Jersey Unreported Judgments

2000/72

5 pages

 

COURT OF APPEAL

 

18^th April, 2000.

 

Before: R.C. Southwell, Esq., Q.C., Single Judge.

 

 

   Between                           Mervyn George de Salis Taunton, and

                                                Claude Marie Etiennette Taunton                          Appellants.

 

   And                 The States of Jersey Planning and Environment Committee.  Respondent.

 

 

IN THE MATTER OF

Appeal by the Appellants, with the leave of the court  that made the order appealed against as required by Article 13[c](ii) of the Court of Appeal (Jersey) Law, 1961, against so much of the Order of the Royal Court of 22^nd April, 1999, as directed that the Respondent Committee pay the taxed costs of the Appellants of and incidental to their successful appeal against the Committee's decision of 25^th November, 1997, refusing the Appellants permission to construct an extension to the east gable of their property, La Maison du Coin, Le Couvent, St. Lawrence.

 

Application by the Appellants, under Rule 16 of the Court of Appeal (Civil)(Jersey) Rules, 1964, for an Order extending until 48 hours of the date of the said Order the time prescribed by Rule 8 of the said Rules for lodging 'the appellant's case'.

 

Advocate M.H.D. Taylor for the Appellants;

Advocate A.J. Belhomme for the Respondent Committee.

 

 

 

JUDGMENT.

 

SOUTHWELL JA:

 

1.   I should like to begin by expressing my sincere thanks to Mr. Taylor who has appeared for the Appellants and to Mr. Belhomme for the Respondent Committee, for their clear and helpful submissions both written and oral.

 

2.   The facts of this case appear from the Judgment of the Royal Court of 22^nd April, 1999, and I do not restate the facts.  The case involved maladministration by the Planning and Environment Committee, a governmental body, of the Appellants' application for planning consent.

 

3.   The Appellants, having served notice of appeal, now seek an extension of time for lodging their case.  Rule 8 of the Court of Appeal (Civil)(Jersey) Rules, 1964, as amended, requires an appellant's case to be lodged within four months from receipt of the relevant transcript.  If that Rule is not complied with timeously, the appeal is deemed to have been abandoned pursuant to Rule 10, subject to this Court's power to enlarge the time under Rule 16.

 

4.   The Judgment of the Royal Court was delivered on 22^nd April, 1999.  The Appellants were successful in all respects, except that standard, not indemnity, costs were ordered.  Notice of appeal directed to the costs order was served on 21st May, 1999.  Apparently the Royal Court dealt with costs very briefly, but did give leave to appeal on costs.  Transcripts were received by the Appellants' advocate, Mr. Le Sueur, on 6^th August, 1999.  In November, 1999, some efforts were made to settle the costs issue but to no avail.  This was clear by 2^nd December, 1999, at the latest, as appears from Mr. Le Sueur's letter of that date.

 

5.   The four months' period for lodging the Appellants' case expired on 6^th December, 1999.  I should at this point refer to the fact that in December, 1999, Mr. Le Sueur's mother was ill and indeed sadly died in that month.  In fact it was not until 22^nd February, 200 that Mr. Le Sueur notified Mr. Belhomme of his intention to apply for an extension of time by letter of that date.  Mr. Le Sueur stated that he was going away for a two week holiday but had asked a colleague to prepare the necessary papers.  In fact, the summons was not issued until 22^nd March, 2000.

 

6. In deciding as a Single Judge of this Court whether or not to grant the extension of time which is sought, I have to consider, amongst other matters, whether there is, in any event, an arguable basis for appealing.  If an appeal were doomed to failure, it would be pointless to extend time.  This matter has proceeded on the assumption that the appeal would be a reasonably arguable one, though naturally this does not involve me expressing any view as to whether it would ultimately succeed; and naturally Mr. Belhomme, while accepting the assumption for the purposes of this hearing, reserved his position in that regard entirely, as he is fully justified in doing.

 

7. I should say at this point that in some of the cases before the decision of this Court in Dixon-v- Jefferson Seal Ltd (1998) JLR 47 CofA, the courts approached the award of indemnity costs on too narrow a footing and it is to the authority of the Dixon-v- Jefferson Seal decision that reference should now be made

 

8. In relation to delay and the grant of an extension of time in order to enable an appeal to go forward, the main authority seems to be the decision of this Court in Barker-v- Barclays Bank (1989) JLR N.2, where the summary of the decision is as follows

 

"The Court of Appeal has a discretion to allow the enlargement of time for appeal under the Court of Appeal (Civil)(Jersey) Rules, 1964, Rule 16(1), in the exercise of which it will take into account factors such as the extent of the delay, any explanation for it, the prospects of the success of the appeal and risk of prejudice to other parties to the proceedings."

 

In any later case reference should perhaps be made to the full judgment in Barker.

 

9.  With regard to the passage of time to which I have referred, it is clear that only a part can be attributed to the attempts to settle.  The rest is attributable to Mr. Le Sueur's failure to take appropriate steps either to lodge his clients' case in time, or to obtain an agreement on an extension of time, or to apply to this Court for such an extension either before 6^th December, 1999 or as soon as possible thereafter in January, 2000.  It seems to me that January, 2000, is in truth the relevant time given that Mr. Le Sueur was affected by his mother's illness and death in 1999.

 

10.  Mr. Belhomme has submitted that the Rules of this Court are made in order to be observed by litigants; that there is here no adequate reason given for the delay; that finality in litigation, particularly in relation to costs, is desirable; and that accordingly no extension of time should be granted

 

11.  Mr. Le Sueur, in his affidavit, frankly admits that he failed to appreciate that 6^th December, 1999, was the 'deadline'.  He does, it appears, accept that Mr. Sergeant, the Assistant Judicial Greffier, telephoned him on 6^th December, 1999, to advise him that that was the last day for filing the Appellants' Case, though he does not specifically recall that happening - nevertheless he accepts that it must have happened.  He also frankly admits that once he discovered that he had missed the 'deadline' he - and I now quote from paragraph 18 of his affidavit - 'decided to wait and see whether the Constable had been successful in her attempts to speak to the Greffe.  I chose not to write to Advocate Belhomme at that stage highlighting the oversight on my part, in the hope that the Constable might be in a position to continue discussions with the President of the Committee without the President being aware that the deadline had been missed.'  As appears from subsequent paragraphs of his affidavit and his acceptance that Mr. Sergeant had telephoned him, Mr. Le Sueur became aware that he had missed the 'deadline' on 6^th December, 1999, and must have appreciated the effect of that very soon after.

12.  Instead of applying then or - given his personal difficulties - early in January, 2000, for an extension of time, he allowed the matter to slip until 22^nd February, 2000,when he wrote to Mr. Belhomme; and then again until 22^nd March, 2000, when the summons was finally issued. 

 

13.    The only excuse offered is that he was busy on other matters.  For my part, I do not consider that an acceptable excuse, contrary to the view expressed in an earlier case at first instance. 

 

14.  These are open and frank admissions by Mr. Le Sueur of his failure to act on behalf of his clients in the way in which he should have done.  If he had applied for an extension by early January, 2000, it is most likely that he would have secured one, having regard to his own personal circumstances.  But by leaving the matter until March, 2000, he has placed his clients in the greater peril.  In my judgment, no adequate case has been made out by Mr. Le Sueur for an extension of time to make good his own tardiness.  He, or his insurers, should now provide an appropriate remedy to his clients.

15.  Before leaving this matter, I observe, again, that the periods laid down for the progress of civil appeals in Jersey are far too long.  These periods were laid down at a time when mechanical aids such as computers were not available and, therefore, long periods were necessary for carrying out relatively simple tasks.  For example, in 1964  photocopiers were in their infancy, whereas today they have almost been superseded by computerisation.  It is right that appropriate shorter periods should now be laid down and that, until the States of Jersey are in a position to make the necessary legislative changes, steps should be taken whenever appropriate to abridge the present statutory periods: see In the matter of a Settlement (1999) JLR 220.

 

 

[Counsel now addressed the Judge on the costs of and incidental to today's application.]

 

 

16.  In this case, it has been well argued by Mr. Taylor and Mr. Belhomme, but I do think that, as I have indicated, there has been some degree of excess, perhaps, in the copying and in the references particularly to earlier English cases, which seem of extremely doubtful relevance to the matter which I have to decide, which turns primarily on the application of a well-worn principle to the particular facts of this case.  I therefore award 50% of the Respondent Committee's costs, but not exceeding £400.

 

17.  I am grateful to both of you for your assistance and would only add the final comment that  this is the first occasion that I know of on which an interlocutory matter has been argued before a Single Judge of this Court by means of this helpful "Video" conferencing facility.  I am grateful to both of you for your assistance in taking part in this.

 

Authorities

 

Hickman (née Norton)-v-Hickman (1987-88) JLR 602 CofA.

 

Barker-v-Barclays Bank (1989) JLR N.2.

 

Le Vannais-v- I.D.C. (30^th June, 1988) Jersey Unreported.

 

Haryanto-v-E.D & F Man (Sugar) Ltd. (27^th February, 1991) Jersey Unreported.

 

Dixon-v-Jefferson Seal Ltd. (1998) JLR 47 CofA.

 

4 Halsbury's Law 37: paragraphs 25 & 30.

 

Eaton-v-Storer (1882) 22 Ch.D 91.

 

In re a Settlement (1999) JLR 220.