Jersey Unreported Judgments

Court of Appeal - application for a stay of certain orders pending appeal.

[2021]JCA043

Court of Appeal

15 February 2021

Before     :

Jonathan Crow QC., Lord Anderson of Ipswich KBE QC., and David Perry, QC.

 

Advocate H. B. Mistry for the Appellant.

Advocate L. K. Gregory for the Respondent.

judgment

Crow JA

Introduction

1.        This is the judgment of the court on the Appellant's application for a stay of certain orders made by the Royal Court on 22^nd December 2020, pending the disposal of the appeal to this court. 

2.        The substantive proceedings from which this appeal arises have a long history.  For the purpose of this application, however, the relevant background can be stated shortly.  In a judgment given on 11^th September 2017, the Royal Court (Commissioner Clyde-Smith and Jurats Blampied and Ronge) held that the Appellant's mother, Madame Crociani, and the Respondent to this appeal ("BNP") had acted in breach of trust in 2010:  Crociani v Crociani [2017] JRC 146.  They were ordered jointly to reconstitute the trust, and Madame Crociani was ordered to indemnify BNP.  At the same time, the court continued a world-wide freezing order against Madame Crociani which had been first granted on 4^th August 2016.  The 11^th September 2017 judgment was appealed unsuccessfully: BNP Paribas Ors v Crociani Ors [2018] JCA 136A.

3.        BNP has apparently paid out sums in excess of £100 million in satisfying the orders made against it and Madame Crociani jointly under the 11^th September 2017 judgment, and by way of meeting its own legal costs.  Madame Crociani has apparently paid nothing to BNP under the indemnity.[1]

4.        On 14^th December 2018, the Royal Court (Commissioner Clyde-Smith and Jurats Crill and Thomas) made an order requiring the Appellant to inform BNP's Advocate in writing of her knowledge of assets held by or on behalf of Madame Crociani since 6^th July 2015: Crociani v Crociani and Ors [2018] JRC 230C.

5.        On 6 February 2019 the Appellant was ordered to pay £4,000 to BNP on account of costs by 20 February.  That sum was not paid.  On 21 February the Appellant was ordered to pay a further sum of £7,000 to BNP on account of costs by 7 March 2019.  That sum was not paid.

6.        On 7^th October 2019, the Royal Court (Commissioner Clyde-Smith and Jurats Blampied and Ronge) found that the Appellant was in contempt of court in having failed to comply with the 14^th December 2018 order: BNP Paribas Jersey Trust Corporation v Siciles C. de Bourbon des Deux [2019] JRC 199.  The Appellant appealed against that finding, and the appeal was listed to be heard in January 2020.  Before the hearing of that appeal, BNP's legal representatives wrote to the court on 25^th November 2019 applying for an order debarring the Appellant from pursuing the appeal unless she complied with the costs orders which had been made in February 2019.  Only after that application had been made did the Appellant pay the February 2019 costs orders, on 2^nd or 6^th December 2019 (i.e. 9 months late).  In the event, the appeal against the finding of contempt was unsuccessful: Siciles C de Bourbon des Deux v BNP Paribas Jersey Trust [2020] JCA 017.

7.        On 25^th February 2020, the Royal Court (Commissioner Clyde-Smith and Jurats Blampied and Ronge) gave the Appellant a further 49 days to comply on affidavit with the order of 18^th December 2018.  The court also made further disclosure orders against her.  Time for compliance was subsequently further extended to 10^th May 2020. 

8.        The Appellant produced a 7^th affidavit on 11^th May 2020.  It was sworn on 1^st July 2020. 

9.        On 28^th September 2020, BNP was given permission to cross-examine the Appellant on her 7^th affidavit in order to determine whether she had complied with the orders made on 14^th December 2018 and 25^th February 2020 and thereby purged her contempt.  The hearing took place on 12^th and 13^th November 2020. 

10.      By a judgment given on 22^nd December 2020, the Royal Court (Commissioner Clyde-Smith, and Jurats Blampied and Ramsden) ruled that

(i)        the Appellant had not purged her contempt,

(ii)       the Appellant shall pay a fine of £2 million within 2 months of the date of the order, in default of which she shall serve a term of 12 months in prison,  

(iii)      by way of punitive costs order, the Appellant shall indemnify BNP for all of its costs of and incidental to the contempt proceedings from and after a hearing on 25^th February 2020 to the date of the order, and

(iv)      the Appellant shall pay £100,000 on account of such costs within 21 days of the date of the order (i.e. by 12^th January 2021): BNP Paribas Jersey Corporation Limited v de Bourbon des Deux Siciles [2020] JRC 267. 

11.      On the due date for payment of the £100,000, the Appellant issued a Summons in the Royal Court for a stay, alternatively for an extension of time in which to pay.  That application is due to be heard on 24^th February 2021. 

12.      On 19 January 2021, the Appellant issued a Notice of Appeal asking this court (i) to quash the Royal Court's ruling of 22 December 2020 together with the consequential orders it made on that date, (ii) to direct a fresh trial of the question whether the Appellant had purged her contempt, to be heard before a court not consisting of judges or jurats who had sat on any one of the hearings that led to the judgments given on 11 September 2017, 7 October 2019 or 22 December 2020, (iii) to grant a stay of the orders made by the Royal Court for the payment of the fine, the payment of costs, and the payment on account, and (iv) to award the costs of the appeal against BNP.

13.      The Appellant's Notice of Appeal lists seven grounds of appeal:  (i) the Royal Court reached conclusions of fact in breach of Article 15 of the Royal Court (Jersey) Law 1948, in that the Commissioner participated in making those findings;  (ii) the Appellant was denied a fair hearing before an independent and impartial tribunal, in that Jurat Blampied had made numerous findings of fact adverse to the Appellant in earlier judgments, which findings were repeated and interpreted in the 22 December judgment;  (iii) the Royal Court erred as to the basis on which it found that the Appellant had not purged her contempt;  (iv) having rightly accepted that the burden was on BNP to prove that the contempt had not been purged, the Royal Court failed to apply that burden correctly;  (v) the Commissioner erred in failing to direct the Jurats that it did not follow from the fact that the Appellant had told lies in relation to matters covered in earlier judgments that she was lying when she said in her 7^th affidavit that she did not have any knowledge or belief about the whereabouts of assets belonging to her mother;  (vi) the Royal Court did not give the Appellant a fair trial, as evidenced by the many erroneous findings of fact it made;  (vii) the fine of £2 million was disproportionate.  Since filing her Notice of Appeal, the Appellant has stated that she intends to add a further ground of appeal, namely (viii) that the costs order was unlawful.[2]  The appeal is listed to be heard during the week commencing 24 May

The correct approach to the Application

14.      The Appellant submits that the court should approach this application by analogy with the approach supposedly taken in criminal cases involving an appeal against the payment of a fine.  In that context, Advocate Mistry says that his understanding is that the payment of a fine would not be enforced pending a criminal appeal.[3]   No authority or specific examples have been given in support of that understanding, although in the Appellant's responsive written submissions dated 11^th February 2021 some hearsay, anecdotal evidence is offered.[4]  Advocate Redgrave for the Respondent disputes that any such practice exists and gives an anecdotal account of one recent instance where a fine was required to be paid in the context of a criminal appeal.  The court is not aware of any settled practice of deferring the payment of fines pending an appeal in criminal cases, and the material placed before the court on this application does not establish that any such settled practice exists.  Furthermore, the suggestion made on behalf of the Appellant would appear to be inconsistent with the structure of rule 11 of the Court of Appeal (Criminal) Rules 1964.  Specifically, rule 11(3) confers on the court a discretionary power to defer the payment of a fine in circumstances where a criminal defendant is appealing against sentence, but it certainly does not suggest that there is any presumption that any such deferral will routinely be ordered, and it is also important to note that rules 11(3) confers on the court a concurrent power to order the appellant "to give an undertaking ... and give or find security, in such amount as the court of the trial thinks fit" as a condition of deferring payment of the fine.  In any event, although there are similarities between criminal proceedings and civil proceedings for contempt, the analogy is not exact.  In particular, the analogy is by no means exact as between a criminal appellant who is appealing against sentence (which is what rule 11(3) is addressing) and a civil litigant who has (as in this case) been found in contempt of court and has unsuccessfully appealed against that finding and has then also been found not to have purged that contempt and is now seeking to appeal against that finding.  In all the circumstances, we do not consider that the court should approach this application by reference to any assumptions as to what might happen in a criminal appeal. 

15.      Turning to the position in relation to civil appeals, the starting point is to recognize that an appeal does not operate as a stay.  This is expressly provided in rule 15 of the Court of Appeal (Civil) Rules 1964.  In order to persuade the court to order a stay, the losing party must accordingly present a sufficiently persuasive case to justify a departure from that default position.

16.      Most civil judgments under which a claimant has succeeded will involve an award which confers some material benefit on him.  That being the position, it is often said[5] (and the Appellant accepts[6]) that a successful litigant should not generally be deprived of the fruits of his victory without good reason.  But the Appellant submits that that principle does not apply to the £2 million fine, because the payment of the fine will not enure to the benefit of BNP.  As such, the Appellant says, the fine does not represent the fruits of BNP's victory.  We are not persuaded that this argument should affect the principles on which the court approaches the present application.  The position in this case is that the Royal Court has made an order, and the appeal does not operate as a stay of that order.  The onus is therefore on the Appellant to persuade this court to grant a stay.  In seeking to discharge that onus, the Appellant's starting position is no better than if she had been a judgment debtor.  The fact that the £2 million payment will be made to the public purse rather than to the opposing party might, in principle, be weighed in the balance when the court exercises its discretion:  but the starting point remains that the Appellant has been ordered to make a payment;  her appeal does not stay the effect of that order;  and she has the burden of persuading this court to grant a stay.  In short, the proposition that a successful litigant should not generally be deprived of the fruits of his victory without good reason might, with equal truth, be expressed by saying that an unsuccessful litigant should not generally be relieved of the burden of complying with a court order without good reason. 

17.      Turning to what constitutes 'good reason' in this context, the Appellant submits that, in an appeal against a fine for contempt, the court should determine "whether there are arguable grounds of appeal" and, if there are, it should grant a stay.[7]   We reject that approach.  It would be a rare case where the pleaded grounds of such an appeal did not disclose even an arguable case.  If the threshold test for granting a stay were pitched so low, it would result in stays being granted in the majority of such appeals, which would reverse the presumption enshrined in rule 15.  It would also be inconsistent with the approach taken in para. 4.8 of the Court of Appeal Practice Direction, CA 05/1, which requires any application for a stay to be supported by an affidavit setting out the circumstances relied on and showing "whether, unless the stay were granted, the appeal, if successful, would be nugatory, or other special circumstances".  Whilst we do not consider that this provision itself purports to lay down an exhaustive test for granting a stay, it certainly reflects the fact that the onus is on the party seeking the stay to persuade the court that there are sufficiently compelling reasons to grant one. 

18.      That being the position, we are satisfied that the court in this case has a discretion which must be exercised consistently with the approach taken in stay applications generally.  In other words, the court will take into account the overall circumstances of the case, applying common sense and balancing the competing interests at stake.[8]

The merits of the substantive appeal

19.      A considerable proportion of the Appellant's written submissions dated 1^st February 2021, and some of her responsive submissions dated 11^th February 2021, are devoted to the substantive merits of her appeal.  We do not consider that a provisional assessment of the likely outcome of the appeal provides a useful guide in determining the outcome to this application.  In this case, as in most cases, it would be impossible and unwise to try forming any reliable assessment of the likely outcome before hearing full argument, and serious injustice could be caused if the court were drawn into a provisional assessment of the underlying merits of the appeal.  We do not discount the possibility that, in a rare case, the court might (even on a provisional review) be able to form a clear view that an appeal is highly likely to succeed or highly likely to fail, and in that rare case such an assessment would no doubt be a powerful factor when considering whether to grant a stay.  But this appeal, like most appeals, does not lend itself to that kind of peremptory assessment, and it would be inexpedient for the court to try forming a provisional view on the substantive merits for the purpose of determining an application for a stay.  The most that can be said is that this appeal is not necessarily doomed to fail nor necessarily guaranteed to succeed. 

The Appellant's financial resources

Introduction

20.      The Appellant's main argument is that she "does not have immediate access to two million pounds".[9]

21.      In this context, she seeks to rely on three matters: 

(i)        the alleged "lack of opportunity to address my means to make substantial payments";[10] 

(ii)       her alleged "inability to pay the sums ordered in the time scales the Court ordered";[11]  and

(iii)      the alleged "impact of attempting to find the money to pay the fine and the costs orders".[12] 

(i)  Lack of opportunity to address the issue

22.      We do not understand the Appellant's first assertion, at least in so far as it relates to this application for a stay.  This is the Appellant's application.  It is being made on the basis of her assertion that she is unable to pay the fine.  She has known since 25^th February 2020 that the court was considering the imposition of a substantial fine.  She has known the exact amount of the fine since 22^nd December 2020.  She swore her affidavit in support of this application 6 weeks later.  In the circumstances, she has had every opportunity to provide evidence regarding her financial resources, both revenue and capital, both liquid and illiquid. 

23.      We would also reject her attempt to turn this issue upside down by complaining (as she does at length in her affidavit of 1^st February 2021) that there was no sufficient scrutiny of her assets and her ability to pay a substantial fine in the course of her cross-examination at the November 2020 hearing.  That complaint may, or may not, be relevant at the substantive appeal.  However, her affidavit has been sworn in support her application for a stay.  She has chosen to make that application, and she has chosen to make it on the basis that she is unable to pay the fine.  The onus is accordingly on her to adduce sufficient evidence in support of that assertion.  She cannot discharge that onus by complaining that she was not cross-examined in sufficient detail last November before the fine was imposed. 

(ii) Inability to pay the fine

24.      As to the Appellant's second point, she says that she has "made the position very clear" regarding her inability to pay[13] and that she has "demonstrated to the Court that [she] did not have access to funds to make payments of substantial sums to the Court".[14]  We reject that contention.  She has not adduced any relevant evidence in support of this application at all.  By 'evidence', we mean particulars identifying specific sources of quantified income; we mean particulars identifying specific financial assets and/or tangible assets, their nature, their location, their value and (if relevant) any problems she might face realising them within a short space of time; we mean particulars regarding her ability to raise a loan secured on any illiquid assets that cannot readily be realised; we mean details of any efforts she has in fact made to realise any assets or raise any loans; we mean similar particulars of any assets that may not be held in her name but are held for her benefit or to which she may be entitled or have access.  Her affidavit contains no such particulars at all.  Instead, it simply makes generalised assertions about her inability to pay; it makes an unparticularised assertion that she does "not have huge cash reserves"[15] without quantifying the cash reserves she does in fact have;  it refers to unspecified "financial assistance" from her husband "and others" without identifying who those others are, or what resources they command, or whether they are willing to fund her liabilities in this litigation;[16] and it discusses a "hypothetical scenario"[17] which is of no assistance to her argument. 

25.      In her responsive submissions dated 11^th February 2021, the Appellant also provides a detailed critique of the Royal Court's findings in §91(i) - (ix) of the judgment under appeal.  The Appellant suggests that those findings do not provide a sound evidential basis for concluding that she has the financial resources to pay a substantial fine.  We reject that line of argument.  The question on this application is not whether BNP succeeded in discharging a burden of proof in the Royal Court to demonstrate that the Appellant has access to substantial financial resources.  Rather, the question on this application is whether the Appellant has discharged the burden on her to satisfy this court that she cannot pay the fine and the £100,000 on account of costs.  For the reasons given in §24 above, she has failed to discharge that burden.  In that context, it is also worth noting that all of the findings in §91(i) - (ix) of the Royal Court's judgment (which the Appellant seeks to criticise) are prefaced with the observation that she had known since February 2020 that the court was contemplating a significant fine "bearing in mind the Court's understanding of her means" but that "Despite that warning, she filed no evidence about her means".  That remains the position today. 

26.      Separately, the Appellant also seeks to lay emphasis on the fact that she has been subject to a world-wide freezing order,[18] but that does not assist this court in understanding the nature, location, value or liquidity of the assets currently at her disposal. 

27.      Finally, under this heading, the Appellant says that there were significant delays in preparing for the November 2020 hearing which "hindered the provision of [her] evidence".[19]  We do not understand the supposed relevance of that argument to this application.  The Appellant appears to be complaining that she was given a poor service by her former legal representatives in the lead-up to the hearing in November 2020.  But the issue before this court on this application is whether the Appellant has adduced any sufficient evidence to persuade us to stay the orders that were made on 22^nd December 2020.  The answer to the question whether she was disadvantaged by poor representation before and during the hearing in November may, or may not, be relevant at the substantive appeal, but in the circumstances of this case it does not assist the court in deciding whether, an order having been made for a fine to be paid, that order should now be stayed pending the disposal of the appeal. 

28.      The reason why the Appellant is reluctant to provide particulars of her true asset position may lie in her complaint that "BNP frequently uses information they gain through disclosure orders in various jurisdictions to seize my assets and/or to further litigate against me."[20]  That may provide her with a motive for withholding information about her assets, but the net outcome remains that she has chosen to bring this application for a stay on the basis that she cannot pay the fine, and yet she has failed to provide any evidence on which the court can properly base a finding that she is (as she claims) unable to pay. 

(iii) Impact of paying the fine

29.      The Appellant's final argument under this heading is expressed in these terms in para. 28 of her affidavit:  "To divert my funds to making payments to the Court for the fine and towards BNP's costs at this stage would seriously stifle my ability to pay for counsel to adequately bring my appeal".  The Appellant's assertion that paying the fine or the interim award of costs would 'stifle' her appeal is no better founded in evidence than her assertion that she is unable to pay the fine or the interim costs order.  Furthermore, her passing reference to diverting "my funds", and the passing reference in para. 16 of her affidavit to "my various companies," only serve to underline the fact that there are assets owned by her or under her control which she has not identified or quantified in her evidence. 

30.      The mere assertion that payment of the fine and the interim costs order would stifle the appeal is a conclusion which the court is being invited to reach.  It is not, of itself, evidence in support of that conclusion.  Having failed to adduce any true evidence as to her resources, the Appellant has simply deprived the court of any ability to make an informed assessment of whether refusing to grant a stay would (as she claims) stifle her appeal.  As such, she has failed to discharge the onus of proof on that issue. 

The costs order & the order for a payment on account

31.      As noted above, the Appellant accepts that in general a successful litigant should not be deprived of the fruits of victory pending an appeal without good reason.  That principle undoubtedly applies to the order for a payment on account of £100,000. 

32.      Nevertheless, the Appellant says that a stay should be granted in relation to the punitive costs order and the order for payment on account "given ... the amount and the very short period in which it had to be paid and/or on the simple ground that such an order is clearly unlawful".[21]

33.      We reject these arguments in support of a stay.  First, we do not consider that the court is in a position to decide that a punitive costs order was 'clearly unlawful' at this stage.  Arguments either way have been advanced, and remain to be determined.  Second, and in any event, the only part of the costs order which has any practical operation pending the disposal of the appeal is the order for an interim payment on account.  So far as that is concerned, we consider that an order for £100,000 would have been well within the Royal Court's discretion even without any punitive award of costs, BNP's total costs being £218,831.36.  Third, the time within which that payment had to be made (21 days) was entirely reasonable, as was the time within which the fine of £2 million had to be paid (2 months). 

34.      For this accumulation of reasons, we reject the Appellant's argument for granting a stay specifically in relation to the cost's orders. 

The Appellant's contingent argument

35.      In her responsive submissions dated 11^th February 2021, the Appellant suggests that, if the application for a stay were to be refused, it is likely that BNP would then apply for an order debarring her from pursuing the appeal if she does not pay the fine and the £100,000 on account of costs.  She goes on to say that any such application for a debarring order should be refused by reference to certain observations of Lord Bingham in Arab Monetary Fund v. Hashim [1997] EWCA Civ 1298.  For the purpose of determining the present application for a stay, we do not find this line of reasoning to be of any assistance.  The present application must be allowed or refused according to its own merits.  What happens next is a matter on which the court need not and cannot speculate.

The court's discretion

36.      It remains for the court to draw together all the relevant circumstances and to balance the competing interests at stake, in light of the rulings set out above.  First, it is important to recognise that the starting point is always that an appeal does not operate as a stay.  Second, the onus is on the Appellant to justify a stay.  Third, the specific grounds on which the Appellant has sought to make good her application fail for the reasons set out above.  Fourth, it should be emphasised that the orders whose effect the Appellant seeks to stay involve payments of money:  in other words, they do not require any conduct which would be irreversible in the event that the appeal were to succeed.  Fifth, there is no reason to doubt that the money would be repaid if the appeal were to succeed:  accordingly, it would not render a successful appeal nugatory if a stay were refused.  Sixth, the Appellant's conduct to date in this litigation gives cause for concern that she would not pay either the fine or the costs if she were not required to do so before the hearing of the appeal:  in particular, she has been found in contempt of court, and she failed to comply with the February 2019 costs orders until she was effectively forced to do so in order to pursue her appeal against that finding of contempt.  Seventh, there is no evidence that the Appellant has any assets in this jurisdiction, nor any need to visit this jurisdiction:  accordingly, enforcing compliance against her after the appeal (if it proves to be unsuccessful) could be problematic. 

37.      For this accumulation of reasons, we reject the Appellant's application for a stay. 

Postscript

38.      Since handing down this judgment, we have been informed by Advocate Redgrave that the anecdotal account he gave in his written submissions "of one recent instance where a fine was required to be paid in the context of a criminal appeal" (mentioned in para. 14 above) was in fact a case involving a confiscation order (not a fine) where an appeal had been intimated (but not issued).  We record that correction in the interests of accuracy.  Nevertheless, it does not affect the evidential position as expressed in para. 14, which is that this court is not aware of any settled practice of deferring the payment of fines pending an appeal in criminal cases, and the material placed before the court on this application does not establish that any such settled practice exists.  Nor does this correction alter the overall conclusion set out in para. 14 above, which is that we do not consider that the court should approach this application by reference to any assumptions as to what might happen in a criminal appeal.

Authorities

Crociani v Crociani [2017] JRC 146.

BNP Paribas Ors v Crociani Ors [2018] JCA 136A

Crociani v Crociani and Ors [2018] JRC 230C

BNP Paribas Jersey Trust Corporation v Siciles C. de Bourbon des Deux [2019] JRC 199

Siciles C de Bourbon des Deux v BNP Paribas Jersey Trust [2020] JCA 017

BNP Paribas Jersey Corporation Limited v de Bourbon des Deux Siciles [2020] JRC 267

Royal Court (Jersey) Law 1948

Appeal (Criminal) Rules 1964

Court of Appeal (Civil) Rules 1964

Court of Appeal Practice Direction

Lord Bingham in Arab Monetary Fund v. Hashim [1997] EWCA Civ 1298