Jersey Unreported Judgments

Dispute - application by the Appellant seeking a stay of an order of the Master

[2021]JRC145

Royal Court

(Samedi)

18 May 2021

Before     :

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

 

Advocate H. B. Mistry for the Appellant.

Advocate A. D. Hoy for the Respondent.

judgment

the bailiff:

1.        This is an application by Camilla de Bourbon des Deux Siciles ("the Appellant") against Ian Strang and others ("the Respondents") seeking a stay of an order of the Master made on 8^th April 2021 ("the Order") pending appeal.  The Order was explained in a Judgment of that date ("the Master's Judgment")(Strang and Ors v de Bourbon des Deux Siciles [2021] JRC 109).

2.        Both parties agree that the leading Judgment in respect of applications for a stay is that of Crociani v Crociani [2017] JCA 162 in which the Court, at paragraphs 30 -32 of the Judgment said this:

"30.  It seems to me that a good starting point is that enunciated by Balcombe LJ (sitting  as a single judge of the Court of Appeal in England and Wales) in Bhinji v Chatwani (29 January 1993) where he stated:

"The principle to be applied in cases of this kind is laid down by a series of cases, largely in the later 19^th/early 20^th century, which can be summarised in the phrase that 'a person who has a judgment is not lightly to be deprived of the fruits of that judgment' and therefore in granting a stay one starts with the assumption that, where someone has a judgment ..... this court should not stop the Plaintiffs from exercising the necessary court procedures in order to have the benefit of that  judgment even though an appeal is pending.  But as Lord Justice Staughton said, quite recently, the practice of the court has moved on , and I believe that he is right when saying that one approaches this really as a matter if common sense and balance of advantage....."

31.   In Winchester Cigarette Machinery Limited v Payne and Another Ralph Gibson LJ fully quoted that statement and agreed with the approach which was, as he said:

           ".... mainly that one starts with the assumption that a successful Plaintiff is not to be prevented from enforcing his judgment even though an appeal is pending.  ...... I do not disagree with the formulation "balancing of advantage", provided that, in holding that balance, full and proper weight is given to those starting principles, that there must be good reason to deprive a successful Plaintiff of the right to enforce his judgment and that the mere existence of an arguable ground of appeal is not be itself such a reason".

32.   It seems to me that each of these expressions reflects the position adopted in this jurisdiction and that, absent - as here - the rendering of an appeal nugatory or the mere reliance on an arguable ground of appeal, the obligant must show "good reason" (Winchester) "common sense and balance of advantage" (Bhinji) or "exceptional circumstances" (Trilogy)."

Order

3.        The Order is divided into 14 paragraphs and the Appellant argues that its application for a stay should be treated for some of those paragraphs as an application for a relief from sanction and others as matters of case management.  I do not think it is necessary to set out the detail of the Order in full however, it may be summarised as follows:

(i)        Paragraphs 1, 2, 3 and 4 order the striking-out of the Appellant's counter claim and the payment by the Appellant to the Respondents of 80% of the Respondents costs on an indemnity basis and the mechanism for the computation of those costs;

(ii)       Paragraph 5, 6, 7, 8, 9, 10,11,12 and 13 deals with the entering of judgment against the Appellant in the sum of £72,160 "there being no defence to this part of the ............ claim" and Orders relating to the payment in of that sum and other consequential orders relating to pleadings.

(iii)      Paragraph 14 of the Order provides that the Appellant shall pay the costs of the directions contained in the Order on the standard basis.

4.        The Master's Judgment runs to some 87 paragraphs.  It is not necessary in this brief judgment dealing with procedural matters to consider that judgment at length.  The general approach of the Master may, however, be identified by reference to paragraphs 78 and 79 of the Master's Judgment which were in the following terms:

"78.  An unless order is a serious obligation intended to make it clear to a party that if they do not comply with court orders that a sanction may follow.  In this case the orders I have referred to were designed to give the defendant a final opportunity to set out her counterclaim to set out what it was that the plaintiffs failed to do in the context of both the steps that were taken by the defendant in filing written contentions and the effect of leave to appeal being refused.  Without the clarity that I ordered to be provided, the plaintiffs still do not understand the case they have to meet.  Neither do I.  The consequence of any material lack of clarity was clearly known and understood by the defendant through her legal team.  It is accordingly too late to allow the defendant a further opportunity to explain what has been required for many months.  The defendant's approach is therefore not one that should be excused and the unless order should take effect.

79.   I am also of the view that the approach the defendant wishes to take to invite the Royal Court to go through the transcript to assess whether the Court of Appeal might have reached a different conclusion without identifying the different submissions that could have been put by reference to particular passages in the transcript coupled with the refusal of leave by the Privy Council has an air of unreality about it (See Three Rivers DC v Bank of England No 3 [2003] UK HL 16 at paragraph 158).  A trial conducted on the basis of the Royal Court going through the transcript and the defendant at that stage identifying where oral submissions should have been made and what those would have been, when set against written contentions filed and the refusal of leave by the Privy Council to allow the Royal Court to evaluate whether the Court of Appeal might have decided matters differently appears to me to be wholly unrealistic and therefore improbable.  It very much has an absence of reality.  Accordingly, I am also satisfied that the plaintiffs are entitled to reverse summary judgment in respect of the counterclaim."

The arguments

5.        Advocate Mistry informs me that much has already been done pursuant to the Order and all that is really being requested is the stay of enforcement.  The appeal is scheduled to take place at the end of the month and it would be wrong, so Advocate Mistry argues, for enforcement to be taken when there is an appeal against the Order.

6.        Advocate Hoy, for the Respondents points to a letter provided to the Court making it clear that no enforcement can take place in France until there is a final judgment that is not subject to appeal.  He tells me, therefore, that a stay is simply unnecessary and as a matter of principle should not be ordered because the Defendant is in contempt of the orders of the Court.  Although no steps to enforce outside of the jurisdiction can be taken there are no grounds for a stay, so he argues, and in principle a stay should not be ordered where the Appellant is in contempt as here.

7.        On the issue of contempt, Advocate Mistry points out that there is no finding of contempt and that stay was requested in his notice of appeal. 

8.        Advocate Mistry referred to the distinction between an application for relief from sanction (which relates to those parts of the Order mentioned in Paragraph 3(i) above and case management powers which he submits applies to those parts of the Order as mentioned in Paragraph 3(ii) above, specifically to the case in the High Court of England and Wales of Everwarm Ltd v RB Rendering Ltd [2019] EWHC 2078, in that case the Court had issued an unless order requiring the Defendant to provide security for costs by a specific date.  The Defendant subsequently, but prior to that deadline, made an application for an extension of time which application was heard after the deadline.  The High Court dealt with the matter under powers of case management and not under an application for relief from sanction.  It is to be noted that that case related to an extension of time and there was no suggestion that the Defendant in question was not going to make the payment for security for costs.

9.        With regard to the relief from sanction part of the application Advocate Mistry submits that the Appellant's counter claim has been struck out but that is now subject to an appeal.  The counter claim being struck out there was nothing in any event that the Appellant can do in connection with it until that strike out is reversed, if that is to happen, by the Court of Appeal.  However, he argues there would be nothing to stop the Respondents from enforcing cost orders but there is no prejudice to him waiting until the appeal is dealt with which will happen shortly.  He also argues that the appeal could be rendered nugatory if I permit the assessment and enforcement on costs to continue.  He points out that in any event the Respondents have filed its schedule of costs and the Appellant has filed her objections so the next stage is the simple assessment of costs.  Little prejudice is encountered by waiting a short period for that assessment to take place by the Master.

10.      With regard to the case management part of the Order, Advocate Mistry points out that there was no such application for the entering into a judgment of £72,160.00 and no enquiry as to the Appellant's means when the payment was ordered by the Master.  The appeal is, in any event, to take place on 17^th May and there would be no prejudice to the Respondent in this stay. 

11.      Advocate Mistry also raises with me the Order of the Master of 19^th April 2021, communicated in a letter sent by email in which the Master indicated his view that the notice of appeal lodged by the Appellant did not equate to an application for an extension of time nor did it have the effect of a stay.  He indicated that the Respondents were entitled to judgment because of the breach of Paragraph 6 of the Order in the sum of £215,059.06 together with figures relating to interest. 

12.      As I have said Advocate Mistry, amongst other things, points out that the Master is wrong in his saying that there was no application for stay as a request for a stay had been contained in the notice of appeal.

13.      On this procedural point, it would have been appropriate for a clear and distinct application for a stay to have been made to the Master or indeed to this court.  There was, for example, no summons before me to consider in terms relating to a stay and, as the Respondents say in their skeleton argument, until receipt of the skeleton argument it was unclear precisely what the Appellant was seeking to have stayed.

14.      Advocate Hoy for the Respondents has directed me to an email passing between the learned Master and Advocate Mistry and himself of 20^th April 2021, in which the Master explains his communication of 19^th  April 2021.  The Master expresses himself in the following terms:

"The point I was trying to make was that you had not applied to me for a stay pending appeal prior to the expiry of the obligation on your client to make a payment into Court.  Nor did had your client made an urgent application to the Royal Court for a stay pending her appeal for any such application to be heard as soon as possible.  Your letter to the Judicial Greffier now does not even seek a separate hearing for a stay to be heard as a matter of urgency.  I am not willing to allow your client to obtain a stay without her following proper processes.  Accordingly, my order stands."

15.      It appears from the Notice of Appeal issued by the Appellant that, at Paragraph A, the Appellant indicates that she will be asking the Court to "order a stay pending appeal of all orders made by the Master".

16.      It accordingly appears to be correct therefore, that the application for a stay pending appeal had been foreshadowed in the Notice of Appeal.  That being said, however, no application was made and if an Appellant is seeking a stay it is incumbent upon them to make that application quite distinctly and at an earlier point as possible so that either the Court appealed from or the Appellant Court can consider the matter.

17.      That being said, although there is an unfortunate lack of a summons in this case and the correct procedures have not been followed, the Court now has before it the application for a stay and I do not propose to consider this from a procedural point of view but rather consider the application on its merits.

18.      Advocate Hoy further argues that the payment into Court part of the Order is "stay proof" and as for the rest of the application he effectively characterises it as a means to disguise a contempt of Court.

19.      In reply, Advocate Mistry points out that there has been no contempt finding. 

Decision

20.      The Respondent appears to object to the granting of the stay not because it would be prejudiced in particular as a result (it being clear that no enforcement can take place in France and that there are only a relatively few days before the Court of Appeal deals with the matter) but rather as a matter of principle.  It should not be denied the benefits of its Judgment and the Order, and in any event, the Appellant is in contempt.

21.      I do not propose to deal with this matter on the basis that there is a contempt.  Notwithstanding the inadequacy of the Appellant's position from a procedural point of view, in fact the Notice of Appeal was lodged prior to the expiration of a deadline and it foreshadowed an application for a stay.  That stay should have been progressed as a matter of urgency and for that failing, the Appellant is at fault.  The Master's position, in the absence of an application for a stay, was completely comprehensible.

22.      Generally speaking I accept that where a party has the benefit of a judgement it should not be deprived on that benefit other than for a good reason.  In this case however, it appears to me that there is a relatively minor benefit that presently accrues to the Respondent.  Much of the Order has been complied with and a stay of the remaining parts of the Order would only last for a short period.  Looking at the position in the round, I am satisfied that I should order a stay in this matter up until and including the end of the hearing of the Appeal.  Should a stay continue beyond that point then that would be a matter for the appellate Court.

23.      In the circumstances, therefore, I order a stay of the Order and, to the extent necessary of the Master's additional Order of 19^th April 2021.

24.      The costs of the stay should be costs in the appeal.

Authorities

Strang and Ors v de Bourbon des Deux Siciles [2021] JRC 109.

Crociani v Crociani [2017] JCA 162. 

Everwarm Ltd v RB Rendering Ltd [2019] EWHC 2078