| Return to Contents Case Summaries Advocates Duties To Client Hirschfield and another v Sinel (practising under the name and style of Philip Sinel & Co) and another Royal Ct: (Southwell, Commissioner and Jurats Potter and Bullen) February 23rd, 1999 unreported. J.P. Speck for the representors; P.C. Sinel for the respondents. There was a series of disputes between the sons (the representors) of the late Mr Hirschfield and his second wife ("Mrs Hirschfield") regarding a trust which had been settled by Mr Hirschfield. In 1995, Mrs Hirschfield had instructed Mr Sinel inter alia to secure greater provision for her from the trust. Mr Sinel purported also to have been instructed by Mr Hirschfield, which was denied by the representors, who claimed that their father had been incapable of instructing Mr Sinel. Mr Sinel claimed to have drafted a will and letters of wishes in relation to the trust for Mr Hirschfield and to have witnessed the execution of the will. The representors claimed that the will and letters of wishes were invalid through Mr Hirschfield’s incapacity and/or duress. In October 1996, Mr Sinel acting on behalf of Mrs Hirschfield and (purportedly) Mr Hirschfield, brought proceedings ("the First Proceedings") against Abacus (C.I.) Ltd as trustee of the trust, seeking the appointment of replacement trustees or an order that Abacus comply with the letters of wishes drafted by Mr Sinel. In November 1996, Mr Sinel and others attended Mr Hirschfield’s office and removed his papers at a time when (the representors alleged) he was not capable of consenting to their removal. An employee of Mr Sinel examined the papers. In May 1998, Mr Sinel commenced proceedings ("the Second Proceedings") on behalf of Mrs Hirschfield against Abacus and Mr Hirschfield seeking in effect to set aside the trust. The representors commenced the present proceedings, seeking orders restraining Mr Sinel from acting for Mrs Hirschfield in the Second Proceedings and for the delivery up of documents confidential to Mr Hirschfield. At the hearing Mr Sinel accepted that in the Second Proceedings there was a conflict between the interests of Mr and Mrs Hirschfield. Three issues arose:- whether Mr Sinel was barred from acting for Mrs Hirschfield because he would be a witness at trial; whether Mr Sinel was barred because in the First Proceedings he still represented Mr Hirschfield (or his estate) so that Mr Hirschfield was a present client of Mr Sinel against whom Mr Sinel was not permitted to act; whether Mr Sinel was barred because he had received confidential information which there was a real risk he would, on behalf of Mrs Hirschfield, misuse against Mr Hirschfield’s interests. Held, answering each issue in the affirmative:- It was clear that Mr Sinel would be a material witness as to a number of issues. Following English authority and the Bar’s Code of Conduct, the position in Jersey law was the same as in England: a Jersey advocate is not permitted to act on behalf of a client and to appear as a witness in the same proceedings, except where the advocate’s evidence is purely formal. Mr Sinel could not continue to represent Mrs Hirschfield in any of the existing proceedings, and should not have appeared in the present proceedings. The Court applied the judgement of the House of Lords in Prince Jefri Bolkiah v KPMG, that a man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. There was a present conflict between the duties owed by Mr Sinel to Mrs Hirschfield and those owed to Mr Hirschfield’s estate so that Mr Sinel could not be permitted to continue to act for Mrs Hirschfield. Following Les Pas Holdings Limited v Receiver General and Greffier of the States, the Court again applied the Bolkiah judgment. The Court found that inevitably Mr Sinel had become aware of relevant confidential information. It was unable to accept his blanket disavowal to the contrary. There was a real risk that Mr Sinel would use that information in the interests of Mrs Hirschfield and against the interests of Mr Hirschfield’s estate. Mr Sinel should not be permitted to continue to act for Mrs Hirschfield. The Court therefore ordered that Mr Sinel be restrained from representing Mrs Hirschfield in the various proceedings and from making further use of information confidential to Mr Hirschfield. Civil Procedure Mayo Associates S A and others v Anagram (Bermuda) Limited and others Royal Ct: (Le Quesne, Commissioner) December 8th, 1998 unreported. The plaintiffs were unrepresented; D.R. Wilson and N.F. Journeaux for certain of the defendants; C.E. Whelan, Crown advocate, for the Attorney General, intervener. Certain of the defendants had received materials disclosed by the prosecution in the course of earlier criminal proceedings based upon substantially the same facts as those now being litigated in the civil court. The question arose as to whether those defendants were permitted/obliged to make discovery of the disclosed materials, for the purposes of the litigation, to the plaintiffs. The condition of English case law on the point had ebbed and flowed and the Attorney General, through counsel, was given leave to intervene so that the Court might clarify the position in Jersey. The Royal Court adopted the law as set out in Taylor and others v Serious Fraud Office and others. Materials disclosed by the prosecution pursuant to its duty of disclosure in criminal proceedings are subject to an implied undertaking that the materials so disclosed will be used by the recipient for the exclusive purpose of the criminal proceedings, and for no ulterior or collateral purpose. That implied undertaking can be waived or varied by the Court as a matter of discretion, conditioned by the requirements of justice in the particular circumstances of the case before it. A variation of the implied undertaking was found by the Court to be warranted in the instant case, and the remainder of the judgement deals with the particularities. Pleading; Striking Out Blenheim Trust Company Ltd v Morgan and others CA: (Calcutt, Carlisle and Southwell JJA) March 17th, 1999 unreported. D.F. Le Quesne for the appellant; R.J. Michel for the first respondent; J.D. Kelleher for the second respondent. In May 1998 the Royal Court allowed the respondents’ appeals against that part of the Greffier Substitute’s decision which gave the appellant (plaintiff) liberty to apply to amend. The thrust of the respondents’ submissions had been that there was no reasonable cause of action; affidavit evidence was put to the court and detailed submissions had been made on the basis of that evidence. It was clear that the decision to uphold the appeals was based upon consideration of that evidence. Rule 6/13(2) of the Royal Court Rules 1992 provides that "no evidence shall be admissible on an application under paragraph (1)(a) of this rule". Paragraph (1)(a) allows the Court to strike out any claim or pleading if "it discloses no reasonable cause of action…..". Held, allowing the appeal, (1) that the Royal Court had been wrong to consider the evidence or absence of evidence in arriving at the conclusion that no reasonable cause of action had been disclosed; (2) that, applying the principles in Wenlock v Mahoney and others, it was clear that there had been no abuse of process. Pleading: Striking Out Hacon v Olsen, Backhurst & Dorey Royal Ct: (Bailhache, Bailiff and Jurats de Veulle and Quérée) November 27th, 1998 unreported. D.M.C. Sowden for the plaintiff; N.F. Journeaux for the defendants. The plaintiff suffered severe injury as the result of falling through the roof of a workshop in August, 1985. At the time of the injury he was employed to paint a feed hopper adjoining the workshop. The plaintiff began an action against both his employers and the owner of the workshop in 1987, alleging negligence and breach of statutory duty. He claimed that he had lost his balance while painting the hopper and, to save himself falling to the ground below, had jumped on to the adjacent workshop roof. The Royal Court dismissed this action, finding that the plaintiff had walked across the roof of the workshop and the accident was his own fault. This finding was upheld in the judgment of the Court of Appeal, delivered in April, 1992. In November 1996 the plaintiff issued proceedings against the defendants, who had been his legal advisers in the previous actions, alleging that the defendants had negligently advised him by failing to discover or call at trial scientific evidence which the plaintiff alleged was available and if produced would have resulted in his winning at trial. The defendants sought to have the action struck out on the ground, inter alia, that the proceedings were an abuse of process as an attempt to re-litigate issues decided at the original trial. Held, striking out the action in its entirety, that the principles developed in the English courts in relation to "satellite litigation" against advisers in previous litigation should be adopted and applied as the law of Jersey; that, following Oliver and another v McKenna & Co. (a firm) a plaintiff could only sue his advisers for negligently putting or omitting to put evidence before the court "if the inclusion, or exclusion, of such evidence had the effect of entirely changing the aspect of the case." (3) that the evidence put forward by the plaintiff, even if accepted, fell a long way short of entirely changing the aspect of the case. Service Out Of The Jurisdiction Ashbourne Marketing Limited v Mosca and another Royal Ct: (Hamon, Deputy Bailiff and Jurats Herbert and de Veulle) January 19th, 1999 and February 4th, 1999 unreported. A.D. Hoy for the plaintiff; A.D. Robinson for the first defendant; M.P.G. Lewis for the second defendant. The plaintiff alleged that the first defendant was in breach of a consultancy agreement with the plaintiff and that the second defendant had been used by the first defendant to facilitate improper payments made other than for the purposes of the consultancy agreement. It was alleged that the second defendant was liable as constructive trustee. The Greffier made orders granting leave to serve both defendants outside the jurisdiction, dispensing with the requirements for personal service and granting leave for substituted service by way of service upon the defendants’ advocate. The second defendant challenged these orders on the ground that it could not be said that it was party to the consultancy agreement. Rule 7(d) and (e) of the Service of Process (Jersey) Rules 1994 could not therefore apply. It was further argued that the plaintiff could not rely on Rule 7(f) as no tort had been alleged against the second defendant. The plaintiff asserted that the second defendant was liable as constructive trustee and could be served under Rule 7(q). The second defendant argued that any alleged liability could not be founded on acts committed in the jurisdiction. The payments in question by the second defendant were made outside Jersey. Rule 7(q) provides that service out may be ordered if "the claim is brought for money had and received or for an account or other relief against the defendant as constructive trustee, and the defendant’s alleged liability arises out of acts committed, whether by him or otherwise, within the jurisdiction;" Held, applying Ghana Commercial Bank v C & others, that the term "constructive trustee" should be construed as referring to a constructive trustee against whom a personal claim could be made as well as one against whom a proprietary claim could be made; the plaintiff’s was a proprietary claim to the money and the alleged liability arose out of acts committed otherwise within the jurisdiction; Rule 7 (q) therefore applied. Conflict Of Laws Yachia v Levi Royal Ct: (Hamon, Deputy Bailiff and Jurats Rumfitt and de Veulle) January 25th, 1999 unreported. A.D. Hoy for the plaintiff; J.P. Speck for the defendant. The plaintiff, an Israeli national, had obtained an interlocutory injunction against the defendant, who was not resident in or otherwise connected with Jersey save that she had a bank account in the Island. The injunction had been sought in support of proceedings between the same parties in the Texan courts. The defendant had brought a counterclaim against the plaintiff seeking a declaration as to the ownership of the funds in the bank account in Jersey and damages for the wrongful imposition of the injunction. The plaintiff brought a summons seeking a stay of the counterclaim on the ground of forum non conveniens and/or a stay pending determination of the proceedings in Texas. The Court noted that the Texan courts at first instance and on a re-hearing had concluded that they lacked jurisdiction to hear the case, although that decision was subject to a further application by the plaintiff for a new trial. The Court had affidavit evidence before it which showed that the judge in Texas might well stay the proceedings there. The Court went on to note that the plaintiff had recently commenced parallel proceedings in Turkey on exactly the same facts as were in issue in Jersey and in Texas. Conflicting affidavits from lawyers in Turkey were submitted by the plaintiff and the defendant as to the likely future conduct of the proceedings there and as to whether the Turkish courts had jurisdiction. It appeared that the Texan court would be unable to adjudicate on ownership of the funds unless the defendant submitted voluntarily to the jurisdiction, which she would not do. By comparison, the defendant had submitted to the jurisdiction in Jersey, where the bulk of the funds in dispute were held. Held, applying Spiliada Maritime Corporation v Consulex Ltd as approved in Wright v Rockway Ltd., and distinguishing Gheewala v Compendium Trust Co. Ltd, bearing in mind that the plaintiff chose to file suit in Jersey and that the burden of persuading the Court to exercise its discretion to grant a stay was on the plaintiff, that inevitably there would be long delays in Turkey on preliminary matters, the Court concluded that Jersey, untrammelled by procedural complexities, was the only suitable forum to hear the dispute. A stay was therefore refused. Contract Snell v Beadle CA: (Collins, Southwell and Clarke JJA) January 18th, 1999 unreported. J.D. Kelleher for the appellant; N.M.C. Santos-Costa for the respondent. The respondent in these proceedings was the owner of two properties in St Clement bounded on one side by a private road owned by the appellant and on the other side by a public road. The two properties themselves were separated by a strip of land which was also the property of the appellant. The respondent’s property nearer the public road ("Broadlands") had no vehicular access to it. The Planning and Environment Committee had refused access to Broadlands from the road. The other property, ("Abalone") enjoyed a right of access along the private road to the public road. The respondent found himself in financial difficulties and with the immediate prospect of a judgment being entered against him. He had hoped to develop the two properties, but it became apparent that the inability to obtain access from "Broadlands" to the main road required him to obtain vehicular rights over the strip of land between "Broadlands" and "Abalone". At very short notice, the respondent, and his consultant, met the appellant on site and it was found by the Royal Court that an agreement had been reached between the parties whereby the appellant had agreed to sell the vehicular rights in question to the respondent for the sum of £100. A written agreement to this effect had been drawn up by the respondent’s consultant and signed by the appellant. The Royal Court held that there had been no déception d’outre moitié and that the appellant was in breach of contract by refusing to pass an hereditary contract to reflect the agreement reached. The appellant appealed on the ground that she was entitled to rescind the agreement on the basis of déception d’outre moitié. The following issues were addressed by the Court of Appeal:- (1) what as a matter of Jersey Law constitutes déception d’outre moitié and what is its effect? (2)what on the facts was the value of the right of way? (3)whether on the facts there was a déception d’outre moitié? Held, allowing the appeal, 1. that in the case of héritage (but not movables), where a vendor receives less than one half of the juste prix he may within thirty years rescind the contract, which by reason of such a shortfall becomes a contrat vicieux; 2. that such a shortfall in the price amounts to a dol réel; it is not necessary to establish a dol personnel, that is to say some trick or fraudulent conduct; 3. that there are certain circumstances where the transaction in question may involve a value which is too uncertain for the principle to operate. For instance, it does not operate if there has been a public sale at auction. Customary authority also suggests that the principle did not apply in relation to bail à ferme d’héritage, héritages decretez & vendus par justice, or to sales of uncertain or doubtful value. On the question of valuation, the fact that there were two or more opinions as to the correct valuation did not make the juste prix uncertain for these purposes. There was no reason why the sale of a right of way should be added to those classes of transaction which have been regarded as unsuitable by reason of uncertainty; 4. that the principle has no application to a gift or to a sale at a deliberately bargain price. In neither of these cases could it be said that there is a perte or a contrat vicieux; 5. that on the facts the Court was satisfied that the transaction had been at less than half its value and that the appellant had been entitled to rescind the agreement as she had done by her solicitor’s letter of February 4th, 1994. Obiter: the most appropriate means of ascertaining the value of an héritage was for the Court to instruct the Viscount to appoint one or more valuers who would present the evidence to the Court and be open to cross-examination. The parties would also be able to call expert witnesses. It was the duty of the valuers to arrive at the juste prix, that is the reasonable and appropriate price in the market, of the héritage in the particular situation in which the parties found themselves, that is to say looking not to these particular parties but rather to parties circumstanced as these parties were, with all the likely motivations on the part of vendor and purchaser suggested by those circumstances. In that sense only was it right to say that the valuation was objective. On the facts of this case the objective approach took into account the development or "marriage" value of the right given that the respondent wished to develop his two properties. Criminal Law Snedden and Turner v Att. Gen. Royal Ct: (Hamon, Deputy Bailiff and Jurats Potter and de Veulle) December 10th, 1998 unreported. S.A. Pearmain for Snedden; N.J. Chapman for Turner; S. Sharpe, Crown Advocate, for the Crown. At the Magistrate’s Court the appellants entered pleas of guilty to a charge of committing acts of gross indecency together in the public toilet, at Snow Hill in the Parish of St. Helier. They were sentenced to two months’ imprisonment. On appeal, the appellants cited decisions of the English Court of Appeal where fines were held to be appropriate for this class of offence. Aspects of Sentencing in the Superior Courts of Jersey by Crown Advocate C.E. Whelan was also cited:- "It is to be recalled throughout that English sentencing practice continues to be of assistance in this area in the sense that the Jersey courts have not yet found it necessary deliberately to chart an independent course as has been done (with determination) in the case of drugs and breach of trust cases". The appellants relied upon the judgment of Lawton LJ in R v Morgan & Dockerty:- "The problem for the Court is how it should approach this class of offence. There was a time not so many years ago when this kind of conduct was almost invariably dealt with by prison sentences. The sentencing policy in relation to first offenders – and I stress first offenders – has now changed. In general first offenders using public lavatories and behaving in this sort of way in them do not get sent to prison. They are generally fined. On occasions they may be put on probation or some other non-custodial order is made. Conduct of this kind in public conveniences is a nuisance to the public. It is distasteful. It makes members of the public reluctant to use those conveniences. Courts by their sentences have got to do their best to stop this kind of conduct. Experience has shown that for the majority of first offenders an appearance before the court, coupled with a monetary penalty, stops any repetition of the offence at least in public lavatories. On the other hand occasionally those who are convicted persist in this kind of behaviour and when they do prison sentences may be appropriate.". Held, allowing the appeal, that these principles would be applied in Jersey. The sentence was quashed and a fine of £1,000 was substituted for each appellant. Criminal Procedure Hansford v Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and de Veulle) February 22nd, 1999 unreported. R. Tremoceiro for the appellant; A.D. Robinson, Crown Advocate, for the Crown. The appellant pleaded guilty to an offence of driving a motor vehicle after consuming alcohol in excess of the prescribed limit. The amount of alcohol in his body represented approximately three times the legal limit. When the facts had been outlined the Relief Magistrate acceded to a request from defence counsel for an adjournment so that a social enquiry report could be prepared, but proceeded without hearing counsel to pronounce an immediate disqualification for holding a driving licence of 30 months. The appellant contended that the procedure adopted was in breach of natural justice. It appeared that the practice of disqualifying an offender before imposing the remainder of the sentence was common. Held, allowing the appeal, that it was of fundamental importance that a defendant should be given the opportunity to speak in mitigation before any part of the sentence was imposed. Per curiam: Imposing a disqualification in advance of the remainder of the sentence should not be an invariable practice and should be confined to special circumstances where, e.g. the defendant was an alcoholic. Tort Veka A G v T A Picot (CI) Ltd and others Royal Ct: (Crill, Commissioner and Jurats Le Ruez and de Veulle) December 30th, 1998 unreported. C.M.B. Thacker for the plaintiff; T.A. Picot as director of the defendant companies and on his own behalf as fourth defendant. The plaintiff had developed plastic windows and doors known as the "Vekaplast" and "Veka" products and licensed "fabricators" to which it sold profiles. It used two trademarks, the words "Vekaplast" and "Veka" set in a distinctive logo. In the 1970’s the first defendant obtained windows from a licensed Veka fabricator and sold them under the name "Sovereign Veka". In 1980 the first defendant decided to manufacture the windows. The factory was set up in Guernsey where the second defendant was incorporated as Vekaplast Windows (C.I.) Ltd. The plaintiff supplied its profiles and the second defendant manufactured the finished product. Negotiations to formalise the arrangements failed. Two requirements of the first defendant were rejected. They were that the agreement should be open-ended and that it should have the exclusive right to use the names "Veka" and "Vekaplast" in the Channel Islands. The defendants’ account with the plaintiff was closed in 1984. The fourth defendant claimed that the plaintiff had allowed his companies the sole use in the Channel Islands of the names "Veka" and "Vekaplast". The plaintiff’s lawyers wrote to the defendants stating that any authority they might have been given to use the names or trade marks was revoked. The defendants replied that the plaintiff could not prevent them from manufacturing Veka profiles, selling such windows as Veka Windows, or using the name of the second defendant, Vekaplast Windows (C.I.) Limited in Jersey. The plaintiff began a passing-off action. The Court found that:- Veka allowed the use of its name by traders selling products made with its profiles, but could not give such a trader the exclusive right to do so because that would be contrary to E.U. Regulations; The second defendant continued to make PVC products from Veka profiles although that was now only 5% of its business; The second defendant traded in Jersey selling its manufactured products from the two profiles through the first defendant. The Court considered whether, taking into account advertising on letterheads and other documents, the activities of the first and second defendants amounted to passing-off. Held, giving judgment for the plaintiff, (1) adopting the principles set out in the House of Lords decision in Reckitt and Coleman Products Ltd v Borden Inc, that the three requirements of a passing-off action were: -
that the plaintiff’s goods or services had acquired a good will or reputation in the market and were known by some distinguishing feature; -
that there was a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the Public to believe that goods or services offered by the defendant were goods or services of the plaintiff; -
that the plaintiff had suffered or was likely to suffer damage as a result of the erroneous belief engendered by the defendant’s misrepresentation. (2) that in this case the plaintiff had acquired a substantial reputation through the sale of its products before its involvement with the defendants; (3) that the defendants’ trading in products bearing the plaintiff’s name must lead the customer to connect the plaintiff with them; (4) that damages could only be assessed after enquiry. Trusts In the matter of the representation of Détente Ltd, Trustee of the Smouha Family Trust Royal Ct; (Hamon, Deputy Bailiff and Jurats Le Brocq and Tibbo) November 26th, 1998 unreported. J.P. Speck for the representor; C.G.P. Lakeman for the minor, unborn and unascertained beneficiaries of the trust. Edward Smouha died domiciled in Switzerland. By his will trust, Mr Smouha provided that his widow should have the income of the residuary estate for her lifetime with power for the trustees to pay or transfer capital to her absolutely. Mrs Smouha, who was 79, wished to have sufficient funds for her needs, with the balance to be available for her children. On advice, the Smouha Family Trust was created to mitigate UK income tax should Mrs Smouha become resident in that country. It was clear from the documents that Mrs Smouha should not be a beneficiary of the Trust. Due to some defects in drafting, the purpose of the exercise was not achieved in that there was no settlor exclusion clause. Copy correspondence with the Inland Revenue, which requested that the Court’s attention be referred to certain English cases on rectification, was considered by the Court together with those English authorities. Held, there was a long line of cases in which the Royal Court has rectified an instrument properly made, but which by mistake does not record the intention of the maker. There must be sufficient evidence of error. There must be full and frank disclosure. Rectification will not generally be granted if another remedy is available which will serve the same purpose. The remedy is discretionary, but there is no rule that the court will refuse to rectify a deed where the effect of the rectification would be to save tax. The highest possible degree of probability is needed to show that, due to a genuine mistake, the deed does not represent the intention of the parties. That burden becomes harder to satisfy as time progresses. In the circumstances of the case, the Court was satisfied that the burden had been discharged and ordered rectification accordingly. |