Jersey Unreported Judgments

Appeal - leave to appeal out of time refused.

[2017]JCA202

Court of Appeal

29 November 2017

Before     :		Sir William Bailhache, Bailiff of Jersey, sitting as a Single Judge.
Between	Shane Michael Holmes		Plaintiff/Appellant
And	Harry James Lingard HJL Holdings Limited Angel Fish Limited		Respondents

judgment on the papers

bailhache ja:

1.        This is my decision on the papers on an application dated 19th October 2017 by the Plaintiff, who is not represented, for a series of orders in relation to a judgment of the Royal Court delivered on 27th May 2015 the reasons for which were handed down on 29th June 2015, ordering the interim injunctions obtained by the Plaintiff on 17th March 2014 be set aside.

2.        The application of the Plaintiff is for the following orders:-

(i)        To abridge time for hearing the leave application.

(ii)       To stay the Respondents' application to the Royal Court for full damages and indemnity costs pending determination of the appeal.

(iii)      To grant leave to the Appellant to apply for a number of orders:

(a)       To set aside the judgment of 29th June 2015 and Act of 27th May of that year ordering the injunctions to be lifted.

(b)       To award the Plaintiff costs in respect of the court below, and, if not to grant the Plaintiff his costs, to order that there should be no order for costs, or costs in the cause.

3.        Although the Plaintiff seeks an order for the abridgment of time, it is clear that he must mean to apply for an enlargement of time, as he is already over two years out of time for appealing.  The test for deciding whether to grant an extension of time within which an appeal may be lodged was summarised by this Court in Syvret v Treasurer of the States [2014] JCA 185 at paragraph 13, and more recently applied in Pearce v Treasurer of the States [2016] JCA 200.  The relevant considerations are (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success and (d) the risk of prejudice.

4.        It appears that on the Plaintiff's case the main reason for not seeking to appeal the judgment in June/July 2015 was that the parties had attempted to reach a global settlement of the various issues between them, following that decision of the Royal Court.  Indeed, as part of that effort at settlement, it appears that there was an interim consent order of 25th June 2015 which released £15,000 to the Respondents for payment on account of costs in relation to the original decision of the Royal Court of 27th May.  Given that the interim injunctions had been set aside, it is not clear why such an interim consent order was necessary, because it certainly is not apparent from the paperwork put before me that the interim injunctions remained in place pending appeal, or even pending the delivery of reasons for the Court's decision to lift the injunctions on 27th May but I do not need to understand that further for the purposes of the present application.  At all events, the global settlement negotiations broke down, it appears by 2016 at the latest.  Since then there have been a number of further applications in the litigation between the parties.  It is apparent that the global settlement negotiations, which may have inhibited the Plaintiff from seeking to appeal in the time allowed following delivery of the decision of the Royal Court in June 2015, are simply not an explanation for the delay during the last twelve months in seeking leave to appeal the Royal Court's decision of 27th May 2015 out of time.  Furthermore, no explanation for that delay is advanced.  It is contended by the Plaintiff that the Respondents have, in the course of that more recent litigation, introduced new evidence which undermined the evidence relied upon by the Royal Court in the judgment sought to be appealed.  However, no detail is given of what this alleged new evidence is, nor is that new evidence directly linked to the facts upon which the court below relied, nor indeed is there any affidavit sworn by the Plaintiff in support of the present application. 

5.        Although in my view it is unnecessary to do so, I touch briefly on the merits of the apparent case on appeal.  The Royal Court discharged the injunctions on two grounds - the first was that the Plaintiff was wrong to seek ex parte injunctions, and he should have applied for those injunctions on notice.  The second ground was that the Plaintiff had failed in his duty to make full and frank disclosure when applying for the interim injunctions in relation at least to whether or not an agreement between him and Mr Lingard could have existed in June 2011.  Having set aside the injunctions on these two grounds, the Royal Court then considered the re-imposition of the interim injunctions, but it declined to do so.  The reasons why it declined to do so were that the Court did not think it was seriously arguable that an agreement had been entered into in June 2011 in terms of the document appended to the Plaintiff's affidavit, which was the first of many draft heads of terms.  That alleged agreement was found by the Royal Court to underpin all of the claims made in the Order of Justice and, as that was currently drafted, the Court could not therefore see any serious issue to be tried.  In any event the Court was of the view that damages would be an adequate remedy, and in those circumstances no injunction should be ordered, the defendants apparently having assets of substance to meet such a claim. 

6.        I have reviewed the grounds of appeal and criticisms made in them in relation to the Royal Court's judgment.  In my judgment, they do nothing to undermine the exercise of discretion by the Royal Court in the decision to set aside the interim injunctions.  The finding in relation to the defendants' assets also demonstrates there is no prejudice to the Plaintiff in refusing leave to appeal because any order for damages he might subsequently obtain can enforced against those assets. 

7.        Any one of the factors listed above might have been sufficient in my judgment to operate as an appropriate reason for refusing the Plaintiff leave to enlarge time and bring his appeal, coupled with the other applications dependent upon it, before the Court of Appeal.  Cumulatively, they make his case in my judgment unarguable. 

8.        Accordingly, leave to appeal out of time is refused. 

Authorities

Syvret v Treasurer of the States [2014] JCA 185.

Pearce v Treasurer of the States [2016] JCA 200.