Jersey Unreported Judgments

Appeal - application for an extension of time within which to appeal

[2018]JCA060

Court of Appeal

19 March 2018

The Plaintiffs appeared in person.

judgment

BOMPAS JA:

Introduction

1.        Before the Court is an application by the plaintiffs for an extension of the 28 day period specified in rule 3 of the Court of Appeal (Civil) Rules 1964 as the time for making an application to the Court of Appeal for leave to appeal.  In the present case leave to appeal is required by section 13(1)(3) of the Court of Appeal (Jersey) Law 1964, as the judgment which the plaintiffs wish to appeal is an interlocutory one.

2.        My decision is that the request for an extension of time should be refused.  In this judgment I explain my reasons.

Background

3.        The first plaintiff and the first defendant are sister and brother.  The second and third plaintiffs are adult sons of the first plaintiff.

4.        In broad summary, the present proceedings arise out of the Wills made in 2008 by the mother of the first plaintiff and the f irst defendant. The 2008 Wills, of the mother's movable and immovable estate, left the mother's entire estate to the first defendant.  In March 2012 the present proceedings were commenced.  In the present proceedings the plaintiffs make various claims against the defendants concerning the 2008 Wills. 

5.        In September 2015 applications were made by the defendants to strike out parts of the plaintiffs' Order of Justice. 

6.        In June 2016 a judgment (In the matter of II [2016] JRC106, "the June Judgment") was given by the Master, Advocate Matthew Thompson, striking out all but a minor part of the claims of the second and third plaintiffs.  The foundation of the June Judgment was that the Order of Justice did not disclose a reasonable cause of action on the part of the second and third plaintiffs against either of the defendants. 

7.        In July 2016 a second judgment (In the matter of II [2016] JRC 116, "the July Judgment") was given by the Master.  This concerned allegations of fraud made by the first plaintiff in the Order of Justice.  The Master struck these out, essentially on the ground that the facts pleaded in support of the fraud allegation were equally consistent with a simple breach of promise.  In other words the essence of the decision in the July Judgment was that the Order of Justice did not contain a proper foundation for a claim of fraud.

8.        The plaintiffs appealed both the June Judgment and the July Judgment.  After a hearing on 28^th January, 2018, before Commissioner Sir Michael Birt with Jurats Crill and Sparrow, the Royal Court dismissed the plaintiffs' appeals, giving judgment on 7 February 2018 (In the matter of II [2018] JRC 031, "the February Judgment").  As explained in the February Judgment, the Royal Court considered that the decisions in the June Judgment and the July Judgment were correct for the reasons given by the Master.

9.        At the conclusion of the February Judgment, at paragraph 34, it was explained that the striking out of the fraud allegations from the Order of Justice should not ultimately affect the first plaintiff's claim in the substantive proceedings. 

10.      Bearing in mind that the June Judgment, the July Judgment and the February Judgment have all been concerned with the shape in which the substantive proceedings, started in 2012, will go to trial, and are only interlocutory, and bearing in mind that they are the result of applications made in September 2015, it is plain that the substantive proceedings have been subject to a protracted delay.  Putting off for years any resolution of the substantive proceedings, arising as they do from events in 2008, serves no one well.

11.      Also on 7^th February, 2018, Commissioner Sir Michael Birt, sitting alone, heard an application for the plaintiffs to have leave to appeal to the Court of Appeal against the February Judgment.  In a judgment given that day the Commissioner refused permission.  But he also pointed out for the benefit of the plaintiffs two other important matters.  One, explained below, is what is required if leave to appeal to the Court of Appeal is to be given where (as here) the appeal is from an interlocutory judgment.  The other is that the plaintiffs' time for making an application for leave to appeal was 28 days from 7^th February, 2018.

The application for an extension of time

12.      By 7^th March, 2018, there had been no application made by the plaintiffs for leave to appeal the February Judgment.  Instead, on that day the first plaintiff filed a document ("the Application") in which all the plaintiffs asked for an extension of time, for an indefinite period, for applying for leave to appeal; and by emails sent on the afternoon of that day the second and third plaintiffs expressed their wish for the Application to be made.

13.      The Application explains that "the first plaintiff is a vulnerable litigant due to cancer treatments and mental health issues".  It then explains as follows:

           "3.   The First Plaintiff strained her back on 16^th February 2018 delivering a number of disclosure files in connection with the case to the Defendants' lawyers and aggravated an old back injury and saw her GP about this the following week.  When she was mobile again the First Plaintiff immediately on the 23^rd February 2018 applied for leave to hear the recording of the hearing on the 28^th January 2018 to which the judgment handed down on the 7^th February 2018 relates and permission was granted for her to hear the tape by Commissioner Birt on Monday 5^th March with the Transcription Team able to offer an appointment on Tuesday 6^th March at 9.30am.  Unfortunately the First Plaintiff had on around Friday 2^nd March started to show symptoms of a flu like virus for which she sought medical help on Monday 5^th March 2018 and has been otherwise house and bed bound by the illness.

           4.    The Plaintiffs all need the First Plaintiff to be able to listen to the tape to finalise their Grounds of Appeal.

           5.     There was no time for the Second or Third Plaintiffs to arrange to listen to the tapes themselves as the Second Plaintiff has been sent out of the Island this week on business and the Third Plaintiff is away at university."  

14.      On 15^th March, 2018, the first plaintiff sent an email to the Court in which she explained that she was hoping soon to be able to listen to the recording of the 28^th January hearing.  However, she gave no further indication as to any purpose she had in listening to the recording, or as to a specified time within which the plaintiffs intended to make an application for leave to appeal.

Discussion

15.      If the Court of Appeal is to give the plaintiffs leave to appeal from the February Judgment, the plaintiffs must show either (a) that the appeal has a real prospect of success, or (b) that a question of general principle falls to be decided for the first time, or (c) that 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.  This test is well established.  It is the test which the Commissioner applied when, on 7^th February, 2018, he considered and refused the plaintiffs' application for leave to appeal.  As he pointed out in his judgement, the only possible limb of this test which the plaintiffs might seek to satisfy in the present case would be the first:  so far nothing had been identified as bringing the case, however improbably, within the second and third limbs.

16.      If the Court of Appeal is asked to give an extension of time for appealing or for applying for leave to appeal the relevant considerations are (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success and (d) the risk of prejudice.  These were identified by Beloff JA sitting as a single judge of the Court of Appeal in Pitman v Jersey Evening Post [2013] (2) JLR 293, and have since been referred to many times on applications such as the present.  However, it is to be borne in mind that the power to give an extension, contained in rule 16(1) of the Court of Appeal (Civil) Rules 1964 and entirely in the discretion of the Court, is axiomatically to be exercised to achieve justice.

17.      When the Application was made the time for applying for leave to appeal had all but run out.  But it was apparent that the Application could not be considered before that time had indeed run out; and it was also apparent that no application for leave to appeal was to be provided before time had run out and no definite time thereafter was proposed for such an application.  Even now no application for leave to appeal, not even a draft, has been put before the Court.  This is not surprising, as the stance taken in the Application is that no grounds of appeal are to be put forward by the plaintiffs unless and until the first plaintiff has first listened to a recording of the hearing on 28^th January, 2018.

18.      This is the real problem, as it seems to me.  The plaintiffs have failed to engage with the issues in any appeal and have wasted time in a pointless diversion.

19.      The plaintiffs' appeal to the Court of Appeal in respect of the February Judgment would, necessarily, be a re-run of their appeal to the Royal Court against the June Judgment and the July Judgment.  This is because the February Judgment reached the same conclusion for the same reasons as in the earlier judgments.  The plaintiffs have had a very long time to develop any arguments they may have for saying that the June Judgment and the July Judgment were substantively wrong; and those arguments could perfectly well be put forward again to this Court when submitting that the plaintiffs' appeal against the February Judgment has a real prospect of success.  Whether the submission could succeed is another matter; but it is one which would be open to the plaintiffs to attempt to make.

20.      However, the plaintiffs let the period of 28 days following the February Judgment come and go without articulating, in an application for leave to appeal, any of the criticisms they might have of the February Judgement.  They have instead relied on difficulties in listening to a recording of the 28 January 2018 hearing as excusing their continuing failure to make an application for leave to appeal. 

21.      Although the Application asserts that it is necessary for the first plaintiff to be able to listen to the recording to finalise grounds of appeal, there is no explanation as to why the application for leave to appeal cannot be made without first hearing the recording of the 28^th January, 2018, hearing.  Indeed, there is no explanation in the Application as to why it is either necessary or desirable for the first plaintiff to listen to the recording at all.

22.      There are two points.  First, any challenge to the February Judgment, just as any challenge to the June and July Judgments, will involve analysis of (a) the Order of Justice and materials put before the Court by the Plaintiffs seeking to support the allegations in the Order of Justice, and (b) the arguments made on behalf of the Defendants, accepted by the court, leading to parts of the Order of Justice being struck out.  In other words the challenge does not involve any challenge to the Court's appreciation of any oral evidence; the challenge is necessarily one simply of legal analysis and argument.  In particular, there is no question of the February Judgment being affected by the Court's consideration of any oral evidence in relation to which some insight might be obtained by listening to the recording of the 28^th January, 2018 hearing. 

23.      Second, if the plaintiffs believed there to have been something wrong in the conduct of the 28^th January, 2018, hearing such that the February Judgment was open to challenge on procedural grounds, the plaintiffs could and should have articulated that belief, and the reasons for the belief, in an application for leave to appeal made in good time.  While it might possibly have helped the plaintiffs ultimately to make good their challenge if they listened to a recording of the hearing and then obtained a transcript, listening to the recording could not have been necessary as a pre-condition to making an application for leave to appeal.  The first plaintiff was present at the hearing and would know if the plaintiffs had some complaint about the conduct of the hearing.  Instead, so far as the Application reveals, the plaintiffs must have a hope, based on what is not explained in the Application, that if the first plaintiff listens to the recording something will suggest itself to the plaintiffs as a ground of appeal.  This is pure Micawberism, so far as it is possible to judge, and is not a basis on which the Court should act to give an extension of time.

24.      Certainly, the first plaintiff has explained, both in the Application and in a subsequent email of 15^th March, 2018, difficulties she has had, caused by her ill-health, in listening to the recording of the 28^th January, 2018, hearing.  But despite these difficulties she was able to prepare the Application and the other plaintiffs were able to indicate their support.  And the first plaintiff has not stated that her health difficulties prevented her or the other plaintiffs from setting down, in a document, any grounds they might have for saying that an appeal from the February Judgment has a real prospect of success, or that there is some other reason justifying the giving of leave for appeal. 

25.      Turning, then, to the four considerations for the granting of any extension of time, those referred to in paragraph 16 above, it is correct that the Application has been made promptly.  But that is not by itself enough to result in the extension being granted.  The three other considerations are material.  Also, the Application seeks an open ended extension of time.

26.      As to the second consideration, the explanation for the plaintiffs' delay, that is for their failure to make any application for leave to appeal within the prescribed period of 28 days and their need for a further unspecified period, is unsatisfactory:  it shows that instead of making their application the plaintiffs have directed their efforts to a misconceived effort to listen to a transcript of the 28^th January, 2018 hearing, putting forward the inability of the first plaintiff to listen to the transcript as sufficient reason for not making in proper time an application for leave to appeal.

27.      As to the third consideration, the plaintiffs have not offered any reasons whatsoever for thinking that the February Judgment might properly be the subject of leave to appeal.  It is not self-evident that there is something in the February Judgment which could open the way to leave to appeal being granted; and the Application does not point out anything at all which is to be relied upon as opening the way.  In other words, there is nothing before this Court to support the view that, if the first plaintiff listens to the recording of the 28^th January, 2018 hearing, something will come up as a ground on which the plaintiffs might successfully seek leave to appeal.  And nothing else has been offered by the plaintiffs to suggest that they could succeed in an application for leave to appeal.

28.      As to the fourth consideration, I can see that the position of the defendants in responding to any application for leave to appeal, and thereafter to any appeal in the event of leave being granted, may be said to be unaffected by the plaintiffs' failure to make the application within the prescribed 28 day period.  In that sense more time, days or weeks, would not cause prejudice to the defendants.  However in my judgment there is more to it than that.  It was incumbent on the plaintiffs to proceed with diligence and expedition, if they wanted to appeal from the February Judgment.  There has been an inordinate length of time since first the defendants made their (successful) application to strike out parts of the Order of Justice.  The substantive proceedings should be progressed to trial.  Delay in that may prejudice the plaintiffs; but is also a matter of prejudice to the defendants, who have had the substantive proceedings hanging over their heads for so long.  They are entitled to have the substantive proceedings disposed of within a reasonable time.  Any delay in the challenge to the June and July Judgments, and to the February Judgement, prevents that.

29.      Looking at the matter overall and asking myself where the interests of justice lie, I have no doubt that the plaintiffs' application should be refused:  there should be no extension to the plaintiffs' time for appealing.  While I appreciate that the plaintiffs are litigants in person, that does not excuse them from having to comply with the prescribed time-limits set out in the rules in any case where they do not have and explain proper reasons for the non-compliance.  In the present case the plaintiffs have not put forward any proper reasons; and further delay is contrary not only to the interests of the defendants, but also to the interests of the plaintiffs and the interests of justice more generally in having the substantive proceedings now brought on with expedition.

Authorities

Court of Appeal (Civil) Rules 1964. 

Court of Appeal (Jersey) Law 1964. 

In the matter of II [2016] JRC106. 

In the matter of II [2016] JRC 116. 

In the matter of II [2018] JRC 031. 

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