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Jersey & Guernsey Law Review – October 2007
CASE SUMMARIES
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
ARBITRATION
PARTNERSHIP DISPUTE
Ferbrache & Richardson v Kirk et autres Royal Ct: (Newman, Lieut. Bailiff) [2007] GRC 17
The applicants in person; P.T.R. Ferbrache for the respondents.
The parties were the partners of the firm of Collas Day. The applicants made an application to the Royal Court which led to the respondents seeking a stay of all proceedings and reference of their partnership dispute to arbitration pursuant to an arbitration clause in the partnership agreement. The applicants sought the dissolution of Collas Day and an order preventing two of the respondent partners from acting in the management of the firm. The parties subsequently agreed that Collas Day should be dissolved with effect from 31st March 2007. The applicants relied upon s. 24(2) of the Arbitration (Guernsey) Law 1982 (as amended) which provided that where partners have agreed to refer their disputes to arbitration and where a dispute which has arisen involved a question of fraud, the Court had power to order that the agreement should cease to have effect, with power to revoke the authority of any arbitrator or umpire appointed by virtue of the agreement. The applicants alleged victimisation and “equitable fraud” whilst expressly not alleging that the respondents were guilty of deceit or impropriety.
Held, dismissing the application and staying the Royal Court proceedings-
(1) Following English authority, fraud in the context of s.24(2) meant fraud strictly so called. Dishonesty was an essential ingredient and was not alleged by the applicants;
(2) Although there were hotly contested disputes as to why relations had broken down between the partners, these disputes were unlikely to affect the rights and obligations of the partners inter se in the period leading up to dissolution;
(3) Given the agreement that the firm should be dissolved in the near future and the acknowledgement by the parties that the arbitration agreement was prima facie valid, there was no other reason why any questions arising in the winding up of the partnership of Collas Day should not be referred to arbitration;
(4) It followed also that no order would be made concerning the management of the firm.
Per curiam: It had been suggested during the course of argument that this was a case where the Court, if seized of the winding up of the firm, might consider making a Syers v Syers order, i.e. an order permitting a majority of the partnership to buy out a minority’s share in the partnership. Such orders were not commonly made, and were not likely to be made where the minority share was as large as the 29.2% owned by the applicants. The technical availability of such an order was not a reason for the arbitration not to proceed. There was nothing to prevent either camp from making a suitable offer to buy out the other and a mediation might usefully be considered.
CIVIL PROCEDURE
COSTS
Chambers & Chambers v Gooch & Gooch Royal Ct: (Collas, Deputy Bailiff) [2007] GRC 2
A.J. Ayres for the plaintiffs; P.T.R. Ferbrache for the defendants.
The litigation concerned a dispute between neighbours as to the cost of repairs carried out in 1997 and a counterclaim in respect of the cost of further works needed. The Court found for the defendants in both actions, who then applied for full or partial indemnity costs. On the facts of the case the Court refused to order full indemnity costs but ordered partial indemnity costs to be paid at the rate of recoverable Advocates’ fees plus 15% from the date upon which a building permit was granted which would have allowed an agreed schedule of works to commence - but for the plaintiffs’ decision to follow the advice of another surveyor.
Comment [G. Dawes]: The interest of this case lies in the fact that the Court was willing to make such a precise adjustment to the amount of costs awarded based upon a particular moment in time and by such a comparatively small percentage. The case illustrates the increasing willingness of the GRC to tailor costs orders to circumstances.
PRIORITY OF HYPOTHECS
Albany Hotel Limited v Wrench Royal Ct: (Collas, Deputy Bailiff) [2007] GRC 14
M.G. Ferbrache for the applicant; J.M. Wessels and J.T. Le Tissier for the respondent.
The respondent brought proceedings against the applicant claiming damages arising from the sale and purchase of immoveable property. The respondent applied for, and obtained, leave to register the proceedings in the Livre des Hypotheques, Actes de Cour et Obligations, the effect of which was to give a form of relative priority in the event of future sale or saisie. The applicant wished to borrow a substantial sum of money from a lender who required a first charge over the applicant’s immoveable property. The applicant accordingly applied for an order altering the priority attaching to the registration.
Held, dismissing the application -
(1) The Court’s power under the legislation requiring leave to be obtained to register proceedings referred only to power to vary or revoke the order granting leave and did not confer upon the court the power to alter the priority attaching to the registration;
(2) The Court knew of no other situation where the Royal Court had the power to dictate or alter the priority attaching to a registration;
(3) Notwithstanding the above, the Court had power to revoke the order granting leave to register. The Court was unable to say that there would never be a set of circumstances where it would be appropriate to order revocation in order to allow a new bond to be registered with a first priority and then granted leave to re-register the claim as a second priority.
STRIKING OUT FOR WANT OF PROSECUTION
Ybanez and Mompo v BBVA Royal Ct: (Bailhache, Bailiff, and Jurats Tibbo and Liddiard) [2007] JRC 131
J. M. P. Gleeson for the plaintiffs; L. J. L. Buckley for the defendant.
The plaintiffs appealed to the Royal Court against the decision of the Master to strike out their action for want of prosecution. The proceedings had been instituted in March 2003 but four years later not only had the pleadings not been completed but the plaintiffs were seeking, for the third time, to amend their Order of Justice. Applying the test set out in Garfield-Bennett v Philips, the Master found on the facts that there had been an inordinate delay, that the delay was inexcusable and that as a result of the delay there was a substantial risk that it would not be possible to have a fair trial. Notwithstanding this, the question arose whether the rule in Birkett v James to the effect that, save in exceptional circumstances, an action would not be struck out for want of prosecution before the end of the relevant limitation period, continued to apply in Jersey. At first instance the Master took the view that the "wholesale change of culture" in litigation that had occurred in Jersey since 2000 was such as to justify striking out the action even though a relevant limitation period (the 10 year period in contract) had not expired, and that the action should accordingly be struck out. The plaintiff contended that the Master was in error in so doing.
Held, dismissing the appeal –
(1) The rule in Birkett v James now no longer applied in Jersey. In Garfield-Bennett v Phillips the Court adopted (subject to minor alterations) the principles laid down by the House of Lords in Birkett v James, including the principle that, save in exceptional circumstances, an action would not be struck out for want of prosecution before the expiry of the relevant limitation period. However, in a postscript to his judgment Birt, Deputy Bailiff, stated that it was at least open to argument whether the principles of Birkett v James should continue to apply in Jersey and he set out succinctly why the rule might be thought no longer good law. The rule was irreconcilable with the reforms which were inspired by the judgment of the Court of Appeal in re Esteem 2000 JLR N-41, and which had continued through changes to the Royal Court Rules, new practice directions and decisions of the Court since 2000. It was true that the Court of Appeal in McGorrin v Pascoe had declined to give the rule the coup de grâce but that decision was made before Garfield-Bennett v Phillips and, more importantly, before changes to the Royal Court Rules required parties to take out a summons for directions after the time limited for the filing of pleadings had expired (Rule 6/26), and empowered the Court to dismiss an action of its own motion three years after being set down on the hearing list (Rule 6/25).
(2) In considering whether to strike out an action for want of prosecution, the Master had applied the correct test, as conveniently set out in Garfield-Bennett v Philips. The Court had to be satisfied (a) that there had been an inordinate delay, (b) the delay was inexcusable and (c) such delay gave rise to a substantial risk that it would not be possible to have a fair trial of the issues or was likely to cause or had caused serious prejudice to the defendant. On the facts each of these conditions was satisfied and the appeal was dismissed.
STRIKING OUT FOR FAILURE TO ISSUE SUMMONS FOR DIRECTIONS
Lescroel v Le Vesconte Royal Ct: (Birt, Deputy Bailiff, and Jurats Allo and Morgan) [2007] JRC 091
A. D. Robinson for the appellant; Advocate C. J. Dorey for the respondent.
The question arose as to the correct test to be applied by the Master in considering whether to strike out an action for failure to issue a summons for directions as required by Rule 6/26 of the Royal Court Rules 2004. In the instant case, owing to a secretarial error at the law firm acting for the plaintiff, the Master's circular letter listing actions that he intended to consider dismissing was not circulated within the firm and the action was struck out without the plaintiff appearing. The plaintiff successfully applied for leave to appeal out of time.
Held, allowing the appeal –
(1) There was no binding authority as to the approach which the Court should adopt when considering a breach of Rule 6/26. In the Jersey context it was appropriate to soften slightly the test laid down in the judgment of Bingham MR in Rastin v British Steel Plc (an approach summarised by the English Court of Appeal in Bannister v SGB Plc.) In Jersey the Master should consider the following questions when considering whether to strike out an action pursuant to Rule 6/26(13) for failure to issue a summons for directions:
(a) Has the plaintiff satisfied him that, apart from the failure to issue a summons for directions as required by Rule 6/26, he (which included his advisers) has prosecuted his case with at least reasonable diligence? If the plaintiff has not so satisfied the Master, that would point strongly towards dismissal of the case. The weight to be attributed to this particular factor might vary depending on whether the matter comes before the Master shortly after the expiry of the permitted two-month period or much later.
(b) Has the plaintiff satisfied the Master that, in all the circumstances, his failure to apply for a summons for directions is excusable, i.e. should be forgiven? If he fails to satisfy the Master in this respect, this again will point towards dismissal.
(c) Has the plaintiff satisfied the Master that the balance of justice indicates that the action should be allowed to continue? If not, then again, this will point towards dismissal.
(2) In the instant case the plaintiff and her lawyers had not been guilty of any significant delay; in the unusual circumstances of the case, the failure to issue a summons for directions was excusable notwithstanding the fact that three years had passed since the summons for directions should have been issued; and the balance of justice pointed strongly in favour of allowing this matter to continue. It followed that this appeal was allowed with the consequence that the action was not struck out. The Court, however, ordered the plaintiff to attend before the Master within 14 days in order to fix a date for a summons for directions.
(3) The Court made the following further observations -
(a) It was important that all firms of advocates had proper systems to ensure (i) that circulars from the Master listing cases for possible dismissal are reviewed and acted upon and that (ii) any Act issued by the Master listing the cases which have been dismissed is similarly reviewed in a timely manner so that any application to reverse the Master's decision can be made promptly.
(b) Even in cases such as this (where it was accepted that the issue of a summons for directions would not have enabled the case to progress any more speedily to trial) plaintiffs should always issue a summons for directions in accordance with Rule 6/26(1). This ensured that the plaintiff would not subsequently face an application to strike out for failure to comply with the Rule; but more significantly it gave the Master an opportunity to ensure that the case did not fall into a black hole and to retain judicial control.
(c) At present any application to reinstate an action, which had been dismissed by the Master under Rule 6/26(13) because of a failure by the plaintiff to respond, had to made to the Royal Court itself. The Royal Court Rules should be amended so that any application to reinstate an action, which had been dismissed by the Master under Rule 6/26(13) because of a failure by the plaintiff to respond, was to be made in the first place to the Master so that he had an opportunity to consider the position on the merits. This would require a change in the Rules so as to permit him to extend (after the event) the time for responding to the circular and allow him to reinstate an action which he had struck out.
COMPANIES
WINDING UP
Ladbrokes Plc v Galaxy International Limited Royal Ct: (Southwell, Lieut. Bailiff) [2007] GRC 12
J.M. Wessels for the applicant; P. Richardson for the respondent.
The applicant sold the shares in a South African company to the respondent. The respondent failed to pay the deferred sale price and the applicant served a statutory demand. The respondent applied to set aside the statutory demand (notwithstanding the absence of any provision for such a procedure under Guernsey company law) and the application was argued fully, the Royal Court dismissing the application and the grounds relied upon. The applicant petitioned for the winding up of the respondent. The respondent applied to stay the petition on the grounds previously argued and relying also on proceedings brought in England by the respondent against the applicant challenging the contractual liability itself.
Held, dismissing the application for a stay -
(1) The issues arising from the interpretation of the contract had already been fully ventilated in the Royal Court and decided upon by the Deputy Bailiff. Any such attempt to re-argue the contractual issues in the Royal Court, or for that matter, in the English Courts might be argued to be an abuse of process in both jurisdictions. Any such re-argument should be before the Guernsey Court of Appeal if that Court were minded to grant leave to appeal;
(2) It would nevertheless be open to the respondent to rely upon other matters not already adjudicated upon such as the present business and financial position of the company and the opposition of other creditors;
(3) Jurats would be required at the hearing and would be expected to state their reasoning fully in a reasoned judgment.
CONSTITUTIONAL LAW
STATES OF GUERNSEY – VIRES OF ORDINANCE
Jersey Fishermen’s Association Ltd & Ors v States of Guernsey Privy Council (Lords Scott, Phillips, Rodger, Brown & Mance) [2007] GPC 11
James Dingemans QC and G. Dawes for the appellants; David Anderson QC and R.J. McMahon for the respondents.
The appellants appealed from the Guernsey Court of Appeal’s decision that the Sea Fish Licensing (Guernsey) Ordinance 2003 was intra vires, being both (a) within the ordinance making power conferred by the European Communities (Implementation) (Bailiwick of Guernsey) Law 1994 and (b) the States of Guernsey’s customary law powers to make ordinances. The appellants also appealed the Court of Appeal’s decision that the Ordinance was not inconsistent with Article 28 of the Treaty of Rome.
Opinions: Recommending that the appeal be allowed to the extent that the Ordinance be declared ultra vires in the 3 – 12 mile zone but severable and intra vires as regards the 0 – 3 mile zone, that -
(1) The Bailiwick of Guernsey was a dependency of the Crown, part of the original Duchy of Normandy and within the British Islands but not in the United Kingdom, although the UK represented it internationally.
(2) It was accepted that Her Majesty in Council could in theory legislate without any initiative from the Bailiwick, but in practice there would be prior consultation with the Bailiwick.
(3) The normal legislative process was for the Queen in Council to act on the initiative of the States of Deliberation of Guernsey. The States approved a projet de loi, which the Bailiff, through the Lieutenant-Governor petitioned Her Majesty in Council to sanction. The Privy Council acted through a Committee for the Affairs of Guernsey and Jersey, of which the Secretary of State for Constitutional Affairs was a member. His Department might invite the views of other interested departments and parties, and sometimes suggest alternations which might lead to the States reviewing and resubmitting the projet. Once royal sanction was obtained, an Order in Council embodying the projet was transmitted to the Royal Court which had the obligation of entering it on the Island’s Register, whereupon it became a loi or law.
(4) In the course of history, another “customary” legislative mechanism had developed, in which Her Majesty in Council had no involvement. This was the Royal Court’s power to make ordinances, which power, in 1948, had been transferred to the States of Deliberation.
(5) A further category of ordinance consisted of delegated legislation under an enabling power in a loi or law; it was common ground that the vires of both categories of ordinance were susceptible to judicial review and that any ordinance could be repealed or amended by a later Order in Council or ordinance.
(6) Whilst accepting that a subordinate legislature may legislate with extra-territorial effect where the legislation has in nature and effect a sufficiently substantial relationship with the peace, order and good government of the relevant territory and was for a purpose for which the subordinate legislature had power to legislate, the Board considered (unlike the Guernsey Court of Appeal) that this principle had no direct application to the States’ customary power to make ordinances.
(7) The Bailiwick had the fullest possible extra-territorial law-making competence by means of projet de loi made law with the sanction of an Order in Council. The analogy of a subordinate legislature if anything understated the Bailiwick’s status in this respect. But, the States’ power to legislate by ordinance without the sanction of an Order in Council was by definition a less extensive power, and which attracted different considerations.
(8) The States’ power to make ordinances had limits, so as to preclude any alteration of a law passed with Her Majesty’s sanction or of customary law and so as to exclude taxation. The power was also limited generally so as to exclude international matters in relation to which the United Kingdom represented the Bailiwick. If the Bailiwick wanted to legislate with regard to the matters the subject of the 2003 Ordinance outside its own territorial waters, it could, but it was incumbent on it do so by projet de loi made law with the sanction of the Queen in Council.
(9) Whilst the 1994 Law must have been intended to be read widely enough to enable the implementation of a Community provision with extra-territorial effect, the 2003 Ordinance did not “implement” a Community provision. The licensing provisions introduced by the 2003 Ordinance were of a quite different character to, and shared virtually nothing except the name with, any of the provisions of the two European Community Regulations which they were recited as implementing. The 2003 Ordinance fell outside even the wide powers conferred by the 1994 Law. If its terms were to become law in the Bailiwick, this could only have been by the mechanism of a projet de loi with the sanction of the Queen in Council.
(10) The 2003 Ordinance did not infringe Article 28 of the Treaty as impeding trade between Member States. Citing the case of Cornelis Kramer & Ors, the fact that licensing measures had the effect, for a short time, of reducing the quantities that the states concerned were able to exchange between themselves, could not lead to those measure being classified among those prohibited by the treaty, the decisive factor being that in the long term these measures were necessary to ensure a steady, optimum yield from fishing.
(11) Given that the States would, even in the absence of any perceived Community obligation, have been keen to make the Ordinance on any basis open to them, it was immaterial that they may have acted on incorrect legal advice when making the Ordinance.
(12) Notwithstanding the limits of the customary ordinance making power and the 1994 Law enabling power the 2003 Ordinance could be upheld as a measure made under the customary power to take effect within the 3 mile territorial belt adjacent to the Bailiwick and was severable as such.
Comment [G. Dawes]: The Privy Council’s decision restored orthodoxy. The customary law ordinance making power was confirmed as a limited power, albeit still quite considerable. The manner in which the 1994 Law power was interpreted is of general importance in the context of the interpretation of enabling provisions given that such have become the norm rather than the exception in what can be seen as a form of creeping legislative independence. The renewed emphasis on the pre-eminence of the projet de loi and Order in Council focuses attention on what should be the real battleground of Channel Island constitutional politics, viz, on whose advice should Her Majesty act when giving or withholding Assent? The advice of her UK Ministers in their guise as members of the Privy Council committee with responsibility for the Islands or the senior politicians of the relevant Island government? The (obiter) comment by the Judicial Committee that Her Majesty in Council could in theory legislate without any initiative from the Bailiwick is a controversial one.
CRIMINAL LAW
SENTENCE – CULTIVATION OF CANNABIS
Law Officers of the Crown v Marsh & Ors CA (Rowland, Nutting & Bailhache JJA) [2007] GCA 6
Two appellants in person; J.E. Rowland for the third appellant; F. Russell for the Crown.
All three appellants had been convicted of offences relating to the cultivation of cannabis. It was argued that the Richards guidelines should not be applied on the basis that they related to cases of importation. It was further argued that it was not appropriate to follow Richards because the guidelines concerned cannabis resin not herbal cannabis. Likewise, the method of assessment by the Royal Court of the amount of cannabis which the cultivators might have produced was said to be erroneous. It was also argued that the Royal Court was wrong not to approach two of the appeals on the basis of personal use.
Held, allowing one appeal in part and dismissing the rest -
(1) It was appropriate to look to guideline cases involving importation which, since 2002, consisted of Richards.
(2) There was no reason to distinguish between cannabis resin and herbal resin given the similar street-price.
(3) There were no grounds for complaint if the Court made a sensible estimate of the quantity of cannabis which could be produced by the material found at the time of the raid, based on evidence given by someone with knowledge of cannabis cultivation.
(4) The Court was concerned with the increase in the available stock of prohibited drugs as the appropriate basis for sentence. Where an offender was able to show indubitably that the material cannabis was for his own consumption, usually because of the very small amount discovered, that fact may be considered as a mitigating factor, and vice versa.
SENTENCE –MANSLAUGHTER
Law Officers of the Crown v Le Sauvage Royal Ct: (Finch, Lieut.Bailiff, sitting with Jurats) [2007] GRC 1
G.D. McKerrel for the Crown; P.T.R. Ferbrache for the defendant.
The defendant’s plea to the manslaughter of his mother on the grounds of diminished responsibility was accepted by the Crown. In sentencing the defendant to an immediate custodial sentence of 7 years, together with an extended sentence licence for a period of three years from his date of release pursuant to the Criminal Justice (Supervision of Offenders) (Bailiwick of Guernsey) Law 2004, the Court cited and relied upon English authority. Where a person was a danger to the public an indefinite order for detention should be made. Where there was only a minimal degree of responsibility a custodial sentence was not indicated. Where the accused’s responsibility was not minimal the Court should pass a determinate sentence of imprisonment, the length of which would depend upon the Court’s assessment of the degree of the accused’s responsibility and its view as to the period of time, if any, in which the accused would continue to be a danger to the public. It was this category into which the present defendant fell.
MENTAL HEALTH
CURATOR - GROUNDS OF CURATORSHIP
Representation of JWD Royal Ct: (Bailhache, Bailiff, and Jurats Tibbo and King) [2007] JRC 079
P.M. Livingstone for the representor; S. Sharpe for the Crown.
On 7 April 2006 the Royal Court placed the representor under curatorship without notice and in his absence on the ground that he was incapable as a result of dementia of managing his affairs. Service of notice had been dispensed with pursuant to Rule 6(2) of the Mental Health Rules 1971 on the ground that the representor would be incapable of understanding the notice. When, however, he learned of the appointment, the representor immediately objected and began steps to be re-instated. On 10 April 2007 the Court heard the representor's application for re-instatement. The evidence showed that the interdict's finances were in a state of disarray and that he was highly vulnerable to exploitation. Nevertheless the Court also heard the opinion of two consultant psychiatrists that there was no evidence of mental disorder on his part, nor that he had abandoned himself to alcohol. The representor also sought costs against the Attorney General.
Held, granting the application for re-instatement –
Although the interdict was highly vulnerable to exploitation, the law was clear. Article 43(1) of the Mental Health (Jersey) Law 1969 provided that the grounds on which a curator may be appointed to manage the property and affairs of a person are the same as those upon which a person could be placed under interdiction under the pre-existing customary law. The customary law provided for two grounds only: (a) that the person was incapable by reason of mental disorder of managing his property and affairs or (b) that the person had, notwithstanding being in full possession of mental faculties, abandoned himself to alcohol and was dissipating his assets. In the absence of medical evidence of mental disorder, and in the absence of evidence that the interdict had abandoned himself to alcohol, the fact that he was dissipating his assets was not by itself sufficient to justify the continuance of the interdiction. Whether other examples of addiction, combined with dissipation of assets might justify the appointment of a curator, was a matter for another day. The medical evidence adduced by the representor was conclusive. Applying that evidence to the Law, the Court was bound to conclude that there were no grounds to maintain the curatorship. However, the representor's application for costs against the Attorney General was refused: in bringing the application for the appointment of a curator the Attorney General had been fulfilling a statutory function based upon a Medical Incapacity Report which had been completed in good faith with a view to protecting the interdict's interests.
PLANNING LAW
APPEALS – POWERS OF COURT ON APPEAL
Premier Tour Ltd v Minister for Planning & Environment Royal Ct: (Clyde-Smith, Commissioner, and Jurats de Veulle and Liddiard) [2007] JRC 102
C. M. B. Thacker for the appellant; S.C. Nicolle QC, H.M. Solicitor General, for the respondent.
In response to a pre-acquisition enquiry letter, the appellant was erroneously informed by the Planning Department that certain buildings were not listed on the Register of Buildings and Sites of Architectural, Archaeological and Historical Importance in Jersey. The appellant proceeded to acquire the property. When the appellant submitted a formal application for planning permission for demolition and construction on the site, it was brought to its attention by the Planning Department that the buildings were in fact listed on the Register. The Planning Applications Panel agreed to investigate whether these buildings were worthy of remaining on the Register. The appellant was, however, denied the opportunity to comment on written and oral reports given to the Minister by the "Ministerial Registration and Listing Advisory Group", which recommended that the buildings should remain on the Register. The Minister followed this advice and retained the buildings on the Register. In due course, planning permission was refused for the demolition and re-development for six reasons of which the first was that the development would result in the unacceptable demolition of a "Building of Local Interest", there being a presumption against such demolition. The appellant appealed against the refusal of planning permission on the grounds that: (a) the Minister had consistently failed to advise the appellant over an extended period of time that the buildings were included on the Register, leading it to purchase the property although development permission was subsequently refused on the ground that it would result in the demolition of a registered building; and (b) the Minister's decision to retain the buildings on the Register was unreasonable because the process of re-examination was procedurally flawed. The appellant's argument rested in part on the views expressed by individual members of the Planning Applications Panel as recorded in the minutes of their meeting.
Held, dismissing the appeal –
(1) The appellant's appeal was bound to fail because it effectively challenged only one ground of refusal – the demolition of a registered building – whereas the application had been refused on six grounds. There was no provision under article 113(3) of the Planning and Building (Jersey) Law 2002 for an appeal against part only of a refusal or for an appeal against a particular ground of refusal. Applying the test in Token Limited v Planning and Environment Committee, the Panel's refusal was clearly reasonable because, irrespective of the issues raised by the appellant, the development was unacceptable for the reasons set out in grounds 2 to 6 of the refusal. It was therefore not necessary to make findings in relation to the two grounds of appeal raised by the appellant.
(2) The views of certain members of the Planning Applications Panel, as recorded in the minutes of their deliberations, could not be attributed to the Panel as a whole. The collective mind of a body such as the States legislative chamber could only be shown by a vote: B.F. Burt and H.I. Burt v The States; see also Island Development Committee v High View Farm Limited. The same principle applied to smaller bodies such as the Panel. The minutes simply recalled what each member said as part of the discussion and it would be wrong and undesirable to hold that the words spoken in discussion should be taken as constituting the formal reason for a decision. The collective mind of the Panel could only be shown by the decision actually made and the formal reasons given for it.
(3) The Court had considerable sympathy for the appellant, who had been entitled to rely on pre-acquisition enquiries made of the Planning Department. However, the watershed described by the Bailiff in McCarthy v Minister for Planning and Environmentnow meant that the public interest in ensuring due process in planning applications overrode the expectations of the appellant, notwithstanding that those expectations had been induced by the errors of the Planning Department. The appellant might be able to pursue a claim against the Minister for negligent misrepresentation or to seek relief by way of judicial review.
(4) Further, the exclusion of the appellant from the process of re-examination of the registration had been unfair. The Minister was carrying out a public function which directly affected the interests of the appellant and in respect of which there was no right of appeal to the Royal Court. The appellant had been denied the opportunity of commenting upon the written and oral reports presented to the Minister. The normal course under the Island Planning (Jersey) Law 1964, where there has been a procedural error, would be to quash the decision and remit it back to the Minister: Trump Holdings v Planning and Environment Committee. However under the Planning and Building (Jersey) Law 2002 there was no power to quash a decision and remit it back. Article 113(3) restricted the Court to two options on an appeal by an representor for planning permission: either to confirm the Minister's decision or to order the Minister to grant permission subject to such conditions as the Court specifies. Whether the Court had an inherent power to quash and remit was not argued.
(5) The Court was concerned at the limitations placed on it by Article 113(3). In practice these limitations made it very difficult for an appellant successfully to appeal the refusal of a planning application. The Court should have the same powers that it enjoyed under the Island Planning (Jersey) Law 1964 or indeed the powers it enjoyed under Article 114(8) of the Planning and Building (Jersey) Law 2002 in the case of "third party" appeals. The Court recommended that these provisions of the Planning and Building (Jersey) Law 2002 be reviewed and amended.
TRUSTS
COSTS – INDEMNITY OUT OF TRUST FUND
Landau v Anburn Trustees and Ors Royal Ct: (Birt, Deputy Bailiff, and Jurats de Veulle and King [2007] JRC 084
J. Gleeson for the representor and the third respondent; P. C. Sinel for the first respondent; S. Franckel for the second and fourth respondents.
The question arose as to the circumstances in which the Court would exercise a supervisory jurisdiction over a trustee's litigation costs incurred in course of the trusteeship which it sought to be paid out of the trust fund, and the mechanism for the assessment of such costs. A second issue was whether the trustee, which as a result of an oversight was unlicensed under the Financial Services (Jersey) Law 1998, was entitled to remuneration under the terms of the relevant trust. Clause 4(e) of the trust (which dated from 1990) provided that any trustee "who shall be a company authorised to undertake trust business" was entitled to charge remuneration.
Held,
(1) Whether the trustee was entitled to an indemnity out of the trust fund for its legal expenses.
(a) Until May 2006 there had been a certain amount of inconsistency in thought and practice in relation to a trustee's costs. Following the judgments in Alhamrani v Russa and Alhamrani v Morgan and Ors (Bailhache, B) and Alhamrani v Alhamrani (Page, Commr.), the position was now that a trustee was as a matter of trust law (and without the need for an express order of the Court) entitled to an indemnity out of the trust fund for all expenses reasonably and properly incurred. In such circumstances no question of taxation of costs arose. The general rule could, however, be displaced by a specific order of the Court. If a beneficiary considered that a trustee had acted unreasonably and ought not be entitled to recover costs in full, or at all, that beneficiary had the same remedies as for any alleged breach of other misconduct. The absence of automatic taxation did not mean that there was no mechanism to prevent "plundering of the trust fund".
(b) It was unlikely that the Court would itself consider the reasonableness of remuneration or legal fees. Whilst the Court would be willing to consider issues of principle (e.g. whether a particular application should have been brought) the Court would almost certainly delegate to the Greffier the task of exercising its supervisory jurisdiction over the reasonableness of the detailed sums claimed. However it was of fundamental importance to appreciate that the Greffier would not be acting as a taxation officer. He would merely be considering whether the amount in question was reasonably incurred. For convenience this process would be referred to as 'assessment', in order to distinguish it from taxation.
(c) There was a threshold to overcome before the Court would exercise this supervisory jurisdiction: the judge had to be satisfied that there was a real cause for concern: per Bailhache, Bailiff, in Alhamrani v Morgan and Ors. On the facts, this was an appropriate case for an assessment. As this was the first such assessment the Court set out the following principles -
(i) An assessment is not a taxation. The scales applicable on a taxation are of no relevance.
(ii) A trustee should be alert to the necessity of employing advisers whose skills and charges bear a proper relationship both to the nature of the problem and to the size of the trust fund.
(iii) The Greffier was likely to be concentrating on two aspects, namely whether a particular matter was one upon which it was reasonable to spend time; and secondly, whether the degree of time spent on a particular matter was reasonable.
(iv) The test was not whether the Greffier thought the fees were incurred at the right level; it was whether they were reasonably incurred.
(v) The assessment process should be exercised against the background of the general rule that a trustee acting reasonably is entitled to a full indemnity out of the trust fund. If costs or expenses are to be disallowed in relation to a specific item, it must be on the basis that the item was incurred unreasonably, and that is a high hurdle. On assessment, the Greffier should also apply the same principle as is laid down by Rule 12/5 of the Royal Court Rules in relation to taxation on the indemnity basis, namely that any doubts that the Greffier might have as to whether the costs were reasonably incurred or of a reasonable amount should be resolved in favour of the trustee.
(2) Whether the trustee was entitled to remuneration. The wording of clause 4(e) of the trust did not entitle an unlicensed trustee to remuneration but the Court nevertheless had power under article 26(1) of the Trusts (Jersey) Law 1984 to make an order for remuneration. There was no reason to consider the supervisory jurisdiction of the Court to be any narrower than that possessed by the Chancery Division of the English High Court. The power of the Court thus extended not only to authorising remuneration but also to increasing or varying the amount of remuneration provided for in a trust deed. article 26 was entirely consistent with such jurisdiction and was not to be read as confining the power of the Court to make an order concerning remuneration to those cases where there was no provision for remuneration in the trust deed. Whilst the power to authorise or vary remuneration should be used sparingly, the Court concluded that, on the facts, it should exercise its power to authorise remuneration in favour of the trustee in this instance.
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