Shailain Hirachand Jhaveri v. Rajendra Jhaveri and Others

CACV000009A/1990

BETWEEN

--------------------------

Coram: Hon Sir Derek Cons V-P, Fuad V-P and Kempster JA

Date of Hearing: 14 September 1990

Date of Judgment: 14 September 1990

------------------

JUDGMENT

------------------

Kempster, JA:

1. On 1 May 1990 this court allowed the appeal of the 2nd, 3rd and 4th defendants to these proceedings and quashed an order for the service upon them by the plaintiff of process out of the jurisdiction which had been made ex parte by Master Jones on 21 April 1989. Against that decision the plaintiff seeks leave to appeal to Her Majesty in Council.

2. The time for giving notice of an application for leave is 14 days from the date of the material judgment and would have expired had not Penlington JA, on 23 May, extended the period to 4 pm on 25 May. By that time it had in fact been given.

3. The judgment of 1 May was not a "final judgment" within meaning of Rule 2(a) of the Order in Council governing appeals from this court. Accordingly the plaintiff invites us to conclude either that  a question arising in any further appeal would be of great general or public importance or that some other reason exists warranting the grant of leave and the exercise of our discretion pursuant to Rule 2(b). However, Mr. Allman-Brown's persuasive and lengthy submissions on behalf of the plaintiff were apt rather for an application to review the decision in question. He sought to make good lacunae both in the arguments presented on 1 May and in the overall procedure adopted by those advising the plaintiff.

4. I am statisfied neither by the draft Grounds of Appeal put before us nor by argument that any question of great general or public importance would arise on an appeal from this court or that for any other reason an appeal should lie. As or Allman-Brown himself has stated this case is peculiar by reason of its own particular facts. In the absence of a question of great general or public importance a contention that this court failed properly to apply to those particular facts an uncontested principle of law, namely that the plaintiff had to show a good arguable case for the relief claimed in the action, would not, in my view, constitute a reason warranting the grant of leave even were I to conclude, which I do not, that the contention was one of substance. If it did we might, showing due humility, be bound to burden Her Majesty in Council with many appeals unsuitable for further consideration. Also bearing in mind that the plaintiff is entitled to pursue his claim in Hong Kong as against the first defendant and may well have a remedy available to him in India, where all the defendants are to be found, I would dismiss this application for leave to appeal.

5. As to an Order for Costs in favour of the plaintiff, made by Penlington JA on the application for leave to extend time which the 2nd, 3rd and 4th defendants seek to challenge, I am of the opinion that, since the plaintiff on his side was seeking a concession in relation to a relatively simple judgment and on the other that it was unsuccessfully opposed by the 2nd, 3rd and 4th defendants, it would be proper for us to discharge that order for costs and not to substitute any other order for it.

Sir Derek Cons, V-P:

6. I agree with my Lord that the application should be dismissed and for the reasons he has given. I would only add that if I had been satisfied, as Mr. Allman-Brown argued, that this court had on the last occasion significantly misunderstood the evidence before the court below, and that the result of our decision would mean that the plaintiff would never be able at any time or in any place to litigate the claim he seeks to put forward, then I would have felt bound at least to consider whether that circumstance was sufficiently exceptional to require us to grant leave to appeal to Her Majesty even though no point of great general or public importance was involved. With every respect to Mr Allman-Brown's submissions neither premise was established. I also agree with my Lord that we discharge the order made by Penlington JA and substitute no order as to costs.

Fuad, V-P :

7. I, too, agree that the application for leave to appeal to Her Majesty in Council should be refused. I have not been persuaded that the applicant satisfies the criteria set out in Rule 2(b) of the relevant Order in Council. I also agree that the order for costs made by Penlington JA on 23 May should be set aside and that there should be no order for costs in relation to that application.

Representation:

Clifford Smith (M/s Holman, Fenwick & Willan) for D2-D4/Appellants

Andrew Allman-Brown (M/s Fairbairn, Catley, Low & Kong) for Plaintiff/Respondent