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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Home Farm Developments Limited and Others -v- Le Sueur [2016] JCA 010B (18 January 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_010B.html Cite as: [2016] JCA 10B, [2016] JCA 010B |
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Debt - consequential judgment to 25 November 2015 - application to extend time.
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Before : |
Jonathan Crow, Q.C., President Robert Logan Martin, Q.C., and Sir Michael Birt, Q.C. |
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Between |
(1) Home Farm Developments Limited (2) Strata Developments Limited (3) Shane Holmes |
Plaintiffs/Appellants |
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And |
Jamie Le Sueur |
Defendant/Respondent |
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Between |
Jamie Le Sueur |
Plaintiff/Respondent |
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And |
Shane Holmes |
Defendant/Appellant |
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Mr Holmes appeared for the Plaintiffs/Appellants.
Advocate M. H. D. Taylor for the Defendant/Respondent.
judgment
the president:
THIS IS THE JUDGMENT OF THE COURT
1. This is the judgment of the court. It deals with the consequences of certain events occurring since we gave judgment in the substantive appeal on 25 November 2015 ("the 25 November judgment").
2. In the 25 November judgment we said this at paragraph 55:
3. In the event, Mr Holmes issued no applications within four weeks of 25 November. Instead, at 16:07 on 24 December he sent an email to the court attaching two summonses, one seeking leave to amend the Order of Justice ("the amendment summons") and the other to restore Strata to the Register ("the Strata summons").
4. Advocate Taylor for the Respondents objected (by email dated 4 January 2016) that both summonses were out of time, that the amendment summons did not attach a draft Amended Order of Justice, that the Strata summons was unsupported by any evidence and that it was in any event in the wrong form, as the application should have been made by way of Representation.
5. In an email dated 7 January, the Master gave Mr Holmes until 11 January (i) to provide a draft Amended Order of Justice, (ii) to explain why he had not complied with the time limits set out in paragraph 55 of the 25 November judgment, and (iii) to make submissions on whether the Master had power to extend time and, if so, whether that power should be exercised. He also indicated that Advocate Taylor should make submissions on the same points. Finally, he gave Mr Holmes until midday on 8 January to explain whether evidence in support of the Strata summons had been prepared but not yet filed, or whether it had not been prepared.
6. Advocate Taylor submitted his clients' Skeleton Argument later that day, submitting that this court (rather than the Master) has jurisdiction to deal with the matter. On 8 January Mr Holmes sent an email to the court saying that he thought at the time that the summonses "were in the appropriate order and filed on time", and in particular he did not believe that the 25 November judgment or the court Rules required a draft Amended Order of Justice to accompany the amendment summons. Nevertheless, he said that he had drafted an Amended Order of Justice "save for one minor addition on the matter of rectification which I wish to make" and he said that he would make that addition and file it with the court the next day. He did not answer the Master's question as to whether any evidence in support of the Strata summons had been drafted.
7. On 11 January Mr Holmes provided a Skeleton Argument in which he said that his failure to issue and serve the summonses in time was "a human error" on his part, but that it was "excusable" and the court ought to apply by analogy the approach set out in Pitman v JEP [2013] (2) JLR 293. He argues that this court had passed the matter back to the Master. He also provided a draft Amended Order of Justice.
8. This court accordingly has to decide whether it has jurisdiction to deal with these latest developments, and if so what it should do.
9. We are satisfied that, under Article 12(3) of the Court of Appeal (Jersey) Law 1961, this court has jurisdiction to deal with the latest developments.
10. We are also satisfied that the full court must deal with it, pursuant to Article 18(3) of the 1961 Law.
11. So far as paragraph 55 of the 25 November judgment is concerned, this court passed back to the Master the further disposal of the summonses on the assumed basis that they would be issued in time. By contrast, the issue that has now arisen is whether the summonses were issued in time, and if not whether any extension of time should be granted. Those are not matters that were passed back to the Master.
12. The 25 November judgment was entirely clear in its terms. The summonses had to be issued within four weeks of 25 November (i.e. by 23 December at the latest), not within a calendar month. There is no room for doubt that the summonses were issued late, and Mr Holmes has not sought to suggest that they were issued in time. The court must therefore decide whether to extend time.
13. In considering any application to extend time, the court is bound to take into account all the relevant circumstances, including the context in which the application arises, the length of the delay, the reasons for the delay, the consequences for each party respectively of either granting or refusing the extension, and the extent to which either party's conduct encourages the court to be more or less amenable to the application (e.g. whether other time limits have been missed, whether the other side contributed in any way to the delay etc.).
14. Taking that approach, we have no hesitation in saying that time should not be extended. The delay was not long, but every other factor militates strongly against an extension:-
(i) First, the question arises in the context of a successful strike-out application. This court held that the claim as pleaded could not succeed. Out of indulgence to Mr Holmes, we were prepared to give him one last chance to amend his pleading in order to salvage his claim. In the circumstances, the court is entitled to expect him to take up that opportunity with alacrity, and not to leave it to the last possible minute (as he did even on his apparent understanding).
(ii) Second, there is no possible excuse for the misunderstanding. "Four weeks" means four weeks, not a calendar month.
(iii) Third, the consequence for Mr Holmes of refusing an extension is to leave in place the order of the court below dismissing his claim - a decision which we have held was rightly made on the basis of the pleading as it stands. By contrast, the consequence for the Respondents of granting an extension is that they will have to face a contested amendment application followed by the further expense and delay of a contested trial if the amendments are allowed.
(iv) Fourth, the amendment summons was not accompanied by any draft Amended Order of Justice.
(v) Fifth, even now Mr Holmes has not submitted a draft pleading seeking rectification: the only draft he has provided seeks damages and rescission based on allegations of misrepresentation, breach of contract and breach of fiduciary duty.
(vi) Sixth, the Strata summons was not in the right form nor was it accompanied by any evidence.
(vii) Finally, even now Mr Holmes has not provided any evidence in support of the Strata summons.
15. For these reasons, we refuse to grant an extension of time. As a result, the Act of Court issued on 18th February 2014 now takes effect, and the claim remains struck out.
