Jersey Unreported Judgments

Companies - reasons for refusing leave to appeal against a judgment of this Court 1st February 2018.

[2018]JRC125

Royal Court

(Samedi)

12 July 2018

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone

 

Advocate J. D. Garrood for the Plaintiffs.

Mr Kevin Doyle, litigant in person, on behalf of the Defendant.

decision

the deputy bailiff:

1.        This is an application by the Defendant for leave to appeal against a judgment of this Court of 1^st February, 2018, Hard Rock Limited-v-HRCKY Limited [2018] JRC 026 by which the Court, for the reasons set out therein, granted the Plaintiffs application for summary dismissal of the Defendant's counter-claim.  As the counter-claim was the only part of the proceedings at that time remaining the Plaintiffs success meant that the proceedings were at an end. 

2.        I should grant leave to appeal if (a) the appeal has a real prospect of success; (b) there is a question of general principle to be decided for the first time; or (c) there is a question of importance upon which discussion before the Court of Appeal will be to public advantage (see Crociani -v- Crociani [2014] JLR 426).  

3.        The Defendant, represented by Mr Kevin Doyle, presented a skeleton argument in support of the Defendant's application for leave to appeal.  His skeleton argument, which ran into some 45 pages, was deployed in full by him and it is fair to say ranged widely over the original subject matter of the argument before the Court. 

4.        The Plaintiffs also provided a skeleton argument and resisted the application for leave to appeal.  The primary basis on which they resisted was on the grounds that there was no basis to assert that the decision at first instance had been wrong and that there was no point of law which was new. 

5.        To a very great extent, in my opinion, the Defendant's argument for leave to appeal amounted to a repetition of its original argument before the Court.  The essence of the application before me is revealed in the conclusion and summary from paragraphs 244 to 255 of the Defendant's skeleton argument.  In summary they are these:-

(i)        The Court should have reference to certain case law relating to contractual duties of good faith and particularly where a "relational contract may be concerned" (see Yan Seng Pte Limited -v- International Trade Corp [2013] EWHC 111, Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan -v- Ionanis Kent aka John Kent [2018] EWHC 614;

(ii)       The Court should have looked at the contract between the Plaintiffs and the Defendants as a paradigm relational contract and reflect trending changes in contract law globally;

(iii)      Doctrines including that of good faith and business efficacy are open to less rigorous or unfair application and interpretation in long term relational contracts;

(iv)      The court had been urged to treat the contract between the Plaintiffs and the Defendants as a normal commercial contract but it was wrong to do so;

(v)       There was a substantial inequality between Mr Doyle's position and the Plaintiffs position as Mr Doyle had never previously been in the restaurant business and the financial information provided to him was provided by the Plaintiffs;

(vi)      The test for summary judgment had not been met;

(vii)     The variations agreed between the Plaintiffs and the Defendant to the contract were done in bad faith and the finding of the court was wrong to suggest that there was no clear causal link between the alleged bad faith and the losses incurred;

(viii)    The Defendant has shown that representations were in fact untrue and that the entire agreement clause could not act as a shield;

(ix)      The agreement between the Plaintiffs and the Defendant were clearly covering two distinct businesses and should have been treated as such;

(x)       "Overall, the asymmetric nature of the relational contracts suffice to underscore the Defendant's position that summary trial is not a place suited to disposing of this case and therefore seek leave to appeal".

6.        It is correct to say that the authorities referred to above in connection with relational contracts were not deployed by Mr Doyle with any force before the court below.  It does not appear to me, however, that those authorities have direct bearing upon the Defendant's case being, as they appear to be, authorities relating to the English law of contract and not Jersey law which is quite distinct. 

7.        The Court was, however, satisfied that there was no causal link between the Defendant's allegations of bad faith and the losses claimed. 

8.        I have carefully considered the Defendant's arguments but, in my view, they do not demonstrate that the appeal has a real prospect of success nor that there was a point of general principle decided for the first time or on which a discussion before the Court of Appeal would be of public interest. 

9.        Accordingly I refuse leave to appeal.  That does not, of course, prevent an application for leave to be renewed by the Defendant directly before the Court of Appeal. 

Authorities

Hard Rock Limited-v-HRCKY Limited [2018] JRC 026.

Crociani -v- Crociani [2014] JLR 426

Yan Seng Pte Limited -v- International Trade Corp [2013] EWHC 111

Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan -v- Ionanis Kent aka John Kent [2018] EWHC 614