C. Le Masurier Ltd and Clarke v Alker and Northern Inn Ltd

CourtCourt of Appeal
JudgeCalcutt, Blom-Cooper and Lord Carlisle of Bucklow, JJ.A.:
Judgment Date08 April 1992
Date08 April 1992
Calcutt, Blom-Cooper and Lord Carlisle of Bucklow, JJ.A.:

R.J. Michel for the appellants;

M.M.G. Voisin for the respondents.

Cases cited:

(1) Airport Business Centre v. Harbours & Airport Cttee., 1989 JLR N-5; on appeal, 1990 JLR 1; on appeal by petition of doléance, sub nom. In re Harbours & Airport Cttee., 1991 JLR 316, considered.

(2) Barrell Enterprises, Re, [1973] 1 W.L.R. 19; [1972] 3 All E.R. 631; (1972), 116 Sol. Jo. 698.

(3) British Columbia Govt. Employees' Union v. British Columbia (Att. Gen.), [1988] 6 W.W.R. 577.

(4) Connelly v. D.P.P., [1964] A.C. 1254; [1964] 2 All E.R. 401; (1964), 235 L.T. 315; 48 Cr. App. R. 183; 128 J.P. 418; 108 Sol. Jo. 356, dictum of Lord Morris of Borth-y-Gest applied.

(5) Finance & Econ. Cttee. v. Bastion Offshore Trust Co. Ltd., C.A., October 9th, 1991, unreported, followed.

(6) Flower v. Lloyd (1877), 6 Ch. D. 297; 36 L.T. 444, distinguished.

(7) Meek v. Fleming, [1961] 2 Q.B. 366; [1961] 3 All E.R. 148; (1961), 105 Sol. Jo. 588, dictum of Holroyd Pearce, L.J. applied.

(8) Poyser v. Minors (1881), 7 Q.B.D. 329; [1881-5] All E.R. Rep. 1173; 45 L.T. 33; 50 L.J.Q.B. 555; 46 J.P. 84; 29 W.R. 773, dictum of Baggallay, L.J. applied.

(9) Preston Banking Co. v. William Allsup & Sons, [1895] 1 Ch. 141; [1891-4] All E.R. Rep. 688; (1894), 71 L.T. 708; 64 L.J. Ch. 196; 39 Sol. Jo. 113; 12 R. 51; 43 W.R. 231, dicta of Lord Halsbury and Lindley, L.J. applied.

Additional cases cited by counsel:

Bright & Co Ltd. v. Sellar, [1904] 1 K.B. 6.

Hession v. Jones, [1914] 2 K.B. 421.

Hooper, Re, ex p. Banco de Portugal (1880), 14 Ch. D. 1.

La Solitude Farm Ltd. v. Att. Gen., 1985-86 JLR 1.

Scott & Alvarez's Contract, In re, [1895] 1 Ch. 596.

Legislation construed:

Court of Appeal (Jersey) Law, 1961, art. 12: The relevant terms of this article are set out at page 130, lines 13-34.

Texts cited:

Halsbury's Laws of England, 4th ed., vol. 37, para. 10, at 18-19.

Supreme Court Practice 1991, vol. 1, para. 59/1/36, at 901.

Civil Procedure—appeals—rehearing—Court of Appeal no express power to rehear appeal—jurisdiction prescribed by Court of Appeal (Jersey) Law, 1961, art. 12 extended only by implied powers necessary to regulate practice and procedure—inherent jurisdiction operates exclusively within that conferred by 1961 Law and cannot extend it

Civil Procedure—appeals—rehearing—order of Court of Appeal final and not to be reopened unless failed to take account of relevant factor resulting in abuse of process, e.g. party's wrongful exclusion from hearing in appropriate court

The respondents sought an order of the Court of Appeal that its decision to lift an interim injunction in their favour should be set aside and the appeal reheard.

The first appellant company leased an inn to the first respondent until it gave him notice to quit. The respondents were unaware of the equitable jurisdiction of the Petty Debts Court, which was not then widely recognized among Jersey advocates, and since their objections to the notice were based on equitable estoppel, they sought to challenge its validity in the Royal Court. They obtained, inter alia, an interim injunction restraining the appellants from instituting eviction proceedings in the Petty Debts Court. The appellants applied to the Royal Court for the raising of the injunction but the court ruled against them. On appeal, the Court of Appeal (Calcutt, Hamilton and Lord Carlisle, JJ.A.) held, inter alia, that since the Petty Debts Court had exclusive jurisdiction over refractory tenants which included entertaining a defence of equitable estoppel, the Royal Court had no jurisdiction over the dispute and the injunction was raised accordingly. The proceedings are reported at 1991 JLR 37. The court added that a proper challenge to the notice, although now out of time under art. 2 of the Loi (1946) concernant l'expulsion des locataires réfractaires, was still possible because the prescribed period was subject to waiver by the magistrate in the Petty Debts Court. This was not, however, a true statement of the law, as became clear when the reasons were delivered for a decision of the Superior Number made prior to that of the Court of Appeal in the present case. The respondents sought to set aside the Court of Appeal's order and to reopen the appeal.

They submitted, inter alia, that (a) the court had an inherent jurisdiction to rehear an appeal in which it had failed to consider a relevant factor, namely, the possibility of the respondents' being excluded from a hearing in the Petty Debts Court; and (b) without a rehearing, the respondents would have been denied any opportunity to voice their objections to the notice to quit.

In reply, the appellants submitted, inter alia, that (a) the court had no jurisdiction to rehear the appeal since none was conferred by the Court of Appeal (Jersey) Law, 1961; and (b) since the omission in the appeal hearing to note the Superior Number's decision had created no inequality of arms between the parties because, by failing to follow the prescribed procedure, the respondents had forfeited their opportunity to be heard in the Petty Debts Court, the outcome should not be disturbed.

Held, dismissing the application:

(1) The Court of Appeal had no express power to rehear an appeal. Its jurisdiction in appeals from civil causes was prescribed by the Court of Appeal (Jersey) Law, 1961, art. 12 and was extended only by such implied powers as were necessary properly to regulate the practice and procedure of the court. Although the inherent jurisdiction existed alongside similar or identical rules of court, it operated exclusively within the jurisdiction conferred by the 1961 Law and could not extend it (page 130, line 7 - page 131, line 9; page 132, lines 10-16).

(2) The respondents' application was therefore misconceived. In principle, the court should rehear an appeal in which it had failed to take account of a relevant factor but it was equally important that there should be an end to litigation. Accordingly, an appeal would be reheard only in exceptional circumstances to prevent the abuse of the process of the court and not merely to consider something fresh that might have been material. It was therefore irrelevant whether the court would have reached a different decision in the light of that of the Superior Number: the judgment had been fairly procured and would not be reopened (page 125, lines 34-41; page 129, line 33 - page 130, line 4; page 132, line 17 - page 133, line 14; page 133, line 41 - page 134, line 12).

BLOM-COOPER, J.A.: The judgment which I am about to read is the judgment of the court. Stripped of all inessential details, this court is being asked, by way of an originating application by the respondents, to set aside its own decision of April 10th, 1991 and to rehear the appeal from an order of the Royal Court of June 19th, 1990.

For reasons which we shall give—we hope at not too great length—we are of the opinion that such an application is misconceived. This court has no jurisdiction to reopen an appeal, finally determined, save in...

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