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Jurisdiction 2. Commissioner of Police of Bermuda Broadcasting Co. Ltd

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Jurisdiction 2. Commissioner of Police of Bermuda Broadcasting Co. Ltd NOTES IN RESPECT OF TALKS TO TRAINEE MANX ADVOCATES CIVIL APPEALS (Talk at 6pm on 31 March 2014) Jurisdiction 1. The jurisdiction of the Appeal Division of the High Court of Justice of the Isle of Man derives from statute (Appeal Division’s judgment in Hafner 31 August 2007). 2. Commissioner of Police of Bermuda Broadcasting Co. Ltd (Privy Council judgment 23 January 2008) at paragraph 14: “The Court of Appeal, like the Court of Appeal of England and Wales, is a statutory creation and has the jurisdiction expressly or impliedly conferred on it by statute or rules made under statutory authority. It does not have any inherent jurisdiction.” 3. Wall L J in Re W [Children] [2009] EWCA Civ 59 at 21 declined to decide an issue not properly before the English Court of Appeal stating “This is not a matter of judicial side-stepping: it is simply not within our power or function to make any such decision”. At paragraph 19 the learned judge had stated: “Many litigants come to this court wrongly believing that it has powers which it does not possess. In reality, the Court of Appeal is a creature of statute, and its powers are limited by Acts of Parliament, rules of court (notably the Civil Procedure Rules) and its own previous decisions.” 4. Appeals are against orders and do not ordinarily lie against the reasons for the decision (See the authorities cited in the footnotes to paragraphs 11.002-11.003 of Leabeater’s Civil Appeals: Principle and Practice; Lake v Lake [1955] 2 ALL ER 538. See also Curtis v London Rent Assessment Committee [1997] 4 ALL ER 842, Compagnie Noga case [2002] EWCA Civ 1142 at 27 and 53, Kynaston v Carroll [2004] EWCA Civ 1434 at 10 and 22, Lord Hope’s judgment in HM Treasury v Aimed [2010] UKSC 5 at 16 and L-B (Children) [2012] EWCA Civ 98 at paragraph 65). 5. An appeal court is reluctant to deal with academic or theoretical points. See Rolls Royce plc v Unite the Union [2009] EWCA Civ 387 in respect of an appeal court’s discretionary jurisdiction to grant declaratory relief and the circumstances in which an appeal court may decline jurisdiction. 6. In McGraddie v McGraddie [2013] UKSC 58 Lord Reed referred to an important point made by judges in the Canadian Supreme Court which explained why appellate courts were not in a favourable position to assess and determine factual matters: “Appeals are telescopic in nature, focussing narrowly on particular issues as opposed to viewing the case as a whole.” 7. The Appeal Division, in the context of a criminal appeal, in Patterson and Barber (judgment 12th September 2013) stressed that advocates have a responsibility “only to pursue those appeals which have merit.” 8. See the relevant provisions of the High Court Act 1991 in respect of civil appeals. Section 18(1) of the High Court Act 1991 states that the Appeal Division shall exercise (a) civil jurisdiction and (b) criminal jurisdiction. 1 Leave – consent/costs 9. Section 19 of the High Court Act 1991 provides in effect that leave is required to appeal from consent orders and costs orders. Second appeals 10. Rule 14.4(1) of the 2009 Rules provides that permission is required from the Appeal Division for any appeal to that Division from a decision of the Civil Division which was itself made on appeal. Rule 14.4(2) of the 2009 Rules provides that the Appeal Division shall not give permission unless it considers that: (a) the appeal would raise an important point of principle or practice; or (b) there is some other compelling reason for the Appeal Division to hear it. 11. See also the Appeal Division judgment in Willers v Gubay (6th March 2013) which discourages second appeals especially on costs. Constitution and powers 12. Section 22 of the High Court Act 1991 concerns the constitution and powers of the Appeal Division. The Appeal Division shall consist of at least 2 judges of the High Court. Its powers may, with the consent of the parties, be exercised by a single judge of the High Court. The powers of the Appeal Division to give leave to appeal, to extend time, to allow an appellant to be present in cases where he is not entitled to be present without leave and to admit an appellant to bail may be exercised by a single judge of the High Court. Any jurisdiction not involving the determination of an appeal (and the making of an interlocutory order having the effect of preventing an appeal from reaching the stage of being heard and determined shall not be treated as a determination of the appeal) may if and so far as rules of court so provide be exercised by a single judge of the High Court. A single judge of the High Court may make an interim order to prevent prejudice to the claims of any parties pending an appeal. 13. See Part 14 of the Rules of the High Court of Justice 2009 (the “2009 Rules”) in respect of appeals. 14. Rule 14.14(1) of the 2009 Rules provides that an appeal to the Appeal Division may be either by way of review of the decision of the lower court or by way of rehearing. Appeals are usually dealt with by way of review. Time limits 15. Rule 14.6(2) of the 2009 Rules provides that the appellant must file the appeal notice within: (a) such period as may be allowed by a relevant statutory provision; (b) where there is no such provision, such period as may be directed by the lower court; or (c) where the lower court makes no such direction, the following period after the date of the decision of the lower court that the appellant wishes to appeal – (i) 42 days, in the case of a final judgment or order; (ii) 14 days, in any other case. 2 Extensions of time 16. Rule 14.9(1) of the 2009 Rules states that an application to vary the time limit should be made to the appeal court. 17. The following are extracts from the Appeal Division judgment in Breeze v Flexton Limited delivered on 21 January 2014: “The relevant law 7. In Sturgeon v Raad [30 November 2007] this court, albeit differently constituted, had to determine an application to which was substantially out of time in that there was a delay of 2 years and 4 months. As to the principles to be applied this court stated, at paragraph 10 of its judgment: `It is common ground that it is entirely within the discretion of the court to grant or refuse an extension of time for the serving of a notice of appeal and that the factors which are normally taken into account in deciding whether to grant such an extension of time are [1] the length of the delay, [2] the reasons for the delay, [3] the chances of the appealing succeeding if the application is granted and [4] the degree of prejudice to the potential respondent if the application is granted : see C M Van Stillenvoldt BV v El Carriers Inc [1983] 1 WLR 207, cited withy approval by this court in In Re Kewley [1990-92] MLR 67 at 71.` 8. As to the required prospects of success this court indicated that, although the judgment itself did not quantify the required prospects of success, the headnote to the judgment properly indicated that the court could only consider allowing an appellant to appeal out of time `if his chances of success were high` 9. In Kewley the delay in filing the notice of appeal was some 10 weeks and because the court concluded that the appeal `was bound to fail`, the appeal was dismissed. 10. However at paragraph 12 of the judgment in Kewley, this court agreed with counsel that: ``ultimately and overriding or embracing all factors which go into the exercise of discretion … is the question of what the interests of justice require on the facts of a particularly case` per Bingham MR in Re Dennis (a bankrupt) [unreported: 27 October 1993], cited with approval by this court in Myp-Des SA & Another v Artola Ltd & Others [unreported : 26th November 2002].` 11. Rules and time limits are there to be observed and complied with to assist in the efficient administration of justice. This is especially important in a compact jurisdiction with limited resources. 12. In the future it may be necessary for this court to consider in an appropriate case whether the position outlined in Sturgeon v Raad may require modification subsequent to 2009 Rules, and the earlier English Civil Procedure Rules, and the new 3 litigation culture where the emphasis is on compliance with rules and time periods and most appropriate use of court resources and time : see for example, albeit in a different context, the observations of Lord Dyson MR in Mitchell v NewsGroup Newspapers Limited [2013] EWCA Civ 1537 in respect of the importance generally of complying with time limits and the need to discourage delay. 13. Moreover, we remind ourselves of what this court, as presently constituted, stated in Manx Auto Rescue Club v Mann and Partners [13 November 2012], namely that excessive indulgence should not be extended to litigants in person : see Tinckler v Elliott [2012] EWCA Civ 1289 in which Maurice Kay LJ , stated, at paragraph 32 of his judgment : "I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins.
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