1999/68
3 pages
Court of Appeal
22nd
April, 1999
Before: Sir Philip
Bailhache, Kt., Bailiff, (Single Judge)
Between Anthony
John Snell Plaintiff/Respondent
And Margaret
Beadle (née Silcock) Defendant/Appellant
IN THE MATTER OF
the successful
appeal - decided before the plenary Court on 18th January, 1999, (See Jersey Unreported Judgment of
that date) - and brought by the Defendant/Appellant against the Order of
the Royal Court of 4th February, 1998, whereby it was adjudged that
a written agreement to allow the Plaintiff/Respondent to exercise vehicular
rights across the strip of land separating the Plaintiff’s two
properties, ‘Abalone’ and ‘Broadlands’, was freely
entered into by the Defendant/Appellant.
AND IN THE MATTER
OF
The grant by the plenary
Court on 18th January, 1999, of the application of the
Plaintiff/Respondent under Article 14 of the Court of Appeal (Jersey) Law,
1961, and under Rule 2 of the Judicial Committee (General Appellate
Jurisdiction) Rules Order, 1982 for leave to appeal to Her Majesty in Council,
conditional upon:
(a) the
Plaintiff/Respondent’s paying to the Judicial Greffier the sum of ten
thousand pounds (£10,000) within three months of the date hereof by way
of security for the costs of the appeal, in such form as the Judicial Greffier
shall require; and
(b) the
Plaintiff/Respondent’s transmitting the Record (as defined in Rule 1 of
the Judicial Committee (General Appellate Jurisdiction) Rules Order, 1982)
within the said three month period to the Registrar of the Privy Council.
APPLICATION BY THE PLAINTIFF RESPONDENT FOR AN
EXTENSION OF THE SAID PERIOD OF THREE MONTHS FOR A FURTHER MONTH FROM THE DATE
OF THE DECISION OF THIS COURT.
Advocate
N.M.C. Santos Costa for the Plaintiff/Respondent.
Advocate
J.D. Kelleher for the Defendant/Appellant.
JUDGMENT
THE BAILIFF: This is an application
by the respondent in this appeal for an extension of one month to the time set
by the Court of Appeal in its Order of 18th January, 1999, to fulfil
two conditions set by the Court at that time.
On that day the Court granted the respondent leave to
appeal to the Judicial Committee of the Privy Council subject to two
conditions. The first condition was
that the respondent should pay to the Judicial Greffier the sum of
£10,000 within three months of the date of the Order by way of security
for the costs of the appeal. The
second condition was that the respondent should transmit the record as defined
in the Judicial Committee (General Appellate Jurisdiction) Rules Order, 1982
within the three month period to the Registrar of the Privy Council.
Mr. Kelleher for the appellant opposed the making of
any order extending time on two grounds.
The first ground was that I did not have the jurisdiction to make the
order. The second ground was that
it would not be just in all the circumstances to grant the extension.
I am satisfied that the Court of Appeal does have
jurisdiction to extend the time limit laid down in the conditions attached to
the Order granting leave to appeal.
So far as the merits of the application are concerned
time is pressing and I cannot do justice to the arguments which have been
addressed to me by both counsel. I
shall therefore refer to only one authority drawn to my attention by counsel
for the appellant and that is an extract from the judgment of Ackner LJ in Palata
Investments Ltd & Ors -v- Burt & Sinfield Ltd & Ors [1985] 1
WLR 942 CofA. In that judgment
Ackner LJ said:
“….we expressed the opinion that in cases
where the delay was very short and there was an acceptable excuse for the
delay, as a general rule the appellant should not be deprived of his right of
appeal and so no question of the merits of the appeal will arise. We wish to emphasise that the discretion
which fell to be exercised is unfettered, and should be exercised flexibly with
regard to the facts of the particular case. No doubt in some cases it may be
material to have regard to the merits of the appeal; because it may be wrong,
and indeed an unkindness to the appellant himself, to extend his time for
appealing, after he has allowed the time to elapse, to enable him to pursue a
hopeless appeal.”
It was conceded in this case that there had been no
undue delay in making this application which was indeed lodged before the three
month period set by the Court of Appeal had expired.
Mr. Kelleher was critical of the lack of detail in
the affidavit supporting the application and it appears to me that in some
respects that criticism was justified.
This is, however, a case raising important points of law in relation to
the law of property. With some
hesitation because, as I have said, the reasons put forward for the failure to
comply with the order of 18th January have been less than
overwhelmingly compelling, I am prepared to extend the time limit, set at that
time.
My decision is that the time limits set by the Court
of Appeal on 18th January should be extended to this extent: the
respondent shall pay to the Judicial Greffier the sum of £10,000 by close
of business on Friday, 23rd April, 1999. The respondent shall transmit the record
to the Registrar of the Privy Council within three weeks from today’s
date; that is to say by Thursday, 13th May, 1999. If the respondent complies with those
conditions he may apply for final leave to appeal.
Authorities.
Court of Appeal (Civil) (Jersey) Rules, 1964: Rule 16.
Hickman -v- Hickman (1987-1988) JLR 602.
RSC (1997 Ed’n): O.59 r.4.
Forster -v- Harbours & Airport Committee & MR
Lanyon (6th April, 1990) Jersey Unreported CofA; (1990) JLR 82 CofA.
CM Stillevoldt BV -v- EL Carriers Inc [1983] 1 WLR
207 CofA.
Palata Investments Ltd & Ors -v- Burt &
Sinfield Ltd & Ors [1985] 1 WLR 942 CA.
Norwich & Peterborough Building Society -v- Steed
[1991] 1 WLR 449 CA.