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The Jersey Law Review – June 2006
LETTER TO THE EDITOR
Dear Sir,
I see from your February 2006 issue that Richard Southwell, a former judge of the Jersey Court of Appeal (and of the Guernsey one) is complaining about the absence of time limits within which an application for leave from the Court of Appeal or for special leave for the Privy Council to appeal from the Court of Appeal to Privy Council must be made. I expect that few would disagree with him on that point. It really is potentially absurd for an application to arrive many years after the judgment of the Court of Appeal.
That said, if there are time limits, they ought to be properly observed. My bleat is that the Court of Appeal (at least in Guernsey) is almost irredeemably liberal in its approach to litigants in person. No matter how poor the excuse or how hopeless prima facia the case may be, if any litigant in person puts up a sob-story as to why he hasn’t complied either with the time limit set down by law or, perhaps, imposed by the Court of Appeal itself at an interlocutory hearing, the attitude of the Court of Appeal is far too often to ignore such time limits and let the litigant in person get on with it. As a consequence, other parties to appeals have been put to considerable unnecessary expense responding to hopeless appeals. If time limits are to be brought in in relation to the Privy Council, let us hope that they will be properly observed.
I note that Mr Southwell is also critical of the departure of the Privy Council from the rule that the Privy Council does not change by judicial decision Jersey customary law. Mr Southwell himself seems not to have felt constrained by this rule so far as Guernsey law and the Guernsey Court of Appeal is concerned. In the case of Morton v Paint, in which the leading judgment was given by none other than Southwell JA, the judgment in effect imported in to Guernsey the principles of the English Occupiers Liability Act of 1957, notwithstanding that until then the common law of Guernsey was the same as the common law of England prior to when that Act became law in England. The justification of that was that Guernsey “needs simple clear laws” and that “the coûtume and common law of Guernsey has always developed by judicial decision, supplemented by statutes passed by the States of Guernsey and approved by the Privy Council.”
I am not complaining about the Morton decision. What I do say is that I think that Mr Southwell is straining to find a distinction without a difference.
Yours faithfully,
ROGER PERROT
Ozannes,
1, le Marchant Street, St. Peter Port, Guernsey.
Mr Richard Southwell QC has responded –
Mr Perrot is fully entitled to the view that litigants in person are too well treated by the Courts of Appeal; but he ignores the fact that most such litigants appear for themselves because they cannot afford the advocates’ high fees and are not entitled to legal aid, and it is inevitable that, as in England, they will be treated somewhat more leniently than litigants represented by expensive advocates. There is also in my view a not inconsiderable difference between the changes of the law effected in Morton v Paint and those effected in Snell v Beadle. But Mr Perrot is fully entitled to his view that the changes
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