Return to Contents CASE SUMMARIES ADMINISTRATIVE LAW The Greffier of the States v Les Pas Holdings Ltd CA: (Harman, Southwell and Nutting JJA) June 24th 1998, unreported. N. M. Santos Costa for The Greffier of the States; J. D. Kelleher for Les Pas Holdings Limited and W J Bailhache for The Waterfront Enterprise Board as Intervener. Les Pas Holdings Limited appealed against the orders of the Royal Court refusing its application for judicial review of the States’ decision to acquire by compulsory purchase any interest that it might have in certain areas of reclaimed foreshore; refusing its application for an adjournment of the hearing of the application by the Greffier of the States for a vesting order; and against the directions given by the Royal Court on May 29th 1998, as to future proceedings. The appellant submitted that it should be allowed to pursue its application for judicial review separately from or in addition to objecting to the vesting application. It also submitted that further time was required to prepare the case and obtain discovery and interrogatories. Held, that the appellant’s application to proceed by way of judicial review should be dismissed on the grounds that, irrespective of the correct interpretation of Article 4A(2) of the Compulsory Purchase of Land (Procedure) (Jersey) Law, 1961, that is, what could be considered properly in determining whether or not to grant a vesting order, it had been accepted by the Royal Court, on the basis of a concession made on behalf of the Greffier of the States and WEB, that any points which could be made by way of judicial review could be raised when the application for the vesting order was made. Furthermore, if two applications were allowed to proceed, the Court would be bound to hear them together to save costs and resolve matters between the parties efficiently. In dismissing the application to have the hearing of the application for a vesting order further adjourned, the Court noted that the original application to adjourn had been on the basis that an extra two weeks preparation time was required. However, subsequent procedural steps taken by Les Pashad secured a de facto adjournment in excess of one month. In balancing the interest of the parties, the Court was persuaded that the public interest in proceeding with the compulsory purchase as a matter of urgency outweighed the need to provide further time to the appellant; Les Pas had been aware that compulsory purchase proceedings had been initiated and therefore had had sufficient time (and resources) to prepare for the case within the original time frame. A challenge to a decision of the States of Jersey, acting in an administrative and executive capacity, must be made within a reasonably short time. If not, the Court may decline to grant relief on the ground that the complainant had failed to move with due expedition. The Court went on to make certain observations on the development of judicial review within Jersey Law. The Court noted that judicial review applications and orders had been made in Jersey for many years and the current system, with its inherent flexibility, was perhaps preferable to English procedures which had, on occasions, been known to cause injustice, unnecessary expense and delay. The Court emphasised that although there is no formal requirement to obtain leave to proceed by way of judicial review, the Royal Court could and should bring to an early end an application that was unduly late or misconceived, the rationale being that delays in bringing judicial review applications may stultify the administrative process. In judicial review applications orders for discovery were likely to be rare and to relate to limited and specific classes of documents, and should only be made if there was a clear prima facie case that the administrative body had erred and the documents sought were necessary to enable that clear prima facie case to be established. Obiter, the Court noted that during the course of proceedings there had been a récusation application. Although the récusation was not a subject of this appeal, the Court laid down guidelines that those who live and work in Jersey have to accept that the administration of justice depends primarily on the Bailiff and Deputy Bailiff and that no application for récusation should be granted unless strong grounds are clearly established. If applications are made on frivolous grounds they should be refused, and if appropriate, indemnity costs should be ordered against the applicant. BANKRUPTCY Barrett v The Viscount CA (Calcutt, Gloster and Beloff JJA) September 24th, 1998 unreported. D.G. Le Sueur for the appellant; J.G.P. Wheeler for the respondent. Between December 13th, 1994 and January 5th, 1995, ("the relevant period") PSD Enterprises Limited ("the company") paid to the appellant, who was one of three owners and a director of the company the sum of £26,984 by way of 12 payments of differing amounts - the appellant herself effecting the payments. The appellant claimed that the payments represented arrears of wages due to her as managing director of the company. On April 13th, 1995, the company was declared en désastre. On April 11th, 1997, the appellant was herself declared en désastre. On January 14th, 1998, the Royal Court found that the payments to the appellant amounted to a preference within the meaning of Article 17 of the Bankruptcy (Désastre) (Jersey) Law, 1990 ("the Bankruptcy Law") and ordered that she repay the sum of £25,234 (being £26,984 less £1,750 to which she was entitled as a preferred creditor for arrears of wages). The appellant appealed submitting, inter alia, that there had been no evidence before the Royal Court that on a cash flow test the company was insolvent. The appellant submitted that the Royal Court had used a balance sheet test. No evidence had been produced to prove the date of each withdrawal or the amount of each withdrawal during the relevant period and there had been no analysis of actual cash flow during the relevant period. A report prepared by accountants on behalf of the respondent had referred on a number of occasions to an excess of liabilities over assets. The Royal Court in its judgement referred extensively to the accountant’s report. It was further contended on behalf of the appellant that absent from the Royal Court’s judgement was any reference to the evidence upon which it had relied when satisfying itself that the subjective test for a desire to improve the creditor’s position required under Article 17(4) of the Bankruptcy Law had been fulfilled. At the hearing before the Royal Court the appellant had appeared as a litigant in person and although she responded to questions put to her by the judge the appellant did not give viva voce testimony nor was subject to cross-examination. Held, -
allowing the appeal, that the Royal Court had applied the cash flow test. References to the company’s balance sheet were statements of fact, not applications of law. As a matter of common sense, the state of its balance sheet may be a powerful indicator of a company’s inability to pay its debts and this was instructive, even if not conclusive; -
that it was incumbent upon the Royal Court in the performance of its judicial functions not only to address the relevant issues, but to explain, however succinctly, what its conclusions upon them were, and what reasons, particularly by way of analysis of evidence, supported those conclusions. A failure to do so could constitute an error of law. The Royal Court’s judgement was silent on how it applied the requisite "desire" test and what process of reasoning underlay its apparent conclusion that the test was met; -
that before making an adverse finding against the appellant who was a litigant in person, it was incumbent on the Royal Court to afford her the opportunity to give viva voce evidence and to be subject to cross-examination to establish whether her evidence as to the purpose of making the payments was found wanting. A rehearing was ordered to establish whether the appellant had the requisite desire in procuring the payments on the company’s behalf. CIVIL PROCEDURE Eves and Eves v Hambros Bank (Jersey) Ltd. Royal Ct: (Le Marquand, Greffier Substitute) October 15th, 1998 unreported. K. O. Dixon for the defendant; the first and second plaintiffs appeared in person. The defendant applied for a stay of the action, which alleged a conspiracy between it and the Tourism Committee, until the costs of two actions brought by the first plaintiff against the defendant on related grounds and struck out had been paid. There was a long history of litigation between the parties relating to loans and the subsequent eviction of the plaintiffs from a house upon which the loans were secured. Appeals in those proceedings had twice gone as far as the Privy Council. Held, alying the rule in Re Payne [1] and granting the application, that the Court had an inherent jurisdiction to order a stay in cases where a previous action on substantially the same cause of action had been dismissed or stayed, and the plaintiff had not paid the costs of such previous action ordered to be paid by him. Obiter: In the absence of rules relating to vexatious litigants, the exercise of this jurisdiction to order a stay would afford some protection to a defendant against a vexatious litigant. CRIMINAL LAW Att. Gen. v Wall CA: (Carlisle, Southwell and Clarke JJA) July 9th, 1998 unreported. S. E. Fitz for the appellant; A. R. Binnington, Crown Advocate, for the Crown. The appellant pleaded guilty before the Superior Number of the Royal Court to one count of possessing indecent photographs of children, two counts of attempted sodomy, two counts of indecent assault and one count of procuring an act of gross indecency. He was sentenced to a total of 7½ years’ imprisonment and appealed against his sentence on the grounds that it was manifestly excessive. Count 1 related to the possession of photographs obtained over the Internet, counts 2 and 3 related to attempted sodomy and indecent assault of a girl under 13 over a period of approximately one year between 1973 and 1974, and counts 4, 5 and 6 related to one instance of attempted sodomy, indecent assault, and procuring and act of gross indecency on a 12 year old boy in 1997. Held, in reviewing the sentence the Court should have regard to the totality principle whereby, in a case where a number of sentences are involved which, of their nature, require consecutive sentences of imprisonment, and the Court has arrived at the total of these sentences, the Court should then take a last look at the total to see whether it looks right or wrong. Whilst accepting that it is not appropriate to carry out a detailed comparison of other cases in applying the totality principle, since cases differ greatly one from the other, some reference to other cases is legitimate in carrying out the broad exercio. In that respect the Court had particular regard to the case of Att. Gen. v Noel [2]where concurrent sentences were passed giving a total of 7 years in respect of 3 counts of sodomy, 3 counts of indecent assault, 5 counts of gross indecency and 1 count of attempted sodomy. The circumstances of that case were significantly worse than that under appeal. Sentences of 4-5 years appear to be the middle range for the offence of sodomy and there is a marked distinction to be made between the full act of buggery and those acts that stop short of that. In the circumstances the aggregate sentence imposed exceeded the upper limit of the bracket in which the most serious offence should be placed and accordingly the appeal was allowed, the Court reducing the sentence of 7½ years to a total sentence of 5½ years. DOCUMENTS Representation Blampied Royal Ct: (Bailhache, Bailiff and Jurats Myles and Le Breton) November 4th, 1998 unreported. B. E. Troy for the representors; P. Matthews, Crown Advocate, as amicus curiae. The representors, who were the owners of a house in Croydon Mews which was built upon land to the south of Croydon Terrace, applied, inter alia, for an order declaring the extent of a servitude contained in a number of contracts of sale of houses in Croydon Terrace. That servitude provided: "Qu’aucun édifice ou construction quelconque … ne sera jamais erigé ou placé au Sud de ladite maison formant partie de ladite propriété présentement vendue". None of the respondent owners of houses in Croydon Terrace appeared to contest the representors’ contention that the servitude was intended to apply only to the gardens to the South of Croydon Terrace and not to the land upon which Croydon Mews had been built. Held, applying Pothier, Traité des Obligations, that the duty of the court was to ascertain the common intention of the contracting parties and to construe clauses in the context of the document as a whole; that on that basis there was no doubt that the servitude had been intended to apply only to the gardens to the south of Croydon Terrace, and a declaration would be made accordingly.
Mubarak v Mubarik, Craven Trust Company Ltd and EFG Reads Secretaries Ltd, parties cited, Royal Ct: (Crill, Commissioner and Jurats Le Ruez and Tibbo) July 25th, 1998 unreported. A. R. Binnington for the plaintiff; S. J. Young for the parties cited. The parties cited applied to lift injunctions and orders for disclosure imposed upon them by means of an Order of Justice issued in support of English matrimonial proceedings, the injunctions mirroring injunctions issued by the English High Court. The application was not supported by an affidavit. Held, refuhe application, that the Court was not prepared to lift the injunctions or to vary the disclosure order given that the parties cited had failed to comply with a practice direction that appears in the decision of the Royal Court in Shelton and Shelton v The Viscount [3] where it was said that "the Court is going to rule that it will not consider in future applications to lift injunctions unless those applications are supported by affidavits". LIMITATION OF ACTIONS Boyd v Pickersgill & Le Cornu Royal Ct: (Hamon, Deputy Bailiff) August 6th, 1998 unreported. P. de C. Mourant for the plaintiff ; R.J. Michel for the defendant. The plaintiff claimed that the defendants, her former legal advisers, failed to advise her of the procedure known as an action "en licitation". Her claim was brought in both tort and contract and, by their answer, the defendants pleaded, inter alia, prescription. It was not in dispute that:- -
that the period of prescription in Jersey for claims in contract is 10 years; -
that the right of action arises from the contract and time runs from the date of the breach; -
that the breach of contract occurred prior to February 1987 which was more than 10 years before the date upon which the proceedings were served in April 1997; -
that any claim in tort was clearly prescribed. On the face of it, the action was prescribed. The plaintiff argued that:- -
in failing to give her advice as to the action en licitation the defendants were in breach of their contractual duty; -
it was unreasonable to hold that a cause of action arose whilst the plaintiff was ignorant of her possible cause of action and that this amounted to an "empêchement de fait"; -
time did not run until 1989 when the plaintiff did, in fact, become aware of her potential cause of action; -
that the plaintiff thus brought her proceedings within the relevant prescription period. Held, app decision of the Court of Appeal in Public Services Committee v Maynard [4] , that a plaintiff must have been restrained by a "practical impossibility" from exercising his rights and that "mere ignorance" does not bring the maxim "empêchement de fait" into operation; that the plaintiff was continually in receipt of legal advice from the termination of her retainer with the defendants to the date in 1989 when she became aware of her potential cause of action; that she could have reasonably discovered her remedy at an earlier date than 1989, and that the plaintiff’s action was accordingly prescribed. PAROCHIAL ADMINISTRATION Fields v Parish Rate Appeal Board Royal Ct: (Hamon, Deputy Bailiff and Jurats Gruchy and Potter) October 20th, 1998 unreported M. St. J. O’Connell for the representor; N. F. Journeaux for the respondent The representor and her late husband had purchased a property in St. Ouen in 1994 to which they had carried out extensive renovations. Following the renovations the Assessment Committee increased the rates by some 600% in 1996. The representor appealed to the Parish Rate Appeal Board in respect of the 1996 assessment. The Parish Rate Appeal Board dismissed the appeal on the basis that the Assessment Committee had compared the property under consideration with other properties in the Parish, and in its view the comparisons were correct and fair. The Board additionally indicated that it had received legal advice to the effect that for substantial properties, such as the one under consideration, there was no rental market and that, although the Board was going to uphold the assessment for 1996, in future the "contractor’s method" would be the appropriate way to calculate the rateable value. In broad terms this equates to the notional interest payable on a loan to construct a property of that type. In 1997 the property was assessed by the Assessment Committee on similar lines to the 1996 assessment. The representor again appealed to the Parish Rates Appeal Board. At the hearing of the appeal the representor provided expert evidence of other comparable properties within the Parish for the purposes of arriving at a rental value. The Board dismissed the appeal and, applying the contractor’s method, increased further the rates for that year of assessment. The representor brought proceedings for judicial review of the 1996 and 1997 decisions of the Parish Rates Appeal Board. The representor argued that the Board had acted unlawfully in seeking to change the method of rating for substantial properties from the assessed rental value to the contractor’s method. In addition the representor argued that the Board had arrived at its decision on both assessments in an irrational manner in the Wednesbury sense of "irrationality". Held, that the decisions of the Parish Rate Appeal Board in respect of the 1996 and 1997 assessments were unlawful and ultra vires. In particular the Court found that the Board had adopted a method of assessment which was at variance with the directions contained in the second schedule to the 1946 law, and had acted unreasonably in failing to consult with the Supervisory Committee of Connétables and to take appropriate advice as to the contractor’s method and the circumstances in which it was appropriate to apply that method. The decisions of the Board were quashed and the Court ordered the Board to reconsider the assessment of the property having taken expert advice as to whether it was impossible to assess the rental value of substantial properties in Jersey. |