Mailex Limited v. Grefo Limited

CACV000153/1983

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Barker, J.A. & Garcia, J.

Date of Judgment: 20 March 1984

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The difficulties in this case have arisen from a failure to keep clearly in mind the course of the proceedings. There were two consolidated actions for possession of land. Judgment was entered in that matter. On 21st November 1983 there was a Notice of Motion on appeal from the whole judgment in the action, the judgment having been entered on 12th April 1983. That appeal was due to come on for hearing on 13th January 1984, but on 12th January 1984 there was a Notice of Motion for leave to appeal out of time from that part of an interlocutory order in the action which had been made on 11th April 1983 (the day before the judgment was entered), whereby the judge refused leave to amend the Defence.

2. When the hearing began on 13th January 1984, we were made aware that there were these two appeals and we decided that the proper course was to deal first with the application for leave to appeal out of time against the refusal of leave to amend, because it was in effect conceded that, unless the Appellant could succeed in that, he could not hope to succeed upon the main appeal.

3. In the event we refused leave to appeal out of time against the refusal of leave to amend. Amongst the reasons which we gave was that we were satisfied that, even if leave were granted, the appeal must fail, because what was sought was to raise an issue which, in one of the actions which had subsequently been consolidated, had already been decided between these two parties. Jackson-Lipkin, J. in the court of first instance had refused leave to appeal, in part on that ground. He said he was bound by the decision of Rhind, J. on the issue of fact and we thought that he was right to find himself so bound.

4. Having come to that conclusion we proceeded to dismiss the main appeal, because, as I have already said, it was in effect conceded that that appeal could not succeed unless the amendment was made.

5. It is unfortunate that these orders which we made on 13th January were never properly drawn up. We made two separate and distinct orders. They were drawn up as some kind of composite order, and it says that, upon reading the Notice of Motion dated 21st November and reading the other, we made a composite order. That is not correct. We dealt with the matters entirely separately and we made the order in respect of the Notice of Motion dated 12th January without any regard to the other Notice of Motion and the evidence relating thereto.

6. On 20th February this year the Notice of Motion which is now before us was filed, for an extension of time for leave to appeal against an unspecified order. Immediately we sat this afternoon I inquired what was the order which it was sought to appeal against, and it then became apparent that the Appellant was seeking leave to appeal against both the orders that we made on 13th January. Obviously there was no point in dealing with an appeal against the second order unless there was leave granted in respect of the first, and therefore we decided to deal first with the application in so far as it relate to the first order. What is sought is leave to appeal to Her Majesty in Council and an extension of time in which to do that. We do now have power to grant an extension of time, and in a proper case of course we shall do so. Our attention was drawn to Gatti v Shoosmith 1939 1 Ch. 841, where there had been what was described as a "mere misunderstanding". Unfortunately in the present case there is obviously some conflict between the Appellant and his former solicitors as to what actually happened after 13th January 1984. The Appellant had 14 days in which to lodge his appeal. He deposes to his having been advised that he had 28 days. That is not admitted by the solicitor and, if it had been necessary, we might have had to call evidence before us as to exactly what did happen. However the fact of the matter is that there was delay in making this application after the mistake became apparent - assuming that there was a mistake - for the present Notice of Motion was not filed until 20th February. That further delay has not been explained to our satisfaction.

7. Apart from that, we are satisfied that this application would necessarily fail even if an extension of time were granted. Unfortunately, because of the failure to have these orders drawn up properly, Mr. Bernacchi came before us this afternoon under the impression that he could bring himself within para.2(a) of the Order in Council and that he had a right of appeal, because this was a final order. In our view that cannot be right in the event, because the order which was made was an order refusing leave to amend, and, whatever other orders may be final rather than interlocutory, such an order could not possibly be regarded as a final order. We need not go into details. We have during the short adjournment referred to Salter Rex & Co. v Ghosh 1971 2 Q.B. 597, a decision which we subsequently followed in this court in an appeal the name of which escapes me but which was Civil Appeal 1983 No.19.

8. For these reasons we think that this application, in so far as it relates to the first order that we made on 13th January, must be dismissed.

(After further argument by counsel).

9. Mr. Bernacchi now moves for an extension of time for leave to appeal out of time to Her Majesty in Council against the second of the orders that we made on 13th January this year, and also for leave. He submits that he is entitled to leave as of right once he gets over the first hurdle. That may be so, but it seems to me that the fact that that appeal cannot, as I see it, succeed, unless the Appellant also obtains leave from Her Majesty in Council to pursue an appeal against the first order is a ground for our not exercising our discretion in his favour. There is also the further matter that the delay, as in respect of the first order, has not been explained entirely and I think this is a case where we should not exercise our discretion in favour of granting an extension of time and that, if the Appellant wishes to pursue this matter, he should pursue it in its entirety before Her Majesty in Council.

20th March 1984

Representation: