiffs have applied under Rule 16(2) to me for an enlargement of time to appeal against the Decision, and for leave to appeal pursuant to Article 13(1)(e). It was those two applications which came before me on 18th October, 2017. I announced my decision to refuse the applications on 14th November but said that I would deliver my reasons at a later date. What follows constitutes those reasons.
Background
6. I have been provided with a chronology prepared by Advocate Kelleher. Mr Bourke said that he did not take issue with the accuracy of the chronology. It is extremely detailed. I propose only to summarise those key events in the lengthy history of this matter which are relevant for the purposes of my decision.
7. The first plaintiff is a property development company incorporated in the Republic of Ireland. The second to fifth plaintiffs are all subsidiaries of the first plaintiff and are incorporated in Jersey. I shall for convenience refer to the plaintiffs as "Harcourt" unless it is necessary to distinguish between the various plaintiffs for any particular reason.
8. In 2012, Harcourt launched two sets of proceedings against the defendant under references 2012/42 and 2012/164. These were discontinued on 24th October, 2012, and Harcourt was ordered to pay the defendant's costs of those proceedings on the standard basis. These costs were taxed on 27th November, 2014, and paid on 19th February, 2015, following the issue of a summons by the defendant seeking a stay pending, inter alia, payment of such costs.
9. The current proceedings were launched by Order of Justice dated 13th July, 2012, under reference 2012/310. The claim was originally brought against both the defendant and the Minister for Treasury and Resources ("the Minister"). On 15th October, 2012, Harcourt-v-States of Jersey Development [2012] JRC 186, the Court agreed that there was no reasonable cause of action against the Minister but adjourned the matter so that Harcourt might have an opportunity to amend its Order of Justice. An amended Order of Justice ("AOJ") was filed by consent on 29th August, 2013. At that stage Collas Crill were acting for Harcourt, Ogier having acted for them until September 2012. The AOJ alleged two causes of action against the defendant, one in contract and one in unjust enrichment. Its claim against the Minister was for inducing the defendant to breach its contract.
10. The claim against the Minister in the AOJ was struck out by the Court of Appeal on 25th September, 2014, The Minister for Treasury and Resources-v-Harcourt Development Ltd and others [2014] JCA 179, on the basis that there was no contract between Harcourt and the defendant for the Minister to induce a breach of.
11. In January 2015 the defendant issued a summons seeking security for costs. This came before Advocate Matthews (who was then Deputy Judicial Greffier and has since become Judicial Greffier and to whom I shall refer throughout as "the Greffier") on 24th February, 2015, but was adjourned until 16th April to enable Harcourt to file evidence as to whether security might stifle the claim. However, Harcourt filed no such evidence. On 27th April, 2015, the Greffier ordered security for costs in the sum of £156,000 and also awarded the costs of the application against Harcourt in the sum of £20,570.55. In the reasons for his decision, the Greffier noted at paragraph 51 that although Harcourt had been given the opportunity to amend the AOJ to remove the contractual claim in the light of the Court of Appeal's finding that there was no contract, or otherwise to amend the AOJ, it had declined to do so and had failed to respond to Carey Olsen's request in January 2015 to clarify its intentions in relation to the current litigation or to provide any explanation of its refusal to amend its claim.
12. The sums ordered by the Greffier were not paid and accordingly on 12th August, 2015, the defendant issued a summons seeking an order that they pay the sums or that the proceedings be stayed. The hearing of the summons was fixed for 20th October but on 15th October, Harcourt paid the sums ordered by way of security and awarded by way of costs.
13. On 8th December, 2015, the defendant issued a summons (amended on 5th April, 2016,) seeking to strike out the AOJ, including inter alia the contractual claim. In due course this was fixed for hearing on 21st and 22nd June, 2016. In its skeleton argument dated 24th May, 2016, Harcourt for the first time conceded the contractual claim and part of its unjust enrichment claim. Harcourt had been representing itself (through a director) since Collas Crill had ceased to act for it but on 15th June, 2016, Advocate Jowitt notified the Court and the defendant that he was now acting for Harcourt.
14. Following the hearing on 21st and 22nd June, the Master ordered on 8th July, for the reasons set out in a judgment of that date, that the contractual claim and part of the unjust enrichment claim be struck out. In relation to the balance of the unjust enrichment claim, the Greffier ordered on 21st July that Harcourt should on or before 5th September, 2016, notify the defendant and the Court as to whether it intended to proceed with its claims in relation to bank interest and human resources costs ("the Bank/HR claim") and should on or before 4th November, 2016, apply for leave to file a re-amended Order of Justice ("RAOJ") which should plead with full particularity Harcourt's revised case and the revised basis of the claim for unjust enrichment ("the Revised Case"). The need for the Revised Case was because the argument on the unjust enrichment claim put forward in the skeleton filed in response to the strike out application differed considerably from the case as put forward hitherto. In an email dated 25th July, 2016, the Greffier clarified that the date of 4th November (incorrectly referred to in the email as 5th November) was not the date by which a summons to amend should be issued, but was the date by which any summons that was issued should be heard. The email went on to say that unless the application for leave to amend was heard, the Greffier anticipated an application from the defendant for an unless order.
15. On 18th October, 2016, after it had become apparent to the defendant that Harcourt could not issue a summons seeking to amend the AOJ and have the summons heard ahead of the 4th November, 2016, deadline the defendant issued a summons seeking an unless order in respect of Harcourt's failure to comply with the Act of 21st July. The hearing of that summons took place on 8th November and on 9th November, 2016, the Greffier granted the application for an unless order. He ordered that, unless Harcourt complied with the Act of 21st July by 29th November 2016, the AOJ would be struck out.
16. On 9th November, the Greffier also made an award of costs in respect of the strike out application heard on 21st and 22nd June, 2016. He ordered Harcourt to pay 90% of the defendant's costs on the indemnity basis because he found that Harcourt had acted unreasonably in not conceding earlier the contractual claim and certain parts of the unjust enrichment claim and also in failing to provide a revised pleading at the hearing of the strike out summons.
17. On the last day for compliance with the unless order, namely 29th November, 2016, Harcourt circulated a draft RAOJ and issued a summons seeking leave to amend. The defendant gave notice of its intention to oppose the summons to amend on the basis that the draft RAOJ did not meet all the requirements of the unless order and in particular did not properly plead the Bank/HR claim or the Revised Case.
18. The defendant also issued a summons dated 9th December, 2016, seeking an unless order in relation to two existing costs orders totally £34,300 and an order for payment by Harcourt of an interim payment of £60,000 in respect of the costs of the strike out application (ordered to be paid at 90% on the indemnity basis pursuant to the Act of 9th November, 2016).
19. The defendant's summons of 9th December and Harcourt's summons of 29th November (seeking leave to file the RAOJ) were both heard by the Greffier on 9th January, 2017.
20. On 18th January, 2017, for the reasons set out in a judgment of that date, the Greffier refused Harcourt's application for leave to file the RAOJ and ordered that the AOJ be struck out in accordance with the unless order of 9th November, 2016. He found that the RAOJ did not plead the Revised Case at all and did not plead the Bank/HR claim with sufficient particularity. He reminded himself that he had a discretion not to activate the sanction in the unless order but concluded that there were no good reasons to exercise such a discretion. He referred to the history of failure by Harcourt to comply with court orders, to the fact that the events which were the subject of the litigation took place many years earlier between 2004 and 2009, to the fact that the proceedings had still not reached the stage of close of proceedings some 5 years after the commencement of the third set of proceedings, to the fact that the unless order was made as a final indulgence to Harcourt and to the fact that the failure to comply with the unless order was not the result of matters beyond Harcourt's control.
21. When communicating his decision on 18th January by email, the Greffier specifically referred the parties to the existence of a right of appeal against his decision and annexed RCR 20/2 which specifies that any appeal must be filed with the Judicial Greffe and served on the other party within 10 days of the decision complained of. He specifically stated that, for the avoidance of doubt, the decision was 'made' on 18th January.
22. In relation to the defendant's summons, the Greffier ordered Harcourt to pay £60,000 to the defendant on or before 17th February, 2017.
Events leading up to the Decision
23. Despite the helpful advice from the Greffier contained in his email of 18th January, Harcourt failed to file a notice of appeal within the 10 day period which expired on 30th January, 2017. On 31st January, Advocate Kelleher emailed the Greffier notifying him that an appeal had not been filed in time and seeking to have resolved the issue of the defendant's remaining costs of the proceedings.
24. On 1st February, 2017, Harcourt filed by email a summons to appeal the Greffier's decision of 18th January. Advocate Kelleher pointed out that the appeal was out of time to which Harcourt responded on 3rd February by stating that the appeal had been initiated within the 10 business days specified in the Royal Court Rules.
25. The Greffier subsequently pointed out by email to Harcourt on 16th February that the appeal period was 10 days (not 10 working days) and setting out the procedural steps which Harcourt needed to take in relation to its appeal and application for an extension of time. The email specifically referred to the need for Harcourt to file an affidavit setting out the reasons for the delay in filing the notice of appeal and deposing that there were good grounds for the appeal. Despite this advice, no affidavit was filed until 27th June, 2017, following the unless order of 14th June referred to below.
26. In the meantime, on 15th February, the parties received the taxed bill of costs from the Assistant Judicial Greffier for the defendant's costs of the strike out application in June 2016 in the sum of £115,811.65. As Advocate Kelleher submitted, this bill of costs effectively superseded the order made in the Act of 18th January that Harcourt make an interim payment of £60,000 in respect of those costs. The whole sum of £115,811.65 became payable to the defendant 'forthwith' pursuant to RCR 12/3(2).
27. On 27th February, 2017, the defendant issued a summons seeking a stay of the application for an extension of time and, if granted, the hearing of the appeal against the Greffier's decision pending payment of the costs in the sum of £115,811.65 ("the extant costs"). The summons also sought an order that Harcourt file its affidavit in support of the appeal. The hearing of that summons was fixed for 14th June 2017 and a provisional date for the hearing of the application for extension and the appeal itself was fixed for 7th August.
28. On 11th April, Harcourt was ordered to pay the defendant's costs of the hearing held on 9th January, 2017, along with the remaining costs of the whole proceedings on the standard basis and was further ordered to make an interim payment of £60,000 in respect of these costs by 31st May. That payment was made although the sum was paid in error to the Judicial Greffe rather than the defendant.
29. Shortly before the proposed hearing on 14th June of the defendant's summons of 27th February, the parties reached agreement and accordingly the Court made a consent order dated 14th June which provided as follows:-
(i) Harcourt was to provide an affidavit in support of the application for an extension of time to file its appeal against the Greffier's decision refusing leave to amend and striking out the AOJ by 29th June.
(ii) Harcourt's application for an extension of time to file its appeal and/or the hearing of the appeal itself (if the application for an extension was granted) was stayed pending payment by Harcourt of the extant costs in the total sum of £115,811.65 by 21st July, 2017.
(iii) In the event that Harcourt failed to pay the extant costs by 21st July, 2017, the appeal was deemed to have been abandoned and the proceedings would remain struck out pursuant to the Greffier's order of 18th January, 2017.
(iv) The £60,000 paid in error into Court by way of compliance with the interim costs order of 11th April was to be released by the Court to the defendant.
(v) Harcourt was to pay the sum of £15,000 by 21st July in respect of the costs of the summons of 27th February.
30. Harcourt did not pay the extant costs (or the costs for £15,000) by 21st July as ordered. On 24th July, Carey Olsen wrote to the Court enclosing the affidavit of an employee of Carey Olsen's finance department advising that the sums had not been received. Carey Olsen invited the Court to confirm that Harcourt's failure meant that the sanction continued in the Act of 14th June was triggered and that Harcourt's appeal had therefore been deemed to be abandoned.
31. Harcourt wrote to the Court on 25th July saying that there had been a slight delay but that the funds were being transferred such that the funds should arrive in Carey Olsen's account that day or the next day. Carey Olsen then responded by email on 25th July seeking to make the Court aware that the failure to make payment was not a 'slight' delay since the Greffier had originally ordered an interim payment of £60,000 by 17th February and the entire balance of £115,811.65 had been payable 'forthwith' after taxation of the bill of costs on 15th February. The email also pointed to previous occasions on which it had been necessary for the defendant to seek orders from the Court to force compliance by Harcourt with costs orders and/or other orders made. Harcourt emailed the same day acknowledging that it had been guilty of previous delays but noting that previous payments had been paid and £156,000 was held by the Royal Court as security for costs. The email stated that Harcourt was still awaiting confirmation from its bank as to payment.
32. Having considered the matter, I issued the Decision on 26th July, 2017, and this was communicated by way of an email timed at 13.39. It appears that the sum of £130,811.65 (being the extant costs together with the sum of £15,000 referred to at para 29(v) above) was received by Carey Olsen in their client account just before 5pm the same day.
33. Harcourt filed a summons seeking to appeal the Decision on 25th August, 2017. This was accompanied by an affidavit from Mr Bourke. The summons sought an extension of time in which to appeal against the Decision because the period laid down in Rule 3 of the Appeal Rules is 28 days and that period had expired on 23rd August.
Tests for an extension of time and for leave to appeal
34. The principles for extending time to appeal to the Court of Appeal were conveniently summarised in paragraph 4 of the judgment of Beloff JA in Pitman-v-Jersey Evening Post Limited [2013] JCA 149. The factors which will be taken into account include (i) the length of the delay; (ii) the reasons for the delay; (iii) the chances of the appeal succeeding if time for appealing is extended; and (iv) the degree of prejudice to the potential respondent if the application is granted. The matter is entirely in the discretion of the Court to grant or refuse an extension of time but where the delay in serving the 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.
35. As to the test for leave to appeal, in Crociani v Crociani [2014] JCA 089 the Court of Appeal held that leave to appeal should only be granted if:-
(i) the appeal has a real prospect of success; or
(ii) there is a question of general principle which falls to be decided for the first time; or
(iii) there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.
36. In order to ascertain whether the appeal has a real prospect of success, it is necessary to recall the approach of the Court of Appeal when hearing appeals against discretionary decisions. The Court of Appeal will only interfere with such a decision of the Royal Court if:-
(i) it has misdirected itself as to the principles governing the exercise of its discretion;
(ii) it has taken into account matters which it ought not to have done or has failed to take into account matters which it ought to have done; or
(iii) its decision was plainly wrong.
Discussion
37. I shall consider each of the matters listed in Pitman in turn.
(i) Length of delay
38. The delay in this case was very short, namely two days. The application for leave to appeal was filed on 25th August whereas it should have been filed by 23rd August. That is a factor which points in favour of Harcourt.
(ii) Reason for the delay
39. In his affidavit of 25th August filed in support of the application for an extension of time, Mr Bourke stated at paragraph 6:-
".. when the Plaintiffs learned of the Decision, they sought with expedition to obtain the assistance of Jersey legal advisers with a view to appealing the Decision. Unfortunately, these attempts were not successful and the Plaintiffs were left unable to progress an appeal. It was not until it was too late that the Plaintiffs realised that there was a 28 day time limit for appealing the decision and by this time, the date of 22 August 2017 had come and gone. In the end, the Plaintiffs had no choice but to proceed without the assistance or representation of Jersey legal advisers and this has led to delay."
40. In its skeleton argument, Harcourt repeated this point and submitted that the error was bona fide and resulted substantially from factors which were entirely outside its control. It submitted that it was therefore a lay litigant and the consequent inequality of arms between Harcourt and the defendant were such as to justify a reasonable degree of leniency on the part of the Court when considering an extension of time.
41. In his oral submissions, Mr Bourke gave a slightly different explanation. He said that Harcourt was a large company and that although a decision had been made immediately to appeal, it was unfortunately not acted upon in time.
42. I do not regard what has been put forward on behalf of Harcourt as amounting to an acceptable reason for the failure to meet the 28 day time limit for seeking leave to appeal against the Decision. No detail is given as to when Harcourt approached any lawyer(s) and how many lawyers they approached. Paragraph 6 of Mr Bourke's affidavit suggests that Harcourt had not made itself aware of the time limit until it was too late. Given that it was already in difficulty for failing to appeal against the Greffier's decision of 18th January in time, there can be no excuse for it not having ascertained promptly the time limit for appealing against the Decision.
43. As to the fact that it was unable to obtain legal representation, it is of note that Harcourt has been represented by its director Mr Bourke since Advocate Jowitt ceased to act for it on 27th September, 2016. Furthermore, Harcourt was without legal presentation for the period between Collas Crill ceasing to act on 19th August, 2014, and Advocate Jowitt beginning to act on 15th June, 2016. Indeed, Mr Bourke has shown himself perfectly capable of filing the necessary application for leave to appeal without legal representation because that is what was done on 25th August.
44. For these reasons, I do not find Harcourt has presented any acceptable reason for its failure to seek leave to appeal within the specified time limit.
(iii) The merits of the appeal
45. The circumstances of this application are quite unusual. The proposed appeal is against the Decision. But even if the appeal were to proceed and to be successful, the result would be that the proposed appeal against the Greffier's decision of 18th January would simply be re-instated. The Court would then have to consider whether to grant an extension of time for that appeal and, if so, whether to allow that appeal. However the main attention at present must be on the appeal against the Decision.
46. In his affidavit of 25th August, Mr Bourke explains that the payment of £115,811.65 was not made on time because of an 'administrative error' in Harcourt's accounts department. That was repeated in his skeleton argument. However no detail was given as to the nature of the administrative error, who made it and exactly when it was made (although paragraph 5 refers to the fact that the 'error was compounded by the fact that 21 July 2017 was a Friday', which may suggest that the error was made on that day). Mr Bourke did not elaborate in his oral submissions other than to say that big payments were normally made by Harcourt at the end of every month, the inference being that this would therefore have required particular measures to make a big payment earlier in the month.
47. No question of general principle or important question of law arises in this case. It follows the applicable test for granting leave to appeal would be whether there was a real prospect of success. It is always difficult for a first instance judge who is asked for leave to appeal against his decision to bring a fresh perspective to bear on the issue of whether there is a real prospect of the Court of Appeal allowing the appeal on the ground that his decision was plainly wrong. However, doing the best I can, I am of the view that, even if the application for leave to appeal had been brought within time, I would have refused leave on the ground that there is no real prospect of success.
48. I would summarise my reasons for so concluding as follows:-
(i) Although it did not use the word 'unless', the order of 14th June was clearly an unless order. It stated specifically that if the extant costs were not paid by 21st July, the appeal against the Greffier's decision of 18th January would be deemed to have been abandoned and the proceedings as a whole would therefore remain struck out pursuant to the Greffier's decision.
(ii) Failure to comply with an unless order is regarded differently from an ordinary failure to comply with a time limit. In Alhamrani v Alhamrani [2008] JCA 187A, the Court of Appeal approved at paragraph 84 the following observation of Ward LJ in Hytec Information Systems Limited v Coventry City Council [1997] 1 WLR 166 at pages 1674-1675:-
"(1) An unless order is an order of last resort. It is not made unless there is a history of failure to comply with other orders. It is the party's last chance to put his case in order. (2) Because that was his last chance, a failure to comply will ordinarily result in the sanction being imposed. (3) This sanction is a necessary forensic weapon which the broader interests of the administration of justice require to be deployed unless the most compelling reason is advanced to exempt his failure. (4) It seems axiomatic that if a party intentionally or deliberately (if the synonym is preferred) flouts the order then he can expect no mercy. (5) A sufficient exoneration will almost inevitably require that he satisfies the court that something beyond his control has caused his failure to comply with the order. (6) The judge exercises his judicial discretion in deciding whether or not to excuse. A discretion judicially exercised on the facts and circumstances of each case on its own merits depends on the circumstances of that case; at the core is service to justice. (7) The interests of justice require that justice be shown to the injured party for the procedural inefficiencies caused by the twin scourges of delay and wasted costs. The public interest in the administration of justice to contain those two blights upon it also weighs very heavily. Any injustice to the defaulting party, though never to be ignored, comes a long way behind the other two."
(iii) As Ward LJ points out, an unless order is only made where there is a history of failure to comply with other orders. It is therefore a special kind of order. It spells out with complete clarity that, if the party does not comply with the order, a sanction will be applied. It would negate the purpose of such orders and lead to lack of respect for court orders (rather like a child whose parent threatens a sanction if a child does some act and the parent then fails to follow through with the sanction when the child nevertheless does the act) and a greater likelihood of non-compliance if the courts relieve parties regularly from the consequences of non-compliance with an unless order. In my judgment, as Ward LJ says, a party must almost invariably satisfy the court that something beyond his control has led to his failure to comply with the unless order if he wishes to obtain relief from the sanction.
(iv) The history of these proceedings shows repeated failures by Harcourt to meet deadlines, whether for taking steps in the action or for making payments of costs awarded against it. On more than one occasion, payment of sums due has only been made after the defendant has issued a summons that the proceedings be stayed until payment is made. Mr Bourke conceded that there had been numerous failures to comply with time limits.
(v) As a consequence, the order of 14th June is not the first unless order made against Harcourt. As already stated, the Greffier made an unless order on 9th November, 2016, in respect of the need to amend the AOJ.
(vi) Harcourt was or should have been fully aware of the serious consequences of failing to comply with an unless order. Thus the Greffier had on 18th January, 2017, struck out the proceedings in reliance upon the unless order of 9th November because Harcourt had not complied with it. The Act of 14th June was made with the agreement of Harcourt. Harcourt was already well overdue in paying the extant costs. The Greffier had ordered an interim payment of £60,000 by 17th February and the full amount (including the £60,000) became payable forthwith upon taxation on 15th February. Harcourt had failed to pay anything by 14th June and in effect secured a further period until 21st July (i.e. six weeks) to make these overdue payments.
(vii) Despite the length of time which these payments had been outstanding and despite knowing the potential consequences of the failure to meet the deadline, Harcourt failed to pay the extant costs by the deadline of 21st July. No satisfactory explanation has been given for this failure. Mr Bourke has referred to an administrative error but this has not been explained in detail. Harcourt had six weeks in which to make the payment and it appears to have left things to the last moment. There can be no suggestion of something beyond Harcourt's control having caused the failure to comply with the order as envisaged in the extract from Hytec cited above. If it had made arrangements shortly after the order of 14th June to make the payment (as it should have), no difficulty would have arisen.
(viii) Given the history of failures by Harcourt to comply with orders and timetables, the importance of ensuring that court orders are complied with and the lack of any satisfactory explanation for the failure to comply with the order of 14th June, I remain of the view, despite the additional information now placed before me, that the Decision was a reasonable and proper exercise of discretion in all the circumstances and that there is no real prospect of a successful appeal.
(iv) Prejudice to the Defendant
49. In my judgment there would be prejudice to the defendant if an extension were granted. This litigation has been going on for many years with Harcourt failing to advance matters satisfactorily and the defendant regularly having to issue summonses to procure compliance by Harcourt with its procedural obligations. Although the defendant has frequently been awarded costs against Harcourt, the defendant will no doubt still be out of pocket. Having secured, with the agreement of Harcourt, an unless order on 14th June, the defendant was entitled to expect compliance, failing which, that the appeal would be deemed abandoned and the proceedings as a whole would remain struck out pursuant to the Greffier's order. If an extension of time is granted, the defendant will have to incur time and expense in contesting the appeal. Even if it is successful, it is likely to be left out of pocket to the extent of any difference between any costs it recovers and the costs actually incurred.
Conclusion
50. Balancing all these matters, I conclude that, despite the shortness of the delay in seeking leave to appeal, it would not be right to grant an extension. My reasons are as set out earlier in this judgment but in summary:-
(i) Harcourt has habitually failed to comply with deadlines.
(ii) Harcourt knows the likely consequences of failing to comply with an unless order as this is not the first time it has done so.
(iii) It also knows the importance of appealing in time. Because it was out of time in appealing against the Greffier's decision, it had to seek an extension of time for that appeal and faced the prospect of the appeal not succeeding simply because it was late. This should have made it doubly aware of the importance of seeking leave to appeal against the Decision in time.
(iv) Despite this knowledge and despite therefore being aware of the importance of appealing in time against the Decision, it has come up with no acceptable explanation of its failure to seek leave to appeal in time.
(v) For the reasons set out above, Harcourt has shown no good reason for its failure to comply with the unless order of 14th June. There is no suggestion of such failure being caused by anything beyond its control. As set out above, I regard the merits of any appeal against the Decision as being weak.
(vi) There will be some prejudice to the defendant if an extension of time is granted. Although this prejudice is of a type which will normally be suffered by a respondent where an appeal is allowed to be brought out of time, the background to these proceedings and Harcourt's conduct of them increases the nature of that prejudice.
(vii) I appreciate the consequences for Harcourt of refusing an extension, in that it will lose the opportunity to challenge the Decision, which in turn means that it loses the opportunity to appeal against the Greffier's decision of 18th January, which in turn means that the proceedings remain struck out. Nevertheless, Harcourt only has itself to blame for its repeated and continued failures to comply with the procedural requirements of the Court. It was out of time in appealing against the Greffier's decision, it was out of time in complying with the unless order of 14th June and it was out of time in seeking to appeal against the Decision. There comes a point when such conduct means that it is proportionate and reasonable to make an order which results in striking out a claim and that point has been reached in this case.
51. It is for these reasons that I refused to extend the time for seeking leave to appeal. Had I extended time, I would nevertheless have refused leave to appeal on the basis that I do not consider there to be a real prospect of a successful appeal.
Authorities
Court of Appeal (Jersey) Law 1961.
Court of Appeal (Civil) Rules 1964.
Harcourt-v-States of Jersey Development [2012] JRC 186.
The Minister for Treasury and Resources-v-Harcourt Development Ltd and others [2014] JCA 179.
Royal Court Rules 2004.
Pitman v Jersey Evening Post Limited [2013] JCA 149.
Crociani v Crociani [2014] JCA 089.
Alhamrani v Alhamrani [2008] JCA 187A.
Hytec Information Systems Limited v Coventry City Council [1997] 1 WLR 166.