In Camera Proceedings
G v A Royal Ct: (Page, Commissioner and Jurats Potter and Allo) February 28th, 2000 unreported.
J.C. Martin for the plaintiff; G.R. Boxall for the defendant.
Prior to the hearing of a claim of professional medical negligence, the Royal Court had an opportunity to explain the principles upon which it would order a trial to be heard in camera – that is in private and without the public or representatives of the media being present. Notwithstanding that the plaintiff’s application for the hearing to be in camera was not opposed, the Court expressed the view that it had to be satisfied that it would be right to make such an order.
Characterising an in camera order as an exceptional one and one requiring consideration with the utmost care, the Court examined material germane to the proposed order including firstly reports of expert witnesses on the likely impact on the plaintiff of a hearing in open court and secondly formal written submissions of the plaintiff’s advocate. Having done so, that court summarised the relevant considerations and the principles which it intended to apply.
The considerations were as follows:-
(i) The power to hear proceedings in camera did not derive from any statutory enactment but from the inherent jurisdiction of the Royal Court to determine and control its own process.
(ii) In the case of In re Rosedale (JW) Investments Ltd[1] the Royal Court appeared to have adopted the reasoning of the House of Lords in the case of Scott v Scott[2] to the effect that the public should be excluded only if that was the only way in which justice could be done. The test was said to be a strict one and did not rest on the mere discretion of the judge as to what was expedient. It was not sufficient that both parties preferred to have a private hearing.
(iii) By way of example, and it being of some relevance to the instant case, the Court drew attention to a statement in Scott v Scott in which it was made clear that the Court had no power, either with or without the consent of the parties, to hear a matter in camera in the interest of public decency.
The principles were summarised by the Court as follows:-
1. The general principle was that all proceedings should take place in public.
2. That general principle should only be displaced for compelling reasons.
3. The making of the order was a matter to be decided on principle rather than on what was convenient or reasonable.
4. The principle involved was that the paramount object of securing that justice be done would be rendered doubtful of attainment if the order were not made.
5. The test was a strict one, the burden lay on those seeking to displace the general requirement of openness and the matter should be decided on grounds not of conscience but of necessity.
The Court drew attention to the fact that the principles so described appeared to accord with Article 6 of the European Convention on Human Rights which provides for a public hearing as a matter of basic principle but recognises the possibility of exceptional circumstances where the press and public should be excluded:
“in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice”.
And the Court observed, en passant, that the Convention’s inclusion of the protection of privacy as a ground for the making of an in camera order widened the exception set out by the House of Lords in Scott v Scott.
Held, that in the particular circumstances an in camera hearing was necessary since there was a likelihood that a trial in public would have the effect of distorting the very thing in issue, namely the plaintiff’s psychological condition and its causes, with the possibility of adversely affecting the proper evaluation of liability, causation and damages.
The Court added the three following riders:
(a) the order was subject to review, revocation and variation;
(b) the way in which it would deal with publication of its final judgment would be the subject of a ruling after hearing submissions, at a later stage; and
(c) an in camera order was as binding upon the party on whose application it was made as it was on everyone else, so that no aspect of the proceedings might be publicised without the express consent of the Court.
Striking Out
In re the Esteem Settlement and re the No. 52 Trust: Royal Ct: (Birt, Deputy Bailiff) April 14th, 2000 unreported.
N.F. Journeaux for the plaintiff; P.C. Sinel for the second and third defendants.
This action concerned an application to strike out brought by the second and third defendants, Barbara Al Sabah and Mishal Al Sabah, against the plaintiff, Grupo Torras SA (“G.T.”).
G.T. had brought the main action seeking proprietary and non-proprietary remedies in connection with settlements established by the first defendant, Sheikh Fahad in 1981 and 1992. Three further non-Jersey trusts had also been set up in 1992 and 1993.
The first defendant had been chairman of G.T. from June 1986 to May 1992. G.T. alleged that a substantial fraud had been perpetrated to their detriment by the first defendant between May 1988 and October 1990. Related proceedings brought by G.T. and others in England in 1999 had resulted in a finding for G.T. and an award for damages of approximately US$800 million.
The defendants sought to strike out of parts of the claim on the ground that, inter alia, they disclosed no reasonable cause of action. The defendants’ application related to the non-proprietary part of the claim, which essentially relied on the following causes of action pleaded by G.T.-
1. the entitlement of the Court to “pierce the veil” of the two Jersey trusts in order to afford a remedy to the victim of Sheikh Fahad’s fraudulent activity;
2. the imposition by the Court of a remedial constructive trust upon the assets in order to hold them for the plaintiff qua defrauded creditor of Sheikh Fahad;
3. a declaration that the Esteem Settlement and the No. 52 Trust were invalid as being contrary to public policy pursuant to Article 10(2)(b)(ii) of the Trusts (Jersey) Law 1984.
In addition to the substantive issues, the second and third defendants argued defects of pleading which would prejudice, embarrass or delay the fair trial of the action. It was chiefly asserted that the various causes of action were inadequately made out in the claim, becoming apparent only in the prayer. Also cited was the vague and equivocal nature of certain individual pleading points.
It was also contended that G.T. had pleaded evidence by setting out the conduct of the first defendant in relation to two of the non-Jersey settlements.
Held, (1) The Court would only proceed to strike out where it was plain and obvious that the case could not succeed under the given head. The mere fact that a case was weak and unlikely to succeed did not justify striking out, particularly where the legal concept under scrutiny was uncertain and developing. The defendant had failed to justify this test and G.T. was therefore entitled to proceed on all three grounds.
(2) The defects in the pleadings relating to identification of the causes of action did not sufficiently elucidate the basis of G.T.’s claim, and stood to embarrass the fair trial of the action. Notwithstanding this, the defects did not justify striking out and the court would instead direct amendment. Similarly, those aspects identified as vague or equivocal would also be subject to amendment within one month.
(3) The reliance upon the conduct of the first defendant vis-à-vis two of the non-Jersey settlements constituted citation of subordinate facts; Rule 6/8 of the Royal Court Rules 1992 provides that pleadings must contain only those material facts on which the party relies for his claim. Secondary or subordinate facts constituting a means of proving material issues must not therefore be included. The offending paragraphs were accordingly struck out.
Per curiam:
(i) The court may ultimately entertain the prospect of lifting the veil within a trust context. This may be appropriate where the settlor exercises substantive and effective control over trustees, and may not therefore be confined to corporate entities.
(ii) Additionally, the existence of the remedial constructive trust under Jersey Law may become judicially recognised, as is presently the case in the Commonwealth jurisdictions of Australia and Canada.
(iii) Further, the application of Article 10 of the 1984 Law may extend to the court having regard to the intentions of settlor and trustee even where a purpose contrary to public policy does not appear on the face of the trust instrument.
Constitutional Law
States Of Guernsey
McGonnell v United Kingdom – European Court of Human Rights: February 8th, 2000.
Ben Emmerson for the applicant; Sir Sidney Kentridge QC and David Anderson QC for the Government of the United Kingdom.
The facts
The applicant bought land in Guernsey. Over the years he made a number of applications seeking permission for residential use of the land. These were all refused. Subsequently, in 1988, the applicant made representations to a planning inquiry which was considering the draft Detailed Development Plan No. 6 (DDP6). In his report to the Island Development Committee (IDC) the inspector set out the arguments led by the applicant’s advocate and by the advocate for the IDC, and concluded that a dwelling on the applicant’s site would be an intrusion into the agricultural/horticultural hinterland. He supported the IDC’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited.
In June 1990, the IDC submitted DDP6 (including the inspector’s report) to the States of Deliberation which debated and adopted it. The zoning of the applicant’s land was not changed. The States of Deliberation was presided over by Mr Graham Dorey, then Deputy Bailiff.
In August 1993, the applicant applied to the IDC for a change of use of his land so as to permit residential accommodation. That was refused by the IDC on the basis of the zoning policies contained in DDP6. The applicant subsequently appealed to the Royal Court consisting of the Bailiff (by then Sir Graham Dorey) and seven Jurats. No objection to the Bailiff’s presiding was taken by the applicant’s advocate. In accordance with Guernsey procedure, the Bailiff summed up the law after the court had heard the evidence and the Jurats then retired alone before delivering a decision to dismiss the appeal.
The decision of the Commission
The applicant subsequently applied to the European Commission of Human Rights. The evidence before the Commission was that the Bailiff was President of the Royal Court as well as President of the States of Deliberation (the legislative assembly) and the States of Election (the electoral college for Jurats). He was also President of four committees of the States which fulfilled executive functions, and played a rôle in communications between the Island and the United Kingdom.
The Commission held that a court presided over by the Bailiff did not give the necessary appearance of independence and impartiality because of the number of legislative and executive rôles which the Bailiff performed as well as his judicial functions. There was therefore a breach of article 6(1) of the Convention. The Commission subsequently referred the matter to the European Court of Human Rights.
Contentions before the Court
The applicant sought to uphold the Commission’s decision on the ground relied upon by the Commission, namely that the many rôles of the Bailiff were themselves sufficient to lead to a breach of article 6. He also relied upon a new ground which only emerged between the hearing before the Commission and that before the Court, namely that Sir Graham Dorey had presided over the States when DDP6 (which included the inspector’s report dealing with the applicant’s representations concerning his land) was debated and adopted, and over the Royal Court when hearing the appeal from the refusal of the IDC to depart from DDP6 in the case of the applicant’s land.
The government contended that:-
(i) as the applicant had not objected to the Bailiff sitting at the time, he could not be taken to have exhausted his domestic remedies and had also waived his right to object to the constitution of the Court;
(ii) the Convention did not require compliance with any particular doctrine of the separation of powers. The Court should therefore not support the finding of the Commission that the mere existence of a number of legislative and executive functions prohibited a judge from giving the necessary appearance of independence and impartiality;
(iii) the Bailiff’s rôle as President of the States of Deliberation and of the four committees of the States was that of a neutral umpire to ensure that the proceedings ran smoothly without taking part or expressing approval or disapproval of the matters under discussion, subject only to a casting vote.
Held, (1) The government was stopped from contending that the applicant had not exhausted his domestic remedies as the point had not been taken before the Commission.
(2) Any waiver of a right to object to the independence or impartiality of a tribunal must be unequivocal and the Court could have regard to whether it was reasonable for the applicant not to have objected at the time. In the light of the clear decision of the Guernsey Court of Appeal in Bordeaux Vineries Ltd v States Board of Administration[3]that the Bailiff’s constitutional functions in connection with the States did not impinge on his judicial independence, the Court held that the applicant’s failure to challenge the Bailiff at the time was not unreasonable and could not therefore amount to a tacit waiver of his right to an independent and impartial tribunal.
(3) There was no question of the Bailiff being subjectively prejudiced or biased. However article 6(1) required a tribunal to have the necessary “appearance” of independence and impartiality.
(4) The Court accepted the government’s contention that the Convention did not require states to comply with any theoretical constitutional concepts or any particular doctrine of constitutional law. The question was always whether, on the particular facts of a given case, the requisite appearance of independence and impartiality was present.
(5) In this case, the Bailiff had had personal involvement with the planning matters at the heart of the applicant’s case on two occasions. The first occasion was in 1990 when he presided over the States of Deliberation on the adoption of DDP6. The second was in June 1995, when he presided over the Royal Court in the determination of the applicant’s planning appeal. The facts were capable of casting doubt on the Bailiff’s impartiality at the planning appeal on the basis that the applicant had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, was sufficient to amount to a breach of article 6(1).
(6) The finding of a violation was sufficient justification and there would be no award of damages.
(7) In a concurring opinion, Sir John Laws emphasized that the decision turned upon the particular facts. He expressed firm dissent from the proposition that a violation of article 6 might be shown on any wider basis having regard to the Bailiff’s multiple rôles. There were no objective grounds, arising simply from such multiple rôles, to fear that the Royal Court lacked independence or impartiality.
Courts
Bias
Representation of the Bâtonnier re an advocate CA: (Calcutt, Southwell and Clarke JJA) January 27th, 2000 unreported.
R.J. Michel, Bâtonnier; N.M. Santos-Costa, Crown Advocate for the Attorney General; D.E. Le Cornu for the advocate.
On July 1st, 1999, the Royal Court refused an application made on behalf of the advocate for an order recusing the Jurats and the Attorney General from the disciplinary proceedings instituted against him but the Bâtonnier. The advocate appealed to the Court of Appeal.
Counsel for the advocate raised three preliminary issues:
1. an application had been made to strike out parts of the Bâtonnier’s re-amended Representation, and the hearing of the present appeal should therefore be adjourned until the application to strike out had been determined;
2. the advocate had made allegations against the Attorney General, and the amicus curiae nominated by the Attorney should not therefore be permitted to advance any arguments before the Court of Appeal;
3. the Bâtonnier had been late in filing his written contentions, and these should not therefore be taken into account.
The Court decided in relation to these preliminary issues:
1. the strike out application had been delayed for so long that it was doubtful whether it should be heard at all. In any event, the notion that the appeal should not be heard when all three Counsel were ready to argue the case was wholly misconceived;
2. the advocate had made criticism of the Attorney General, and consequently if the Attorney himself had appeared before the Court then that might have been a legitimate subject of objection. However, there was nothing in the advocate’s objection to another advocate acting as amicus;
3. whilst the Bâtonnier could be criticised for the delay in filing the written contentions, it was in the interest of justice that the advocate’s application should be rejected. In any event, the Bâtonnier had not raised any material point not already raised at first instance.
On the substance of the appeal, the advocate’s argument that the Jurats should be disqualified from hearing the disciplinary matter was based on separate grounds:
1. that the Jurats should be automatically disqualified because they had an interest in the maintenance of the justice system in Jersey, and would therefore be judges in their own cause;
2. that there would be a “real danger” that the Jurats would be affected by bias, adopting the test laid down in the English case of R v Gough[4];
3. that the Jurats would not be an “independent and impartial tribunal” within the meaning of Article 6.1 of the European Convention on Human Rights (“ECHR”).
Held, dismissing the appeal, that –
(1) it could not legitimately be said that the Jurats had any interest other than in the due administration of justice, or that they had any interest in protecting against criticism any particular holder of the offices of Bailiff, Deputy Bailiff or the Law Officers. There was therefore no adequate foundation for the proposition that the Jurats would be judges in their own cause or interest;
(2) there was no evidence to suggest that the Jurats would do anything other than remain true to their oath to decide cases in accordance with their individual judgments. They had a largely unfettered independence of position and decision, and there was therefore no “real danger” of bias;
(3) the cases of McGonnell v United Kingdom, Langborger v Sweden and Starrs and Chalmers v Procurator Fiscal could be distinguished on their facts. In particular, Jurats in Jersey are appointed by an independent Electoral College, and not by the executive or the legislature. Furthermore, they hold office until the age of 72, and provision for their removal before that age is severely limited. There was no evidence before the Court that any of the Jurats had ever been untrue to their oaths of office. The Court was therefore satisfied that the Jurats formed an independent and impartial tribunal within the meaning of Article 6 of the ECHR;
(4) as the pleadings currently stood, there were few, if any, factual issues arising. In these circumstances, it would be appropriate for the Greffier to certify that the disciplinary charge was suitable for determination by the Commissioner sitting alone. However, if any additional factual issues did arise at a later stage, for the reasons already given it would be appropriate for the Jurats to determine such issues.
Per curiam:
(i) The Court reiterated that all documents filed with the Court orserved on other parties must bear their date of filing or service. The Court also expressed its concern that the Court’s recent Consolidated Practice Direction had not been fully complied with in certain respects.
(ii) The decision of the English Court in R v Gough is not binding on the Jersey courts, and it could therefore be argued that a different test, namely the “reasonable apprehension” test, would be an appropriate test for Jersey in place of the “real danger” test. It was not however necessary for the Court to determine this issue because the appellant failed, irrespective of the test which was applied.
Bias
Att. Gen. v Barra Hotel Ltd. Royal Ct: (Bailhache, Bailiff) April 17th, 2000 unreported.
P. Matthews, Crown Advocate, for the Crown; B. Shelton, director, on behalf of the defendant company.
The defendant company applied to recuse the Bailiff on the ground that the Attorney General was his brother. It contended that there was accordingly an appearance of bias in the sense that a reasonable person might apprehend a real danger that the Bailiff might unfairly regard with disfavour the case of the defendant company.
Held, dismissing the application, that the Attorney General had no personal interest in the outcome of the prosecution and that no reasonable person would fear that the Bailiff would not comply with his oath to administer justice without fear or favour.
Criminal Law
Drugs
Representation Mauger Royal Ct: (Bailhache, Bailiff) April 12th, 2000, unreported.
C.M. Fogarty for the representor; A.J. Belhomme for the Attorney General.
The representor opposed an application by the Attorney General for a forfeiture order relating to nearly £11,000 in cash seized from him by the police on suspicion that the money was connected with drug trafficking. The continued detention of the money for periods of three months had been authorized by successive judicial orders but on one occasion, owing to an oversight by the police, there had been an hiatus of two days. The representor claimed that this was fatal to the validity of subsequent detention orders. Article 16B (3) of the Drug Trafficking Offences (Jersey) Law 1988, as amended, provides that –
“Any order under paragraph (2) shall authorize the continued detention of the money …… for such period, not exceeding three months …… and the Bailiff …… may thereafter from time to time authorize the further detention of the money ……”
The Attorney General argued that “thereafter from time to time” meant no more than “after the granting of the previous order”.
Held, refusing the application for forfeiture, that the language of Article 16B necessarily implied a continuum during which the seized money was lawfully detained, and that on the expiry of the judicial order the money should have been returned to the representor.
Criminal Procedure
Sentence
Att. Gen. v Hill Royal Ct: (Bailhache, Bailiff and Jurats Potter and Allo) January 28th, 2000 unreported.
S.C. Nicolle Q.C., Solicitor General, for the Crown; R.J. Renouf for the defendant.
The defendant had pleaded guilty to three counts of fraud. The amounts defrauded totalled some £21,343. The defence urged in mitigation that members of the defendant’s family had clubbed together to repay the defrauded creditors. The prosecution submitted that restitution by a third party did not constitute mitigation. The defence submitted that it was not part of the prosecution’s rôle to negate mitigation unless it contradicted the prosecution case.
Held, (1) Following Le Cocq v Att.Gen.[5] the rôle of Attorney General as partie publique is wider than that of a Director of Public Prosecutions and is to safeguard the public interest in the widest sense. In moving conclusions as partie publique the Attorney General must balance aggravating and mitigating factors and can only do so by forming a view on the merits or otherwise of any points in mitigation. If he considers that a point which is to be put forward in mitigation has no substance he is under a duty to say so;
(2) whether restitution is mitigation depends on the circumstances of the case. Where it appears that there is an intention that the defendant will repay the third party in due course that may be evidence of remorse which may be taken into account in passing sentence.
Sentence
Att. Gen. v Welsh Royal Ct: (Hamon, Deputy Bailiff and Jurats Myles, Le Ruez, Rumfitt, De Veulle, Le Brocq, Tibbo, Bullen, Le Breton, Georgelin and Allo) February 3rd, 2000 unreported.
C.E. Whelan, Crown Advocate, for the Crown; D.C. Sowden for the accused.
The accused pleaded guilty to possession with intent to supply of 845 grams of heroin with a street value of £¼ million, cocaine and cannabis resin. He was 34 and had several previous convictions including one for importing Class A drugs. The accused claimed that he was merely a “minder”.
Held, applying the guidelines in Campbell, Molloy and Mackenzie v Att. Gen.,[6]that the appropriate sentence was a total of 12½ years’ imprisonment.
Per curiam: A “minder” may be more seriously involved in the drugs trade than a courier; his position will depend upon the amount of the drugs involved and what inferences may properly be drawn from the surrounding circumstances.
Evidence
Admissibility
Manning v Att.Gen. CA: (Southwell, Nutting and Smith JJA) December 17th, 1999 unreported.
C.J. Scholefield for the applicant; A.D. Robinson, Crown Advocate, for the Crown.
On October 22nd, 1998 the police, acting on information received, attended the appellant’s house to question him in regard to receiving stolen silverware. The appellant voluntarily showed the police a bag of silver stored in one of his sheds. He told the police he had found it that morning in his car outside his house. He said he thought that the silver was stolen and he had put it in one of his sheds for safekeeping. Following a search of the appellant’s premises, a holdall containing more silverware was found in another of the appellant’s sheds.
The appellant at assize was charged with two counts of receiving stolen silverware. His defence to the first hoard of silver (count 2) was that he had intended to contact the police about it but had not been given the opportunity. In relation to the second hoard of silver (count 1), he denied any knowledge of its presence.
At trial, the prosecution sought to admit evidence from the two thieves who had stolen the silver. Their testimony would include the fact that the appellant had received stolen goods from them on previous occasions not covered by the indictment. The prosecution also sought to adduce evidence corroborating the thieves’ testimony on this point. The prosecution argued this evidence – normally inadmissible – was admissible either by virtue of:
(1) Common law under authority of R v Powell[7] and/or
(2) s.43(1) of the Larceny Act 1916
The defence argued the evidence was inadmissible on the following grounds:
(1) R v Powell only permitted evidence of previous dealings to be adduced to prove guilty knowledge, and since guilty knowledge was not in issue here, the evidence was irrelevant and therefore inadmissible;
(2) even if the evidence were admissible, its probative value was outweighed by its prejudicial effect;
(3) even if the contentions in (1) and (2) were dismissed, the evidence was limited to evidence from the thief that he had sold stolen goods to the appellant in the past and therefore did not allow for corroborative evidence from other witnesses or evidence giving details of previous receiving; and
(4) s.43 (1) Larceny Act 1916 should only be referred to in Jersey when considering substantive law and did not apply in relation to the law of evidence in Jersey.
At first instance, the Royal Court had rejected the defence submissions of (1) and (2) above, and had allowed the evidence of the thief to be adduced. However, the court had accepted the contentions at (3) and prohibited any other evidence from being adduced. The appellant was acquitted on the first count but was convicted on the second. The appellant appealed on the basis the Royal Court had erred in law by admitting the disputed evidence.
The Court of Appeal considered:
(1) what is the ambit of the decision in R v Powell, and should it be adopted as part of Jersey Law?
(2) should the principle underlying the statutory provision in s.43(1) Larceny Act 1916 be adopted in Jersey?
Held, allowing the appeal and quashing the conviction:
(1) the common law principle is applicable to Jersey but is limited to cases where:
(a) the allegation is one of receiving stolen property
(b) the issue at trial relates to guilty knowledge of the accused as to the stolen nature of the property
(c) the evidence includes evidence from the thief who stole the property and relates to dishonest dealings in stolen property between that same thief and the accused on previous occasion(s)
(d) the evidence is capable of proving not just that the antecedent property was stolen but in addition that the accused was aware of that fact.
In such case the evidence is admissible and such evidence may also include evidence from a source additional to, and corroborative of, the thief’s evidence which needs to be proved at (d) above;
(2) while resort is sometimes made to the Larceny Act 1916 in Jersey, s.43(1) stipulates time limits in relation to the admission of evidence. Such a provision, contained in an English statute, cannot have force in Jersey.
Injunctions
Contempt Of Court
Le Main v Eves Royal Ct: (Crill, Commissioner and Jurats Rumfitt and Georgelin) November 23rd, 1999 unreported.
D.F. Le Quesne for the plaintiff; M.H.D. Taylor for the defendant.
Shortly before the elections for deputy in 1999, the defendant wrote a letter to the plaintiff, who was a candidate, threatening to make public various allegations about the character and conduct of the plaintiff. The plaintiff obtained an interim injunction preventing the defendant from making those allegations. On the day before the elections, the matter was brought back before the Court as the defendant had circulated a letter to the general public making allegations which the plaintiff alleged to be in breach of the injunction.
Held, that the defendant was in contempt, notwithstanding the wide permissive limits given for commenting as a matter of public interest on the conduct of those seeking public office. Defendant sentenced to 48 hours’ imprisonment.
Mandatory Injunction
Keenan & Keenan v Timber Tech Ltd Royal Ct: (Hamon, Deputy Bailiff and Jurats Potter and Allo) December 10th, 1999 unreported.
J.G.P. Wheeler for the plaintiffs; M.J.O’Connor and T. Williams directors of the defendant company.
The defendant had installed a staircase, four doors and nine windows at the property owned by the plaintiffs in Vallée des Vaux. A dispute between the parties had arisen, and in July 1999 the defendant had issued proceedings against the plaintiff for payment. The plaintiffs were defending that action and had also brought a counterclaim.
On December 8th, 1999, the Directors of the defendant checked the weather, telephoned the police to tell them what was intended and then took steps to remove the windows and doors which had been installed. The police attended whilst this was done having been requested to do so by the defendant. Representatives of the defendant then told Mrs Keenan, the second plaintiff, that the windows and doors would only be replaced if she paid what the defendant claimed was owed to it.
The plaintiffs applied ex parte for a mandatory injunction ordering the defendant to reinstate the doors and windows. The Deputy Bailiff refused to grant the relief ex parte and the matter was argued inter partes.
Held, granting the mandatory injunction, that the defendant be ordered to restore the doors and windows by close of business on December 14th, 1999. In reaching its decision the Court held that title to the doors and windows had passed to the plaintiff. There were exceptional circumstances which justified granting the injunction sought. In particular, the plaintiffs’ children and lodgers resided at the property.
Wills
In re Estate Filleul Royal Ct: (Birt, Deputy Bailiff and Jurats Le Brocq and Bullen) February 18th, 2000 unreported.
H.M. Boléat for the representor.
A representation was made seeking to register a file copy of a will of immovable property. Two issues arose: first, whether the Court had the power to order such registration; and second, whether it should do so on this occasion.
Articles 12 and 14 of the Loi (1851) sur les testaments d’immeubles clearly envisages that the original will of immovable property should be registered in the Public Registry (save in the event of a mixed will of movable and immovable property, in which case Article 14 envisages the registration of a certified true copy of the original). In Re Hewett[8] the Royal Court held that there was an inherent jurisdiction to register a photocopy of a will of immovable property where the Court was satisfied it was a copy of the original will which had been duly and properly executed. Whereas a photocopy of a will is a mirror image of the original, a file copy contains no signatures and no evidence of whether the original, if executed at all, was executed in the same form.
Held,
(1) that the difference between a photocopy and a file copy goes to the evidential burden resting upon the applicant rather than any difference in legal result; the Court therefore has jurisdiction to order the registration of a file copy of a will, if it is satisfied, on compelling evidence, that the file copy is a true copy of the will as executed;
(2) that sufficient evidence was available on this occasion to allow the court to order the registration of the file copy.
Wills
In re Estate Amy Royal Ct: (Birt, Deputy Bailiff) April 4th, 2000 unreported.
J.C. Martin for the executors; R.A. Falle for the specific legatees; A.D. Robinson for the residuary legatees.
The deceased died domiciled in Jersey leaving a valid will of moveable estate. After providing for various specific and pecuniary legacies, the will provided as follows:-
“I give and bequeath unto my trustees all my holding of Preference and Ordinary shares in Guernsey Press Company Limited to hold the same in trust and to pay the income and dividends in respect thereof unto the said Inawa Marior Paviour-Smith and the said Marla Ilda Silva Percy (née Joao) jointly and for the survivor of them in equal shares for each of their lifetimes and thereafter to hold the same for the benefit of La Société Jersiaise, La Société Guernsiaise, The National Trust for Jersey, and the National Trust for Guernsey, to be divided between them in equal shares absolutely.
And I declare that if at my death the said shares shall by virtue of any amalgamations, reconstruction or arrangement of capital of the said company Guernsey Press Company Limited or sale of the company’s business be represented by a different capital holding whether in the said company or any other company which at my death I am entitled or possess then the said bequest of shares shall take effect as if it had been a bequest of capital holdings which result from such amalgamation, reconstruction or rearrangement of capital sale.”
On December 9th, 1998 the Guiton Group Limited acquired shares in the Guernsey Press Company Limited (“Guernsey Press”) with the result that Father Amy became entitled to 250,000 Guiton shares and £1,130,000 in cash. The share certificate for the Guiton Shares and the cheque were despatched to Father Amy on or about January 10th, 1999. Father Amy died on January 17th, 1999 without cashing the cheque. The proceeds from the Guernsey Press shares formed some 90% of his moveable estate. The executors applied to the court for directions as to whether the cash consideration in respect of the Guernsey Press shares passed pursuant to the bequest of the Guernsey Press shares read with the anti-ademption provision, or whether there had been an ademption so that the cash fell into residue.
Held, (1) that the Jersey law on ademption is drawn from Norman law and is similar to modern French law on the subject. If something specifically bequeathed is disposed of by the testator between the date of the will and the date of death, there is a presumption that the bequest is adeemed. This presumption is, however, rebuttable;
(2) that on the issue of interpretation the Court’s primary duty is to construe the will so as to give effect to the testator’s intention. Where there is ambiguity, the Court should adopt that interpretation which best gives effect to the testator’s intention as ascertained from the terms of the will and the surrounding circumstances (including any extrinsic evidence properly admissible);
(3) that the intention of Father Amy, as it appeared from the will and the surrounding circumstances, was that the value of the Guernsey Press shares should go to the specific legatees under the bequest, and not fall into residue.
Trusts
Variation
In re Douglas Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Le Breton) April 3rd, 2000 unreported.
R.G.S. Fielding for the representor; C.G.P. Lakeman for the trustee and unborn beneficiaries; S.J. Young for the adult beneficiaries.
This was an application by Richard Douglas (“the settlor”) pursuant to Article 43 to the Trusts (Jersey) Law 1984.
In 1990 the settlor established a Jersey settlement of which the beneficiaries were himself, his wife and their children and remoter issue. Following the coming into force in the UK of the Taxation of Chargeable Gains Act 1992, the settlor, who was a UK resident and domiciliary, became exposed to a potential capital gains tax liability in respect of the assets of the settlement.
In order to avoid this liability, the settlor’s advisers proposed that the majority of the assets of the settlement be appointed to a new settlement, with UK resident trustees and governed by English law. In order to achieve this, it was necessary to vary the terms of the settlement in several respects. The approval of the Court to the proposed variations was sought. Article 43(2) of the 1984 Law provides that the Court shall not approve an arrangement on behalf of any person unless the carrying out thereof appears to be for the benefit of that person;
Held,
(1) following In re N[9] and In re Seale’s Marriage Settlement[10], the Court was satisfied that the avoidance, minimalisation or deferral of taxation was capable of constituting a benefit to the beneficiaries, and the fact that such avoidance, minimalisation or deferral was the principal object of the proposed variation was not a reason for the Court to refuse to give its consent;
(2) having regard to all the circumstances, the Court was satisfied that the proposed variations were for the benefit of the unborn beneficiaries in two respects; first, depletion of the trust assets would be prevented; and secondly, by increasing the class of beneficiaries in the new settlement, the trustees would be given greater scope for tax planning.
Per curiam: Paragraph 6(1) of Schedule 5 of the Taxation of Chargeable Gains Act 1992 confers on a settlor or a trust a statutory right of reimbursement from the trustees after he has paid capital gains tax. It remains an open question as to whether the Royal Court would enforce that statutory right of reimbursement against Jersey trustees.