Debt – consequential judgment to 25 November 2015 - application to
extend time.
[2016]JCA010B
Court of Appeal
18 January 2016
Before :
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Jonathan Crow, Q.C., President
Robert Logan Martin, Q.C., and
Sir Michael Birt, Q.C.
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Between
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(1) Home Farm Developments Limited
(2) Strata Developments Limited
(3) Shane Holmes
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Plaintiffs/Appellants
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And
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Jamie Le Sueur
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Defendant/Respondent
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Between
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Jamie Le Sueur
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Plaintiff/Respondent
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And
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Shane Holmes
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Defendant/Appellant
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Mr Holmes appeared for the
Plaintiffs/Appellants.
Advocate M. H. D. Taylor for the
Defendant/Respondent.
judgment
the president:
THIS IS THE JUDGMENT OF THE COURT
Introduction
1.
This is
the judgment of the court. It deals
with the consequences of certain events occurring since we gave judgment in the
substantive appeal on 25 November 2015 (“the 25 November
judgment”).
2.
In the 25
November judgment we said this at paragraph 55:
55. The
position today is that the Order of Justice has been struck out. For the reasons set out above, we would
set aside the orders below, but only to the following limited extent and only
on the following strict conditions:-
i. We
consider that the proceedings could in principle be salvaged by an amendment
seeking an order for rectification of the Settlement Agreement to reflect Mr
Holmes’ allegation that it was a condition of that agreement that Mr Le
Sueur would procure that the creditors of Strata should accept his aggregate
payment of £50,000 in full and final settlement of their claims. To that extent we would allow the
appeal, but only on condition that within 4 weeks of today’s date the
Appellants issue and serve a Summons returnable before the Master applying for
leave to amend the Order of Justice in terms which the Master considers
properly pleads a reasonable cause of action this regard.
ii. If
and to the extent that Mr Holmes wishes to procure that the claim be maintained
in the name of Strata, he shall within 4 weeks of today’s date issue the
necessary proceedings to restore that company to the register and shall at the
same time serve copies of the relevant application and supporting evidence on
Mr Le Sueur’s advocates. If
he fails to issue proceedings by the stated deadline, the claim ostensibly
brought in Strata’s name will remain struck out. If Mr Holmes issues the proceedings in
time but fails to pursue them at all stages with due expedition, then Mr Le
Sueur shall be at liberty to restore the matter to the Master for a direction
that the claim brought in the name of Strata be struck out.”
3.
In the
event, Mr Holmes issued no applications within four weeks of 25 November. Instead, at 16:07 on 24 December he sent
an email to the court attaching two summonses, one seeking leave to amend the
Order of Justice (“the amendment summons”) and the other to restore
Strata to the Register (“the Strata summons”).
4.
Advocate
Taylor for the Respondents objected (by email dated 4 January 2016) that both
summonses were out of time, that the amendment summons did not attach a draft
Amended Order of Justice, that the Strata summons was unsupported by any
evidence and that it was in any event in the wrong form, as the application
should have been made by way of Representation.
5.
In an
email dated 7 January, the Master gave Mr Holmes until 11 January (i) to
provide a draft Amended Order of Justice, (ii) to explain why he had not
complied with the time limits set out in paragraph 55 of the 25 November
judgment, and (iii) to make submissions on whether the Master had power to
extend time and, if so, whether that power should be exercised. He also indicated that Advocate Taylor
should make submissions on the same points. Finally, he gave Mr Holmes until midday
on 8 January to explain whether evidence in support of the Strata summons had
been prepared but not yet filed, or whether it had not been prepared.
6.
Advocate
Taylor submitted his clients’ Skeleton Argument later that day,
submitting that this court (rather than the Master) has jurisdiction to deal
with the matter. On 8 January Mr
Holmes sent an email to the court saying that he thought at the time that the
summonses “were in the appropriate
order and filed on time”, and in particular he did not believe that
the 25 November judgment or the court Rules required a draft Amended Order of
Justice to accompany the amendment summons. Nevertheless, he said that he had
drafted an Amended Order of Justice “save
for one minor addition on the matter of rectification which I wish to make”
and he said that he would make that addition and file it with the court the
next day. He did not answer the
Master’s question as to whether any evidence in support of the Strata
summons had been drafted.
7.
On 11
January Mr Holmes provided a Skeleton Argument in which he said that his
failure to issue and serve the summonses in time was “a human error” on his part, but that it was “excusable” and the court
ought to apply by analogy the approach set out in Pitman v JEP [2013]
(2) JLR 293. He argues that this
court had passed the matter back to the Master. He also provided a draft Amended Order
of Justice.
8.
This court
accordingly has to decide whether it has jurisdiction to deal with these latest
developments, and if so what it should do.
Jurisdiction
9.
We are
satisfied that, under Article 12(3) of the Court of Appeal (Jersey) Law 1961,
this court has jurisdiction to deal with the latest developments.
10. We are also satisfied that the full court must
deal with it, pursuant to Article 18(3) of the 1961 Law.
11. So far as paragraph 55 of the 25 November
judgment is concerned, this court passed back to the Master the further
disposal of the summonses on the assumed basis that they would be issued in
time. By contrast, the issue that
has now arisen is whether the summonses were issued in time, and if not whether
any extension of time should be granted.
Those are not matters that were passed back to the Master.
Disposal
12. The 25 November judgment was entirely clear in
its terms. The summonses had to be
issued within four weeks of 25 November (i.e. by 23 December at the latest),
not within a calendar month. There
is no room for doubt that the summonses were issued late, and Mr Holmes has not
sought to suggest that they were issued in time. The court must therefore decide whether
to extend time.
13. In considering any application to extend time,
the court is bound to take into account all the relevant circumstances,
including the context in which the application arises, the length of the delay,
the reasons for the delay, the consequences for each party respectively of
either granting or refusing the extension, and the extent to which either
party’s conduct encourages the court to be more or less amenable to the
application (e.g. whether other time limits have been missed, whether the other
side contributed in any way to the delay etc.).
14. Taking that approach, we have no hesitation in
saying that time should not be extended.
The delay was not long, but every other factor militates strongly
against an extension:-
(i)
First, the
question arises in the context of a successful strike-out application. This court held that the claim as
pleaded could not succeed. Out of
indulgence to Mr Holmes, we were prepared to give him one last chance to amend
his pleading in order to salvage his claim. In the circumstances, the court is
entitled to expect him to take up that opportunity with alacrity, and not to
leave it to the last possible minute (as he did even on his apparent understanding).
(ii) Second, there is no possible excuse for the
misunderstanding. “Four
weeks” means four weeks, not a calendar month.
(iii) Third, the consequence for Mr Holmes of
refusing an extension is to leave in place the order of the court below
dismissing his claim – a decision which we have held was rightly made on
the basis of the pleading as it stands.
By contrast, the consequence for the Respondents of granting an
extension is that they will have to face a contested amendment application
followed by the further expense and delay of a contested trial if the
amendments are allowed.
(iv) Fourth, the amendment summons was not
accompanied by any draft Amended Order of Justice.
(v) Fifth, even now Mr Holmes has not submitted a
draft pleading seeking rectification: the only draft he has provided seeks damages
and rescission based on allegations of misrepresentation, breach of contract
and breach of fiduciary duty.
(vi) Sixth, the Strata summons was not in the right
form nor was it accompanied by any evidence.
(vii) Finally, even now Mr Holmes has not provided any
evidence in support of the Strata summons.
15. For these reasons, we refuse to grant an
extension of time. As a result, the
Act of Court issued on 18th February 2014 now takes effect, and the claim
remains struck out.
Authorities
Home
Farm Developments-v-le Sueur [2015] JCA 242.
Pitman
v JEP [2013] (2) JLR 293.
Court of Appeal (Jersey) Law 1961.