Mrs Shona Pitman; Mr Trevor Mark Pitman v Jersey Evening Post Ltd; 1st Jersey Ltd

JurisdictionJersey
CourtCourt of Appeal
JudgeBeloff JA
Judgment Date30 July 2013
Neutral Citation[2013] JCA 149
Date30 July 2013
Between
Mrs Shona Pitman
First Applicant
Mr Trevor Mark Pitman
Second Applicant
and
Jersey Evening Post Limited
First Respondent
1st Jersey Limited
Second Respondent

[2013] JCA 149

Before:

The Hon. Michael Beloff, Q.C., sitting as a single judge.

COURT OF APPEAL

Defamation — application for leave to appeal out of time.

Application for leave to appeal out of time.

Authorities

Court of Appeal (Civil Rules) 1964.

Pitman v Jersey Evening Post and 1st Jersey Limited [2012] JRC 092 .

Court of Appeal (Jersey) Law 1961.

Sayers v Clarke Walker [2002] 1 WLR 3095 .

Barker v Barclays Bank plc [1989] JLR N2B .

B v N 2002/135 .

R v London Borough of Redbridge ex p G [1991] COD 393 .

Porter v Magill [2002] 2 AC 357 .

Syvret v Chief Minister [2011] JLR 343 .

Drew v Attorney-General [1994] JLR 1 .

Barette v AG [2006] JCA 128 .

Fordham Judicial Review 6 th ed.

Locabail (UK) Ltd v Bayfield Properties Limited [2000] QB 451 .

AWG Group Limited [2006] 1 WLR 1163 .

The Applicants on their own behalf.

Advocate D. P. Le Maistre for the First Respondent.

Advocate D. S. Steenson for the Second Respondent.

Beloff JA
1

The Applicants apply pursuant to the provisions of the Court of Appeal (Civil Rules) 1964 (“the Rules”) Rule 16 for leave to appeal out of time the decision of the Royal Court (Commissioner Sir Charles Gray and Jurats Le Breton and Milner) dated 4 th April 2012 dismissing the Applicants' claim for damages for defamation against the First and Second Respondents arising out of a cartoon published in the Christmas Eve 2008 edition of the First Respondent. As explained in the reasoned judgment handed down by the Commissioner on 10 May 2012 “the Court ultimately decided that the cartoon was not defamatory of either of the (Applicants)” (para 33) “The meaning and import of the words or images complained of was a matter for the Jurats” (para 26).

2

The grounds of the proposed appeal set out in the Notice dated 9 th July 2013 do not assert any misdirection by the Commissioner or perversity in the finding of the Jurats; rather — and more fundamentally — they assert that the Applicants were denied a fair trial by reason of an undisclosed personal, social and working relationship between Jurat Le Breton and a former Jurat Mrs Sally Le Brocq, said to be the longest serving director of the owners of the First Defendant the Guiton Group, and, as it is put, “a matter seriously compounded” by the fact that Jurat Le Breton was said in another context to have displayed “a disturbingly malleable commitment to justice and consideration of evidence relating to an individual who was a close colleague and friend” Affidavits paras 3 and 5, said to be evidenced by the 1999 Sharp report into child abuse at Victoria College

3

The time limit for an appeal, set down in the Rules is one month from the date on which the judgment or order of the Court below was pronounced (Article 3); the application was not made until 5 th July 2013 i.e. 14 months after date of the order. However, as a single judge I have power to enlarge time see, generally Court of Appeal (Jersey) Law 1961 (“the Law”) Article 18(1) and, particularly, the Court of Appeal (Civil) Rules 1964 (“the Rules”) Rule 16(1). Axiomatically such power must be exercised to achieve justice.

4

Guidance has been given by the Court of Appeal in England as to the factors taken into account under the pre CPR regime, Sayers v Clarke Walker [2002] 1 WLR 3095 (“ Sayers”) at paragraph 10:–

“10. Under the pre-CPR regime the practice of this court was conveniently summarised in The Supreme Court Practice 1999, vol 1, p 1031, para 59/4/17 in these terms:

“It is entirely in the discretion of the court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended; and (4) the degree of prejudice to the potential respondent if the application is granted; (see C M Van Stillevoldt BV v EL Carriers Inc [1983] 1 WLR 207 …) … Where the delay in serving notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless: Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 . In Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449andMallory v Butler [1991] 1 WLR 458, the Court of Appeal held that … (4) The settled practice of the court is to assess and take intoaccount the merits of the proposed appeal in deciding whether or not to grant an extension of time for appealing (subject to the qualification in the Palata case [1985] 1 WLR 942. ””

The Court of Appeal in Jersey appears consistently to have adopted a similar approach, see Barker v Barclays Bank plc [1989] JLR N2B, B v N 2002/135. I shall examine the four factors in sequence.

5

As to (i) The Applicants' affidavits, which are in identical form, make clear that the facts of the relationship complained of between Jurat Le Breton and Jurat Le Brocq came to light “over the summer of 2012” (para 5) as is confirmed by the fact that the matter complained of was taken up with the Deputy Bailiff as early as June 2012 (see Applicants' affidavits para 5 and their letter to Lord McNally dated 5 th December 2012 p. 4). So the delay measured from knowledge of the ground of appeal now relied on is also over a year.

6

As to (ii) The reason for the delay since the time that the matter complained of came to light is that, in lieu of immediately seeking leave to appeal, they chose to make representations by their advocate or themselves, about the alleged miscarriage of justice to the Deputy Bailiff, the Bailiff, the Chief Minister, the Lieutenant Governor and the UK Minister of Justice i.e. Lord McNally (Applicants' affidavits paras 7, 9–12). Although they provide an explanation that lack of funds disabled them from engaging further legal representation, which they enjoyed before the Royal Court, (ditto para 8) nonetheless, as their present application shows, they were not disabled from seeking to pursue an appeal as litigants in person. In the field of judicial review there is authority for the proposition that a choice to pursue political as distinct from legal means of achieving redress does not justify delay or an extension of time within which to apply for leave R v London Borough of Redbridge...

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