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Case Summaries

Civil Procedure

Pleading – Striking Out

Robertson and another v Slous Royal Ct:  (Wheeler, Greffier substitute) July 12th, 2000 unreported.

N.A.G. Pearmain for the plaintiffs; W. Grace for the defendant.

The plaintiffs alleged that the defendant, in breach of his fiduciary duty, diverted funds from the second plaintiff, Thermal Transfer Services Limited (“TTS”) for his own benefit.  The defendant applied to strike out the whole of the Order of Justice pursuant to rule 6/13(1)(a) of the Royal Court Rules, 1992.

There were three grounds of attack-

(1)   It was argued, and conceded by the first plaintiff, that TTS should be the second defendant and not the second plaintiff.

(2)   The claim comprised both a personal claim and also a derivative claim.  It was conceded by the plaintiff that the personal claim suffered from defects which could possibly be remedied by amendment.

(3)   The derivative claim had been brought as an exception to the rule in Foss v Harbottle[1] on the basis of the reasoning of the English Court of Appeal in Barrett v Duckett and others[2] that “the shareholder will be allowed to sue on behalf of the company if he is bringing the action bona fide for the benefit of the company for wrongs to the company for which no other remedy is available ……”

The defendant submitted that there was the statutory remedy of “unfair prejudice” provided by Articles 141 – 143 of the Companies (Jersey) Law 1991 and those relating to the winding up of a company on just and equitable grounds in article 155 of the same Law.

The plaintiff argued that the right to bring a derivative action had not been removed by that statutory remedy and that the personal action and derivative action should be allowed to proceed together in order to save costs.

Held,   granting the application, that the “personal” claim and the “derivative” claim were inextricably inter woven, that the derivative claim did not come within an exception to the Foss v Harbottle rule, and that alternative remedies were available.

Civil Procedure

Service Out Of Jurisdiction

Virani v Virani and another Royal Ct: (Birt, Deputy Bailiff and Jurats Querée and Bullen) May 17th, 2000 unreported.

P.C. Sinel for the plaintiff; R.J. Michel for the defendants.

The plaintiffs had commenced proceedings in London (“the first action”) and had obtained worldwide Mareva type injunctions, the plaintiff having alleged that the defendants had wrongly dealt with and converted to their own use certain assets which belonged to a partnership.  At all material times, as was admitted by the plaintiffs in their Order of Justice, the defendants were resident in New York.

The original proceedings were commenced by Order of Justice signed on November 19th, 1999 (“the original Jersey proceedings”) and were specifically stated to be in aid of the first action.  The Order of Justice contained ex parte injunctions.  In London on December 16th, 1999, the first action was compromised and replaced by new proceedings (“the second action”) on the basis that the injunctions in the first action would be discharged upon service on the defendants of the second action.

On January 11th, 2000 a second Order of Justice (“the second Jersey proceedings”) was signed.  This Order of Justice was in virtually identical terms to the original Jersey proceedings.

On January 12th, 2000 two significant events took place.  First, an order was made in the original Jersey proceedings discharging the injunctions upon service on the defendants of the second Jersey proceedings.  Secondly, in London, the injunctions contained in the second action were discharged and replaced by undertakings.

The Order of Justice in the second Jersey proceedings contained the following order:-

“The plaintiff may effect personal service of this order on the first defendant and the second defendant by causing the same to be served personally on their Jersey advocates, Messrs. Crills”.

Pursuant to that order, the proceedings were served upon Messrs Crills with a return date of January 21st, 2000.  The plaintiff’s lawyers failed to table the proceedings as required by Rules.  The plaintiff’s lawyers accepted that failure and purported to re-serve the second Jersey proceedings on January 21st with a return date of January 28th, 2000.  No application was made to the Royal Court to exercise its discretion to allow late tabling.  On January 28th, 2000 the second Jersey proceedings were placed on the Pending List and the defendants promptly issued a summons pursuant to Rule 6/7A(3) (a).

Two procedural issues were raised by the defendants in relation to the second Jersey proceedings –

(i)     No leave to serve the second Jersey proceedings out of the jurisdiction was ever obtained.

(ii)    The failure to table the second Jersey proceedings on January 20th, 2000 meant that those proceedings were discontinued.

The plaintiff raised a preliminary procedural point.  The original hearing date for the Rule 6/7A summons was March 16th, 2000.  The defendants vacated that date on March 14th and applied to fix another date for the hearing of the summons.  The new return date was April 20th.  The plaintiff did not consent to that date being vacated nor did he object.  The plaintiff contended that by vacating the original hearing date for the summons, the defendants had thereby withdrawn their summons.

On the service issue, the defendants contended that no application had been made nor had any order issued giving leave to serve the defendants outside the jurisdiction, nor did the affidavit comply with Rule 9 of the Service of Process (Jersey) Rules 1994.  The defendants contended that there was sufficient information in the Order of Justice and in the affidavit in support to inform the judge so that by giving leave for substituted service, he must be taken to have granted leave to serve the proceedings outside the jurisdiction.

With regard to the tabling issue, the defendant averred than by not tabling the Order of Justice the action was discontinued.  The plaintiff argued that Rule 15/6(2) maintained the Order of Justice in force for a year so that it was open to the plaintiff to re-serve the Order of Justice at any time within that period and that the interim injunctions had not lapsed.

Held,

(1)   that the defendants had not, by vacating and re-fixing a date for the hearing of their summons, withdrawn their summons so that it still complied with Rule 6/7A (3) (a) (ii);

(2)   that, in respect of the service issue, no application had been made and no leave granted to serve the defendants outside the jurisdiction;

(3)   that Article 2 of the Service of Process and Taking of Evidence (Jersey) Law, 1960, and the Service of Process (Jersey) Rules, 1994, in particular Rules 5,7,9 and 10 were mandatory and had to be strictly complied with;

(4)   that the second Jersey proceedings were fresh proceedings and could not be regarded as a continuation of the first Jersey proceedings and that, as there had been no application for leave to serve out, the purported service on the defendants’ lawyers in Jersey of the second Jersey proceedings was invalid;

(5)   that an Order of Justice containing an ex parte injunction had a self standing existence only for so long as the procedure for bringing the matter before the Court had not yet started.  Upon service, that procedure commenced;

(6)   that by not tabling the matter for the first return date on January 21st, 2000 the action was discontinued.

Obiter:  The Court stated that, when a plaintiff has obtained an injunction which was wider than was necessary, it was incumbent upon him to return to Court, explain the situation and apply for a variation.  The plaintiff should not await an application from the defendant.  It was the plaintiff’s responsibility to ensure that the exceptional remedy of an injunction was not granted in wider terms than necessary.

Courts

Appeal From Magistraite’s Court

Jeune v Att.Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Le Breton) April 14th, 2000 unreported.

The appellant on her own behalf; A.J. Belhomme for the Crown.

The appellant, having pleaded guilty in the Magistrate’s Court to a parking offence, sought to appeal against her conviction.

Held,   applying Bish v Att.Gen[3], and dismissing the appeal, that the court had jurisdiction to look behind the guilty plea only where there were substantial grounds for concluding that the plea had been entered by mistake, duress or fraud and should therefore be regarded as a nullity.

Royal Court – Inherent Jurisdiction

Eves and another v Hambros Bank (Jersey) Ltd Royal Ct: (Bailhache, Bailiff) June 19th, 2000 unreported.

K.O. Dixon for the defendant; A.D. Hoy for the plaintiffs; P. Matthews, Crown Advocate, for the Attorney General (convened as amicus curiae)

The defendant brought a summons seeking an order, pursuant to the inherent jurisdiction of the Royal Court, that the plaintiffs be enjoined jointly and severally from commencing any proceedings or taking any further steps in existing proceedings (whether in the Royal Court or Petty Debts Court) whatsoever against the defendant or its servants or agents unless the plaintiffs had first obtained leave from the Royal Court to do so.

By consent, the Court sat to consider the first of two issues identified by the parties, namely whether, as a matter of law, it had the jurisdiction to grant the relief sought.  The second issue (whether the relief should in fact be granted) was left over pending determination of the first issue.

Held,  

(1)   that the inherent jurisdiction of the Court, following the judgment of Smith J.A. in Mayo v Cantrade[4], is circumscribed by the doctrine of necessity;

(2)   that the Court, of necessity, has an inherent jurisdiction to prevent its procedure from being abused by proscribing vexatious litigants from pursuing another party without leave of the Court;

(3)   that the Court had an inherent jurisdiction to grant the relief sought.

Criminal Law

Drugs

Att. Gen. v Taylor Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Le Brocq) April 14th, 2000 unreported.

W.J. Bailhache Q.C., Attorney General, for the Crown; R. Juste for the defendant.

The defendant was arrested on his way to a “rave” in possession of five ecstasy tablets which he intended to share with his friends.  He pleaded guilty to possession of a Class A drug with intent to supply.

Held,   applying the principles in R v Byrne[5], that even where the supply is of a modest number of tablets for no reward, and to friends, a prison sentence is the appropriate penalty.  In view of the powerful mitigation in this case however the defendant would be fined and ordered to perform community service.

GRAVE AND CRIMINAL ASSAULT

Att.Gen. v Mallet Royal Ct: (Birt, Deputy Bailiff and Jurats de Veulle, Myles, Le Ruez, Rumfitt, Querée, Le Breton and Georgelin) May 24th, 2000 unreported; CA (Beloff, Carey and Clarke JJA) July 14th, 2000 unreported.

C.R.G. Deacon for the accused; C.E. Whelan, Crown Advocate, for the Crown.

The accused pleaded guilty to having attacked a stranger who had been staying overnight at the flat which the accused shared with others.  The accused punched the victim repeatedly, hit him with a hair dryer and threw him naked from the flat.  After a short delay, the accused went outside and stabbed the victim repeatedly with a kitchen knife causing ten puncture wounds.  The injuries did not require stitching and the victim was discharged from hospital after two days.  Sentencing proceeded on the basis of the accused’s account that the attack had been an enraged response to an unwanted homosexual advance.

In the Inferior Number, the Crown moved for a sentence of 2 years and 9 months’ imprisonment by reference to the practice which had been established on the basis of dicta in Att.Gen. v Norris[6] and Evans and Phillips v Att.Gen.[7].  The Inferior Number ruled that the issues were such as to merit the attention of the Superior Number, and remanded the case accordingly.

The Superior Number exhaustively reviewed the practices which had developed in the sentencing of offences of grave and criminal assault.  The Court found that a practice which treated a figure in the 3 – 5 year imprisonment band, and the other bands, originally identified in Thomas, Principles of Sentencing[20] were to be viewed as given there, namely as actual sentencing indicia i.e. ‘finishing points’ after mitigation and not starting points before mitigation.

The Court gave the important reminder that ‘banding’ is a convenient means of analysis but should not obscure the fact that the offences of significant violence are a single continuum of increasing severity.  In Jersey it followed that sentencing levels should vary to reflect this.  The sentencing levels should cover all the bands referred to by Professor Thomas and more because of the offence of grave and criminal assault covered a wider spectrum than the offence of causing grievous bodily harm, upon which Professor Thomas was commenting in the material extract of his work.  As to the 3 – 5 year central band, therefore, 3 years was by no means to be regarded as the minimum available threshold and 5 years was equally not to be regarded as the available maximum ceiling.

Norris continued to provide a useful basis for factual comparison, a standard against which the gravity of a case could be measured.

In the case the Superior Number imposed a sentence of 4 years’ imprisonment.

On July 14th, 2000 the Court of Appeal considered an application for leave to appeal against that sentence.

The Court of Appeal emphasised (i) the desirability of identifying a notional starting point in the sense of an estimate of the sentence which would have been passed in the absence of plea, character, or other significant mitigation; (ii) the need to address the question of intent in each case; (iii) the desirability of relating the facts of each case to the English classification of offences of violence in order to assess its seriousness; (iv) the utility of the sentencing indications offered at Blackstone: Criminal Practice[8].

The sentence was reduced to 3 years 6 months in recognition of the stress occasioned to the accused by the need for consecutive hearings before both Numbers of the Royal Court at first instance.

Criminal Procedure

Conduct Of Trial

Jones v Att.Gen. CA (Nutting, Smith and Sumption JJA) April 12th, 2000 unreported.

A.D. Hoy for the appellant; S.E. Fitz, Crown Advocate, for the Crown.

At trial, after the Crown opening but before any substantive evidence had been called, a juror disclosed that she worked for the same firm as the victim of the alleged grave and criminal assault.  The Bailiff discharged the juror but directed that the trial should continue with eleven jurors.  The appellant was eventually convicted by the unanimous verdict of the remaining jurors.  On appeal it was contended that the jury should have been discharged and a new trial ordered.  The Crown submitted that the Bailiff had had the power to continue the trial (1) because Article 56 of the Loi (1864) réglant la procédure criminelle, as amended, provided that “si …… un homme d’enquête est atteint d’une maladie on d’une indisposition qui l’empêche de continuer ses fonctions, le procès continuera en son absence” or (2) by virtue of his inherent jurisdiction to regulate the conduct of a criminal trial (which was the basis on which the Bailiff founded his decision).

Held,allowing the appeal and ordering a re-trial that –

(1)    the juror’s knowledge of the alleged victim was not “une indisposition” within the meaning of the statutory provision, and

(2)    the invocation of inherent jurisdiction was not justified by the doctrine of necessity and was furthermore inconsistent with Article 33 of the 1864 law which stated that “L’enquête sera composé …” of 12 jurors.

Family Law

Financial Provision

Murphy v Collins Royal Ct: (Crill, Commissioner) July 31st, 2000 unreported.

D.J. Benest for the appellant; N.J.D. Chapman for the respondent.

The case concerned an appeal from a decision of the Matrimonial Registrar on financial matters.  As a preliminary issue, the appellant argued that the Court on such an appeal had an unfettered discretion to conduct the appeal as it thought fit and to receive fresh evidence.  Earlier decisions – notably Richardson v Denton[10] and Richomme v Le Gros[11] had suggested that the Royal Court should interfere with the decision of the Matrimonial Registrar only if convinced that it was plainly wrong (applying ordinary appellate principles) and should permit the introduction of fresh evidence only if it were necessary to do justice between the parties.

Held,   finding for the appellant on the preliminary issues, that

(1)   the discretion given to the Royal Court by the Matrimonial Causes (Jersey) Law 1949 was that of the Court and had been no more than initially delegated to the Registrar;

(2)   an appeal was thus a rehearing and the Court was not bound by the decision of the Registrar and was to exercise its own discretion.  It might however give such weight as it thought fit to the manner in which the Registrar had exercised his discretion;

(3)   no party has an unfettered right to begin again de novo and the manner in which the appeal was conducted, and what further or fresh evidence might be adduced, was subject to the discretion of the Court, who should be persuaded to admit such evidence only if it were credible and relevant; 

(4)   Marsh v Marsh[12], decision of the English Court of Appeal, followed.

Road Traffic

Disqualification From Driving

Power v Att. Gen. Royal Ct: (Birt, Deputy Bailiff, and Jurats Rumfitt and Georgelin) February 21st, 2000 unreported.

S.E. Fitz for Power; A.J. Belhomme for the Crown.

The appellant appealed against a period of three years’ disqualification from driving imposed in the Magistrate’s Court following his conviction for (inter alia) failing to provide a specimen for analysis contrary to Article 16C(7) of the Road Traffic (Jersey) Law, 1956, as amended (“the 1956 Law”).  He had two previous convictions for (respectively) driving a motor vehicle whilst unfit through drink or drugs contrary to Article 16 of the 1956 Law and driving a motor vehicle with an excess concentration of alcohol contrary to Article 16A of the 1956 Law.

The Magistrate assumed that there was a compulsory minimum period of three years’ disqualification from driving given the provisions of Article 16C(8) of the 1956 Law and imposed that disqualification.

Article 16C(7) provides:  “A person who without reasonable excuse fails to provide a specimen when required to do so in pursuance of this Article shall be guilty of an offence and liable to a fine not exceeding £2,000 or to imprisonment for a term not exceeding 6 months, or to both such fine and such imprisonment.”

Article 16C(8) provides:  “A person convicted of an offence under paragraph (7) of this Article shall, unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification, in the case of a first offence be disqualified for a period of twelve months, and in the case of a second or subsequent offence for a period of three years for holding or obtaining a licence.”

On appeal it was submitted that reference in Article 16C(8) to a “second or subsequent offence” was reference to a second or subsequent offence contrary to Article 16C(7) of the 1956 Law.

Held,   allowing the appeal and remitting the matter to the Magistrate for further consideration, that this interpretation was correct.

Per curiam:  The case highlighted a deficiency in the drafting of Articles 16, 16A and 16C of the 1956 Law.  Under existing statutory provisions periods of disqualification for second or subsequent offences committed under the relevant Articles were dependent upon the existence a previous conviction under the same Article.  The Court contrasted the position in England under section 34(3) of the Road Traffic Offenders Act, 1988.

Trusts

Powers And Duties Of Trustees

In re the Rabaiotti 1989 Settlement: Royal Ct: (Birt, Deputy Bailiff and Jurats Myles and Georgelin) May 30th, 2000 unreported.

J.D. Kelleher for the beneficiary; D.J. Benest for the trustees.

By these proceedings, a beneficiary under four discretionary settlements, two of which were governed by Jersey law and the other two of which were administered in Jersey, sought disclosure of certain trust documents, including trust deeds and accounts (the “trust documents”), and letters of wishes given by the settlor to the trustees.  The beneficiary sought these documents because he had been ordered to provide them by the English High Court (Family Division) where his wife had commenced matrimonial proceedings against him.

Held,

(1)   that in relation to the trust documents, the general principle was that a beneficiary of a trust is entitled to inspect documents such as the trust deed and documents which show the nature and value of the trust property, the trust income and how the trustees have been investing and distributing the trust property.  There remains however a discretion in the Court to refuse disclosure where this would not be in the best interests of the beneficiaries as a whole;

(2)        that in relation to a letter of wishes, a beneficiary would not normally be entitled to see such a document both because it is covered by the principles laid down in Re Londonderry’s Settlement[13] and because it is a document which is confidential to the trustees.  There remains however a discretion in the Court to allow disclosure of a letter of wishes where there is a good reason to do so.

Variation

In re an Estate Trust Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Tibbo) July 7th, 2000 unreported.

J.P. Speck for the trustee; C.G.P. Lakeman for the beneficiary.

The beneficiary, who was a minor and resident outside the jurisdiction, was entitled under the trust deed to substantial funds upon attaining the age of 20.  The trust had been established in Jersey following the death of one of the beneficiary’s parents.  The trustee sought, pursuant to Article 43 of the Trusts (Jersey) Law 1984, to vary the trust by removing that entitlement and substituting discretionary trusts in favour of the beneficiary and, with her consent, her issue and charities.  Article 43 (2) provides that the Court “shall not approve on arrangement…… unless the carrying out thereof appears to be for the benefit of [the beneficiary]”.  The trustee submitted (1) that it was undesirable that the beneficiary should come into possession of such a substantial fund at such a young age, and (2) that she would suffer significant fiscal disadvantages if the fund were paid to her.  Counsel for the beneficiary supported the application.

Held,   granting the application, that the arrangement was for the benefit of the beneficiary