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The Jersey Law Review - October 2004
CASE SUMMARIES
This section of the Review contains selected cases from Guernsey as well as Jersey. The following key indicates the court to which the case reference refers.
JRC - Royal Court of Jersey.
GRC - Royal Court of Guernsey.
JCA - Jersey Court of Appeal.
GCA - Guernsey Court of Appeal.
JPC - Privy Council, on appeal from Jersey.
GPC - Privy Council, on appeal from Guernsey.
CIVIL PROCEDURE
PLEADING: STRIKING OUT
Cole v Postal Administration Committee and the States of Jersey Police CA: (Southwell, Smith & Mantell JJA) [2004] JCA 087
The appellant in person; D.J. Benest for the respondents.
The appellant appealed against the decision of the Royal Court to strike out his claim by which he had sought damages against the first defendant, following its refusal to provide him with temporary employment. Although a provisional offer of employment had been made, it had been withdrawn following police checks which had revealed that the plaintiff had previous convictions in the United Kingdom, which would, however, have been spent in that country. The appellant did not object at any time to a police check being carried out but neither did he expressly indicate his consent.
He had brought an action against the Jersey Police for breach of the Data Protection Law; against both defendants for breaches of the ECHR by reason of the disclosure and use of his spent convictions without his consent; in negligence against Jersey Post in relation to the handling of his employment application and similarly against the Jersey Police for their failure properly to deal with the disclosure of his record.
Held, dismissing the appeal, that -
(1) for the reasons set out in its judgment, the Royal Court had been right to strike out the various heads of claim relied on by Mr. Cole (see (2004) 8 JL Rev 106);
(2) the Royal Court had not however considered whether any potential claim lay against either defendant based on the alleged violation of the appellant’s privacy; a cause of action which had been foreshadowed in his pleading, though not fully set out. The appellant should be given an opportunity to amend his pleading to set out the basis upon which he would seek to put a claim for breach of confidence or misuse of private information. The Court of Appeal indicated that if the appellant were to formulate a sustainable claim for breach of confidence, he would be able to rely on certain articles of the ECHR as part of his claim even though they had not yet been made directly a part of Jersey Law.
PRELIMINARY ISSUE
Jersey Electricity Company Ltd. v Brocken & Fitzpatrick Ltd. and Dewplan Limited, third party Royal Ct: (Birt, Deputy Bailiff) [2004] JRC 132.
D.J. Benest for the plaintiff; S.J. Young for the defendant; M.L. Preston for the third party.
The plaintiff operated an electricity generation plant, a part of which, the water treatment plant, had been designed and provided by the third party. This part of the plant included certain acid storage tanks, at the base of one of which was a drainage valve. The tanks contained large quantities of hydrochloric acid. The plaintiff contracted with the defendant to erect scaffolding to provide access to the storage tanks. It was alleged that during the course of the dismantling of this scaffold, an employee of the defendant dropped a scaffolding clip onto the valve, breaking it. This, in turn, caused acid to drain from the tanks. The acid caused damage to the plaintiff’s property.
The plaintiff brought a claim, both in contract and tort, against the defendant in respect of the damage caused. The defendant denied liability, and claimed alternatively a contribution or indemnity from the third party, pursuant to the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960: article 5(1)(c).
That contribution could only be sought if the third party could be liable in tort to the plaintiff in respect of the damage. Here the third party asserted that any tortious duty owed to the plaintiff was excluded by the terms of the contract between them; it could therefore only be liable to the plaintiff in contract and accordingly could not be ordered to make a contribution under the 1960 Law.
The third party issued a summons, pursuant to RCR 7/8(1), for the determination of the matter as a preliminary issue.
Held,
(1) as a matter of construction of the contract between the plaintiff and the third party any tortious liability on the part of the third party to the plaintiff was not wholly excluded. The action would therefore have to proceed to trial;
(2) it was not open to a party to proceedings simply to issue a summons for the determination of a matter as a preliminary issue under RCR 7/8(1) by attendance on the Bailiff’s Judicial Secretary. There must first be an application (normally to the Master, but sometimes to the trial judge) to determine whether the matter was one suitable to be dealt with as a preliminary issue.
STRIKING OUT
Gamlestaden Fastigheter AB v Baltic Partners Ltd. and others Royal Ct: (Bailhache, Bailiff) [2004] JRC 131.
N.M. Santos Costa for the plaintiff; T.J. Le Cocq and R.J. Macrae for the defendants.
The plaintiff claimed damages and other relief against the defendant directors of the first defendant (“Baltic”) on the basis of their alleged negligence and breach of statutory duty, leading to unfair prejudice within the meaning of article 141 of the Companies (Jersey) Law 1991.
The defendants applied to strike out the plaintiff’s claim on the grounds, inter alia, that the relief sought under art. 141 was not available because the plaintiff had suffered no loss as a share holder; they asserted that Baltic was hopelessly insolvent, and that it would remain so even if the claim were to succeed. The defendants also sought to strike out the claim, which had been instituted in 1998, for want of prosecution.
Held, granting the application and striking out the proceedings, that –
(1) it was a precondition for relief under art. 141 of the Companies Law that there should be some potential value in the shares of the company in question, and that there was no such value in Baltic;
(2) the plaintiff had been guilty of inordinate and inexcusable delay which had caused prejudice to the defendants.
CONSTITUTIONAL LAW
STATES OF GUERNSEY ORDINANCE
Jersey Fishermen’s Association Ltd and others v States of Guernsey Royal Ct; (Talbot, Lieutenant Bailiff) [2004] GRC 29th June 2004.
G. Dawes for the applicants; R.J. McMahon for the respondent.
The applicants brought proceedings by way of judicial review seeking a declaration that the Sea Fish Licensing (Guernsey) Ordinance 2003 was unlawful and of no effect. The Ordinance was said to have been made by the States in exercise of powers conferred by the European Communities (Implementation) (Bailiwick of Guernsey) Law 1994 “… and all other powers enabling them in that behalf”. The 1994 Law provided that: “The States of Deliberation may by Ordinance make such provision as they may consider necessary or expedient for the purpose of the implementation of any Community provision”. The draft Ordinance was first published with a policy letter on 7th February 2003. The States’ resolution to make the Ordinance was dated 26th March 2003. The legislation came into force on 1st October 2003 and purported to prohibit fishing in the waters around the Island of Guernsey out to the 12 mile limit unless licensed by the States of Guernsey Sea Fisheries Committee. Very few licences were in fact granted to Jersey fishermen. The Ordinance had a long history. In particular there was express provision via Westminster statute for a Ministerial Order to be made pursuant to s.4 of the Sea Fish (Conservation) Act 1967 (as amended and extended to Guernsey) for the implementation of a 12 mile licensing scheme. Indeed the wording of a Ministerial Order had been agreed. However, the UK Minister proposed certain conditions before he would make the Order which proved to be unacceptable to the States. Those conditions were that Guernsey and Jersey would undertake to negotiate between themselves how many of their non-UK licensed vessels would have access to each other’s waters on a one for one basis; pending that agreement both Bailiwicks would undertake to allow vessels with a recent track record of fishing in each other’s waters to continue to do so. The States of Guernsey instead resolved to proceed by way of Ordinance under the 1994 Law, claiming to be implementing the licensing provisions (only) of the European Union’s Common Fisheries Policy. This was done notwithstanding (a) the fact that Guernsey’s territorial waters extended only 3 miles from the relevant baselines (unlike Jersey’s) and (b) previous statements in policy letters indicating that Guernsey did not have legislative competence in the 3 – 12 mile area albeit (c) British fishery limits did extend to 12 miles. The States also argued that the applicants required leave to bring their challenge, which should be denied on the grounds of their alleged delay; alternatively that any relief should be denied on the same grounds and the detrimental effect on “good administration”. Finally, the States argued that if the Ordinance should be found ultra vires the 1994 Law then it should be upheld in the 0 – 3 mile zone with severance of the ultra vires provisions. The applicants argued that the States had no power to make the Ordinance whether via the 1994 Law or at all. In any event the entire Ordinance should be struck down given the legislative history and the inaccurate advice given to the States concerning both its alleged obligation to legislate so as to provide for a licensing system and its power to do so. The applicants further argued that the Ordinance was a quantitative restriction on the free movement of goods prohibited by Article 28 of the EC Treaty. It was not in issue that the Court had power to review the vires of the Ordinance.
Held; allowing the application and granting the declaration -
(1) there was no requirement (at that time) for an applicant to be granted leave to bring judicial review proceedings; such a requirement could not be imposed ex post facto;
(2) there was no real doubt that the States had exceeded their power in passing the Ordinance. The States’ power to legislate, independently of the United Kingdom Government, in relation to the licensing of British fishing boats, was limited to Guernsey’s territorial waters of 3 miles, unless such a power was granted to the States by Law approved by Her Majesty in Council;
(3) equally, the Court had no doubt that the Ordinance would have been lawful if it had been limited to Guernsey’s 3 mile territorial waters only;
(4) no other ground of challenge had been made out by the applicants. Although there had been obvious legal errors in the policy letter, the substance of the letter had been sufficiently clear to have informed the members of the States properly of the reasoning of the Committee;
(5) the Ordinance was not a trading rule within article 28 and European Law was not engaged;
(6) the Court would not deny relief to the applicants on the basis of the alleged delay. In the circumstances of the case the causes had been lodged within a reasonable period “but only just”;
(7) severance would not be ordered on the basis that the Court did not believe that it would work practically.
Editorial note: an appeal against the decision of the Royal Court was due to be heard as this issue went to print. The Court of Appeal has asked that the views of the Crown be obtained.
CRIMINAL LAW
DRUGS – SENTENCE
Whitehouse v Att.Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt, Tibbo, Le Breton, Allo and Clapham) [2004] JRC 064.
M.L. Preston for the appellant; A.J. Belhomme, Crown Advocate, for the Crown.
W applied for leave to appeal against a sentence of 18 months’ imprisonment for possessing heroin with intent to supply. W, who was serving a five year sentence for drug offences, had attempted to bring heroin into the prison for her son on her return from day release.
Held, dismissing the appeal, that bringing drugs into the prison was a serious offence which undermined discipline and good order; a sentence on a guilty plea of at least 12 months should be expected for a Class B drug and at least 18 months for a Class A drug.
CRIMINAL PROCEDURE
APPEAL BY CASE STATED
Le G v Att. Gen. Youth Appeal Court (Birt, Deputy Bailiff, Mrs. L. Falle, Mrs. N. Santos Costa and Mrs. A. Scott-Palmer) [2004] JRC 104.
C.M.Fogarty for the appellant; J. Hawgood for the Crown.
Le G and two others were charged with grave and criminal assault upon a 15 year old in circumstances where the victim was surrounded by a mob and punches and other physical violence took place. After some confusion on the part of the prosecution, pleas of guilty to common assault were accepted from the two co-accused but counsel for the appellant considered that, on the facts, her client had committed a grave and criminal assault and refused to plead guilty to common assault. The appellant sought a stay from the Youth Court while she appealed the decision to accept guilty pleas to common assault from her co-accused. The Youth Court refused a stay, sentenced all three accused, and indicated that the appellant had no locus standi to appeal by case stated. Article 18(1) of the Magistrate’s Court (Miscellaneous Provisions)(Jersey) Law 1949, which applied to appeals from the Youth Court, provided –
“Any person who was a party to any proceeding before the [Youth] Court or is aggrieved by the conviction, order, determination or other proceeding of the [Youth] Court, may question the proceeding …”
Held, that the words “person aggrieved” should not be given a restrictive interpretation, and that in this case the appellant was a person whose legal rights were affected by the determination regarding her co-accused. In the exercise of its discretion the Youth Appeal Court would not however order the Youth Court to state a case.
SENTENCE – SENTENCING PRINCIPLES
Finnigan v Att.Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt, Tibbo, Bullen, Allo, Clapham and King) [2004] JRC 077.
C.M. Fogarty for the appellant; C.M.M. Yates, Crown Advocate, for the Crown.
F applied for leave to appeal against a sentence of 18 months’ youth detention for being concerned in the importation of heroin and cannabis. The issue on appeal turned on the appropriate starting point given the absence of evidence that F intended to supply the drugs. There were two conflicting judgments of the Court of Appeal, viz Gregory v Att.Gen.and Conquer v Att.Gen.. Gregory suggested that importation with intent to supply was a more serious offence than mere importation and merited a higher starting point in accordance with the guidelines laid down in Campbell and others v Att.Gen.; Conquer suggested that the relevant guidelines for trafficking cases should apply to all importation cases. In essence the question for determination was whether the intent to supply (or its absence) was a characteristic of the offence (so that it was relevant to the starting point) or of the offender (so that it was relevant to the mitigation).
Held, allowing the appeal, that –
(1) the Court preferred the logic of the approach in Gregory and,
(2) in order to avoid any sense of grievance the sentence would be reduced to 12 months’ youth detention.
LANDLORD AND TENANT
RENT REVIEW
Epoch Properties Ltd. v British Home Stores (Jersey) Ltd. and the President of the Royal Institute of Chartered Surveyors Royal Ct: (Birt, Deputy Bailiff and Jurats Le Breton and Allo) [2004] JRC 092.
N.G.A. Pearmain for the representor; K.J. Lawrence for the first respondent; F.B. Robertson for the second respondent.
Epoch sought a declaration that the appointment by the President of RICS of an expert to conduct a rent review of premises let to BHS was invalid as contrary to the terms of the lease. The lease provided that in the absence of agreement between the landlord and tenant as to the open market rental at the review date, the matter was to be referred to “the surveyor” appointed by the landlord and the tenant or in default of agreement by the President of RICS. “The surveyor” as defined in the lease was to be “an independent chartered surveyor of recognised standing experienced in the valuation and letting of premises so far as practicable of similar character or comparable to the demised premises within the Island of Jersey or if there are not such premises within the Island of Jersey then within the Channel Islands or nationally (as the case may require) appointed from time to time to determine the Open Market Rent pursuant to the provisions of the Second Schedule”.
Relevant to the appointment were the differing contentions of the parties as to the nature of the premises. BHS contended that the property was a variety store; Epoch contended that it was a prime retail store. This distinction was important because of the approach to valuation of premises of the different types.
The President of RICS appointed a “variety store expert” with no experience of letting or valuing premises in Jersey or the Channel Islands. Epoch objected on the ground that there were suitable surveyors in Jersey. When the President stood by his decision, Epoch made the present application.
Held,
(1) the test was whether the President had departed from his instructions as set out in the lease. If he had, his decision was invalid. If, however, he had simply made a mistake within his instructions, his appointment was binding and could not be set aside by the Court. Where the question of whether he had departed from his instructions involved an area falling within the very expertise for which the President was appointed (e.g. questions of standing and experience) the Court would not find that the President had departed from the instructions unless he had reached a decision which no reasonable President could have reached;
(2) in the present case the sole question was whether the decision of the President that the expert appointed complied with the stipulated requirements as to experience, was one to which he could reasonably have come. On the evidence, and having heard experts for each of Epoch and BHS, the Court concluded that the President’s decision was a reasonable one and binding on the parties.
Editorial Note: in September 2004 on appeal by Epoch was dismissed by the Court of Appeal. [2004] JCA 156
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