Jersey & Guernsey Law Review – October 2008
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
CHILDREN
COSTS – CHILDREN’S REPRESENTATIVE
B v J Royal Ct: (Bailhache, Bailiff, sitting alone) [2008] JRC 102
T. V. R. Hanson for the children’s representative
The question arose as to the manner in which the Court will exercise its discretion as to payment of the costs of a children’s representative appointed under Article 75 of the Children (Jersey) Law 2002 (the “2002 Law”). Article 75(3) of the 2002 Law provides: “(3) Without prejudice to any other power of the court to make an order for costs against any party to proceedings, where a child has been granted legal representation under a legal aid certificate for any proceedings under this Law, the court may order that the costs of such representation be paid – (a) out of public funds; or (b) where he or she has been given an opportunity to be heard on the question of costs, by any person with parental responsibility for the child who is not a party to the proceedings.”
Held, ordering payment the costs out of public funds –
Where the Court exercises its new power to appoint a children’s representative under Article 75 of the 2002 Law, the costs of the representative ought ordinarily to be paid out of public funds. Although Article 75(3) retains the Court’s discretion to order that the costs of the children’s representative should be paid by one or both of the parents (or indeed some other person), it would be very rare that such an order is made. However it was a curiosity that the power to order payment out of public funds under Article 75(3) could only be exercised where a legal aid certificate had been issued to the child. There was no reason for the power to be restricted to legal aid cases and the Court expressed the hope that consideration be given by the States to amending the Law in this regard.
CIVIL PROCEDURE
COSTS AGAINST NON-PARTY
Yates v Reg's Skips Limited Royal Ct: (Bailhache, Bailiff, sitting alone) [2008] JRC 088
M. St. J. O’Connell for the plaintiffs; C. G. P. Lakeman for the defendant; S. C. K. Pallot for the party convened.
The plaintiffs sought costs against the defendant following the finding by the Royal Court that the defendant had acted in breach of the duty of voisinage in operating a noisy skip sorting business on premises neighbouring those of the plaintiffs (and the subsequent dismissal of the defendant’s appeal. Seeking pre-application advice from the Planning Department, the defendant had been invited to submit a planning application to operate its business from the premises in question and that application was in due course granted subject to a vague condition which did not prohibit mechanical sorting. The Planning Department did not seek advice from the Environmental Health Department. In its judgment the Royal Court found that the defendant had been permitted, if not encouraged, by the Planning Department to establish its business in a manner which caused it to breach its duty of voisinage. The defendant accepted that costs should follow the event and that the plaintiffs were entitled to their costs on the standard basis. However, the defendant also sought a contribution from the Minister for Planning and the Environment (who was convened to the action) to the extent of fifty percent of the plaintiffs’ costs.
Held, acceding to the defendant’s application in part –
The jurisdiction under Article 2 of the Civil Proceedings (Jersey) Law 1956 to order a non-party to pay costs was not in dispute. However, the jurisdiction to award costs against a non-party was to be exercised sparingly and with caution but nonetheless it was a power which the Court should use in appropriate circumstances in order to ensure that litigants are not unfairly treated: Drake v Gouveia and another. In the present case, the primary responsibility for the breach lay with the defendant but on the facts the Minister for Planning and the Environment had to bear some responsibility: the Planning Department should have foreseen the effect upon the plaintiffs of permitting the defendant to operate its business on property neighbouring that of the plaintiffs and it should have sought advice from the Environmental Health Department. The defendant was ordered to pay the costs of the plaintiffs on the standard basis, but was entitled to recover 25% of those costs from the Minister.
SERVICE OF DOCUMENTS – SERVICE OUT OF THE JURISDICTION UNDERTAKING TO ACCEPT SERVICE
Binet v Foot and Others Royal Ct: (Birt, Deputy Bailiff, sitting alone) [2008] JRC 074
M. C. Goulborn for the plaintiff; A. P. Begg for the fourth defendant.
The question arose as to whether service may be validly effected upon an advocate who has agreed to accept service of an Order of Justice within the jurisdiction on behalf of a client in respect of whom leave would otherwise be required to serve out of the jurisdiction under the Service of Process Rules 1994. The defendant also contended that his advocate’s undertaking to accept service had been conditional and that he had reserved the right to contest the validity of service.
Held, finding for the plaintiff that service had been validly effected –
(1) The principle upon which the Court exercises jurisdiction is similar to that of the English High Court. The Court’s jurisdiction is essentially procedural and territorial. Any person who is served within the jurisdiction is amenable to the Court’s jurisdiction: White Book, 11/0/2 and 11/0/3 (1999 Edition). However, this basis of jurisdiction can have unfair consequences: it may give the Court jurisdiction in an action which is inappropriate for trial in Jersey and it may deny a plaintiff the ability to serve a defendant out of the jurisdiction in an action which is appropriate for trial in Jersey. These consequences are avoided by the Court’s additional powers (a) to stay proceedings in Jersey on the basis of forum non conveniens and (b) to grant a plaintiff leave to serve proceedings on a defendant out of the jurisdiction in the various circumstances set out in the Service of Process Rules 1994.
(2) An order of justice must be served personally: Rule 5/4(a). Rules 5/7 and 5/8 deal with how personal service is effected. There is no reference to an Advocate accepting service on behalf of a defendant in either Rule 5/7 or 5/8 (the only such reference is in the context of ordinary service at Rule 5/6(2)(a) and 5/6(4)(c)). However the Court was quite satisfied that service of an order of justice upon an advocate who has undertaken to accept such service amounts to proper and effective service: it is always open for party to accept service in a manner outside the Rules, which was a common practice; see also John Russell & Co Ltd v Cayzwe, Irvine & Co Ltd;; it was also important that an advocate is able to rely absolutely on the undertaking of another advocate.
(3) The same principle is equally applicable where the proposed defendant is outside the jurisdiction. Thus, where an advocate has undertaken unconditionally to accept service of proceedings of behalf of a client in respect of whom leave would otherwise be required to serve out of the jurisdiction, and service is effected on the advocate within the jurisdiction pursuant to such undertaking, such service is effective and the client has no right to challenge the jurisdiction of the Court. It does not matter that the proceedings do not fall within any of the circumstances described in the 1994 Rules so that leave to serve out of the jurisdiction would not have been granted.
(4) It is open to the parties to agree to a conditional acceptance of service. The right of the defendant to contest jurisdiction may be reserved. On the facts, however, the terms of the undertaking to accept service were unqualified. Service had therefore been validly effected within the jurisdiction.
CONTRACT
EQUITABLE ASSIGNMENT
Shahan v Lloyds TSB Offshore Treasury Ltd and Fook, Administraix, Intervening Royal Ct. (Collas, Deputy Bailiff) [2008] GRC 11
R.I.C.E. Harris for the plaintiff; N.J. Barnes for the Intervener
The deceased was an Israeli citizen who was the holder of a bank account in which monies were held jointly with his mother. The mother died and the deceased travelled to Guernsey with a friend in order to make arrangements for the account to be transferred into their joint names. At the bank he completed a Joint Account Authority which he signed. Before the formalities could be completed, the deceased died unexpectedly. The question arose as to whether the completion of the Joint Account Authority could constitute an equitable assignment of the funds in the account to the deceased’s friend. By the Law of Property (Miscellaneous Provisions) (Guernsey) Law 1979 provision had been made for the legal assignment of choses in action.
Held, considering Morton v Paint and other authorities, that this was not an occasion to develop the customary law, given that the legislature had made no provision for equitable assignment.
CRIMINAL LAW
ATTEMPTS – STATUTORY OFFENCES
Martins and Martins v Att. Gen. CA: (Steel, Jones and McNeill JJA) [2008] JCA 082
M. L. Preston for F. A. F. Martins; M. H. Temple for J. C. O. Martins; Crown Advocate S. M. Baker Esq.
The question arose as to whether the customary law crime of attempting to commit an offence is limited to customary law offences or whether it extends to statutory offences, in this case a drug trafficking offence under the Drug Trafficking Offences (Jersey) Law 1988, where the statute in question did not itself expressly criminalize an attempt.
Held, upholding the decision of the Royal Court –
There was no difference in principle in Jersey between customary offences and statutory offences. Jersey customary law recognised attempts to commit a crime as an offence and that recognition was not limited to customary law crimes. In either case the act being carried out by the alleged perpetrator was an attempt to commit a crime. Nor was there any difference in principle in this respect between the inchoate offences of conspiracy and incitement and attempt. The Draft Criminal Offences (Jersey) Law 200- was to be regarded as codifying the existing customary law in this regard.
PROCEEDS OF CRIME – INFORMAL FREEZE BY FINANCIAL INSTITUTION
Gichuru v Walbrook Trustees (Jersey) Limited and others Royal Ct: (Birt, Deputy Bailiff, sitting alone) [2008] JRC 068
S. J. Young for the representor; M. J. Thompson for the respondents; W. J. Bailhache QC, HM Attorney General, for the party convened.
A Suspicious Activity Report was made by Walbrook to the Jersey Financial Crimes Unit concerning the affairs of their customer Mr Gichuru. The JFCU refused to give consent for the dealing with Mr Gichuru’s property and, Walbrook suspecting that the property in question might represent proceeds of crime, declined to comply with Mr Gichuru’s instructions for fear of committing a money laundering offence under Article 31 of the Proceeds of Crime (Jersey) Law 1999. This informal freeze continued for six years without criminal proceedings being brought against Mr. Gichuru. Mr Gichuru commenced a private law action against Walbrook with a view to obtaining a court order that Walbrook pay the relevant funds to him. The Court ordered that the Chief Officer of Police to be convened as a party to the proceedings. The Chief Officer now sought to be discharged as party, arguing that it was not appropriate for him to be made a party to a private law action.
Held, discharging the Chief Officer,
(1) A customer facing an informal freeze of this nature has two alternative remedies at his option: (a) a public law action for judicial review of the police refusal to consent to payment; or (b) a private law action against the financial institution seeking to enforce his contractual or other right to seek payment. The issue in a private law action is likely to be whether the funds represent proceeds of crime. If the Court finds that they do, it will not enforce the customer’s right to payment. However, if the Court finds that the funds are not proceeds of crime, it will order the financial institution to act in accordance with its contractual or other duty towards the customer and the financial institution will thereby be protected from any criminal prosecution for making such payment.
(2) The police should not normally be convened as a party to the private law action. Chief Officer v Minwalla was to be distinguished on its unusual facts.
(3) To protect itself against possible prosecution in the future, the financial institution must take all reasonable steps to defend a private action for the release of the funds. All available evidence that the funds are criminal proceeds must be adduced. The ground of suspicion will be highly relevant. The financial institution will also be expected to liaise closely with the police.
(4) The Court made the following observations regarding the burden of proof in the private law action: (a) The customer must first prove that, for example, he has money in a bank account and has demanded payment. (b) Having proved that, the burden then switches to the bank to show why it should not pay. In a case of this nature, the bank does that by proving on the balance of probabilities that it has the requisite suspicion, which then entitles it to refuse to pay unless the police consent or the Court so orders. (c) Once the bank has proved the necessary suspicion, the burden reverts to the customer to prove that on the balance of probabilities that, despite the bank's suspicion, the funds are in fact not the proceeds of criminal conduct.
(5) The Court repeated the recommendation at para. 74 in Minwalla that consideration be given to amending the current legislation so as to avoid the difficulties and potential injustice that a long informal freeze can cause.
STRICT LIABILITY – PRESUMPTION OF MENS REA – SPEEDING OFFENCE
Burnett v Att. Gen. Royal Ct: (Birt, Deputy Bailiff, and Jurats Allo and Newcombe) [2008] JRC 054
The appellant in person; E. J. Hollywood for the Attorney General
On appeal from the Magistrate’s Court, the question arose as to whether the offence of exceeding a 15 mph speed limit contrary to Article 4 of the Road Traffic (Speed Limits) (Jersey) Order 2003 is, as the Magistrate had found, an offence of strict liability.
Held, dismissing the appeal –
(1) Mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary, and the Court ought not to hold that an offence is an absolute offence unless it appears that must have been the intention of the legislature. Thus, whenever a section is silent as to mens rea, there is a rebuttable presumption that, in order to give effect to the will of the legislature, words appropriate to require mens rea must be implied: Sweet v Parsley. The approach to be followed as to that presumption, was set out in the Privy Council decision of Gammon (Hong Kong) Limited v Attorney General.
(2) In the present case the Court was for the following reasons in no doubt that the Magistrate had been correct in holding that the offence was one of strict liability: the wording of the relevant provision strongly pointed in that direction; speeding was not an offence which might be regarded as “truly criminal” but rather raised issues of public safety; many motoring offences were offences of strict liability; the fact that it was difficult to identify exactly what the mens rea would consist of pointed strongly in favour of this being an offence of strict liability; the practical consequences of imposing any form of mens rea would be to increase greatly the number of those trying to escape the consequences of their speeding; the maximum penalty was a level 2 fine and disqualification from driving which was disproportionate, particularly bearing in mind public safety. The absence of the English statutory defence conferred by Section 85(4) of the Road Traffic Regulation Act 1984 did not lead the Court to a different conclusion.
(3) As to the Article 6(2) of the European Convention on Human Rights as incorporated into Jersey law by Human Rights (Jersey) Law 2000, there was clear authority that this did not prevent states from creating offences of strict liability: Salabiaku v France; see also Harris, O'Boyle & Walbrick, Law of the European Convention on Human Rights (1995 Edition) at page 244. It was reasonable and proportionate for an offence of speeding to be an offence of strict liability and accordingly there was no breach of Article 6(2) of the ECHR.
PAROCHIAL ADMINISTRATION
RESIDENCE OF PROCUREUR DU BIEN PUBLIC
In the matter of a Procureur du Bien Public of St Peter Royal Ct: (Birt, Deputy Bailiff, and Jurats Tibbo, Bullen, Clapham, Morgan and Liddiard) [2008] JRC 073
T. J. Le Cocq Q.C., HM Solicitor General for the Attorney General; A. J. Clarke for the Parish of St Peter.
The question arose as to whether a Procureur du Bien Public need be resident at the time of election in the parish for which he is to serve. The point arose in respect of the Procureur of the Parish of St Peter. If there was indeed a requirement to reside in the parish, counsel for the Parish of St Peter argued that the Court should develop the customary law so as better to suit modern day circumstances by allowing persons to hold honorary office notwithstanding residence in another parish: Connétable of St Helier v Gray; Re Amy; Routier, Principes Généraux du Droit Civil et Coutumier de Normandie: “Les dispositions qui sont faites en faveur de la cause publique, s'intreprétent toujours favorablement, et reçoivent toutes les extensions que l'intérêt public requiert”.
Held, finding for the Attorney General –
(1) The Court was in no doubt that the customary law was that an honorary parochial officer such as a Procureur had to be resident in the parish at the time of his election. The customary law position had been amended in respect of St Helier by Article 1 of the Parish of St. Helier (Qualifications for Office) (Jersey) Law 1976, which provided that St Helier a ratepayer (as defined) was not disqualified for election to honorary office (including as Procureur) in that parish by reason of not residing in the parish. Further amendments to the customary position had been made by the Honorary Police (Parochial Domicile) (Jersey) Law 1999 which was designed to enable a member of the honorary police, other than the Connétable, who has ceased to be resident in the parish in which he holds office, to continue with the consent of the Attorney General to hold office for the remainder of his term. The 1999 Law did not, however, affect the position of a Procureur or that of a Connétable. The 1999 Law was amended in 2004 so as to allow a member of the honorary police, who had been allowed by the 1999 Law to continue in office notwithstanding moving from the parish, to be eligible for re-election, provided that he obtained the consent of the Attorney General and had served continuously as an honorary police officer since ceasing to reside in the parish. However, the position of a Procureur remained governed by the customary law, other than in respect of the parish of St Helier where the 1976 Law applied.
(2) The Court declined to develop the customary law as proposed by Counsel: (a) to do so would create a situation for the other parishes which went beyond the position which applied in St Helier under the 1976 Law; (b) the States had by the 1999 Law and the 2004 amendment effectively affirmed the basis of the customary law, as regards honorary police, subject to certain closely defined exceptions; (c) Gray was distinguishable because in the present case there had been no change in custom or practice and the principle summarised by Routier did not apply; (d) the residence requirements of parish honorary officials was an issue on which opinions could reasonably differ and it was accordingly a matter to be determined by the legislature rather than the Court.
TRUSTS
RECTIFICATION – DELAY BY TRUSTEE
In the matter of the C Trust Royal Ct: (Clyde-Smith, Commissioner, and Jurats Le Brocq and Tibbo) [2008] JRC 071
J. Dickinson for the representor; N. Pearmain for the respondent.
In an application for rectification of an error in a trust instrument, the question arose as to the significance of the trustee’s delay in making the application. The settlor was not informed by the trustee for some 18 months after the discovery of the error and it was some four years before the application for rectification was brought.
Held, granting the application –
Trustees who are aware of an error are under a duty to apply timeously to correct it: In Re McLean Family Settlement. Where errors are discovered which potentially impact upon the interests of the beneficiaries, it is also important that they, or the person with whom the trustee normally deals on their behalf, should be informed promptly, so that they can take advice and protect their interests. Unreasonable delay may result in the Court penalising a trustee in costs. Allowing six months for preparation of the court application, it had taken some three and a half years from the discovery of the error to the matter being brought before the Court. Such a delay was regrettable. It was also particularly regrettable that it took some 18 months after discovery of the error for the settlor to be informed. In this case the trustee had agreed to pay the parties’ costs. Further, the burden of proof that an instrument does not embody the parties’ intentions becomes even more difficult to discharge with the passage of the years. In the present case, there had on the facts been no diminution in the quality of the evidence and therefore the application for rectification (which satisfied the threefold test set out in R. E. Sesemann Will Trust) was granted.