Jersey Unreported Judgments

2001/81A

ROYAL COURT

(Samedi Division)

 

4^th April, 2001 

 

 

 

 

 

Application by the Respondent to file its case out of time.

 

Advocate G Le V. Fiott for the Appellants

Advocate C. Yates for the Respondent.

 

judgment

 

the MASTER:

1.        On 9th March, 2000, the Respondent Committee refused an application by the Appellants to remove an agricultural occupancy condition attached to a permit granted on 2nd March, 1981 for the construction of a bungalow and garage on part of Field 1928, St. Ouen.  On 28th March, 2000, the Appellants issued a Notice of Appeal against that decision which was duly served on the Respondent the following day.   The procedure for such administrative appeals is set out in Part XXII of the Royal Court Rules 1992 ("the Rules").

2.        No action having been taken by the Respondent to file its statement in compliance with Rule 12/3(1) of the Rules, on 4th May, 2000, I set the appeal down for hearing on the application of the Appellants.   A date for the hearing of the appeal by the Royal Court was fixed namely 14th July, 2000.

3.        The Respondent took no further action until the beginning of July when it issued a summons which I heard on 10th July, 2000.  I then set aside the Order of 4th May setting the matter down, granted leave to the Respondent to file its statement out of time and ordered that the hearing date of 14th July, 2000, be vacated.  At the hearing before me on 10th July, 2000, an affidavit sworn by Mr. R.T. Webster, a Senior Planning Officer, blamed the Respondent's defaults on pressure of work at the Department of Planning and Building Services.

4.        On 9th November, 2000, the Appellants duly filed their case pursuant to Rule 12/3(3) of the Rules.  The Appellants subsequently applied again to set the appeal down again for hearing and I did this on 12th December, 2000.  On 20th December, 2000, dates for the hearing of the appeal before the Royal Court were fixed as 18th and 19th April, 2001.

5.        Rule 12/3(5) of the Rules required the Respondent to file its case within 2 months of 9th November, 2000.  This it failed to do.  On 22nd March, 2001, the Respondent issued a summons seeking leave to file its case out of time.  I heard this summons on 2nd April and gave my decision today.   At the hearing on 2nd April Crown Advocate Paul Matthews gave evidence and candidly admitted that the delay was his responsibility and was due to pressure of work in the Law Officers' Department.

6.        The Appellants have throughout this matter complied at all times with the requirements of the Rules.  The history of the appeal which I have rehearsed shows that the Respondent has failed totally to do so and this reflects no credit whatsoever on the Respondent or those having conduct of the appeal on its behalf.  The treatment of the Appellants and their Advocate borders on the contemptuous and, in my view, is quite unacceptable.

7.        Having heard the parties through their Advocates on 2nd April, I have decided to grant the Respondent's application to file its case out of time.  I now set out my reasons for doing so.

8.        Rule 1/5 of the Rules is in the following terms:-

"Power to extend and abridge time

1/5.-(1)  The Court or the Viscount may, on such terms as it or he thinks just, by order extend or abridge the period within which a person is required or authorized by rules of court, or by any judgment, order or direction, to do any act in any proceedings.

 (2)The Court or the Viscount may extend any such period as is referred to in paragraph (1) of this Rule although the application for extension is not made until after the expiration of that period."

 

Having regard to the express terms of Rule 1/5 I am satisfied that I have the jurisdiction to grant the present application.

9.        I now turn, therefore, to consider the basis on which to exercise my discretion under Rule 1/5 to allow the late filing of the Respondent's case.

10.      Mr. Yates in the course of his submissions on behalf of the Respondent urged me to adopt the principles applied in the United Kingdom governing what was Order 3 Rule 5 of the former Rules of the Supreme Court.  Paragraphs (1) and (2) of Order 3 Rule 5 are similar in terms to Rule 1/5 of our Rules.   The principles applied in the United Kingdom are set out in paragraphs 3/5/1 to 3/5/4 of the 1999 Edition of the Supreme Court Practice ("the White Book").  Paragraphs 3/5/3 and 3/5/4 in particular address the matters which must be considered.

11.      I cite in particular the following extract from paragraph 3/5/4:-

"The cases of Costellow, Beachley and Letpak were reviewed in The Mortgage Corporation Limited v. Sandoes, Blinkhorn & Co. and Gibson (1996) The Times, December 27, which stated as follows:

"The master of the Rolls and the Vice Chancellor, as Head of Civil Justice, have approved the following guidance as to the future approach which litigants can expect the court to adopt to the failure to adhere to time limits contained in the rules of directions of the court:

1.        Time requirements laid down by the rules and directions given by the Court are not merely targets to be attempted; they are rules to be observed.
2.        At the same time the overriding principle is that justice must be done.
3.        Litigants are entitled to have their cases resolved with reasonable expedition.  Non-compliance with time limits can cause prejudice to one or more of the parties to the litigation.
4.        In addition the vacation or adjournment of the date of trial prejudices other litigants and disrupts the administration of justice.
5.        Extensions of time which involve the vacation or adjournment of trial dates should therefore be granted as a last resort.
6.        Where time limits have not been complied with the parties should co-operate in reaching an agreement as to new time limits which will not involve the date of trial being postponed.
7.        If they reach such an agreement they can ordinarily expect the court to give effect to that agreement at the trial and it is not necessary to make a separate application solely for this purpose.
8.        The court will not look with favour on a party who seeks to take tactical advantage from the failure of another party to comply with time limits.
9.        In the absence of an agreement as to a new timetable, an application should be made promptly to the court for directions.
10.      In considering whether to grant an extension of time to a party who is in default, the court will look at all the circumstances including the considerations identified above."

Moreover an acceptable explanation requires more than a mere statement that the person in charge of the action forgot about it, or was too busy to get on with it; an acceptable excuse, such as illness, will prompt a more sympathetic response to the application than if the omission is caused by neglect (Erskine Communications Ltd v. Worthington (1991)  The Times, July 8, CA)."

12.      In addition, Mr. Yates referred me to the English Court of Appeal decision in Finnegan v. Parkside Health Authority (1998) 1 All ER 595.  This case addressed the principles to be applied in allowing extensions of time under Order 3 Rule 5.  The headnote reads in part as follows:-

"Held - when considering an application for an extension of time for complying with procedural requirements, the court had, under Ord 3, r5, the widest measure of discretion.  Accordingly, the absence of a good reason for any delay was not in itself sufficient to justify the court in refusing to exercise its discretion to grant an extension, but the court was required to look at all the circumstances of the case and to recognise the overriding principle that justice had to be done."

In the course of his judgment Hirst L.J. cited with approval the principles previously laid down by the Court of Appeal in Costellow v. Somerset CC (1993) 1 All ER 952, (1993) 1 WLR 256.  All pages 597 and 598 of his judgment Hirst L.J. says as follows:-

"In Costellow's case the plaintiff was seeking an extension of time for the service of his writ, claiming damages for personal injuries, which had been issued just within the three-year limitation period but not served until after the expiry of the four-month period allowed for service.

In the leading judgment with which Stuart-Smith and Simon Brown LJJ agreed Bingham MR stated as follows ([1993]) 1 All ER 952 at 959-960, [1993] 1 WLR 256 at 263-264):

'We are told that there is some uncertainty among practitioners and judges as to the appropriate practice in situations such as this.  It is plainly desirable that we should give such guidance as we can.  As so often happens, this problem arises at the intersection of two principles, each in itself salutary.  The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed.  The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met.  This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit: Ord 19, r 1, Ord 24, r 16(1), Ord 25, r 1(4) and (5), Ord 28, r 10(1) and Ord 34, r 2(2) are examples.  This principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution.  The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate.   This principle is reflected in the general discretion to extend time conferred by Ord 3, r 5, a discretion to be exercised in accordance with the requirements of justice in the particular case.   It is a principle also reflected in the liberal approach generally adopted in relation to the amendment of pleadings.  Neither of these principles is absolute.   If the first principle were rigidly enforced, procedural default would lead to dismissal of actions without any consideration of whether the plaintiff's default had caused prejudice to the defendant.  But the court's practice has been to treat the existence of such prejudice as a crucial, and often a decisive, matter.  If the second principle were followed without exception, a well-to-do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice.  This would circumscribe the very general discretion conferred by Ord 3, r 5, and would indeed involve a substantial rewriting of the rule.  The resolution of problems such as the present cannot in my view be governed by a single universally applicable rule of thumb.   A rigid, mechanistic approach is inappropriate.  Where, as here, the defendant seeks to dismiss and the plaintiff seeks an extension of time, there can be no general rule that the plaintiff's application should be heard first, with dismissal of his action as an inevitable consequence if he fails to show a good reason for his procedural default.  In the great mass of cases, it is appropriate for the court to hear both summonses together, since, in considering what justice requires, the court is concerned to do justice to both parties, the plaintiff as well as the defendant, and the case is best viewed in the round.  In the present case, there was before the district judge no application by the plaintiff for extension, although there was before the judge.  It is in my view of little or no significance whether the plaintiff makes such an application or not:  if he does not, the court considering the defendant's application to dismiss will inevitably consider the plaintiff's position and, if the court refuses to dismiss, it has power to grant the plaintiff any necessary extension whether separate application is made or not.  Cases involving procedural abuse (such as Hytrac Conveyors Ltd v Conveyors International Ltd [1982] 3 All ER 415, [1983] 1 WLR 44) or questionable tactics (such as Revici v Prentice Hall Inc [1969] 1 All ER 772, [1969] 1 WLR 157) may call for special treatment.  So, of course, will cases of contumelious and intentional default and cases where a default is repeated or persisted in after a peremptory order.  But in the ordinary way, and in the absence of special circumstances, a court will not exercise its inherent jurisdiction to dismiss a plaintiff's action for want of prosecution unless the delay complained of after the issue of proceedings has caused at least a real risk of prejudice to the defendant.  A similar approach should govern applications made under Ords 19, 24, 25, 28 and 34.  The approach to applications under Ord 3, r 5 should not in most cases be very different.  Save in special cases or exceptional circumstances, it can rarely be appropriate, on an overall assessment of what justice requires,  to deny the plaintiff an extension (where the denial will stifle his action) because of a procedural default which, even if unjustifiable, has caused the defendant no prejudice for which he cannot be compensated by an award of costs.  In short, an application under Ord 3, r 5 should ordinarily be granted where the overall justice of the case requires that the action be allowed to proceed."

In his analysis and conclusion Hirst L.J. says at pages 604 and 605:-

"In my judgment the starting point is RSC Ord 3, r 5 itself, which explicitly confers the widest measure of discretion in applications for extension of time, and draws no distinction whatsoever between various classes of cases.  Costellow's case seems to me fully in line with that philosophy, was expressed to be a guideline case, and, I would add, drew no rigid distinctions, since contrary to Miss Neale's argument I do not accept that the last paragraph in Bingham MR's judgment did any more than point out that in special cases or exceptional circumstances the court must, as is obvious, apply special treatment.  For present purposes it is extremely important to note that Bingham MR expressly disapproved of a rigid mechanistic approach, and rejected the contention that the application for an extension should be heard first, and that dismissal of the action is an inevitable result if the applicant fails to show good reason for his procedural default."

13.      Mr. Fiott, in the course of his understandably forceful submissions referred me to particularly to three Jersey Court of Appeal cases namely, Taunton v. The States of Jersey Planning & Environment Committee (18th April, 2000) Jersey Unreported; Hickman v. Hickman (1988) JLR 602 and Jersey Demolition Contractors Limited v. Resources Recovery Board (1985) JLR 77.  He also urged that as the only explanation put forward for the Respondent's default was pressure of work this was not a ground for granting the extension requested.

14.      The three cases to which Mr. Fiott referred me, all deal with the question of extensions of time under the Court of Appeal (Civil) (Jersey) Rules, 1964, and turn largely on the express provisions of those Rules.  I think, therefore, that they are not really of assistance in the context of the present application.

15.      In my opinion, the principles which I should apply in considering the present application for an extension of time are those which have been adopted in English cases in relation to a provision which is worded similarly to Rule 1/5 of our Rules.  These are the principles to which I have referred as set out in the White Book and the Finnegan case.

16.      In applying those principles and guidelines I consider that matters in the present case are very much in the balance.  The Respondent has failed on a number of occasions to comply with the Royal Court Rules or orders made by me whilst in total contrast the Appellants have within due time done all that was required of them.  No real reason has been given for the Respondent Committee's dilatoriness save for pressure of work on the Planning Department or the Committee's advisers.  Weighed against that is the overriding principle that justice must be done between the parties.

17.      With some hesitation I have decided on balance to allow the Respondent to file its case out of time.   My reasons for doing so are as follows:-

(a)            I consider that in order to be able to do justice between the parties the Royal Court should have before it in a coherent form all material which it needs in order properly to dispose of this appeal;

(b)            the overriding principle that justice must be done between the parties is best achieved by allowing the action to proceed in the way I have described;

(c)            I am not satisfied that any prejudice suffered by the Appellants is such as could not be compensated by an award of costs.

 

18.      I would say finally that, in my view, the conduct of the Respondent Committee and its advisers has been totally unacceptable in this case.  I have no hesitation, therefore, in ordering that the Respondent pay the costs of the Appellants in this application on the indemnity basis.  I would also say that my decision in this matter should not be taken as in any way condoning what has happened.  I would view any repetition with considerable concern.

 

Authorities

 

Royal Court Rules, 1992, as amended - Rules 1(5) and Part XII.

The Supreme Court Practice, 1999 Edition Paragraphs 3/5/1 to 3/5/4.

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

Costellow v Somerset CC (1993) 1 All E.R. 952, (1993) 1 WLR 256.

Taunton v The States of Jersey Planning & Environment Committee, (18^th April, 2000) Jersey Unreported.

 

Hickman v Hickman (1988) JLR 602

Jersey Demolition Contractors Limited v Resources Recovery Board (1985) JLR 77.