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The Jersey Law Review - June 2003

CIVIL APPEALS TO THE COURT OF APPEAL AND ALL THAT JAZZ

Timothy Hanson

1       The Court of Appeal (Jersey) Law 1961 (“the 1961 Law”) sets out the circumstances in which a litigant in Jersey is entitled to appeal from the Royal Court to the Court of Appeal. In respect of “civil causes or matters”, the position is governed by article 13.  As most practitioners will readily appreciate, article 13 prescribes the circumstances where an appeal to the Court of Appeal is not permitted at all[1], or alternatively, where a litigant may appeal as a matter of right or only with leave of the Court. It is in the latter two circumstances that difficulties have been particularly encountered. This article seeks to identify those difficulties, examine how the Jersey courts have set about solving them.  Where an appeal is not possible, it explores the alternative remedies of doléance and judicial review.

The 1961 Law

2       Article 13 of the 1961 Law closely follows the structure and wording of section 31 of the Supreme Court of Judicature (Consolidation) Act 1925, upon which the former was based. Given the broad similarity between these statutory provisions, it is permissible to have regard to relevant English authority when construing the 1961 Law[2].

  3     In relation to appeals, either with leave or as of right article 13 of the 1961 Law (as amended) provides as follows -

         “No appeal shall lie under this Part of this Law –
         ………

(c)     without the leave of the court making the order, from any order –

(i)   made with the consent[3] of the parties; or

(ii)   as to costs only which by law are left to its discretion;

 (d)    without the leave of the court whose decision is sought to be appealed from, or of the Court of Appeal, except –

 (i)  where the value of the matter in dispute is more than three thousand pounds; or

 (ii)  on a question of law;

(e)     without the leave of the court whose decision is sought to be appealed from, or of the Court of Appeal, from any interlocutory order or interlocutory judgment, except –

 (i)     where the liberty of the subject or the custody of infants is concerned;

 (ii)     in the case of a decree in a matrimonial cause or a judgment or order in an admiralty action determining liability;

(iii)     in such other cases of the nature of final decisions as may be prescribed.”

4       The first concern is to try to understand the interrelationship of the above paragraphs. A given cause or matter may ostensibly fall within more than one paragraph but which provision prevails? The following example illustrates the problem. Upon advice, a defendant consents to an order by the Royal Court that he make an interim payment to the plaintiff under RCR 7A in the sum of £100,000. The order would clearly fall within sub-paragraph (c)(i) as being made with the consent of the parties. Accordingly, if the defendant ever wanted to appeal from the Royal Court’s order, for instance believing that he had been wrongly advised, only the leave of the Royal Court would enable such an appeal to progress. However, paragraph (e) also applies as the order is interlocutory.[4] The latter provision would, of course, allow an appeal to be brought with the leave of the Royal Court or the Court of Appeal. It may also be that the exception contained in sub-paragraph (d)(i) applies, as “the value of the matter in dispute” both in the action generally, and upon the application itself (if relevant) is more than £3,000. Whilst paragraph (d) would ordinarily permit an appeal with the leave of the Royal Court or the Court of Appeal, such an exception, if established, would allow an appeal as of right.[5]

5       The answer to the last part of the problem is that paragraph (d) does not apply at all.  Paragraph (d) represents a “catch-all-else” provision that will only apply where the order has not been made by consent; is not a costs order;[6] and is not interlocutory. This becomes clear when one looks at sub-paragraphs (c) and (e). Paragraph (c) requires leave from the court making the order, from “any order…made with the consent of the parties..”. It must, therefore, prevail over any consent order that might otherwise have fallen within paragraph (d).[7] Similarly, paragraph (e) requires leave to be obtained in relation to “any” interlocutory order or interlocutory judgment “except” those three interlocutory matters that are therein set out. As we have seen with paragraph (d), such an exception, if established, would allow an appeal as of right.

6       The relationship between paragraphs (c) and (e) is however more difficult to understand. In the case of an interlocutory order made by consent, as given in the example, both provisions appear to overlap but they have different consequences in respect of leave. Paragraph (c) applies, inter alia, to “any” consent order whilst, paragraph (e), as we have seen above, applies to “any” interlocutory order or interlocutory judgment. How is this conflict to be resolved? [8]

7       The starting point must be that under the paragraphs in question, the legislature intended to restrict the circumstances in which an appeal could be brought against a consent order and, less so, against an interlocutory order. Accordingly, if a given cause or matter falls within more than one paragraph, the greater restriction upon the right to appeal (if any) ought to be applied as best serving that intention. In essence, this would involve the Court reading in the words “save as is provided in paragraph (c) above” at the commencement of paragraph (e). It is submitted that this provides a sensible answer to the apparent overlap between these provisions.

8       It is notable that such an approach is consistent with that taken in the English case of Purcell v F.C.Trigell Ltd.[9]  In that case, an appeal was made against an “unless” order. The order was therefore an interlocutory order but had also been made with the consent of the parties. The defendant appealed from the order but had not secured the prior leave of the registrar. The Court of Appeal had no hesitation in applying the section upon which article 13 (c) of the 1961 Law is based,[10] holding that there was no jurisdiction to entertain an appeal without the leave of the first instance Court. Although the point was not argued, the Court of Appeal did not see fit to apply the more generous provision that was applicable to interlocutory orders, and which would have allowed the Court of Appeal itself to grant leave to appeal.[11] 

Final or interlocutory order?

9       To understand the ambit of paragraph (e), it is clearly important to know what is meant in the 1961 Law by the term “interlocutory”. Unfortunately, a definition does not appear either in the 1961 Law, the Court of Appeal (Civil) (Jersey) Rules 1964, or in the Royal Court Rules. There is no rule comparable to the English RSC Order 59/1A which, until supplanted by the Civil Procedure Rules in 1999,[12] used to provide the comprehensive definition of orders that were “final” or “interlocutory”.

10     In England, the courts found it so problematical to distinguish between orders that were interlocutory and those that were final, that RSC Order 59/1A had to be introduced. As Lord Denning MR observed in 1971,[13]before the making of that rule, the only way to be confident as to category within which an order fell, was to hope that a decision had already been made upon the point.

11     Part of the problem experienced in England was that there had been two rival tests that had been applied, neither of which could cater for all situations that arose in practice. The first test arose out of the case of Salaman v Warner[14] where an order striking out an action was held to be interlocutory.  Fry LJ stated -

“I conceive that an order is “final” only where it is made upon an application or other proceeding which must, whether such application or other proceeding fail or succeed, determine the action.  Conversely I think that an order is “interlocutory” where it cannot be affirmed that in either event the action will be determined.  Applying this test to the present case, it is obvious that the order here was made on an application of which the result would not in one event be final.  Therefore this is an interlocutory order.”[15]

12     The second test arose out of the case of  Bozson v Altrincham Urban District Council[16]where Lord Alverstone CJ stated -

“Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”[17]

13     The Salaman test therefore depended upon the nature of the application made, whereas the Bozson test depended upon the nature of the order that was actually made upon a given application.

14     Perhaps because the experience in England has been overlooked, there are no rules in Jersey that set out those orders that are to be classed as “interlocutory” and those that are “final”. Consequently, it has been left to the Jersey courts to find a solution. The Court of Appeal first articulated a distinction in Forster (t/a Airport Business Centre) v Harbours and Airport Committee.[18] In that case, an order staying proceedings in the Royal Court was held to be an interlocutory order only. Le Quesne JA stated -

“It does not put an end to the proceedings in the Royal Court, it merely stays further proceedings in the action, pending the determination of the case in the Petty Debts Court.  Indeed, the Court of Appeal in delivering judgment expressly contemplated that there might be circumstances in which, after the decision of the Petty Debts Court, this action might still raise questions requiring determination in the Royal Court. In those circumstances it appears to us impossible to say that this was a final decision or a decision definitively disposing of the rights of the parties.”[19]

15     By concentrating upon the effect of the particular order made, the Court in Forster v Harbours and Airport Committee seemingly applied the Bozson test, although it is correct to observe that under either test, the result would have been the same: an order staying an action is interlocutory.

16     It was not until the recent case of Planning & Environment Committee v Lesquende[20]that a Jersey court considered the issue again in any detail. In that case, the Deputy Bailiff followed the test in Salaman v Warner, holding that such a test had generally been applied in Jersey. A variety of cases do indeed support this view, a judgment entered in default of a defence has been “treated as interlocutory”; an order striking out an action has also been held to be interlocutory.[21]  However, the issue has not been free from doubt. In an earlier decision in Tomes v Coke-Wallis,[22] for instance, the Bailiff opined that the entry of summary judgment was a final order but, upon the invitation of both advocates, dealt with the matter as if leave were required.

17     The decision in Lesquende is, however, unsatisfactory in two main respects. First, it is arguably per incuriam in that it does not consider the binding decision of Forster v Harbours and Airport Committee where the Bozson test appears to have been applied. Secondly, it cannot provide an answer in all cases. For instance, in Cater Allen v Jersey Financial Services Commission,[23] Lord Hoffman stated during oral argument before the Privy Council that an order made upon a preliminary issue that would otherwise have been determined at a final hearing but, was heard earlier as a matter of convenience, was “clearly a final order”.[24] Yet, the decision under appeal in that case was that the action was not prescribed and should be allowed to continue.[25] Accordingly, whilst the hearing of the preliminary application could not “determine the action” whichever way it was decided (the Salaman test), the mere fact that it determined the rights of the parties upon that particular issue, made it a final order. Accordingly, the decision in Lesquende should not be seen as some form of panacea.

18     With the benefit of knowing how the English courts have found it difficult to classify an order as interlocutory or final, it is unsatisfactory that litigants in Jersey must suffer these predictable difficulties.  A great deal of argument and expense could have been avoided at all stages of the appeal process in Cater Allen v Jersey Financial Services Commission, had Jersey had the benefit of a rule comparable to RSC Order 59/1A.[26] 

The test for granting leave

19     In Maçon v Quérée, Page, Commissioner, stated the position as follows -

“As to the basis on which leave to appeal would ordinarily be granted, the general test is that the Court will normally grant leave unless the grounds of appeal have no realistic prospect of success.”[27]

20     Such a test was endorsed by Birt, Deputy-Bailiff in Tomes v Coke-Wallis, save that the Deputy-Bailiff added a slight gloss where the application could not be renewed before the Court of Appeal -

“The test set out in Maçon was that leave should normally be granted unless the grounds of appeal have no realistic prospect of success. Where the Court’s decision on leave will be the final word (as in relation to an order for costs only) the Court should err in favour of the applicant if it is in any doubt as to whether there is any realistic prospect of success. But the requirement for leave is clearly intended by the legislature to prevent the Court of Appeal from being faced with wholly unmeritorious appeals on costs only and it is therefore the duty of the Royal Court to refuse leave if quite satisfied that there is no realistic prospect of success.”[28]

21     Whilst the “realistic prospect of success” test was applied in Maçon v Quérée, the Court went on to consider whether or not there was any other justification for granting leave to appeal -

“I am left with this question: notwithstanding the fact that it seems to me that the prospects of any successful appeal to the Court of Appeal in relation to this matter are negligible, or certainly not substantial, realistic or viable, should I nonetheless grant leave to appeal for some other reason? I have considered the matter and it seems to me that there is no other factor that would justify me in taking that course.”[29]

22     In effect, the Royal Court in Maçon v Quérée applied the test for leave that was summarised in Smith v Cosworth Casting Processes Ltd.[30] In that case the English Court of Appeal stated that leave would only be refused if there was no realistic prospect of success but that “the Court can grant the application even if not so satisfied." In that latter respect, the Court noted that there may be many reasons justifying the grant of leave in such circumstances.

23     More recently, however, in Glazebrook v Housing Committee,[31] the Court of Appeal felt that it “may be helpful to practitioners” to set out its views as to the principles relating to the grant or refusal of leave to appeal.In so doing, such guidance may have resulted in a degree of confusion.

24     In Glazebrook, the Court of Appeal revisited the test applied by Tomes, Deputy-Bailiff, in Vekaplast v Picot[32] who, in turn, had applied the test then set out in the Supreme Court Practice 1988. The Court of Appeal restated the test that was then applicable, but with some amendment in one particular respect only. In Glazebrook the test for the grant of leave to appeal was stated to be where: (i) there was a clear case of something having gone wrong in the court below; (ii) the case involved a question of general principle, decided for the first time; (iii) the case involved an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage.

25     The first limb of the test enunciated in Glazebrook is likely to be that which is considered in the majority of cases. The fact, however, that that requires “a clear case of something having gone wrong” should now mean that it is more difficult to obtain leave to appeal. That test is higher than merely showing “a realistic prospect of success” where only “a fanciful prospect or an unrealistic argument” would not be sufficient for the grant of leave.[33] By recasting the principles in their 1988 setting, it is respectfully submitted that the Court of Appeal in Glazebrook has generated confusion by failing to take account of developments since that time and, in particular, the application of the “realistic prospect of success” test. It will be interesting to see if any future Court can reconcile Glazebrook with that latter test.[34]

Leave to appeal and  the Scherer exception

26     Having considered the ambit of paragraphs (c) to (e) of article 13, it will have already become clear that there are two different courts that are involved in the grant of leave. In the event that article 13 (c) applies, only the Royal Court may grant leave whereas under article 13 (d) and (e) either the Royal Court or the Court of Appeal may do so. As will be considered in greater detail below, the significance of such a difference was highlighted in the recent application for leave to appeal against an order as to costs made in Tomes v Coke-Wallis.[35] In that case, the Deputy-Bailiff drew attention to the fact that when considering whether or not to grant leave to appeal against an order only as to costs, the Royal Court did not enjoy the comfort of knowing that, if it were wrong in refusing leave, the application could always be renewed before the Court of Appeal. Article 13(c)(ii) of the 1961 Law prevented an application for leave being brought before the Court of Appeal.[36]

27     Whilst this observation is ordinarily correct, it is important not to overlook English case law upon near identical wording to that found in article 13(c)(ii). The Supreme Court of Judicature (Consolidation) Act 1925,[37] and subsequently, the Supreme Court Act 1981,[38]both restricted appeals against orders “relating only to costs which are by law left to the discretion of the court or tribunal.” As is the position in Jersey, where the court making the costs order refuses leave to appeal, this provision prevents the application from being renewed before the Court of Appeal. In Scherer v Counting Instruments Ltd.,[39] however, the English Court of Appeal managed to carve out an exception to this rule, in extreme circumstances, namely, where the first instance judge had “wholly failed to exercise any judicial discretion”[40] when making the order as to costs. This, it was held, took the matter outside the statutory restriction.[41]

28     Although the Scherer principle has been extensively applied in England[42] and, arguably, has remedied injustices that would otherwise have been perpetuated, it is open to criticism for failing to apply the statutory language in question. As occurs in article 13(c)(ii) of the 1961 Law, the relevant provision merely identifies those costs orders that are subject to restriction from appeal: “costs which are by law left to the discretion of the court”. The statute does not, in terms, require the judge to exercise such discretion[43].

29     Whilst the Scherer case has been cited by advocates in both the Royal Court[44] and the Court of Appeal,[45] there has yet to be a decision applying the principle to the 1961 Law.  A litigant who wishes to challenge an order as to costs only, but has had leave to appeal refused, might therefore consider two other potential avenues: (i) an appeal by petition of doléance; and (ii) an application for judicial review. The latter remedies would further be relevant were the Royal Court to refuse leave to appeal against an order made with the consent of the parties. As has been observed, article 13(c)(i) of the 1961 Law would prevent an appeal to the Court of Appeal  in such circumstances.

Doléance

30     The doléance has been most recently described as providing a remedy where the court has refused to hear an appeal, despite a right of appeal existing, or where an order or judgment contains a manifest judicial error and there is no right to appeal.[46] In such circumstances, an aggrieved litigant may ask for the impugned decision to be reviewed by the superior court.[47] As with the Scherer exception, the grounds upon which such proceedings can be brought have to be extreme:

“Before allowing a doléance, the court has to be satisfied that there has been an excess of jurisdiction or a breach of natural justice which needs to be remedied, as a doléance is a remedy “in last resort” when all other doors are closed and a grave injustice will remain unless remedied”.[48]

31     The remedy of doléance is known to both Guernsey and the Isle of Man,[49] although the Guernsey Court of Appeal has recently queried its continued existence there, in the absence of any evidence of its use in living memory.[50] In Jersey, the remedy enjoyed something of a renaissance, notably, by virtue of Re Barker,[51] and Re Harbours and Airport Committee[52]where, in each case, a petition of doléance was brought against the decision of the Inferior Number of the Royal Court to the Superior Number. In both cases, statutory provisions had made it clear that the decisions of the Inferior Number in question were to be treated as final.[53] Nevertheless, the Superior Number found that it was entitled to exercise the ancient remedy of doléance.

32     In finding that the Superior Number enjoyed such jurisdiction, it is instructive to consider the objection made in Re Harbours and Airport Committee,[54] to the effect that it was inappropriate for the Superior Number to review the decision of the Inferior Number by means of a petition of doléance. It was argued that since the Royal Court (Jersey) Law 1948 had come into force, the Jurats were no longer judges of both law and fact but were judges of fact only. Accordingly, on a point of law, the Jurats would be unable to assist the Court in reaching its decision. In essence, one judge of the Royal Court would thereby be reviewing the decision of another. Tomes, Deputy Bailiff, rejected such an argument. He held that it would lead to -

“ the artificial and perverse situation where a doléance would lie to the Superior Number on a mixed question of law and fact but would have been abolished on  a question of law alone. The law is not altered by “sidewind” in this way.”

33     The decision in Re Harbours and Airport Committee is further of significance in emphasizing the similarity between the remedy of doléance and judicial review in England and, in particular, the English writ of certiorari. In fact, Tomes, Deputy Bailiff, referred to the doléance as “judicial review”. However, he went on to emphasise that the doléance was, in fact, properly classified as an appeal -

“ [In England] the Queen’s Bench does not substitute its own views for those of the inferior tribunal, as an appellate Court would do, but exercises its control by means of a power to quash the decision, leaving it to the inferior tribunal to hear the case again and in a proper case commanding it to do so. In the case of the doléance, the Privy Council or the Superior Number decides the issues between the parties. The doléance provides an appeal where there is none.”[55]

34     Whilst doléance has long been regarded as enjoying a specialised existence, distinct from any conventional appellate procedure,[56] its classification as an appeal presents some difficulty.  Article 12 of the 1961 Law expressly deprives the Royal Court of its appellate functions in any civil cause or matter. Such functions are vested in the Court of Appeal -

“There shall be vested in the Court of Appeal all jurisdiction and powers hitherto vested in the Superior Number of the Royal Court when exercising appellate jurisdiction in any civil cause or matter.”

35     This was emphasised in Re Blue Horizon Holidays[57]when the Court of Appeal found jurisdiction to hear an appeal against a declaration en désastre from the Royal Court.[58]  It is, therefore, questionable as to whether or not the Superior Number had the jurisdiction that was found to exist, so as to hear the petitions of doléance in Re Barker and in Re Harbours and Airport Committee. If such jurisdiction is, instead, vested in the Court of Appeal by virtue of article 12 of the 1961 Law, it is unclear to what extent the remedy of doléance, as formerly exercised by the Superior Number, could have survived the regime now imposed by article 13 of the same Law.

36     Nevertheless, where a litigant finds that he is unable to pursue an appeal to the Court of Appeal under the 1961 Law, the above cases remain authority for the proposition that an appeal to the Superior Number may be brought, provided that such a litigant can bring himself within the narrow parameters[59] of doléance.

Judicial review

37     Whilst the Jersey courts have long recognised the remedy of doléance, principles of judicial review, as applied in England, have more recently taken root in the Island’s jurisprudence. The principles that govern judicial review have been repeated in a number of decisions in Jersey[60] and, in essence, there are three broad grounds upon which judicial review will lie: “illegality, irrationality, or procedural impropriety”.[61] 

38     A litigant who finds that he is unable to pursue an appeal to the Court of Appeal under the 1961 Law, might consider seeking judicial review of the order that he seeks to impugn in the event that one of the grounds stated above can be established. Such a remedy would not be prevented merely by the decision in question being statutorily declared to be final.[62]

39     The difficulty, however, with an application for judicial review in such circumstances, is whether a decision of the Inferior Number of the Royal Court can ever be the subject of judicial review proceedings. Certainly, in England, the High Court cannot judicially review its own decisions but only those of an inferior court or tribunal.[63]  In Jersey, however, the Superior Number has been regarded as a higher court of law than the Inferior Number, whose decision has been regarded as binding upon the Inferior Number.[64] Most recently, its role has been circumscribed by the Royal Court (Jersey) Law 1948 and the 1961 Law but, nevertheless, it retains vestiges of its former authority.[65] In particular, the Superior Number continues to enjoy original jurisdiction[66] from which an appeal to the Court of Appeal lies pursuant to article 12(2) of the 1961 Law. Accordingly, the role of the Superior Number is immediately distinguishable from, for example, the Court of Appeal in England which has no original jurisdiction and is thereby unable to entertain original applications for judicial review. In this context, the Court of Appeal in England merely has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review.[67]

40     Whilst the propriety of the recent position has been questioned in paragraphs 32 to 34 above, the Superior Number has, and continues to assert a jurisdiction to entertain original applications for review of the Inferior Number’s decision. Such review is by means of the doléance. In such circumstances, it would appear to be a peculiar result if the decision of the Inferior Number could not, similarly, be reviewed upon the basis of judicial review as earlier described.

41     Such a possibility was, however, not considered by the Court of Appeal in Lesquende Ltd. v Planning and Environment Committee,[68] notwithstanding the reliance in that case upon the doléance as confirming the power of the Inferior Number to judicially review the decision of inferior tribunals. Rule 12A of the Royal Court Rules, (that applies to all applications for judicial review in civil proceedings),[69] similarly overlooks the jurisdiction of the Superior Number. Paragraph 2 of this rule, requires the application to be brought before the Bailiff, sitting as a sole judge and constituting the Inferior Number, for the purpose of considering whether or not leave ought to be granted. Given the supervisory nature of judicial review over inferior courts or tribunals, it is difficult to see how the Inferior Number could ever properly become involved in the judicial review of its own decision. Nevertheless, it would seem possible under RCR 12A/10 for any final hearing to take place before the Superior Number, given that this provision merely requires the application to be determined by the “Court”.[70] The application for judicial review could, therefore, be dealt with by the Superior Number as would be the case on a petition for doléance. However, it remains to be seen how any future Court might react to such an application.

Conclusion

42     Whereas the doléance enjoys an ancient pedigree in Jersey, in contrast, principles of judicial review have only recently been grafted on to our jurisprudence. Whilst such innovation is not to be deprecated, it will inevitably take time to work through the various problems that will result. In particular, the court structure and previous practice in the Island will not always lend itself easily to the application of principles from a different jurisdiction. It is hoped that the issues raised in this article will at least lead to a greater awareness as to where the potential dangers may lie.

43     In respect of the appellate process, it has been observed that there are a number of aspects that are uncertain or confused and which require appropriate reform to the procedural rules in both the Royal Court and the Court of Appeal. Given that a litigant will normally contemplate an appeal against a backdrop of disappointment and financial expense, certainty in the court procedure thereafter, ought to be a matter that can be readily assumed.

Timothy Hanson is a barrister employed by Carey Olsen, 47 Espanade, St.Helier, Jersey JE1 0BD and is a tenant of St.Philip’s Chambers, Birmingham.

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