Jersey Unreported Judgments

2000/160D

5 pages

 

 

ROYAL COURT

(Samedi Division)

9^th August, 2000

Before:    Sir Peter Crill, K.B.E., Commissioner,

                 and Jurats Rumfitt and Bullen.

                                                           

 

 

 

Between                                    Iona Nicola Mackay Hotchkiss                                      Plaintiff

                                                                          

 

And                                               Channel Islands Knitwear                                                     

                                                             Company Limited                                            Defendant

 

 

Application by the defendant, under Rule 15 of the Court of Appeal (Civil) (Jersey) Rules, 1964, for a stay of execution, pending determination of an appeal: (a) of the Order of the Royal Court of 20^th June, 2000; and (b) of any order that the plaintiff's costs be paid by the defendant.

 

 

Advocate N.M. Santos Costa for the Plaintiff

Advocate C.J. Dorey for the Defendant

 

 

JUDGMENT

 

THE COMMISSIONER:

 

1.            This is an application by the Defendant Company for a stay of execution, pending appeal, of the Order of this Court both as to liability and quantum in the above case.   Judgment was given in favour of the Plaintiff on 20^th June, 2000.

 

2.            The Court also found that the Defendant had failed in its common law duty towards the Plaintiff.   The Court also found also that although the Defendant had not caused the Plaintiff's condition its actions had exacerbated it.   The Court accordingly awarded the Plaintiff a sum of damages.   That sum has been reduced in respect of the special damages by agreement by £46,685.73.

 

3.            The Defendant has urged the Court to grant an unconditional stay of execution.   The Plaintiff, whilst accepting that a stay should be granted, has submitted that it should be  granted on condition that the Defendant pays the total award, including the costs and interest to date, into the hands of the Judicial Greffier.   This morning the Court awarded the Plaintiff interest as at the Court rate from the date of judgment until settlement.

 

4.            There are two Jersey cases in the Court of Appeal dealing with the matter of a stay of execution and, of course, those cases and the principles they lay down are binding on this Court.

 

5.            The first case is that of Seale Street Developments Ltd .-v- M.A. Chapman (née Godel) (en désastre) and D.H. Chapman & Guys of Georgetown Ltd. -v- MA. Chapman (née Godel) and four Others (1992) JLR 243 C.of A.   In that case the Court of Appeal reviewed the English authorities and laid down three main principles:  first, an appeal should not be rendered nugatory; secondly, it was not for the applicant to show special circumstances justifying the stay; and thirdly, and I quote from page 251 of the judgment:

 

"Our opinion is that once it is shown that if no stay be granted the right of appeal would be likely to be rendered nugatory, and that once a reasonable ground of appeal has been shown to exist, then special (that is to say, exceptional) circumstances have to be advanced to justify a refusal of the stay."

 

6.            The second citation from that case is in fact a reference to an earlier case Polini -v- Gray (1879) 12 Ch. 438, and the judgment of Cotton L.J.  At page 251 the Court of Appeal mentioned other factors referred to by Cotton L.J., which have also been followed in this Court:

 

"...there may in a particular case be other factors, such as the consequences to the parties respectively of the grant of refusal of a stay, which require also to be weighed in the balance."

 

7.            The second case is in fact a very recent case decided in the Court of Appeal - as recently as 14^th December, 1999 - Veka AG and TA Picot (C.I.) Ltd, and others (14^th December, 1999) Jersey Unreported C.of A.   There the Court criticised the restrictive approach set out in the case of  Ketchum International plc -v Group Public Relations Holdings Ltd. [1996] 4 All ER 374.   The Court did not say, as it did  in the Seale Street case, that it was not for the applicant to show special circumstances to justify a stay.   Nevertheless it effectively supported the Seale Street judgment at page 2 when it stated:

 

"Where there is an appeal by an unsuccessful party, the usual approach to be adopted in the Courts of Jersey is to make whatever orders, including an order staying proceedings under the judgment appealed from, as will prevent the appeal, if successful, from being nugatory, unless the Court is satisfied that the appeal is not bona fide, or has no realistic chance of success, or there are other exceptional circumstances."

 

8.            Because of the rejection of Ketchum it may be said, I think with some authority, that had the case of the Winchester Cigarette Machinery Ltd. -v- Payne & Another. (No 2) (15^th December, 1993) The Times, been cited to it the Court of Appeal in the Veka case would have approved it.   That case differs, obviously from the Seale Street case, as will be seen from the following remarks of the two judges in the Winchester case.   It is a short report because it is in the Times and obviously there are other matters which may have been covered.   I read the two judgments.  First, that of Ralph Gibson L.J:

 

"...in recent cases it has been said that the practice of the court has moved on from the principle that the only ground for a stay was the reasonable probability that damages and costs paid would not be repaid if the appeal succeeded.  

Those cases held that the approach of the court now was a matter of common sense and a balance of advantage .

But in holding any such balance of advantage, full and proper weight has to be given by the court to the starting principle that there has to be a good reason for depriving a plaintiff from obtaining the fruits of a judgment."  

 

9.            And Hobhouse, L.J., said this:

 

"...since a court has an unfettered discretion no authority could lay down rules but give guidance only.

 

10.        And he then goes on to say:

 

"By the terms of Order 59, rule 13 of the Rules of the Supreme Court an appeal does not operate as a stay on the order appealed against."

 

11.        which corresponds to our own rule.   And he continues:

 

"The appellant has to show some special circumstances which takes the case out of the ordinary."

 

12.        That seems to be somewhat different from the statement by our Court of Appeal in the Seale Street case but it is not for me to rule one way or the other in that respect.   Nevertheless, it is interesting that the Winchester Cigarette case was not cited in either of the two Jersey Court of Appeal cases which I have mentioned.

 

13.        In this case, if the Defendant had to pay the award to the Plaintiff for her to enjoy now there would be an undoubted risk that if successful the Defendant company might not recover the moneys.  After all the Plaintiff lives in Scotland and has very little means of support.   On the other hand the Plaintiff, to use the words which I have already read out in the Winchester Cigarette, case ought not to be deprived of the fruits of her success.   This Court has approached the question, as suggested in the Winchester Cigarette case, we trust, with common sense, and with the balance of advantage in mind.   The following facts have to be accepted.   First, the Defendant has a large indemnity insurance cover with a highly respectable insurance group.   Secondly, if the Defendant fails in its appeal, it may well go to the Privy Counsel which would entail a delay, not of weeks or months but, if past experience is anything to go by, probably years and that would perhaps affect the tracing of the money given the uncertain state, in general, of the financial market.   That is not to say that we are in any way suggesting  that that a large and respectable insurance group can be compared with the one that failed in Canada, but there is that slight risk given the markets as a whole.   Thirdly, the case is not between the Plaintiff and an insurance company but between the Plaintiff and the Defendant and it is not the insurance company that is asking for a stay; it is the Defendant, and as far as I can see there is no nexus between the Plaintiff and the insurance company.  Fourthly, a conditional payment as suggested by the Plaintiff to the Judicial Greffier would: a) protect the Plaintiff in case of some major upset in the financial market, which I have just touched upon; and b) at the same time protect the Defendant if it succeeded on appeal.   It therefore seems just and right to order that there will be a stay provided the money, that is to say £612,682, is paid into a joint  Escrow account held in the names of Crill Canavan and Backhurst Dorey & Crane.

 

Authorities

 

Seale Street Development -v- M.A. Chapman & Anor. (1992) JLR 243 C.of A.

 

Veka A.G. -v- T.A. Picot (C.I.) Ltd & Ors. (14^th December, 1999) Jersey Unreported C.of A.

 

Linotype-Hell Finance Ltd. -v- Baker. (1992) 4 All ER 887 CA.

Winchester Cigarette Machinery, Ltd. -v- Payne & Anor. (No. 2) (15^th December, 1993) "The Times".

 

Wilson -v- Church (No. 2) (1879) 12 ChD 454.

 

In re Barker (1987-88) JLR 1 C. of A.

 

Polini -v- Gray (1879) 12 Ch. 438; [1874-80] All ER. Rep. 657; 41 L.T. 173; 28 W.R. 360.