Trust - appeal in relation to interlocutory decisions made on 6 June 2024 in the Royal Court
|
Before : |
Sir William Bailhache JA; |
|
||
Between |
(1) D (2) Fort Trustees Limited (3) Balchan Management Limited |
Appellant |
|||
And |
Geneva Trust Company SA (Formerly Rawlinson & Hunter Trustees SA) |
Respondent |
|||
IN THE MATTER OF THE REPRESENTATION OF GENEVA TRUST COMPANY SA (FORMERLY RAWLINSON & HUNTER TRUSTEES SA)
AND IN THE MATTER OF THE D DISCRETIONARY TRUST, THE D DISCRETIONARY -˜A' TRUST, THE G TRUST AND THE CONNECTED TRUSTS LISTED IN THE SCHEDULE TO THE REPRESENTATION OF RAWLINSON & HUNTER TRUSTEES SA.
AND IN THE MATTER OF ARTICLES 51 AND 53 OF THE TRUSTS (JERSEY) LAW 1984 (AS AMENDED)
Advocate J. M. Sheedy for the Appellants.
Advocate G. C. Staal for the Respondent.
JUDGMENT
matthews, ja:
1. This is the judgment of the court. This appeal is brought, by leave of Commissioner Matthew Thompson granted on 24 June 2024, by the first to third respondents to a representation made by Geneva Trust Company SA ("GTC"), which was formerly known as Rawlinson & Hunter Trustees SA. It concerns interlocutory decisions made on 6 June 2024 by the Commissioner in the Royal Court. The fourth respondent to the representation, E, is not a party to this appeal, and has played no part in it. So, the first to third respondents alone are the appellants, and we will so refer to them in this judgment.
2. The decisions appealed against were (1) the refusal of permission to the second appellant to amend its first notice of appeal dated 22 September 2023, (2) the refusal of permission to the first and third appellants to file the amended notice of appeal out of time, and (3) the refusal of permission to all three appellants to file the thirtieth affidavit of Nicole Ann Martin dated 22 February 2024 and Exhibit NAM 30 as further evidence. The (undated) notice of appeal sets out five grounds of appeal. A respondent's notice dated 17 July 2024 seeks to uphold the decisions below on further grounds. We will return to both of these notices in due course.
3. Shorn of details not necessary for the determination of this appeal, the background to this matter is as follows. GTC's representation was dated 5 October 2017. It sought a "blessing" of its decision to retire as trustee of certain trusts. By an act of court dated 8 November 2017, provision was made for GTC's retirement and indemnity. At paragraph 4, a mechanism was included for the assessment by the Judicial Greffier of GTC's fees and expenses if not agreed. But in certain circumstances the matter was to be referred to the Royal Court for further directions.
4. Assessment by the Judicial Greffier of GTC's fees and expenses was to be made on what is known in this jurisdiction as "the Alhamrani basis". This name comes from a decision of this court called Alhamrani v JP Morgan Trust Co (Jersey) Ltd [2007] JLR 527. In that case, a trustee sought in the Royal Court to recover its costs incurred in litigation between the beneficiaries of several trusts. The trustee had taken a neutral position between the warring beneficiaries, but nevertheless had instructed English solicitors and counsel to advise. The beneficiaries challenged the trustee's costs and expenses, as not reasonably incurred, given that it had adopted a neutral rather than hostile position.
5. At first instance, the Royal Court held that there would normally be no need for a taxation of the trustee's costs, as the trustee was entitled to an indemnity out of the trust fund. It also held that a challenge could be made by way of separate specific application, but only if there were real grounds for concern about the propriety of costs and expenses sought to be charged to the trust fund. A trust beneficiary appealed, and the appeal was successful.
6. On that occasion the Court of Appeal comprised Birt DB and Beloff and Vos JJA. Vos JA gave the leading judgment, with whom both Birt DB and Beloff JA concurred. Vos JA said:
"38. Though remuneration of the trustee is not in issue in this appeal, it is worthy of note that this may be dealt with in the trust deed (as it is in this case), and is also the subject of statutory provision in art. 26(1) of the Trusts (Jersey) Law set out above, and of the inherent jurisdiction of the court
39. As a matter of law, therefore, the trustee is entitled to be reimbursed for the expenses and liabilities that he has reasonably incurred in connection with the trust. The concept of -˜reimbursement' implies full repayment and the authorities in England have always made it clear that a trustee has the right to full reimbursement of his expenditure properly incurred on behalf of the trust.
[ ]
53. the threshold for intervention by the court must be the same in relation to a neutral trustee's litigation costs as it is in respect of non-litigation costs. That is a matter of law, not simply procedure. And the grounds of challenge must be that the costs in question are alleged to have been unreasonably incurred in violation of art. 26(2) of the Trusts (Jersey) Law 1984.
54. Equally, none of this means that there is any entrenched procedure requiring a formal application to be issued at the conclusion of litigation if a beneficiary wishes to raise an issue concerning what costs the trustee may take from the fund. The court is not so inflexible as to require such formality unless it serves a purpose. Thus, if the beneficiary wishes to raise an allegation that the trustee has acted in breach of his trust, no doubt he would be directed to plead his case. But if he simply wishes to say that some part of the costs claimed or likely to be claimed from the fund were unreasonable in amount, because, for example, three conferences with counsel were held instead of one, it seems to me that such an issue can be raised orally or in writing as seems most convenient.
[ ]
58. The legal basis for the court's supervision of the reimbursement of the neutral trustee's costs has already been made clear. It seems to me that this legal basis provides the threshold, as well as the test, for intervention. If a beneficiary can properly make an allegation that costs have been unreasonably incurred in breach of art. 26(2) or in breach of trust, he is entitled to have that allegation determined as he would be if he were raising any other proper claim against the trustee.
59. But none of this makes the taxation of the trustee's neutral costs and expenses in litigation (or outside litigation) automatic. Taxation is merely one method available to the court by which the amount of costs to which the trustee is entitled can be quantified. If a beneficiary is able properly to allege that the trustee has claimed unreasonably incurred costs from the fund, the court may use any appropriate method to resolve the issue raised."
7. As a result, the court ordered that the trustee be entitled to an indemnity from the trust fund and the beneficiary be entitled to his costs out of the same fund on the standard basis.
8. On 16 March 2018 a claim by GTC for unpaid invoices totalling SFr 874,524 was assessed by the Assistant Judicial Greffier at SFr 780,049.66. The First Appellant in this appeal appealed, but on 12 April 2018 GTC also issued a summons for a variation of paragraph 4 of the act of 8 November 2017, in relation to fees and expenses incurred by GTC after the earlier assessment had been started. The summons was heard first, on 31 May 2018, and the variation was granted, so that it covered the assessment of costs and expenses incurred subsequently. (On 23 July 2018 the Royal Court substantially allowed the appeal against the assessment of SFr 780,049.66, revising the figure down to SFr 167,339.)
9. On 31 July 2019 GTC wrote to the Assistant Judicial Greffier seeking an assessment of subsequently incurred fees. The appellants objected in writing on 4 October 2018, and GTC responded to that objection on 1 November 2019. The Assistant Judicial Greffier's assessment was not, however, handed down until 14 September 2023. (In the judgment under appeal, the Commissioner invited the Judicial Greffier to review the reasons for this lengthy delay. Neither we nor counsel are aware of the result of any such review.)
10. On 22 September 2023 the second appellant alone filed the original notice of appeal, seeking the cancellation of the assessment dated 14 September 2023 on three different grounds. In very brief summary, these were:
(i) Some of the trusts concerned no longer had any assets. However, fees and expenses in respect of a trust with no assets could be charged only to that trust and not to any other. Accordingly such fees and expenses could not in practice be recovered.
(ii) Fees and expenses were not recoverable for any period following GTC's retirement as trustee in 2018.
(iii) Some of the invoices covered periods of time that had been dealt with in previous assessments, and could not be recovered again.
11. On 1 November 2023, GTC applied for certain interim payments to be made by the first and second appellants. On 24 November 2023, the Royal Court fixed 25 January 2024 for the hearing of the (second appellant's) appeal. On 17 January 2024, the hearing date for that appeal and the interim payment application was adjourned to 29 February 2024, apparently because of judicial unavailability on 25 January 2024.
12. On 16 February 2024, so 13 days before the appeal hearing, the appellants informed GTC that they intended to seek to amend the appeal summons and the appeal notice, both by (i) amending the grounds of the second appellant's notice of appeal and (ii) allowing the first and third appellants to file notice of appeal in the (amended) terms. On 19 February 2024, they issued a summons to that effect. They referred to this in their submissions as "the Amendment Summons". The draft amended notice of appeal therefore would amend one of the grounds of appeal and to add a further such ground, as well as amend the relief sought on the appeal, but also add the first and third appellants to the appeal, as sought to be amended.
13. There were four categories of amendments proposed. These can be described as follows:
(i) Amendments to add the first and third respondents as appellants alongside the second respondent;
(ii) Amendments to ground (3) to amplify and clarify the point raised by that ground;
(iii) Amendments to add a new ground (4), in respect of claims to fees and expenses charged for a period in which GTC was a co-trustee with others, and hence shared responsibility, so that such fees and expenses were charged on an incorrect basis; and
(iv) Amendments to seek partial cancellation of the Assessment as an alternative to complete cancellation.
14. On 22 February 2024, the appellants applied by summons for leave to admit the 30th affidavit of Nicole Ann Martin on the appeal. That was one week before the date by then fixed for that hearing. (This summons does not appear to be in the bundle before the court, but fortunately nothing seems to turn on its terms.)
15. Accordingly, at the hearing before the Commissioner, which as we have said eventually took place on 29 February 2024, the Royal Court had before it two summonses (the "Amendment Summons" of 19 February 2024 and the further evidence summons of 22 February 2024), but actually three applications. These were (1) an application by the summons dated 19 February 2024 seeking permission for the second appellant to amend the original notice of appeal; (2) an application by the same summons dated 19 February 2024 seeking permission for the first and third appellants to file their appeal notice (in the same terms as the would-be amended notice) five months out of time; and (3) an application by the summons dated 22 February 2024 to adduce in evidence on the appeal the 30th affidavit of Nicole Ann Martin.
16. Of course, it had originally been intended that the appeal itself would be heard on that occasion. But, instead of that, the appellants' three applications concerned with amending the scope of the appeal were then argued. At the conclusion of the hearing, the Commissioner indicated that he proposed to refuse all three applications then before him. He declined to embark at that stage on the appeal itself, or to deal with GTC's application for an interim payment. He produced a written judgment, giving reasons for his refusal of the three applications, on 6 June 2024. Accordingly, the present appeal is concerned with those refusals, and not at all with the substantive appeal. That must await a further occasion for hearing.
17. The Commissioner's written judgment is a lengthy document, running to some 112 paragraphs over 20 pages. Our decision in this appeal is based on the entire judgment. But, for the purposes of making our own decision comprehensible to the reader, we summarise his decisions on the three applications as follows.
18. In relation to the application to amend the notice of appeal, the Commissioner (at [62] ff) considered the test on a substantive appeal against a decision on the amount of a trustee's recovery of its fees and expenses out of the trust on the Alhamrani basis. He considered that it was the test laid down in Downes v Marshall [2010] JLR 265, as explained in Incat Equatorial Guinea Ltd v Luba Freeport Ltd [2010] JLR 435.
19. In the latter case, Birt B said:
"19. (v) the court will intervene if it thinks that the Greffier has erred on a matter of principle or has gone wrong in exercising his discretion to the extent that intervention is required in the interest of justice and fairness".
In other words, the appeal hearing in this case was not a rehearing de novo.
20. The Commissioner next observed (at [65]) that, in contrast to the position on an appeal from the Royal Court to this court, the Royal Court Rules were silent on the question of the court's powers to amend a notice of appeal against a decision of the Judicial Greffier. He concluded that such a power existed under the inherent jurisdiction of the court. That power overlapped with the power to extend time, which was dealt with in the Rules, by rule 1/5. If this had been an appeal from the Royal Court to this court, the appellants would have been out of time and would need leave to amend their notice of appeal.
21. The Commissioner then reviewed a number of authorities, observing (at [71]) that the question whether leave should be given to amend a notice of appeal overlapped with the approach taken to amendments of statements of case. A notice of appeal was not such a statement, but it enabled the respondent and the court to know what the issues were on the appeal, so there was some similarity of purpose.
22. Ultimately, the Commissioner concluded (at [78]) that, in deciding whether to allow new grounds of appeal out of time, he should consider (i) the reasons for not having appealed the new matters before, (ii) the strength of the new matters sought to be raised, (iii) the justification for granting any necessary adjournment, (iv) how any adverse effect on the other party might be remedied, and (v) why the "balance of justice" should fall in favour of the party seeking to amend out of time.
23. He said (at [80]-[81]) that there had been no explanation as to why the new matters were not in the original notice of appeal or raised in the court below, and no acceptable excuse for the delay. He then went through the various grounds of appeal and the proposed amendments to them, and commented on what he perceived as their weaknesses.
24. He concluded:
"94. While I could have addressed the unfairness to [GTC] of the application to amend only being made a few days before the hearing fixed for the appeal by granting an adjournment and allowing time for evidence in response, this power was not sufficient to outweigh the serious failings of the [appellants] and the weaknesses as summarised in the previous paragraph."
25. He therefore dismissed the application to amend the notice of appeal, and with it the application seeking permission for the first and third respondents to file their appeal notice out of time. In essence, he took the view that, if because of the delay in seeking to do so the second appellant could not now amend its notice of appeal, five months after filing, and 8 days before the listed appeal hearing, it was equally too late for the first and third appellants to put in their own notices of appeal (in the putatively amended form) so long out of time.
26. In relation to the application to admit fresh evidence on the appeal (the thirtieth affidavit of Nicole Martin), the Commissioner held that he should apply the test laid down in the decision of this court in Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173, which applied the guidance given in the well-known English Court of Appeal decision in Ladd v Marshall [1954] 1 WLR 1489.
27. The Commissioner considered that the appellants had failed to explain why the substance of the evidence could not have been filed before the court below. He also took into account his observations about the strength of the case to be put forward by the draft amended notice of appeal, and referred to the importance of parties conducting litigation efficiently and complying with the rule. Accordingly, he refused the application.
28. As we have said, before this court the appellants advance five grounds of appeal in their notice of appeal dated 22 September 2023. In summary form, these are as follows:
(i) The court (a) misdirected itself as to the exercise of its discretion, and/or (b) failed to take into account all and only relevant matters, and/or (c) was plainly wrong. In particular,
(a) The court had insufficient regard to the separate considerations to be given to the three applications before it;
(b) The court took no account of the prejudice the appellants would suffer if permission to amend were not given;
(c) The court took no account of the fact that this was an appeal under rule 20/2 of the Royal Court Rules 2004, in which points not argued below may be raised;
(d) The court wrongly took account, or gave too much weight to, the fact the draft amended notice raised points not argued below.
(ii) The court applied too stringent a test to the question whether to permit the amendments, in particular by looking at the question as if it were an application to amend a statement of case.
(iii) The court wrongly held that -˜special grounds' were required for the appellants to adduce additional evidence not previously put before the lower court, in particular failing to appreciate that an appeal from the Judicial Greffier is significantly different to an appeal from a decision of the Royal Court.
(iv) The court wrongly failed to apply the test set out in De Gruchy v Planning and Environment Committee [2001] JLR 196 to the question whether to permit the First and Third Respondents to bring their appeal out of time, in particular failing to conduct the balance of prejudice exercise required by De Gruchy.
(v) The court wrongly applied the test set out in Downes v Marshall [2010] JLR 265 to an appeal under Royal Court Rules, rule 20(2), or wrongly interpreted it in such application.
29. The appellants' submissions, written and oral, can be summarised as follows. Reformulating their five grounds of appeal, they say that there are three issues. First, what is the test to be applied by the Royal Court in conducting an appeal against an assessment by the Judicial Greffier of the amount of a trustee's recovery of its fees and expenses out of the trust fund (an Alhamrani assessment)? (This is ground 5 of the Grounds of Appeal.)
30. Second, in the context of such an appeal, what are the correct tests to apply in deciding whether (i) to allow a notice of appeal to be amended (ground 2 of the Grounds of Appeal), (ii) to admit and rely on additional evidence not before the court below or an argument not raised below (ground 3 of the Grounds of Appeal), and (iii) to extend time for filing a notice of appeal (ground 4 of the Grounds of Appeal).
31. Third, did the Royal Court fall into error, either as a matter of law or in the exercise of its discretion? (This is ground 1 of the Grounds of Appeal.)
32. As to the first issue, the appellants submit that the correct test to apply is that set out in Murphy v Collins [2000] JLR 276, by Commissioner Sir Peter Crill. This is that
"this court [that is, the Royal Court] has an unfettered discretion to conduct an appeal from the Judicial Greffier [or the Registrar of the Family Division] as it thinks the circumstances and justice of the case require."
In other words, it is -“ or at any rate can be -“ a fresh hearing de novo.
33. As noted above, the second issue is in three parts. On the first sub-issue, the submission is that the court should allow a notice of appeal to be amended "if that is just and proportionate, taking into account all the circumstances of the case and applying the overriding objective". Thus, only an exceptional case, such as one "causing irreparable prejudice to the appellant", should be refused.
34. On the second sub-issue, the submission is that (following Murphy v Collins) the appeal "is a re-hearing de novo", and accordingly the court "has an unfettered discretion to hear new arguments and allow new evidence not raised before the Greffier below". The appellants rely on the decision of Commissioner Sir William Bailhache in David Hick Antiques Ltd v HSBC Bank plc [2022] JRC 072. On an appeal from the master (who had struck out a counterclaim as prescribed), the commissioner allowed fresh evidence to be adduced without satisfying the so-called Ladd v Marshall principles.
35. As to the third sub-issue (extending time for filing a notice of appeal), the appellants submit that the correct test to apply is that set out in De Gruchy v Planning and Environment Committee [2001] JLR 196, [11]-[12], [15]. That was a decision of Master Wheeler in an administrative appeal. After considering submissions, the master concluded that:
"15. the principles which I should apply in considering the present application for an extension of time are those which have been adopted in English cases in relation to a provision [in the RSC 1965] which is worded similarly to r.1/5 of our Rules."
36. The third main issue was whether the Royal Court fell into error (i) as a matter of law or (ii) in the exercise of its discretion. The appellants submitted that it did.
37. In particular, the court went wrong in law in (a) applying too stringent a test to the question whether to permit the amendments, (b) requiring -˜special grounds' to adduce additional evidence not previously put before the lower court, (c) failing to apply the test set out in De Gruchy v Planning and Environment Committee [2001] JLR 196 to the question whether to permit the First and Third Respondents to bring their appeal out of time, and (d) applying the wrong test to an appeal under Royal Court Rules, rule 20/2, ignoring that the Royal Court has an unfettered discretion and is entitled to hear the matter de novo, with new arguments and new evidence.
38. In addition to that, the court (a) misdirected itself as to the exercise of its discretion, and/or (b) failed to take into account all and only relevant matters, and/or (c) was plainly wrong, in particular in having insufficient regard to the separate considerations to be given to the three applications before it, and in taking no account of the prejudice the appellants would suffer if permission to amend were not given.
39. GTC's submissions can be summarised as follows. Overall, it resists the grounds of appeal put forward. In addition, it seeks to affirm the decision also on the ground that, in exercising the powers given to it by the Royal Court Rules 2004, or in interpreting those Rules, the court was required to seek to give effect to the overriding objective in rule 1/6(1) to "deal with cases justly and at proportionate cost" under rule 1/6(3). Accordingly, the court was required to further the overriding objective by actively managing the case, which includes "fixing timetables or otherwise controlling the progress of the case" (rule 1/6(6)(g)) and "dealing with as many aspects of the case as it can on the same occasion" (rule 1/6(6)(i).
40. Secondly, GTC submitted that the Commissioner's decisions were case management decisions, and case management decisions are conventionally respected by this court unless they are plainly wrong. This amounts to "a very high hurdle for an appellant": see Alhamrani v Alhamrani [2009] JLR N-50, [8], A v Health & Social Services Minister [2016] (2) JLR N-2, and Re Representation of Powell [2018] JCA 113, [9], [15], all decisions of this court.
41. For convenience, we summarise the respondent's responsive arguments under the same headings as the appellants.
42. The first issue identified by the appellants is the test to be applied by the Royal Court in conducting an appeal against an Alhamrani assessment. GTC submits that the test for such an appeal is that set out in Downes v Marshall [2010] JLR 265 and Incat Equatorial Guinea Ltd v Luba Freeport Ltd [2010] JLR 435, rather than that in Murphy v Collins [2000] JLR 276. The court intervenes only if it thinks that the Greffier has gone wrong on a matter of principle or in exercising his discretion sufficiently to require intervention in the interest of justice and fairness. So, it is not a hearing de novo.
43. As we have said, the second issue identified by the appellants is divided into three parts. These are the correct tests to apply in deciding whether (i) to allow a notice of appeal to be amended, (ii) to admit and rely on additional evidence not before the court below on an argument not raised below, and (iii) to extend time for filing a notice of appeal.
44. As to the first sub-issue, GTC says that, in the circumstances of this case, the Royal Court cannot, in refusing to allow a notice of appeal to be amended some eight days before the hearing of the appeal,
"be said to have misdirected itself as to principles, taken into account irrelevant matters or left out of account relevant matters or reached a decision plainly wrong or indeed so wrong on that point that its case management decision should be interfered with."
45. As to the second sub-issue, GTC says that Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173 is to be preferred to David Hick Antiques Ltd v HSBC Bank plc [2022] JRC 072. The latter case was not an appeal from an Alhamrani assessment but from a decision to strike out, which is interlocutory rather than final (at least for the purpose of needing leave to appeal).
46. As to the third sub-issue, GTC says that, in the circumstances, it is not necessary to separate consideration of this sub-issue from that of the application for leave to amend the notice of appeal. But, in deciding whether to extend time for appealing, the Royal Court was entitled to have regard (as it did) to decisions on rule 1/5, and in particular Chief Officer of States of Jersey Police v Panel of Jurats [2014] 2 JLR N-15, a decision of this court on an appeal from the Royal Court to this court.
47. That decision led the court to its view (at [78] of the judgment below) that it should consider (i) the reasons for not having appealed the new matters before, (ii) the strength of the new matters sought to be raised, (iii) the justification for granting any necessary adjournment, (iv) how any adverse effect on the other party might be remedied, and (v) why the "balance of justice" should fall in favour of the party seeking to amend out of time.
48. The third main issue identified by the appellants was whether the Royal Court fell into error (i) as a matter of law or (ii) in the exercise of its discretion. As to (i), there are four sub-points. GTC says, first, that the court "drew from analogous caselaw to deal with the very late amendment application." It says, second, that "the court did not hold that -˜special grounds' were required but considered the factors which the appellants invited it to consider". Third, it says that "De Gruchy predates the overriding objective. The appellants themselves have not applied De Gruchy in full. If they had, they would have concluded that it does not assist them." And, fourth, it says that "the court followed the approach which the appellants then contended for and which was correct." This did not give the court an unfettered discretion.
49. As to (ii) (discretion), GTC simply says that "the Royal Court was not misdirected, did not consider irrelevant matters or fail to consider relevant matters and the decision is not otherwise wrong."
50. There are too many appeals to this court of the present kind, seeking to reverse interlocutory decisions on essentially case management matters. In some cases, this is simply tactical, for example to put off the evil day as long as possible. Before dealing with the substance of this appeal, there are two preliminary points that we make. One relates to the overriding objective. The other relates to case management decisions themselves.
51. The overriding objective is enacted in Jersey civil procedural law by rule 1/6 of the Royal Court Rules 2004, as amended by R&O.36/2017. That objective is (at rule 1/6(1)) "to deal with cases justly and at proportionate cost." It requires, not absolute justice, but justice at proportionate cost. This objective includes (at rule 1/6(2)), so far as practicable, a number of matters. None of those matters requires that the right answer to a particular question be achieved, whatever the cost or effort involved. There is no requirement of fiat justitia, ruat coelum. In other words, there is a recognition that sometimes perfect justice cannot be achieved. It is instead a question of following a process which is designed to produce a fair result.
52. As for case management decisions, in Alhamrani v Alhamrani [2009] JLR N-50, [8], this court held that (as the summary in 2009 JLR N-50 puts it)
"Case management decisions are conventionally respected by the Court of Appeal unless they are plainly wrong, which is a very high hurdle for an appellant An appellate court will be reluctant to interfere unless something has clearly gone wrong, as case management decisions are likely to be administrative rather than dispositive and the trial judge is far better placed to decide how best to achieve the objective of a fair, proportionate and timely trial in a particular case. Case management decisions seldom involve the final determination of any right, although if they have that effect (e.g. the striking out of a defence) appeals may be more readily entertained."
That guidance was followed by this court, constituted by William Bailhache B, Martin and Birt JJA, in A v Health & Social Services Minister [2016] (2) JLR N-2. We respectfully agree.
53. The appellants submitted that the decisions made by the Commissioner in this case, at least in relation to amendments to the notice of appeal and appeal out of time, were not case management decisions. They argued that these decisions had the effect of excluding the appellants from putting forward certain arguments. They certainly had that effect, but in our judgment they were still case management decisions.
54. This is because they decide how, and when, and in what form, the case will ultimately be heard by the court and a decision taken on the merits. Decisions on the merits, however, are obviously not case management decisions. We note that, in England, even a decision to strike out a claim (which is a decision par excellence excluding the claimant from making the claim he or she wishes) is a case management claim for the purposes of the rule that the appellate court is "reluctant to interfere unless something has clearly gone wrong" - Abdulle v Metropolitan Police Commissioner [2016] 1 WLR 898, CA.
55. These two preliminary points mean that it is (and should be) harder to overturn interlocutory decisions on case management issues than substantive decisions. With that in mind, we turn to the issues arising in this case.
56. The first issue is the test to be applied by the Royal Court in conducting an appeal against an Alhamrani assessment. As we indicated above, the Commissioner took the view that, following Birt B in Incat Equatorial Guinea v Luba Freeport Limited [2010] JLR 435, he should apply the Downes v Marshall test, as he saw no distinction between a taxation of litigation costs and costs assessed on an Alhamrani basis. The appellants rely on Murphy v Collins [2000] JLR 276. In that case, the court was considering the principles to be applied by the Royal Court in an appeal from the Registrar of the Family Division. For this purpose, the Commissioner looked at the relevant English rules in the then RSC Order 58 (later replaced by the Civil Procedure Rules 1998), and cited a number of English authorities, including Sansom v Sansom [1966] P 52, 53, Marsh v Marsh [1993] 1 WLR 744, 745, and the Supreme Court Practice 1999, para. 58/1/3.
57. The Commissioner quoted from para. 58/1/3, which set out the English position under the Rules of the Supreme Court 1965, prior to the coming into force of the Civil Procedure Rules 1998. This was that an appeal from the master (or district judge) to the High Court Judge was dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treated the matter as though it came before him for the first time.
58. The reason that it was a rehearing was that "where a jurisdiction is given to the court or a judge, the discretion is that of the judge in chambers, the decision being no more than initially delegated to master or registrar" - Sansom v Sansom [1966] P 52, 53. Sir Peter Crill noted in his judgment that "that is not our position entirely but it is an interesting observation". (We note in passing that, of course, the English position under the Civil Procedure Rules 1998 is now quite different. The master or district judge since 1999 has, and exercises, the initial jurisdiction of the High Court, and every appeal to the High Court Judge is a true appeal, and is not simply a rehearing de novo.)
59. In his judgment, Sir Peter Crill concluded -
" this court, in my view -“ and the Royal Court has always taken this view in a long line of cases -“ will not have its discretion fettered unless there is clear reason for doing so. I therefore rule that this court has an unfettered discretion to conduct an appeal from the Judicial Greffier [or the Registrar of the Family Division] as it thinks the circumstances and justice of the case require."
60. However, ten years later, in the case of Downes v Marshall [2010] JLR 265, the Royal Court took a different view. This was a decision of the Royal Court, Commissioner Sir Philip Bailhache presiding, in an appeal from the Deputy Family Registrar in ancillary relief proceedings. The court below had awarded 53% of the matrimonial assets to the appellant and 47% to the respondent. It was intended to be a final order, rather than interlocutory.
61. The Commissioner referred to a number of changes which had taken place since Murphy v Collins, both in England and in Jersey, and declined to follow it. He said:
"9 Neither the Law nor the Rules made thereunder provides any guidance as to the approach to be taken by the Royal Court on appeal from the Greffier (now known for these purposes as the Family Registrar). The nomenclature does, however, provide some insight into the rationale underlying the decision of the court in Murphy v. Collins. Up to the 1990s, the jurisdiction of the Royal Court was occasionally exercised by a Judicial Greffier or Greffier Substitute who was not a qualified lawyer. One can understand, therefore, how the learned judge in Murphy v. Collins can have had reservations in treating an appeal from the Judicial Greffier/Registrar in the same way as an appeal from this court would be approached by the Court of Appeal. Furthermore, it was only after the decision of the Royal Court in A v. B 1994 JLR N-6 that the practice of recording the evidence heard before the Judicial Greffier became established.
10 Although the statutory framework in Jersey has not changed since Murphy v. Collins was decided, the practice of the courts has changed considerably. There are now two Greffier Substitutes (known as the Family Registrar and Deputy Family Registrar respectively) who are experienced judges in family law exercising jurisdiction only in that field. Most matrimonial causes are heard by the Registrars and only occasionally does this court exercise an original jurisdiction. In most disputed cases, as in this one, evidence is heard by the Registrar and conclusions formed on the basis of that evidence. The advantage of the judicial officer who heard and saw the parties and their witnesses, and the manner in which their evidence was given, should not be underestimated. It is not just a question of credibility. It is also a question of evaluating the evidence and the findings of fact which he or she has made upon the evidence. Justice is never perfect. It depends upon judges, who are human beings. The evaluation of judges in the Royal Court, who have not seen the witnesses, may be different from the evaluation of the Registrar, but may also be no better. As Lord Hoffmann expressed it in Piglowska v. Piglowski (4) ([1999] 2 FLR at 785): "These are value judgments on which reasonable people may differ. Since judges are also people, this means that some degree of diversity in their application of values is inevitable and, within limits, an acceptable price to pay for the flexibility of the discretion conferred by the 1973 Act."
11 There is a further important factor and that is the principle of proportionality. This matrimonial dispute consumed 4 days of expensive legal time before the Registrar and 1½ days before this court. The parties are very far from being impoverished litigants, but the cost of pursuing their battle on appeal is likely at the end of the day to benefit no one but their legal advisers. It does not seem to us that a system which effectively encourages litigants to try for a better solution on appeal is sensible. In this case, both counsel agreed that the factual conclusions of the Registrar were not to be challenged. However, a system which does not preclude the factual matters from being reopened other than in the case of manifest error is one which in our judgment is disproportionate. We do not consider that it is any longer appropriate that an appellant should have a fresh bite at the cherry in this court. The notion that this court should have -˜an unfettered discretion to conduct an appeal from the Judicial Greffier (or the Registrar of the Family Division) as it thinks the circumstances and justice of the case require' is no longer sustainable or consistent with the general approach of this court to civil litigation. This is, however, a court of coordinate jurisdiction with the court that decided Murphy v. Collins and we should not depart from the law laid down in that case unless convinced that the decision is now plainly wrong. For the reasons given above, we think that that threshold has been passed. In our judgment, Murphy v. Collins should no longer be regarded as good law.
12. What then should be the test on appeal to this court? We wish to underline the fact that we confine ourselves to appeals from the Family Registrar and his deputy pursuant to art. 3 of the Matrimonial Causes (Jersey) Law 1949 where evidence has been heard before them and a discretion has been exercised. We are not concerned with appeals from the Master of the Royal Court (notwithstanding that they are all Greffier Substitutes), where different considerations may apply. An appeal from the Family Registrar should only be allowed if there has been a procedural irregularity or if, in exercising his discretion, he has taken into account irrelevant matters, or ignored relevant matters, or otherwise arrived at a conclusion which the court believes to be wrong. This test is not precisely the test applied on appeal from this court to the Court of Appeal. It reserves a wider discretion for this court to intervene, but it places nonetheless greater weight on the Registrar's exercise of discretion. This test will, we think, establish the right balance. Sufficient weight is to be attributed to the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a fresh bite at the cherry. On the other hand, this court will have the power to intervene if it thinks that the Registrar has gone wrong to the extent that intervention is required in the interests of justice and fairness."
62. Downes v Marshall was followed in Incat Equatorial Guinea Ltd v Luba Freeport Ltd [2010] JLR 435. This was not a matrimonial case. It was a decision of Birt B sitting alone in the Royal Court. Following a trial for various debts, the Assistant Judicial Greffier had taxed the respondent's costs pursuant to an order of the Royal Court. These included costs for English solicitors and counsel. Some of these costs were allowed on taxation. The appellant wished to appeal the decision in respect of the English lawyers' costs.
63. The appellant argued that the correct test for such an appeal was that in Murphy v Collins. The respondent argued that it was that in Downes v Marshall. Birt B said:
"19. In my judgment, the court should apply the test in Downes on appeals against taxation. I would summarize my reasons for so concluding as follows:
(i) One of the reasons for the decision in Murphy was that the jurisdiction was given to the court (or judge) and had simply initially been delegated to the Greffier. Thus, the court adopted the approach in the English case of Sansom v. Sansom Crill, Bailiff drew an exact analogy with delegation to the Judicial Greffier or the Registrar of the Family Division.
(ii) In relation to most of the matters heard by the Greffier, that remains the position. The rules of court usually confer a power for -˜the court' to do something and, save where it is not permitted under the rules, the matter is delegated to the Greffier.
(iii) The position is rather different in relation to the taxation of costs. Rule 12/3 confers the power to tax costs on the Greffier, not the court. There is no question of any delegation. The primary responsibility for the taxation of costs is given to the Greffier pursuant to the Royal Court Rules. In those circumstances, it seems to me appropriate that a greater latitude should be given to the decisions of the Greffier than is perhaps given in other cases where there has been a delegation.
(iv) Because taxation is carried out by the Greffier, he builds up a considerable expertise and familiarity with the process of taxation. That facility is not acquired by the court. That is an additional reason for the court to recognize the discretion conferred upon the Greffier and it supports the opinion of Bailhache, Commr. in Reg's Skips Ltd that it is not for this court to engage in the same line-by-line exercise as that conducted by the Greffier. Appeals should be confined to points of principle.
(v) It seems to me that the test established in Downes strikes the right balance in matters of taxation. It prevents the parties simply seeking a fresh bite of the cherry and hoping that the court will reach a different decision on individual matters from the Greffier; but on the other hand it allows the court to intervene if it thinks that intervention is required in the interests of justice and fairness. It would therefore still allow the court to intervene if, for example, it thought that the Greffier had erred to a material extent on the appropriate Factor B rate or, as was contended by the plaintiffs in the present case, had failed to apply the correct rates to a foreign lawyer's bill or had failed to take sufficient steps by way of inspection to enable him to reach a proper conclusion. In other words, the court will intervene if it thinks that the Greffier has erred on a matter of principle or has gone wrong in exercising his discretion to the extent that intervention is required in the interests of justice and fairness."
64. In his judgment at [19](iii), Birt B referred to rule 19/3 of the Royal Court Rules 2004, and the jurisdiction conferred on the Greffier. This rule relevantly provides:
"12/3 Taxation by the Greffier
(1) The Greffier shall have the power to tax -“ (a) the costs of or arising out of any cause or matter in the Court; and (b) any other costs the taxation of which is directed by order of the Court."
We will return in a moment to the significance of the words in rule 1(b).
65. Before doing so, we note that the rationales adopted by the Royal Court in Downes and Incat are directly connected with the nature of the exercise which the Judicial Greffier was conducting, namely making final orders in matrimonial and taxation cases. In other types of appeal against the decisions of the Greffier or the Master, it is right to say that the traditional approach in Jersey - the "long line of cases" referred to by the Commissioner in Murphy v Collins -“ has nevertheless been followed - see for example. more recently by the Royal Court, in David Hick Antiques Limited v HSBC Bank plc [2002] JRC 072 and in Cook v Clapham [2022] JRC 210.
66. We say nothing to cast doubt on the approach which the Royal Court has taken so far to the test which it should apply to appeals against the different types of order which the Master or the Greffier can make. But on the narrower issue of the right test to be applied on an appeal from an Alhamrani assessment, in our judgment the test in Downes v Marshall, as explained in Incat Equatorial Guinea Ltd v Luba Freeport Ltd, is the correct test. The appellants argued however that an Alhamrani assessment carried out pursuant to the Trusts (Jersey) Law 1984 was entrusted to "the court", defined as "the Inferior Number of the Royal Court". Therefore, the Greffier could be no more than the court's delegate. We do not accept this argument.
67. There is a difference between the order that the trustee be at liberty to reimburse itself its fees and expenses out of the trust fund (which was made by the Royal Court) and the assessment of the amount (which was carried out by the Greffier). Paragraph 3 of the Act of Court of 31 May 2018 ordered the payment of GTC's fees and expenses "as assessed by the Judicial Greffier on the Alhamrani basis". This conferred jurisdiction on the Judicial Greffier to carry out that assessment, following the words in rule 12/3(1)(b), "any other costs the taxation of which is directed by order of the Court."
68. But even were that not so, the Greffier is the judicial officer who acquires the experience of conducting such assessments. The Inferior Number of the Royal Court does not. He or she is not dealing with matters of procedure or case management. The Royal Court was entitled to form the policy view in Incat, for all the reasons it there gave, that it was in the interests of justice and in accordance with what has later come to be described as the overriding objective that the Greffier should finally decide a question at issue -“ the quantum of a taxation - between the parties, just as the Registrars do in the ancillary relief proceedings. The protection for the parties lies in finding the right test on appeal. Lewison LJ once said in the English Court of Appeal, in the context of an appeal against facts found, the hearing at first instance is "not a dress rehearsal. It is the first and last night of the show" (Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [114]). In our judgment, in similar fashion, the parties to a taxation before the Greffier should bring their entire case forward so that his determination becomes final subject to appeal.
69. In our judgment, the hearing on an appeal from an Alhamrani assessment is not a hearing de novo. Accordingly, the test on such an appeal is that the Royal Court
"will intervene if it thinks that the Greffier has erred on a matter of principle or has gone wrong in exercising his discretion to the extent that intervention is required in the interests of justice and fairness."
70. We turn to the second issue, which as we have said is in three parts.
71. Amendment - The first sub-issue is the correct test to apply in deciding whether to allow a notice of appeal to be amended). There is however a threshold question as to the court's jurisdiction to do so at all. Rule 6/12(1) of the Royal Court Rules 2004 provides that:
"The Court may at any stage of the proceedings allow a plaintiff to amend his or her claim, or any party to amend his or her pleading, on such terms as to costs or otherwise as may be just."
However, a notice of appeal from the Greffier to the Royal Court is not on the face of it a "claim" or a "pleading" within the rule. So, this rule does not apply in terms.
72. Rule 6(1) of the Court of Appeal (Civil) Rules 1964 provides that:
"A notice of appeal or respondent's notice may be amended -“
(a) by or with the leave of the Court, at any time;
(b) without such leave, by supplementary notice served at least 14 days before the day fixed for the hearing of the appeal, on each of the parties on whom the notice to be amended was served."
73. This deals with the amendment of notices to appeal from the Royal Court to this court. But the present appeal concerns a decision made by the Royal Court in considering an application to amend a notice of appeal from the Greffier to the Royal Court. So rule 6 of the 1964 Rules does not apply to that application (and decision) either. Thus, there is not in terms any procedural rule applicable to the present case.
74. Yet it cannot be doubted that the Royal Court possesses power to permit the amendment of a notice of appeal from the Greffier to itself. As the Commissioner himself said, this is part of the inherent jurisdiction of the court, the power of the court to control its own process in the interests of justice. In a classic paper on The Inherent Jurisdiction of the Court, (1970) 23 CLP 23, 51, Master Jacob (later the Senior Master, and later still Sir Jack Jacob) said
"the inherent jurisdiction of the court may be defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them."
75. This has been quoted with approval in England many times - for a recent example, see Potanina v Potanin [2024] AC 1063, [42]. The paper has also been cited and approved in this jurisdiction - see eg Finance and Economics Committee v Bastion Offshore Trust Company Limited [1994] JLR 370, 381; Re Harbours and Airport Committee [1991] JLR 316, 337; Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173, 187-88; Mucky Mutz Ltd v Hightide Investment Ltd [2024]JRC 268, [32].
76. In Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd, Smith JA, with whom Lord Carlisle of Bucklow and Nutting JJA agreed, said (at 188):
"In our view the vital clue to the nature of inherent jurisdiction in its procedural setting is necessity. The court has a particular procedural power because it has to have it to be a court in any meaningful sense. On this basis the power to require the attendance of witnesses whether to testify or produce documents, the power to control abuse of the process of the court, the power to dismiss claims for want of prosecution, the power to issue practice directions, the power to decide who may or may not appear before the court, the power to correct errors in its own orders, and many other powers may all be recognised as derived from a single pool not of powers but of power drawn upon as necessity dictates."
77. Nevertheless, as the Royal Court pointed out in the Mucky Mutz case (in a further quotation from Master Jacob's paper at 24), there are limits on the court's inherent jurisdiction:
"the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision".
Here there is no statutory provision which will be contravened if the Royal Court grants permission to an applicant to amend a notice of appeal from the Greffier to itself.
78. The question then arises as to the test to apply in exercising the court's power to give permission to amend a notice of appeal. Before the Commissioner GTC argued that such a notice was like a statement of case, and referred to the decision of the Royal Court in Cunningham v Cunningham [2009] JLR 227, which was a case of "comparatively late" applications to amend pleadings (statements of case).
79. In setting out the applicable principles, Birt DB quoted from the decision of this court in Brown v Barclays Bank plc [2002] JLR N-1. That was a case of an appeal against a refusal by the Royal Court to allow a late amendment to a claim. Southwell P (with whom Carey and Vaughan JJA agreed) said:
"18 The view in the earlier part of the twentieth century in England and Wales was that, in general, pleading amendments should be allowed, however late, provided that (1) allowing the amendment would not cause undue prejudice to the other party, and (2) such prejudice as would be caused could reasonably be remedied by payment of the other party's costs and by appropriate adjournment.
19 This approach had begun to disappear in the latter part of the twentieth century and was largely changed in the reforms to English civil procedure embodied in the new Civil Procedure Rules (-˜CPR'). Today in England and Wales the courts will take account of the following (amongst other) factors-the strains which litigation imposes on personal litigants, and on particular individuals in litigating companies and other bodies; the expectation that all the issues have already been fully defined; the efficient disposal of the particular case in ways proportionate to the sums involved, its importance, its complexity, and the parties' respective financial positions; the effects on the efficient disposal of other cases; the use of an appropriate share of the court's resources; and similar matters covered by Part 1 of the CPR, in which an -˜overriding objective' is encapsulated.
20 Jersey civil procedure has not been taken down the same route as the CPR. But the statement of principle in Esteem Settlement quoted in para. 4 above and the other observations in that and subsequent Jersey cases show that by judicial decisions rather than wholesale rewriting of rules, Jersey civil procedure is moving in a similar direction, though with material differences. For example, in a smaller jurisdiction such as Jersey with a relatively small number of fought civil actions, and a reasonable number of permanent Judges and part-time Commissioners, it is less likely that any impact on the progress of other actions will prove to be strongly relevant in a case such as the present.
21 Where there is a late application for an amendment to the order of justice (or to the answer or reply) the Jersey courts have to strike a balance which is primarily between the parties to the instant case. The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before; (2) what is the strength of the new case; (3) why an adjournment should be granted, if one is necessary; (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied; and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings.
22 Where the Royal Court has decided against allowing a late amendment, as here, in the Court of Appeal the approach is (as I have already indicated in paragraph 13 above) in accordance with the L'Eau des Iles principles. The Royal Court has the management of the actions proceeding in that Court, and the Court of Appeal should interfere with Royal Court decisions on the management of actions only if it is clear that something has gone wrong".
80. This approach is also consistent with the much earlier decision of this Court in Rahman v Chase Bank Trust Co (CI) Limited [1994] JLR 186, where Le Quesne JA referred with approval to the need to have regard to the effect of late amendments on litigants, citing the speech of Lord Griffiths in Ketteman v Hansel Properties Limited [1987] AC 189, 219, 220.
81. GTC also referred the Commissioner to his own decision (as Master of the Royal Court) in Trico Ltd v Buckingham [2019] JRC 163, where applications were made by both sides to amend pleadings. In his decision in that case, at [37], the Master in turn referred to the decision of the English Court of Appeal in Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268. This was the case of an appeal from a decision of the High Court. During the course of that appeal, an application was made to amend a statement of case (not the notice of appeal).
82. Sir Geoffrey Vos MR (with whom Sharp and Hamblen LJJ agreed) said:
"41. In essence, the court must, taking account of the overriding objective, balance the injustice to the party seeking to amend if it is refused permission, against the need for finality in litigation and the injustice to the other parties and other litigants, if the amendment is permitted. There is a heavy burden on the party seeking a late amendment to justify the lateness of the application and to show the strength of the new case and why justice requires him to be able to pursue it. These principles apply with even greater rigour to an amendment made after the trial and in the course of an appeal."
83. There is however another point. That is that these are authorities on the amendment of a statement of case (or pleading) and not a notice of appeal. The appellants accordingly argued that this test was inappropriate in the present case, because the bar for amendments to a notice of appeal is (and should be) lower than that for amendments to a statement of case. They said that, although the purpose of both documents is to help identify the issues between the parties, amendments to the pleadings also affect discovery, witness statements and the finality of proceedings. Amendments to the notice of appeal do not.
84. They further said that, under 1964 Rules, rule 6(1)(b), notices of appeal can be amended as of right until 14 days before the appeal hearing date. (The application in this case was made 8 days before the hearing, and so needed leave.) On the other hand, for the amendment of a pleading consent of the court or the other parties is always needed (2004 Rules, rule 6/12). And in addition (they submitted), an appeal against an assessment on the Alhamrani basis can be a hearing de novo.
85. We reject the last point urged, as we have already held that the hearing of the appeal from an Alhamrani assessment is not a hearing de novo. The consequence of this is that the grounds of appeal -“ and similarly any proposed amendment - must raise issues relevant to the test which the Court applies on appeal.
86. In the judgment under appeal the Commissioner said this:
"72. In relation to appeals against taxation, it is therefore important that any notice of appeal sets out whether what is alleged is an error of law, a failure to have regard to a relevant matter, having regard to an irrelevant matter or arriving at a conclusion which the Court believes to be wrong to the extent that intervention is required in the interests of justice."
87. We agree. Furthermore, the party proposing the amendment to a notice of appeal must demonstrate why the discretion of the court to permit that amendment should be exercised in his favour, especially if the amendment depends on his being permitted to raise new material which he could and should have deployed in the proceedings before the Greffier. It is correct, as the appellants say, that an amendment to a notice of appeal against the Greffier's assessment of costs on an Alhamrani basis will not involve additional discovery and witness statements unlike an amendment to a pleading but in our judgment that takes the appellants nowhere. The appeal will not engage such procedures at all, and as it is not a de novo appeal, it is all the more important that a party is not permitted to run a wholly different case before the appellate court than he ran in the court below unless he is able to satisfy the court on the stringent tests which would be applied for a very late amendment to a pleading. We also reject reliance on finality of proceedings as part of the second point, because that is as much a concern on appeal as it is at first instance. Accordingly, we do not agree that the impact of these processes justifies the more generous test suggested by the appellants.
88. The fundamental purpose of the pleadings is the same in relation to the trial of the claim as that of the notice of appeal is to the appeal. That is to inform the opposing party and the court of the position of the pleading or appealing party in and for the purposes of the forthcoming trial or appeal. The Commissioner said as much in his judgment at [71]. Without such information, the issues for the court at the trial or the appeal cannot be known for certain.
89. Where leave is required to make the amendment, as it is on appeal to the Royal Court, the court in considering whether to grant such leave must consider all the relevant circumstances, seek to give effect to the overriding objective (rule 1/6(3)), and balance a number of competing considerations. As the caselaw shows, these will include the explanation for the delay in seeking the amendment now rather than earlier (or even including it from the beginning), the merits of the case or appeal once amended, the possible need for an adjournment, and possible prejudice to the other party or parties (and how that might be remedied).
90. The appellants submitted (at [4.2.1] of their written submissions) that leave to amend should be given "if that is just and proportionate, taking into account all the circumstances of the case and applying the overriding objective". In itself, there is nothing objectionable about this, although in our view it does not go far enough. Indeed, the Commissioner himself referred (at [77]) to the overriding objective, and to rule 1/6(2)(d), requiring the court "when dealing with cases justly and at proportionate costs, to ensure that a case is dealt with -˜expeditiously and fairly".
91. The problem is that the appellants went on to say (at [4.2.1] of their written submissions) that "[i]t would therefore [emphasis supplied] in the usual course of things be an exceptional case that would justify refusing leave to amend, such as an exceptionally late amendment causing irreparable prejudice to the Appellant'." That does not follow at all. And there is certainly no requirement for irreparable prejudice. Seeking to amend a notice of appeal several months after it was filed, and just 8 days before the listed appeal hearing, without any explanation, does not assist in dealing with the case "expeditiously and fairly". In our judgment, the correct test is apply is that stated in paragraph [79] above.
92. Additional evidence - The second sub-issue was the test to apply in deciding whether to admit and rely on additional evidence not before the court below or an argument not raised below. Once again there is the threshold question of the Royal Court's power to do so. Rule 20/2 of the Royal Court Rules 2004, dealing with appeals from the Greffier to the Royal Court, is silent on the matter.
93. Conversely, rule 12(1) of the Court of Appeal (Civil) Rules 1964 provides that:
"The Court shall have full discretionary power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before the Viscount or on commission -
Provided that in the case of an appeal from a judgment after hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds."
94. But, as before, this rule applies to appeals to this court, not to appeals to the Royal Court. Once again, resort must be had to the inherent jurisdiction of the court. For the reasons given earlier in relation to amendment, we hold that the Royal Court does have power to receive fresh evidence not before the Greffier, as indeed was assumed in David Hick Antiques Ltd v HSBC Bank plc [2022] JRC 072. The question for us however is what test should be applied in exercising the power.
95. In David Hick Antiques Ltd v HSBC Bank plc the Royal Court held that it had an unfettered power to receive fresh evidence and arguments. But that was because the court, applying Murphy v Collins, was hearing the matter de novo. In the present case, we have held that the Royal Court was right in this taxation appeal to apply Downes v Marshall rather than Murphy v Collins. So, there is no unfettered power of the Royal Court to hear fresh evidence and arguments, as there would be if Murphy v Collins applied.
96. We must therefore ask ourselves, what is the appropriate test to apply in exercising this power? In Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173, this court considered the power to allow fresh evidence to be introduced on an appeal to this court from the Royal Court under rule 12(1) of the Court of Appeal (Civil) Rules 1964.
97. The appellant had made an application that the Bailiff be recused from hearing a matter, and a further application that the Bailiff not hear the application himself. The applications were refused, and the appellant appealed. He wanted to adduce further evidence on the appeal. He argued that since these were just applications, and that no trial of the matter had yet taken place, "special grounds" were not required pursuant to the proviso to rule 12(1).
98. This court disagreed. Smith JA, with whom Lord Carlisle of Bucklow and Nutting JJA concurred, said (at 185)
"The phrase -˜cause or matter' [in the proviso to rule 12(1)] is very wide in its ambit. It encompasses both the recusal application and the application that the Bailiff should not hear it. Both were heard on the merits. Therefore, in our judgment special grounds would be required and the plaintiffs would have to show that all three conditions set out in Ladd -v- Marshall [1954] 1 WLR 1489 (a decision of the English Court of Appeal on what is now Order 59 Rule 10 of the Rules of the Supreme Court) had been met; viz., that the evidence could not have been obtained with reasonable diligence for use at the hearing, that it would probably have an important influence albeit not a decisive one on the result of the case and that the evidence is credible."
99. This indeed was the test which the Commissioner applied in the judgment under appeal at paragraph 96 of his judgment. He was right to do so. In our judgment, that is still the appropriate test to apply where the appeal is from the Greffier to the Royal Court in cases where the appeal is not being heard de novo. The Greffier heard the matter on its merits and made a decision on the facts. It is correct that the English procedural rules have subsequently changed since Mayo was decided, from the Rules of the Supreme Court 1965 to the Civil Procedure Rules 1998, and the position is now governed in that jurisdiction by CPR rule 52.20(2). But the rule in Jersey is that in rule 12(1) of the 1964 Rules, which is relevantly similar to the material part of RSC 1883-1932, Ord 58 rule 4, the rule in force when Ladd v Marshall was decided in 1954, and which later became RSC 1965, Ord 59 rule 10(2), referred to by this court in Mayo. (In practice, in England, even under the new rules, the Ladd v Marshall criteria remain relevant, even if not necessarily decisive, and are frequently referred to.)
100. Extension of time - On the third sub-issue, the appellant relied on De Gruchy v Planning and Environment Committee [2001] JLR 196, [11]-[12], [15]. That was a decision of Master Wheeler, then Master of the Royal Court, in an administrative appeal. The Planning and Environment Committee had refused an application to remove a condition from a construction permit. The owners of the land appealed. The Committee failed to file its responsive case in time, and applied for an extension of time in which to do so.
101. The application for an extension of time was made under Royal Court Rules 1992, rule 1/5, which then read as follows:
"Power to extend and abridge time
(1) The Court or the Viscount may, on such terms as it or he thinks just, by order extend or abridge the period within which a person is required or authorized by rules of court, or by any judgment, order or direction, to do any act in any proceedings.
(2) The Court or the Viscount may extend any such period as is referred to in paragraph (1) of this Rule although the application for extension is not made until after the expiration of that period."
In substance this is identical to paragraphs (1) and (2) of the current rule 1/5 under the 2004 Rules.
102. In considering this provision, Master Wheeler had cited to him three Jersey cases, but also The Supreme Court Practice 1999, para. 3/5/4, and several English authorities referred to there. He set out para 3/5/4 thus:
"The cases of Costellow, Beachley and Letpak were reviewed in The Mortgage Corporation Limited v. Sandoes, Blinkhorn & Co. and Gibson (1996) The Times, December 27, which stated as follows:
-˜The [M]aster of the Rolls and the Vice Chancellor, as Head of Civil Justice, have approved the following guidance as to the future approach which litigants can expect the court to adopt to the failure to adhere to time limits contained in the rules of directions of the court:
1. Time requirements laid down by the rules and directions given by the Court are not merely targets to be attempted; they are rules to be observed.
2. At the same time the overriding principle is that justice must be done.
3. Litigants are entitled to have their cases resolved with reasonable expedition. Noncompliance with time limits can cause prejudice to one or more of the parties to the litigation.
4. In addition the vacation or adjournment of the date of trial prejudices other litigants and disrupts the administration of justice.
5. Extensions of time which involve the vacation or adjournment of trial dates should therefore be granted as a last resort.
6. Where time limits have not been complied with the parties should co-operate in reaching an agreement as to new time limits which will not involve the date of trial being postponed.
7. If they reach such an agreement they can ordinarily expect the court to give effect to that agreement at the trial and it is not necessary to make a separate application solely for this purpose.
8. The court will not look with favour on a party who seeks to take tactical advantage from the failure of another party to comply with time limits.
9. In the absence of an agreement as to a new timetable, an application should be made promptly to the court for directions.
10. In considering whether to grant an extension of time to a party who is in default, the court will look at all the circumstances including the considerations identified above'."
103. After considering submissions, the Master concluded that:
"14. The three [Jersey] cases to which Mr. Fiott referred me all deal with the question of extensions of time under the Court of Appeal (Civil) (Jersey) Rules 1964, and turn largely on the express provisions of those Rules. I think, therefore, that they are not really of assistance in the context of the present application.
15. In my opinion, the principles which I should apply in considering the present application for an extension of time are those which have been adopted in English cases in relation to a provision which is worded similarly to r.1/5 of our Rules. These are the principles to which I have referred as set out in the White Book and the Finnegan case."
104. The respondent referred to rule 1/5 of the 2004 Rules. This has already been set out above. There are a number of local decisions on rule 1/5, though as noted, Master Thompson preferred to rely on a précis of the then English caselaw on the similar English rule then in force.
105. But there is also a line of decisions of this court dealing with the extension of time for service of a notice of appeal to this court under the 1964 Rules. They include Taunton v Planning and Environment Committee [2000] JLR Note 5b, B v N 2002 JLR N-29, Crichton v Parker-Smith [2008] JLR Note 13, and Chief Officer of States of Jersey Police v Panel of Jurats [2014] (2) JLR N-15. We were referred in particular to the last case, which concerned a claim for judicial review. This court was asked to extend time for the service of a notice of appeal against the decision of the Royal Court (Commissioner Sir Christopher Pitchers). The application for an extension was dismissed by McNeill, JA, sitting as single judge.
106. In giving judgment, McNeill, JA, referred to some of the earlier cases, and said:
"21. It is clear that, in deciding whether or not to grant an extension, the Court must consider (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success, and (d) the risk of prejudice ...
22. However, if the delay in serving a notice of appeal is short and if there is an acceptable excuse for that, an extension of time will not be refused on the basis of merits of intended appeal unless the prospective appeal appears to be hopeless "
107. The 1964 Rules, rule 16, in its current form relevantly reads:
"(1) The Court or a judge thereof shall have power to enlarge the time appointed by these Rules, or fixed by an order enlarging time, for doing any act or taking any proceeding, on such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.
(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."
108. In our judgment, there is no substantive difference between rule 1/5 of the Royal Court Rules and rule 16(1) of the Court of Appeal Rules as they apply to a case such as the present. On the one hand, the Royal Court "may, on such terms as it thinks just, by order extend" time. On the other this court "shall have power to enlarge the time on such terms (if any) as the justice of the case may require". The main point to bear in mind is that the former rules are concerned with all kinds of proceedings before the Royal Court (including applications, trials and appeals), whereas the latter rules are concerned largely with appeals, though sometimes also with applications connected to appeals.
109. Although other parts of rule 16 have been amended or added since the Rules were made, the text of rule 16(1) has remained unchanged since 1964, and so was the version in force in 2001, when Master Wheeler decided De Gruchy. That being the case, we do not understand why the Master in that case said that, since the decisions of this court were based on the terms of rule 16(1), they were "not really of assistance in the context of the present application". The function of the rules was the same, and the substance of the law was the same.
110. In our view, when it comes to an appeal which is not a hearing de novo, when it comes to extending time for a notice of appeal to be filed, much the same considerations apply on an appeal from the Greffier to the Royal Court as apply on an appeal from the Royal Court to this court. That being the case, decisions on extensions of time under rule 16(1) are relevant to the exercise of the power in rule 1/5 in its application to extending time for filing a notice of appeal from the Greffier to the Royal Court. In our judgment, the appropriate test in such a case is well expressed in the decisions of this court referred to above, including Chief Officer of States of Jersey Police v Panel of Jurats, the relevant extract from which was set out above at [106].
111. We turn to the third issue. The first part of the issue concerns the question whether the Royal Court made any error of law. The appellants' submission was that the Royal Court applied the wrong legal tests. We reject that submission. The Royal Court in substance applied the tests which we have held to constitute the correct tests in law for the questions which it was asked to decide.
112. The second part of the issue concerns the Royal Court's exercise of its discretion. The appellants argue that there were four discrete ways in which the Royal Court misdirected itself. We set them out in summary form as follows.
(i) The Royal Court failed to keep each of the three sub-issues of issue 2 separate, but instead conflated them. The first and third appellants sought to appeal out of time. But the second appellant sought to amend its existing (and in-time) notice of appeal. In their written submissions, the appellants say that "The conflation of these two separate issues then led the Court to focus on the issue of delay in bringing the Amendment Summons". But this (it is said) was irrelevant to the second appellant's application to amend its appeal notice, given that its notice had been filed in time. So (it is also said) was the decision in Chief Officer of States of Jersey Police v Panel of Jurats.
In addition, say the appellants, the Royal Court conflated the different applications by considering the strengths of all the grounds of appeal even in relation to the second appellant, which had brought only one new ground of appeal (ground 4). This was (it is said) a misdirection as to the second appellant's application.
(ii) The Royal Court failed to take into account the prejudice that would be suffered by the appellants if the applications were not granted. This is greatest for the first and third appellants, because that would debar them from any appeal at all. But there is also prejudice to the second appellant in refusing to allow the expanded and amended grounds of appeal. But the Court (it is said) did not mention such prejudice in the judgment, let alone take it into account.
The Royal Court also applied the overriding objective too narrowly by focusing on the need to conduct cases "expeditiously and fairly" (rule 1/6(2)(d)), and "enforcing compliance with rules, practice directions and orders" (rule 1/6(2)(f)). The potential prejudice to the appellants (it is said) was entirely ignored, in favour of dealing with matters more quickly.
(iii) The Royal Court failed to take into account the "unique context" of an appeal from an Alhamrani-basis assessment of trustees' fees and expenses. The Court set out different tests for different circumstances. But it did not indicate "that the exercise of discretion in an Alhamrani Assessment might be different, or more nuanced, given the different context of this form of appeal". The "unique context of these proceedings should have been taken into account by the Court when it came to exercise its discretion "
(iv) The Royal Court was wrong to take into account, in exercising its discretion on the question whether to allow the amendments to the appeal notice, the fact that the appellants "had not raised the arguments they sought to rely on before the Greffier". This was "an irrelevant matter" (or, at any rate, given "undue prominence").
In any event (it is said), the criticism was unjustified, as the appellants could raise the matter only since the decision of the Royal Court of 20 April 2020, several months after the appellants' objections to the decision of the Greffier of 4 October 2019. (The decision of 20 April 2020 was one made by Commissioner Clyde-Smith, under neutral citation [2020] JRC 063, which included the observation that some of the trusts formerly administered by GTC had no assets. This decision is not otherwise mentioned in the appellants' written submissions. Nor was it referred to during the oral hearing of the appeal.) Moreover, it is said, it was for GTC, as trustee, to bring to the Greffier's attention "all relevant facts and matters within" its knowledge. So, the appellants should not be criticised for having failed to do so.
113. As to point (1), it is first of all pertinent to observe that the appellants filed two summonses in relation to the original appeal notice, but thereby made three applications. The first summons, dated 19 February 2024, actually made what amounted to two separate applications. One dealt with the amendments to be made to the original notice of appeal of the second appellant. The other dealt with the introduction of two new appellants, each seeking to file a notice of appeal in the putatively amended form. The way in which the matter was presented to the court would probably have encouraged conflation of the two applications.
114. However, we do not think that the judge did conflate the two matters. He dealt with them at the same time, but he well understood that they were different matters, and he referred to them as such. As we have said, he effectively took the view that because of the delay in seeking to do so the second appellant could not now amend its notice of appeal, five months after filing, and 8 days before the listed appeal hearing.
115. The appellants say that "delay was irrelevant (or at least of limited relevance) to the second appellant's application to amend, given that they [sic] had brought the appeal in time". We do not agree. On the contrary, delay in seeking to amend was clearly relevant. And, in the present case, it was both serious and unexplained.
116. On that basis, it would be surprising if it were not also too late for the first and third appellants to put in their own notices of appeal (in the putatively amended form) so long out of time. Delay enters into the considerations in each of the two tests, one for making an amendment and the other for extending time. But that does not mean that the two matters are improperly conflated.
117. The Commissioner did look (at [83]) at the merits of the new grounds of appeal and, in relation to the first and third appellants, the original grounds of appeal. In our judgment, he was entitled to do this. After all, for the first and third appellants, the original grounds of appeal (as well as the amendments) were new. So, the judge concluded (at [84]) that the first of the original grounds (relating to trusts with no assets) was weak in relation to the first and third appellants, even though the second appellant could still advance it as of right at the appeal hearing.
118. It is however not right for the appellants to say that the second appellant had brought only one new ground of appeal (ground 4, dealing with claims made during a period of co-trusteeship). The second respondent was seeking also significantly to amend ground 3 (dealing with previous assessments), and the prayer for relief. There is also no basis for asserting that the Commissioner considered the merits of the original grounds of appeal in relation to the second appellant's application to amend the original notice of appeal. There is nothing in this point.
119. As to point (2), the second appellant was making an application for leave to amend a notice of appeal, the first and third appellants were applying for an extension of time in which to appeal, and all three appellants were seeking leave to adduce fresh evidence on their appeals. It is obvious that they sought these things because they would be advantageous to them. It was therefore equally obvious to the Court that, should they not obtain them, they would suffer prejudice exactly equal to those advantages. To suggest that the Court did not take this into account is simply hopeless.
120. There is a regrettable tendency on appeals in this jurisdiction for counsel to pick over the exact words used (and, indeed, not used) by a court in its judgment, and then to seek to subject them to a detailed critical analysis as though one were carrying out a scientific analysis of an unknown substance in order to determine its precise atomic composition. This takes up the court's time and costs the advocates' clients money. It is also unfruitful. This is because judgments given by courts in this jurisdiction, as in England and for that matter in Scotland, are given in the context of a particular culture and tradition, whereby the court explains the reasons for its decision.
121. In this tradition, judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered - see for example the decision of the English Court of Appeal in English v Emery, Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409, [17]-[19]. And, as Lord Hoffmann put it in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, with the agreement of all the members of the House of Lords who sat with him on that occasion,
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
122. In point of fact, the Commissioner did refer, albeit in general terms, to the prejudice to the appellants in refusing the three applications made. At [65], he said that the Court had an inherent jurisdiction to allow an amendment, "because without the existence of such a power an appeal might be disallowed and could lead to injustice". And, at [76], in the extract from Cunningham at [18], itself quoting from Neuberger J in Charlesworth v Relay Roads Ltd [2000] 1 WLR 230, 235B-C, we see that
"a party prevented from advancing evidence and/or argument on a point, other than a hopeless one, will understandably feel that an injustice has been perpetrated on him, at least if he loses and has reason to believe that he may have won if he had been allowed to plead, call evidence on, and/or argue the point."
There is accordingly nothing in this point, either.
123. As to point (3), there is no "unique context" of an appeal from an Alhamrani-basis assessment of trustees' fees and expenses. The context is the same as that of a taxation of costs, or indeed any first instance decision of a final nature. It is one where the appeal is not a rehearing de novo, but a true appeal. There is nothing in this point.
124. As to point (4), the Royal Court was not wrong to take into account, on the question whether to allow the amendments to the appeal notice, the fact that the appellants "had not raised the arguments they sought to rely on before the Greffier". In our judgment, this was a relevant consideration. As we have said, this was not a rehearing de novo. Again, there is nothing in this point.
125. At the end of the day, this is the exercise of a judicial discretion. Re Representation of Powell [2018] JCA 113 was the case of an application for leave to appeal from a decision of the Royal Court in the exercise of its discretion. McNeill JA said:
"15. As regards exercises of discretion, there must be an indication that the Royal Court has (a) misdirected itself as to principles, (b) taken into account irrelevant matters or left out of account relevant matters or (c) reached a decision plainly wrong."
126. In the present case, it is clear from the Commissioner's judgment that he was well aware of the overriding objective, and that the Royal Court considered (i) the reasons for not having appealed the new matters before, (ii) the strength of the new matters sought to be raised, (iii) the justification for granting any necessary adjournment, (iv) how any adverse effect on the other party might be remedied, and (v) why the "balance of justice" should fall in favour of the party seeking to amend out of time. It was also well aware of the prejudice to the appellants should their applications fail. All of these were relevant matters. In our judgment, the decision reached was well within the permissible range of the court's decision-making. We cannot see that the Royal Court misdirected itself, that it did not take account of all and only relevant matters, or reached a conclusion that was plainly wrong.
127. As stated above, the respondent by notice dated 17 July 2024 seeks to uphold the decisions below on further grounds. Given the conclusion which we have reached, it is unnecessary to deal with this.
128. The appeal is accordingly dismissed.
Authorities
Alhamrani v JP Morgan Trust Co (Jersey) Ltd [2007] JLR 527.
Downes v Marshall [2010] JLR 265.
Incat Equatorial Guinea Ltd v Luba Freeport Ltd [2010] JLR 435.
Mayo Associates SA v Cantrade Private Bank Switzerland (CI) Ltd [1998] JLR 173.
Ladd v Marshall [1954] 1 WLR 1489.
De Gruchy v Planning and Environment Committee [2001] JLR 196.
Murphy v Collins [2000] JLR 276.
David Hick Antiques Ltd v HSBC Bank plc [2022] JRC 072.
De Gruchy v Planning and Environment Committee [2001] JLR 196.
Alhamrani v Alhamrani [2009] JLR N-50.
A v Health & Social Services Minister [2016] (2) JLR N-2.
Representation of Powell [2018] JCA 113.
Chief Officer of States of Jersey Police v Panel of Jurats [2014] 2 JLR N-15.
Abdulle v Metropolitan Police Commissioner [2016] 1 WLR 898, CA.
Sansom v Sansom [1966]
Marsh v Marsh [1993] 1 WLR 744.
Cook v Clapham [2022] JRC 210.
Trusts (Jersey) Law 1984.
Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5.
Court of Appeal (Civil) Rules 1964.
The Inherent Jurisdiction of the Court, (1970) 23 CLP 23.
Potanina v Potanin [2024] AC 1063.
Finance and Economics Committee v Bastion Offshore Trust Company Limited [1994] JLR 370.
Re Harbours and Airport Committee [1991] JLR 316.
Mucky Mutz Ltd v Hightide Investment Ltd [2024]JRC 268.
Cunningham v Cunningham [2009] JLR 227.
Brown v Barclays Bank plc [2002] JLR N-1.
Rahman v Chase Bank Trust Co (CI) Limited [1994] JLR 186.
Ketteman v Hansel Properties Limited [1987] AC 189.
Trico Ltd v Buckingham [2019] JRC 163.
Nesbit Law Group LLP v Acasta European Insurance Co Ltd [2018] EWCA Civ 268.
The Supreme Court Practice 1999.
Taunton v Planning and Environment Committee [2000] JLR Note 5b.
Crichton v Parker-Smith [2008] JLR Note 13.
Chief Officer of States of Jersey Police v Panel of Jurats [2014] (2) JLR N-15.
Geneva Trust Company (GTC) SA v D and Ors [2020] JRC 063.
English v Emery, Reimbold & Strick Ltd (Practice Note) [2002] 1 WLR 2409.