Pleadings The American Endeavour Fund Limited v Trueger & Others Royal Ct: (Le Cras, Lieut. Bailiff) February 20th 1997 unreported. W. J. Bailhache for the plaintiff; J. G. White for the defendant. The defendants applied to strike out the whole of the plaintiff’s reply on the grounds set out in Rule 6/13(1) (b)-(d) of the Royal Court Rules 1992. 243 objections were made to a pleading 248 pages long. The objections principally relied upon were that the reply contained new claims and new bases of claim, contrary to English rules of pleading, and amounted to a re-characterisation of the plaintiff’s case which confused rather than clarified the dispute. The plaintiff responded that the Royal Court Rules did not contain any provision similar to RSC O.18 r.10 and that therefore a reply was not liable to be struck out for inconsistency contrary to that rule merely because there were new claims or bases of claim; rather that it would only be liable to be struck out if inconsistent in the sense of being mutually exclusive with the Order of Justice. The plaintiff also contended that even if the English rule were to be applied, that did not give rise to striking out the whole reply which was the only relief sought, and that in any event, in the exercise of its discretion, the Court should not strike out the reply at this stage for case management reasons. Held, dismissing the defendants’ application: (1) inconsistent claims (including new claims) should not be raised in a reply; (2) the reply in this case was a response to a widely drawn answer, was not improper and was not wholly bad notwithstanding that it did contain some inconsistent claims (in the sense of including new claims); (3) in the exercise of its discretion, the interests of justice required that the proceedings be moved forward. Obiter: the English pleading rules should be applied in Jersey. Criminal Law Gregory v Att. Gen. CA: (Le Quesne, Crill and Clarke JJA) January 15th 1997 unreported. J. C. Martin for Gregory; J. A. Clyde-Smith, Crown Advocate, for the Crown. The appellant appealed against a sentence of six years’ imprisonment imposed for the importation of 8.54 grams of heroin. The appellant, who had been addicted to heroin for some twenty-five years, contended before the Superior Number that the heroin had been imported for personal use. The Superior Number rejected that claim concluding, without the benefit of a "Newton hearing", that some of the heroin had been imported for commercial purposes and applied tlines set out in Campbell v Att. Gen. [1]for sentencing in cases of trafficking on a commercial basis. Held, allowing the appeal: (1) that importation for commercial use and importation for personal use stand on different levels from the point of view of the vice being introduced and should not be visited with the same penalty. (2) that the quantity of drugs found were more than trivial but could be described as relatively small in the context of the appellant’s personal circumstances. (3) that once the amount of drugs goes beyond a relatively small amount it becomes increasingly suggestive of an intent to put the drugs to commercial use. (4) that the Superior Number should either have ordered a "Newton hearing" or have passed sentence on the basis of the appellant’s version of the purpose of his importation. (5) that the Campbell guidelines were not applicable, that the appropriate starting point for the purpose of sentencing in this case was six years’ imprisonment, and (6) that allowing for mitigation, the sentence should be reduced to four years. Att. Gen. v Maxwell Royal Court: (Bailhache, Bailiff and Jurats Blampied and Le Ruez) December 19th, 1996 unreported. M. C. St. J. Birt, Q.C., Attorney General, for the Crown; S. A. Pearmain for the accused. The accused, a 49 year old schizophrenic woman who had been resident in Jersey for 4 years, was asked to leave the Shelter for homeless persons but refused to do so. She was destitute and without funds. In accordance with standard practice the accused was told by a police officer that she could, if she wished, be prosecuted for vagrancy in which event she would be bound over to leave the island and her fare to England would be paid by the parish. It appeared from submissions that only non-natives were now prosecuted for vagrancy. The Magistrate remanded the accused to the Royal Court so that the court could decide whether the offence still existed and, if so, issue guidance as to the appropriate disposal. Held, granting the accused an absolute discharge, that the offence of vagrancy had not fallen into disuse but that the criminal law no longer had any proper function to perform in this area and that the legislature should consider the desirability of abolishing the offence. Per curiam: (1) the practice of inviting a person to choose whether or not she wished to be prosecuted was extraordinary and should be discontinued. (2) the practice of charging only non-natives with the offence of vagrancy in order to secure their repatriation was indefensible and resulted from an unsatisfactory confusion of the criminal justice and welfare systems. Criminal Procedure Att. Gen. v Tracey Royal Ct: (Bailhache, Bailiff and Jurats Blampied and Vibert) December 19th 1996 unreported. J. C. Gollop, Crown Advocate, for the Crown; the respondent did not appear and was not represented. The Attorney General appealed by case stated against decisions of the Relief Magistrate refusing the centenier’s request for an adjournment and subsequently dismissing the case against the respondent. The respondent, a manager of licensed premises, was charged on June 13th 1996 with an offence under the Licensing (Jersey) Law 1974. The date for the hearing was deferred until August 27th when, as a result of inefficiency on the part of the police, witnesses had not been summoned and the prosecution was not ready to proceed. The application for an adjournment was refused after submissions from counsel that the respondent was pregnant, very nervous about the trial, and fearful of losing her job and accommodation if convicted. The Relief Magistrate had weighed up what he saw as the conflicting public interests of avoiding prejudice to the respondent and ensuring that offenders received their just deserts. Held, allowing the appeal and quashing the decisions of the Relief Magistrate, that this was not the appropriate test. The Magistrate had no power to stifle the criminal process and should not dismiss a case without hearing the evidence other than in cases where there had been an abuse of process. Such cases would be rare having regard to the functions of the magistrate as a juge d’instruction. Evidence Heinrichs v Parkes Heinrichs Royal Ct: (Le Marquand, Judicial Greffier) April 24th 1997. S. C. Nicolle, Q.C., Solicitor General, for the applicant. A request was made by the local court of Aachen, Germany, for an investigation of the social and family background of a child of the parties. Held, that the court had no power under the Service of Process and Taking of Evidence (Jersey) Law 1960, as amended, to order such an investigation. Att. Gen. v Dowse and Heys Royal Ct: (Hamon, Deputy Bailiff and Jurats Gruchy and de Veulle) December 18th 1996, unreported. S. C. Nicolle, Q.C., Solicitor General, for the Crown; C. J. Scholefield for Dowse and H. Tibbo for Heys. A police officer recorded in his pocket book incriminating statements made by the accused Dowse at the time of his arrest. Contrary to Code C of the Code of Practice for the Detention, Treatment, and Questioning of Persons by police officers the accused was not asked to read or sign the records. The Code had no statutory backing in Jersey but the accused challenged the admissibility of the incriminating statements. Held, applyinrkin v Att. Gen., [2] that there had been a substantial breach of the Code and, although the good faith of the officers was not in question, the alleged statements would be excluded. Defamation Horsfall v Sinel and others Royal Ct: (Crill, Commissioner and Jurats Herbert and Querée) February 12th 1997 unreported. N. M. C. Santos Costa for the plaintiff; D. E. Le Cornu for the defendants. The plaintiff, a senator and president of the Finance and Economics Committee of the States, obtained ex parte an interim injunction restraining the first defendant, an advocate, from repeating allegedly defamatory statements contained in letters sent or copied to the Jersey Evening Post. The alleged libels concerned the plaintiff’s conduct as president of the committee. The defendants pleaded justification, fair comment, and absolute or qualified privilege. The court lifted the injunction but gave leave to amend the order of justice. The plaintiff renewed his application for an interlocutory injunction. Held, refusing the application, that the right of free speech required that exceptional caution should be executed before granting an interlocutory injunction in a libel action, particularly where justification had been pleaded. Solvalub Limited v Match Investments Limited CA: (Le Quesne, Collins, and Southwell, JJA) December 13th 1996 unreported. J. P. Speck for the appellant; P. M. Livingstone for the respondent. The appellant, an English company, obtained an injunction from the Bailiff against the respondent, which was not resident in or otherwise connected with Jersey save that it had a bank account in the Island, in support of proceedings between the same parties in the English High Court. The appellant was claiming damages for breach of a contract expressed to be subject to the exclusive jurisdiction of the English High Court. The respondent denied that there was a contract. The respondent filed an answer under protest as to jurisdiction, pleading to the allegations and seeking inter alia an injunction for the return of documents seized pursuant to the order of justice. The respondent’s application to the Royal Court to raise the injunctions was successful, the Royal Court finding that there was no jurisdiction to grant the injunctions, the appellant having conceded that it had no proprietary right to the monies enjoined and that there was no substantive cause of action in Jersey. The appellant appealed. Held, allowing ppeal, apg Johnsothey Bankers Limited v Arya Holdings Ltd [3]and over-ruling James Capel (Channel Islands) Limited v Koppel [4]and Abbott Industries Inc. v Warner [5] : (1) the respondent had effectively submitted to the jurisdiction by pleading to the allegations and by raising a counterclaim against the appellant; and (2) the Royal Court has jurisdiction to grant an injunction in Jersey in support of proceedings in another jurisdictionlowing Lord Nicholls in Mercedes Benz AG v Leiduck. [6] Inquest Representation Cotter CA:(Le Quesne, Crill, Clarke JJA) January 16th 1997 unreported. P. S. Landick for the appellants; J. G. P. Wheeler, Crown Advocate, for the Viscount. The appellants, the parents of a deceased young woman, appealed against the decision of the Royal Court upholding the refusal of the Deputy Viscount to summon a jury for the purpose of the inquest. Article 7 (1) of the Inquests and Post-Mortem Examinations (Jersey) Law, 1995 provides : "For the purposes of an inquest, the Viscount may, if he considers it to be in the public interest, summon 12 persons selected by him to act as a jury". The Royal Court had found that the events leading up to the death of the deceased were extremely disturbing but had appeared to apply by analogy provisions of the English Coroner’s Act 1988 which limited the discretion to summon a jury. Held, allowing the appeal, quashing the decision of the Deputy Viscount, and remitting the matter to the Viscount for re-consideration, that once the Viscount had decided that it was in the public interest to summon a jury he had no further discretion and was bound to do so. The Royal Court had misdirected itself as to the extent of the Viscount’s discretion by considering inappropriate English statutory provisions. The concerns of the family of a foreign seasonal worker were a proper consideration for the Viscount to take into account. Limitation Of Actions Prescription Maynard v Public Services Committee CA: (Le Quesne, Southwell and Smith JJA) December 11th 1996 unreported. D. F. Le Quesne for the plaintiff; S. C. K. Pallot for the defendant. The defendant appealed against a judgment of the Royal Court which held, inter alia, that the period of prescription was suspended from running where a plaintiff was unable reasonably to know that he had sustained personal injury. The Royal Court had been considering the application of the maxim: "à qui empeche d’agir la prescription ne court point" in circumstances where the plaintiff became aware that he suffered from asbestosis only after the prescription period would ordinarily have expired. Held, applying the maxim and dismissing the appeal, that prescription does not run while the plaintiff is prevented by a practical impossibility from exercising his right to commence legal proceedings. Mere ignorance alone is not sufficient to bring the maxim into operation but may be a part of an impediment creating such a practical difficulty. Obiter: the Court of Appeal, in considering the authorities and texts cited in argument, cautioned that "no great weight can be placed on French law as it exists today, in ascertaining what is Jersey law, except perhaps on a comparative basis...." Compulsory Purchase Lesquende Ltd. v Planning and Environment Committee Royal Ct: (Kempster, Commissioner and Jurats Bonn and Jones) February 17th 1997 unreported. M.M.G. Voisin for the plaintiff; W.J. Bailhache, Crown Advocate, for the defendant. An Arbitration Board awarded compensation to the plaintiff pursuant to the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, as amended, for the compulsory purchase of its land by the defendant. The plaintiff commenced proceedings seeking orders that the award be set aside and that directions be given to the Arbitration Board as to the law which should be applied on its reconsideration of the award. The defendant agreed that the award should be set aside but asserted different grounds for doing so and sought different directions from those sought by the plaintiff. The Court of its own motion posed a preliminary question of law for consideration, namely whether it had jurisdiction to grant the relief sought. The Court held that even if a statutory right of appeal existed under Article 12 of the Law, and whether or not a prerogative writ might be issued in right of the Duchy of Normandy, the Court had jurisdiction to review judicially the decision of a statutory arbitral tribunal. It further held that it had a discretion to refuse to hear an application for judicial review as an alternative remedy was available to the parties but on the facts of the case refused to exercise that discretion. As to the ambit of judicial review, the Court found that a decision of a board of arbitrators constituted under Article 7 of the Law could be reviewed on grounds of illegality, irrationality and procedural impropriety, and the extent of the review was not limited to errors on the face of the record. On an application of these principles the Court considered the application of both parties, albeit on different grounds, to have the award set aside. Held, setting aside the award: (1) that the board departed from its duty to assess the value of the land at the vesting date without regard to the statutory scheme for the purposes of which the land was compulsorily acquired; (2) that the board should reconsider its valuation: (a) having regard to the factual and legal circumstances set out in the judgment relevant to this particular case; (b) evaluating all the evidence using its collective good sense and knowledge; (c) by putting out of its mind the scheme for the purposes of which the land was acquired; (d) by taking into account the physical characteristics of the land, its planning history and zoning, as well as its potential changes in zoning and the planning and development consents with or without conditions which on the vesting date a discerning buyer might have thought to be obtainable then or at some future date for the land from a reasonable and well informed planning authority acting lawfully; (e) making no assumptions as to any planning permission which, given the statutory scheme for the purpose of which the land was compulsorily acquired, might be expected; (f) explaining its reasoning in respect of its approach to particular matters in dispute on the facts of the case. Planning Law McEwen v Planning and Environment Committee Royal Ct: (Hamon, Deputy Bailiff and Jurats Rumfitt and de Veulle) February 26th 1997 unreported. The appellant appeared in person; P. Matthews, Crown Advocate, for the respondent. In December, 1995, the respondent issued a notice under Article 8 of the Island Planning (Jersey) Law, 1964 directing the appellant, a vermiculturist, to remove all the vermiculture bins, structures and associated equipment from a field before the 31st January, 1996. The appellant contended that the notice was ultra vires on the basis that a notice under Article 8 could only be issued where a person developed land without permission. The appellant submitted that he did not require permission for the vermiculture bins since either they were "plant" and did not constitute a "building operation in or over land" for the purposes of Article 5 of the Law or they constituted an agricultural "use" of the land which use was exempted by reason of the proviso contained in Article 5 (2) (c) (vi) of the Law. "Building" is defined in the Law as "any structure or erection of whatever material or in whatsoever manner constructed....". "Plant" is not defined. Held, dismissing the appeal: (1) the question of whether the vermiculture bins constituted a "building" for the purposes of the Planning Law was a mixed question of law and fact. (2) the vermiculture bins consisting of four walls made of wood, bolted together, on which were fixed sheets of corrugated iron amounted to a "building" for the purposes of the Law even though the bins had no foundations. Although moveable, the bins had to be filled with compost and remain in situ for a considerable period of time (18 months) in order to fulfill their function. Once filled with compost they would only be capable of being moved by being dismantled. (3) although vermiculture (the use of worms for the purpose of breaking down compost) fell within the definition of "agriculture" in the Law since worms were "livestock", the proviso to Article 5 (2) (c) (vi) of the Law which states that "the use of any land for the purpose of agriculture ...... and the use for (such purpose) of any building occupied together with the land so used" shall not be deemed to constitute "development", was subject to Article 1 of the Law which defined "use" as excluding "the use of land by the carrying out of any building or other operations thereon". Wills Perrier and another v Minchington and others Royal Ct: (Hamon, Deputy Bailiff and Jurats Myles and Herbert) March 18th 1997 unreported. R. A. Falle for the representor; A. D. Hoy for the first respondent; J. Speck for the second and third respondents; S. A. Meiklejohn for the fourth respondent. The deceased executed wills and codicils some years before her death on 22nd May 1988. On 20th May 1988 a document was drawn up stating, inter alia, that "I, Elsbeth M. Boyd wish to leave my house...... to [the first respondent]...... Any other bequests are to remain the same as in the old Will. Any money left after the bequests is to go to [the first respondent]." The document was dated and had been signed by the deceased in the presence of the first respondent’s brother and his girl-friend. It was typed although there was evidence that the deceased could not type. The Christian name of the deceased on the document was misspelt. Held, that the document was not a testamentary disposition and was, on the evidence, no more than an act preliminary to the making of a fresh will or codicil. In the Will of Raymond Edwin Brown, deceased Royal Ct: (Hamon, Deputy Bailiff) April 17th 1997 unreported. D. F. Le Quesne for the representors; C. G. P. Lakeman for the respondent. In January 1976 the testator made a will naming his wife, his son Derek and his daughter Jennifer as executors. A month later he made a codicil creating certain testamentary trusts. He died in December 1992. In August 1993 Derek and Jennifer (the representors) renounced the executorship, and in November 1993 the widow also renounced. In December 1993 a grant of probate was issued to the attorney and Peter, the eldest son of the testator (the respondent). The representors argued that their renunciation of the executorship did not affect their status as trustees under the will trust. Held, dismissing the representation, that the termination of the executorship amounted also to a disclaimer of the trusteeship and that the representors had acquired no title to the trust property. Footnotes (Top) [1 ] 1995 J6 [2] 1991 JL32 [3] 1985-6 08 [4] 1989 51 [5] 1985-6 75 [6] 1996 84 |