Out of Time

"Limitation is not a matter of justice. It is a rule of public policy which has its origin in history and its justification in convenience." (Lord Denning)

"Two Jersey politicians have lost their attempt to appeal against their failed defamation case. Today's Court of Appeal hearing was to determine whether there were "exceptional circumstances" to allow an appeal 18 months after the original trial, rather than the usual one month limit. Representing themselves, Deputy T Pitman told the court: "My father's death, the death of my wife's closest friend, my wife's grandmother and our stepsister has added to our stress. My mother has also been diagnosed with cancer and I provide around 30 hours a week of care for her. That, along with renewed allegations about the Jurats who heard the original case, together with what Mr Pitman called the "non-Human Rights compliant" nature of Jersey's courts were all exceptional reasons. The court disagreed." (Channel Television News)

To understand the convoluted way in which the courts work in this case, this is best set out as a chronology:

a)      Pitmans take libel case against JEP and Broadlands and fail
b)      Time for appeal passes
c)      Pitmans make application for appeal "out of time". Application fails
d)      Pitmans make appeal against application for appeal out of time. Appeal fails.

So this last appeal was not the end of the story, it was an attempt to get an appeal back on track although it was out of time. If it had succeeded, it would have pushed the situation back to where they would be if they had made an appeal within time. In other words, they would have been able to bring an appeal.

Channel Television of necessity puts the legal part of the case very briefly, but as it has been heard and thrown out in (c) before now, it was unlikely to succeed. The strongest part of their case was the link between the Jurats and the JEP, which was summarised in that application:

"The grounds of the proposed appeal set out in the Notice dated 9th 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,"

Part of their claim was that this was information which only came to light after the time for an appeal had passed, and hence was new evidence material to their case. It was an attempt at a retrial, and was ruled out partly on the grounds that the mutual hospitality was slight - "the evidence of mutual hospitality of Jurats Le Breton and Le Brocq amounts to one occasion in 2008, none in 2009, two in 2011 and none in 2012.  Jurat Le Breton and his wife played host only on one of the occasions in 2011.  There is no evidence that these visits were on a one to one basis."

Nevertheless, it is surprising that no mention was made the case in Guernsey in 2006, where Jurat Bisson withdrew after smiling and nodding at a prosecution witness; it transpired that Jurat Bisson had been head of the Grammar School and PC Savident  -whom he smiled at - was an ex-pupil. He decided to remove himself from the case, even though he had no legal necessity to do so, after being challenged, and it is notable that the position of acquaintance in a small jurisdiction and the potential for connections was mentioned.

But part of the reason the original appeal out of time failed was that the Pitmans pursued a political rather than legal route to overturn the case, only turning back to a legal route late in the day. The grounds for rejecting the appeal out of time noted that despite family circumstances, they still manage to follow this path:

"a political rather than a legal route was chosen (as distinct from why the Applicants might have been disabled from taking any action at all.) "

And it notes that they were given advice not to do this, but to seek redress by the legal path of appeal within time, as litigants in person if unable to bear the cost:

" The Applicants, as their correspondence with Lord McNally dating from 27 July 2012 illustrates, were not content to focus on their own libel suit but to treat it rather as an example of what they perceived to be failings in the Bailiwick's systems of checks and balances.  Moreover it was a constant and correct refrain of the addressees listed in the last paragraph (see letters from the Deputy Bailiff dated 13th June 2012, the Bailiff 25th July and 24th August 2012, the Assistant Chief Minister 14th November 2012) that they should, if aggrieved by the order, pursue the constitutionally proper route.  The Lieutenant Governor in his letter of 28th May 2013 wrote-that "it would seem that the only avenue open to you in pursuit of redress is the Court of Appeal."

That's a serious question - if there were family circumstances preventing an appeal, why did they not also prevent the political route taken instead.

I think the only compelling grounds in those circumstances would be to argue that they were not thinking straight because of the personal circumstances, and therefore had not taken the path of an appeal within time, which they would have in hindsight, without the extra family stress.

It is clear that the personal stress which they were under was very considerable. Four deaths within the family within a short space of time, and a sick mother with cancer would tax anyone, and certainly living with bereavement, it can be very difficult to think rationally; what may seem rational may be clouded with all kinds of emotions and stress. In those circumstances, a political course of action may have seemed the reasonable way to go.

We haven't seen the explanation for the dismissal yet, and of course, it may well be that they did not present the case of their exceptional circumstances in this way. It is not for a judge to act as a counsellor, or on behalf of the defence, but perhaps just a touch of empathy of the kind that Lord Denning often showed would not have gone amiss.

With the benefit of hindsight, it might have been wiser had the Pitmans not pursued the original libel action; it is exceeding difficult to succeed in proving libel by innuendo, and costs of libel actions can be punitive.

Because of Trevor Pitman's somewhat pugnatious stance, there will probably be those who have little regret over the outcome, or the potential outcome of his leaving the States. This would be a shame. Before his life began to revolved around the libel action - which can be seen by the numerous mentions on his blog - he made two extremely significant changes to the States, which are on a par with the Troy rule as major planks of reform.

The first was to ensure that the Chief Minister was elected by open ballot; the second, to extend that to the election of Ministers. In doing so, he ended decades of backroom deals and horse-trading over elections (for Presidents of Committees , then Ministers), and ensured the States became much more transparent and accountable; he ensured the public had oversight of who voted for Chief Minister and Ministers. And he carried the House with him on both occasions. That is a significant achievement, and it shows the potential which he had, and I believe still could have.

And even with the Court case hanging over him, he still took up the case of the businessmen who had seen Sir Philip Bailhache reading papers relating to the case of HG on an airplane, and managed to get (what seems to me like) a grudging apology from the Senator after he maligned them, calling their testimony "fictitious and malicous".