Jersey Unreported Judgments

Companies.

[2021]JRC255

Royal Court

(Samedi)

13 October 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone

 

Advocate H. B. Mistry for the Plaintiff.

Advocate S. J. Alexander for the Defendant.

extempore judgment

the deputy bailiff:

1.        There are two applications before me this morning in relation to the judgment handed down on 21^st September of 2021 (Investin Quay House Limited v BUJ Architects LLP [2021] JRC 233) which gave the Court's decision and reasons for declining to grant particular injunctive relief sought by the Plaintiff at an Inter-partes hearing.  The facts that give rise to this matter and the Court's reasons are set out in the judgment and I do not propose to repeat them today.  It is said by the defendant that both the applications should have been supported by a summons.  I agree, but nonetheless will proceed to determine these matters as if summonses had been issued.

2.        In respect of the second application, for a stay of execution, it is said that pursuant to Rule 4.8 of the Court of Appeal Consolidated Practise Direction that the application for a stay should have been supported by an affidavit.  I agree with that too, an affidavit should have been sworn as part of this application for a stay and should be in all cases.  Nonetheless, in the interests of costs and avoiding delay I have also decided to proceed with that application and determine it on its merits as if the submissions before me had been affirmed were appropriate by affidavit.  

3.        The first application is for leave to appeal.  Both Counsel have referred to the case of Crociani v Crociani [2016] JCA 231 and the consequence of that decision and previous authorities is that the plaintiff (the applicant) today for leave must show:

"(i)      the appeal has a real prospect of success;

(ii)             a question of general principle falls to be decided for the first time; or

(iii)           there is an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage."

4.        In this case the Court was exercising a discretion and accordingly, as held by the Court of Appeal in Crociani, when the Court is exercising a discretion the Court of Appeal the Court of Appeal will only interfere if the Royal Court:-

"(a)          has misdirected itself as to the principles governing the exercise of its discretion;

(b)             has taken into account matters which it ought not to have done or failed to take into account matters which it ought to have done; or

(c)              reached a decision which is plainly wrong."

5.        I have directed myself in accordance with these principles, considered the arguments set out in the skeleton arguments before me as expanded upon in pre-written submissions today, and I decline to grant permission to appeal. 

6.        I do want to address one particular matter raised by the Plaintiff in its skeleton argument, namely that the Royal Court fell into error in treating the hearing subject to appeal as an application for an inter partes interlocutory injunction and directing itself by reference to the principles in American Cyanamid v Ethicon [1975] AC 396, the Plaintiff argues that in fact the relief being sought by it was final relief, and accordingly the Royal Court should have determined its application on the merits.  The Royal Court was, in my judgment right not to do so.  This was ordered to be the hearing of an interlocutory application and was heard at a time when no pleadings had been filed by the defendant, let alone production of discovery or exchange of witness statements.  But even if the Court was wrong to have taken such an approach then, had this been a determination on the merits of the case on the evidence available to the Court on 27^th August 2021, the Plaintiff's application for injunctive relief would have been unsuccessful. 

7.        I now turn to the application for a stay pending appeal.  The focus of the stay is, any applications for costs arising from the decision of the Royal Court, no such applications having yet been made.  Again, I was referred to the decision of the Court of Appeal in Crociani v Crociani.  In my judgment, in most cases it is appropriate for the Royal Court to press on and determine the incidence of costs regardless of any outstanding appeal. 

8.        In this case I have declined to give leave to appeal and do not know whether an application for leave will be renewed to the Court of Appeal, still less granted or indeed when such an appeal might be heard.  It is not helpful to postpone the determination of costs if an application is made to determine where they should lie.  These things should be determined when the outcome of the hearing is fresh in the Court and the parties' minds and generally any delay in resolving these issues is unhelpful and contrary to the principles pursuant to which the Royal Court determines civil disputes. 

9.        I decline to grant a stay.  Whether or not the outcome of any costs arguments and the enforcement of any costs order that the Royal Court might make in due course ought to be stayed, if at that point leave to appeal has been granted, is a matter that can be revisited at that stage. 

10.      In the view of the orders that I have made today, subject to any further argument, I propose that the Plaintiff pays the Defendant's costs of and incidental to this hearing on the standard basis to be taxed if not agreed. 

Authorities

Investin Quay House Limited v BUJ Architects LLP [2021] JRC 233.

Crociani v Crociani [2016] JCA 231.

American Cyanamid v Ethicon [1975] AC 396.