2002/122

royal court

(Samedi Division)

27th June 2002

Application by the Defendants for an extension of time, within which to lodge an appeal, under Rule 15/2 of the Royal Court Rules, 1992, against:

(1)           The substantive order of the Judicial Greffier of 8^th October, 1999, whereby the Defendants were ordered to pay the costs of and incidental to their application for leave to file an Amended Answer and Counterclaim of 20^th September, 1999; and

(2)           The taxation of their bill of costs by the Assistant Judicial Greffier of 25^th October, 2001.

Advocate  A. Clarke for the Plaintiff.

Mr Frederick Lenfesty Duquemin on his own behalf and

on behalf of his wife.

judgment

the COMMISSIONER:

1.        We have to remind the parties that this is an appeal against two decisions relating to costs.  The cost decisions arise out of litigation concerning the respective rights and duties of two co-owners of properties in relation to parking in a small shared yard.  The case has been to the Court of Appeal, where, in its judgment, the Court referred to an unfortunate dispute between neighbours.

2.        The learned Appeal Court in delivering its judgment expressed the view that the parties would solve their differences by negotiating the sensible use of the residual area.  Mrs Haas has now sold her property and moved elsewhere.

3.        There were two judgments on costs.

(i)        By Order of the 8^th October, 1999, the Master ordered the defendants (represented today by Mr Duquemin personally) to pay the costs of and incidental to their application for leave to file an Amended Answer and Counterclaim on the standard basis.

In their summons of the 20^th September, 1999, the defendants had asked for relief inter alia as follows:

“(2)      That within 14 days of the date hereof, the defendants shall seek leave to file the amended Answer and Counterclaim“….

The Master dismissed the application and ordered: “that the defendants in the original action be condemned to pay the costs of and incidental to the application contained in paragraph (2) of the Summons dated 20^th September, 1999, on the standard basis in any event.” 

(ii)       The Assistant Greffier taxed the defendant’s bill of costs on the 25^th October, 2001.  That cost’s decision followed the Bailiff’s judgment where it was ordered that the defendants be jointly and severally condemned to pay the costs of and incidental to the action. 

4.        Clearly the two decisions were appealable but the rule in this regard is perfectly clear.  Rule 15/2 of the Royal Court Rules 1992 states:

(1)       A party to proceedings before the Greffier may appeal by summons to the Court from an order or decision made or given by the Greffier in those proceedings.

(2)       Notice of appeal shall be given to the Greffier and to every other party to the proceedings in respect of which the appeal is being made within ten days after the making of the order or decision complained of.

(3)       The provisions of paragraphs (3) and (5) of Rule 15(1) of these Rules shall apply in relation to appeals under this Rule as they apply in relation to summonses to the Court.

(4)       The party issuing a summons under paragraph (1) of this Rule shall, not later than ten days after giving notice of appeal under paragraph (2) of this Rule, apply to the Bailiff in chambers for a day to be fixed for the hearing of the appeal and, if he fails to do so, the appeal shall be deemed to have been abandoned.

5.        The English Rules are, not surprisingly, very similar and there is in Rule 1/5 of our Rules a power to extend and abridge time which is on all fours with Order 3 Rule 5.

6.        The relevant case is Finnegan v Parkside Health Authority (1998) 1 All ER 595 CA where at 602 the court referred to the following passage in the Judgment in Mortgage Corporation -v- Sandoes (1996) TLR 751 at p.752:

The Court was acutely aware of the growing jurisprudence in relation to the failure to observe procedural requirements.  There was a need for clarification as to the likely approach of the court in the future to non-compliance with the requirements as to time contained in the rules or direction of the court.  What his Lordship said now went beyond the exchange of witness statements or expert reports; it was intended to be of general import.  Lord Woolf, Master of the Rolls and Sir Richard Scott, Vice Chancellor, had approved the following guidance as to the future approach which litigants could expect the court to adopt to the failure to adhere to time limits contained in the rules or directions of the court: (1) Time requirements laid down by the rules and directions given by the court were not merely targets to be attempted; they were rules to be observed.  (2) At the same time the overriding principle was that justice must be done. (3) Litigants were entitled to have their cases resolved with reasonable expedition.

…

(10) In considering whether to grant an extension of time to a party who was in default, the court would look at all the circumstances of the case including the considerations identified above”.

7.        There is no avoiding the fact that the notice of appeal was first received by the Greffier on the 4^th November, 2001.  That was amended and filed on 6^th December, 2001.  Earlier letters of objection cannot be classified as grounds of appeal.  The appellant’s letter of the 13^th September, 2000, is referred to by the Greffier Substitute in his reply, where he refers to “concerns that you may have with the taxing process”.  In that letter of reply dated September, Mr Haines says:  “If either party was dissatisfied with the taxation then there is a right of appeal provided for by Rule 15/2 of the Royal Court Rules, 1992.  I note that you have elected not to pursue this route therefore it must be taken that you accept that I have exercised my discretion correctly and judicially.”

8.        Mr  Duquemin says that he was unclear as to what the appeal procedure was and to whom the appeal was to be sent.  In his letter of the 25^th October, 2001, the Greffier declined to grant the appellant costs for travelling to the Greffe to purchase a copy of the Royal Court Rules.  That visit was made on the 29^th June 1999.  The appellant has used the services of Advocates Fiott and Grace, and so was not entirely a stranger to seeking clarification.  He has also conducted a case before the Royal Court and before the Court of Appeal. 

9.        We have examined this with great care but there must be a time limit for procedural litigation.  In this case, where the plaintiff has sold the house which was the object of the dispute, now, in our view, is the time.  We are going to refuse the extension of time to file an appeal and costs on a standard basis will be awarded against the appellant.

Authorities

Finnegan v Parkside Health Authority (1998) 1 All ER 595 CA.