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.

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.

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. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott's health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. In my judgment, this is where Sharp J went wrong. She regarded this to be "a special case on its facts" but it could only be considered such if one goes too far in making allowances for a litigant in person. For these reasons, I do not consider that it was open to her to find the promptness requirement satisfied."

14. Having identified the factors which are normally taken into account in deciding whether to grant an extension of time in which to appeal, it is convenient to consider such factors.

The length of the delay

15. The length of the delay speaks for itself. Given that the judgment sought to be appealed was delivered on 26 June 2013, a notice of appeal ought to have been filed by the Appellant on 8 August 2013. In fact the Appellant`s notice of appeal was dated 4 November 2013 was received by the court on 7 November 2013 and issued on 14 November 2013. Thus this appeal was received by the court some 3 months late.

The reasons for the delay

16. The Appellant primary contention as to the delay is that he was unaware that he had a right of appeal and unaware of any time limits for appealing. He relies on the fact that neither the Respondent`s advocates nor the Judge or the court informed

4 him that he had a right of appeal and refers to the fact that, by contrast, when served with a copy of the registration of the judgment dated 26 June 2013 in England the order expressly informed him that he had permission within one month of service of the notice of registration to apply to set aside the registration.

17. We are satisfied that there was no obligation on the Respondent`s advocates, the Judge or the court to inform the Appellant that he had a right to appeal against Deemster Corlett`s judgment. The Appellant cited no authority is support of the existence of such an obligation and we are satisfied that there is no such obligation.

18. As to the fact that the English order of registration informed the Appellant that he had a right to apply to set aside the registration, such is expressly required by CPR 74.6(3)(c)(i). The position is similar where an ex parte application is made for an asset freezing injunction. In such circumstances it is necessary that there exist a mechanism which a party may seek to discharge an order obtained in his absence. That was not the case here, where the Appellant had participated in the hearing which culminated in Deemster Corlett giving the judgment he did.

19. Although it is a trite observation, ignorance of the law is no excuse.

…

24. Whatever may have been the reason for the subsequent delay in the Appellant filing his notice of appeal, we are driven to conclude that the Appellant did not act promptly in pursuing his appeal.

The prospects of an appeal by the Appellant succeeding

…

34. Although it is not necessary for this court to determine the merits of the Appellant`s appeal we are driven to the inescapable conclusion that the Appellant prospects of success are poor.

Prejudice to Respondent

35. Finally we consider what, if any, prejudice would be suffered by the Respondent if the Appellant was now to be allowed to pursue his appeal.

36. In some sense there is always prejudice to a Respondent in a situation such as this in that, even if successful in resisting the Appellant`s appeal, the Respondent will be deprived of the fruits of the judgment of Deemster Corlett and there will be delay in recovering damages and/or costs. However here there is greater prejudice in that the Respondent has incurred the cost of registration and enforcement proceedings in England.

Our overall conclusion

37. Although the Appellant did not concede that such was the case, we suspect that the Appellant was content to let the Manx Judgment stand until action was taken to register and enforce the Manx judgment in England where he may have assets.

38. In this case there was significant delay in the Appellant pursuing his appeal even when he had been told that he had a right of appeal.

39. We believe that the Appellant`s prospects of successfully appealing Deemster Corlett`s judgment are poor.

40. We believe that the Respondent has suffered prejudice, in particular by incurring further costs to seek to enforce the judgment against the Appellant in England.

41. The rules in respect of the time period are clear, publicly available and should be well known.

42. There is not one set of laws and rules for litigants in person and another set of laws and rules for legally represented litigants. If the Appellant had been represented his application for an extension time would not have been granted. The fact that the Appellant was a litigant in person should make no significant difference in the circumstances of this case otherwise legally represented litigants would be put at an unfair disadvantage.

43. Accordingly we decline to exercise our discretion in favour of the Appellant in respect of application that we should extend the time for him to appeal Deemster Corlett`s judgment and his appeal is dismissed.

44. In such circumstances it was unnecessary for the court to determine it was appropriate to impose conditions if leave to appeal out of time was granted. We add only that although we heard no submissions on this issue, as a matter of principle we would probably have required some persuasion not to impose some conditions of the kind contemplated by the Respondent, such as payment into court of the judgment sum and costs, if we had been persuaded to allow the Appellant further time in which to prosecute his appeal.”

18. See also High Bailiff Needham’s judgment in Akhavan v Sigma Holdings Ltd (19 November 2013).

19. See some of the older cases including Kewley 1990-92 MLR 67 and Steele v Manx Trust International SA 1993-95 MLR 309 in respect of the usual criteria to be applied in the exercise of discretion to enlarge the time for lodging an appeal. The factors to consider included (1) length of delay (2) reasons for delay (3) chances of appeal succeeding (4) degree of prejudice (5) importance of observing time limits and (6) need for finality. These may have to be revisited in light of the 2009 Rules and the judgment of the Appeal Division in Breeze v Flexton Ltd (21 January 2014). See also

Hamilton and Lewis v R [2012] UKPC 31 in respect of the Privy Council’s attitude to out of time appeals in criminal cases.

Powers of Appeal Division

20. Rule 14.13(1) of the 2009 Rules provides that the appeal court has all the powers of the lower court.

21. Rule 14.13(2) of the 2009 Rules provides that the appeal court has power to –

(a) affirm, set aside or vary any order or judgment made or given by the lower court; (b) refer any claim or issue for determination by the lower court; (c) order a new trial or hearing; (d) make orders for the payment of interest; (e) make a costs order.

Fresh evidence

22. Rule 14.14(3) of the 2009 Rules provides that unless it orders otherwise, the appeal court shall not in the course of a review or rehearing receive –

(a) oral evidence; or (b) evidence which was not before the lower court.

23. Historically the appeal court would look for special grounds before allowing fresh evidence to be adduced on appeal. Firstly that the evidence could not have been obtained with reasonable diligence for use at the trial. Secondly that the evidence is such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive. Thirdly that the evidence must be such as is presumably to be believed. It must be apparently credible although it need not be incontrovertible. The principles remain the same but the appeal court is no longer constrained by a straitjacket. See Banks v Cox [2000] EWCA Civ 5565 at paragraph 40; Colombo case Appeal Division 21 June 2005 and C v C Appeal Division judgment 24 February 2012 at paragraph 11.

24. C v C (Appeal Division judgment 24 February 2012):

“10. Rule 14.14(3) of the Rules of the High Court of Justice 2009 provides that: “Unless it orders otherwise, the appeal court shall not in the course of a review or rehearing receive – (a) oral evidence; or (b) evidence which was not before the lower court.”

11. Accordingly the court has a discretion as to whether to allow further evidence to be adduced on an appeal and although the strict requirements of Ladd v Marshall [1954] 3 All ER 745 [namely that [i] the evidence could not have been obtained with reasonable diligence for use at the trial; [ii] the evidence would probably have had an important influence on the result of the case; and [iii] the evidence must be apparently credible] may no longer apply, a court is likely to have regard to such matters when determining such an application. We think it should also take into account the practical consequences of allowing such evidence to be admitted - for example that there would need to be contested oral evidence before this court and

that the only appeal from this court`s decision on the merits would lie to the Privy Council, if leave to appeal was granted.”

Appeal Notice

25. Rule 14.14(5) of the 2009 Rules provides that at the hearing of the appeal a party may not rely on a matter not contained in his appeal notice unless the appeal court gives permission. New points (not argued in the court below) should not be taken on appeal except in exceptional circumstances (Hinchcliffe v Barnett 1999-01 MLR N6 and the Appeal Division judgment delivered on 20 July 2012 in Petrodel v Le Breton at paragraphs 16-19).

26. An appeal court should not in general create new grounds of appeal not advanced by the parties (State of Equatorial Guinea Privy Council judgment 27 February 2006).

Grounds of appeal

27. The Judicial Committee of the Privy Council in Lesage v The Mauritius Commercial Bank Ltd [2012] UKPC 41 at paragraph 20 stated:

“Grounds of appeal should be succinctly stated. They should not rehearse facts nor should they contain legal argument.”

28. Rule 14.14(4) of the 2009 Rules provides that the appeal court shall allow an appeal where the decision of the lower court was –

(a) wrong; or (b) unjust because of a serious procedural or other irregularity in its proceedings.

29. The Appeal Division in Willers v Gubay (judgment delivered 1 October 2012) at paragraph 34 referred to an English authority on a similarly worded English rule (CPR 52.11(3)) to Rule 14.14(4)(b) of the 2009 Rules and quoted the following words of Clarke L J:

“It follows that the question in this part of the case is whether the decision of the judge was unjust because of a serious procedural or other irregularity in the proceedings. It is not, however, sufficient that a serious irregularity should be shown or even that some collateral injustice should be established. The decision must be unjust. As I see it, whether the decision is unjust or not will depend upon all the circumstances of the case.”

Findings of primary fact

30. The appeal court is reluctant to interfere with findings of primary fact made by the lower court in respect of oral evidence as contrasted with inferences to be drawn from primary facts (Potts v Hewison 1978-80 MLR 159). Lord Sumption delivering the judgment of the Privy Council in Mutual Holdings (Bermuda) Limited v Diane Hendricks [2013] UKPC 13 at paragraph 28 stated: “An appellate court is rarely justified in overturning a finding of fact by a trial judge which turns on the credibility of a witness.” Rule 14.14(5) of the 2009 Rules provides that the appeal court may draw any inference of fact which it considers justified on the evidence.

Exercise of discretion

31. The appeal court is also reluctant to interfere with the exercise of discretion by the court below. It should not interfere unless the judge exercised his discretion under a mistake of law or a misapprehension of the facts, or in disregard of principle, or taking into account irrelevant matters, or if he failed to exercise his discretion at all, or was so evidently wrong that the only possible conclusion was that he had erred in the exercise of his discretion (Eurotrust v Barlow Clowes 1996-98 MLR 394).

32. Jessel MR in Sir John Moore Gold Mining Company (1879) 12 Ch D 325 at 330 referred to “the general rule that where a matter is within the judicial discretion of a Judge of first instance the Court of Appeal will only reverse his decision where very strong grounds for so doing are shewn.”

33. In the Parmalat case (Judicial Committee of the Privy Council 9 April 2008) at paragraph 12:

“… That is very much a matter of discretion and where, as in this case, the exercise of the discretion has been upheld by the local Court of Appeal, it would be very unusual for the Board to interfere.”

34. See B (a child) [2012] UKSC 3 in respect of article 8 appeals. The following is an extract from the UKSC’s press summary: “Section 6 of the Human Rights Act 1998 does not require an appellant court to determine afresh issues relating to Convention rights; an appellant court, including the Supreme Court, is required only to conduct a review of the lower court’s decision [36, 37, 83-90, 136]. The making of a care order, however, is not a purely discretionary decision; a trial judge has an obligation under section 6 of the 1998 Act to ensure that he/she does not violate article 8 of the ECHR. Accordingly, it is not appropriate for an appellant court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, i.e. whether the lower court exceeded the generous ambit within which reasonable disagreement is possible [45]. The appropriate test is whether the lower court was “wrong” [47, 91-92, 139]. Lady Hale and Lord Kerr disagree with this analysis, taking the view that an appellant court reviewing whether a care order violates article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court) [115-120, 204-205].”

Case management decisions

35. The appeal court is also reluctant to interfere with case management decisions where the trial Deemster has applied the correct principles and taken into account relevant matters (See Bitel Appeal Division judgment 13 December 2012; Royal & Sun Alliance Insurance plc v T & N Ltd [2002] EWCA Civ 1964; Frey v Labrouche [2012] EWCA Civ 881 and T G (A Child) [2013] EWCA Civ 5). The Appeal Division in Willers v Gubay (judgment delivered 1 October 2012) at paragraph 25 stated:

“... we have no doubt that this court should both encourage and support firm case management of litigation, even if it is robust, always of course provided that it is not plainly wrong ... even the most robust case management adopted by a Deemster must also be fair to all parties.”

36. Lord Dyson in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 at paragraph 52:

“We start by re-iterating a point that has been made before, namely that this court will not lightly interfere with a case management decision.”

Leave to appeal to the Judicial Committee of the Privy Council

37. Section 24 of the High Court Act 1991 provides that judgments and orders of the Appeal Division may be appealed from to Her Majesty in Council (Judicial Committee of the Privy Council) with either (a) leave of the Appeal Division (only rarely granted); or (b) with the special leave of Her Majesty (Judicial Committee of the Privy Council). Leave will not be granted unless the case is of gravity involving the public interest or some important question of law or where the case is otherwise of some public importance or of a very substantial character (Pogue v Woodrow Appeal Division judgment 31 May 2006). In Kyrgyz Mobil Tel Limited (judgment 19 January 2009) the Appeal Division added at paragraph 7 “or affecting property of considerable amount”.

38. The Judicial Committee of the Privy Council and the Supreme Court appears to prefer to “dine a la carte” (see Re M E [2009] UKHL 15).

39. A glance at the “Permission to Appeal results” on the website of the Judicial Committee of the Privy Council reveal a number of cases where permission to appeal has been refused and the reasons given:

“Permission to appeal be refused because the application does not raise an arguable point of law of general public importance which ought to be considered by the Judicial Committee at this time…”

No automatic stay

40. Rule 14.10 of the 2009 Rules, with refreshing clarity and simplicity, states:

“Unless the appeal court or the lower court orders otherwise, an appeal shall not operate as a stay of any order or decision of the lower court.”

41. Neither the Appeal Division nor the lower court will grant a stay pending appeal unless satisfied that there are good reasons for doing so. The starting point is that there should be no stay pending appeal. The court will look for special circumstances to justify a stay pending the determination of an appeal. The court is likely to grant a stay where the appeal would otherwise be rendered nugatory or the appellant would suffer loss which could not be compensated. A stay may be granted where to refuse it would deprive the appeal of much of its significance (Chohan and Khan v DHSS judgment of Deemster Doyle 4 November 2008).