| Return to Contents Case Summaries Administrative Law Les Pas Holdings Ltd v Greffier of the States, Waterfront Enterprise Board Ltd, Intervener C.A. (Harman, Southwell and Nutting JJA) June 24th, 1998 unreported. J. D. Kelleher for the appellant; N. M. Santos Costa for the respondent; W. J. Bailhache for the Intervener. The appellant sought leave to appeal against an order of the Royal Court refusing the appellant’s application for judicial review of the resolution of the States of Jersey dated 3rd February 1998 by which the States resolved to acquire compulsorily all and any interest which the appellant might have in certain parts of the foreshore; and against an order of the Royal Court of 4th June 1998 refusing the appellant an adjournment of the hearing set for the challenge to the vesting order requested by the respondent pursuant to Article 4A of the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961; and against an order of the Royal Court of 5th June 1998 giving directions as to the future progress of the proceedings in the challenge to the vesting order. The argument took place in the context that: (a) there was ongoing litigation between the States of Jersey and Her Majesty’s Receiver General on the one hand and the appellant on the other in which the right to ownership of part of the foreshore was in dispute. The summons in this action was served in December 1989 and the action was tabled in January 1995. By June 1998 it had reached the stage of discovery; (b) in March 1993 the States approved the establishment of the Waterfront Enterprise Board Limited ("WEB") to be responsible for the implementation of the St Helier Waterfront Plan; (c) a report lodged in the States in November 1997 seeking to acquire compulsorily not only the foreshore which was the subject of the present appeal but also another area of the foreshore had been withdrawn following objections made by the appellant on November 28th, 1997. Held, (1) that the application by the respondent and WEB for the applications for leave to appeal, made on June 16th, 1998, to be heard on June 22nd, 1998 should be granted as the matters needed to be decided speedily in the interests of all parties; (2) that the application for leave to appeal against the refusal by the Royal Court of judicial review should be refused because the States and WEB had accepted and conceded that points which could properly be made by way of judicial review would be open to the appellant to make on the hearing of the application for a vesting order under Article 4A of the Compulsory Purchase (Procedure) (Jersey) Law 1961. Even if both applications had proceeded, the Court would have been bound to hear both applications together in the interests of all three parties to save costs and to ensure that all matters in dispute between the parties were resolved efficiently; (3) that the application for leave to appeal against the refusal of an adjournment would be dismissed. The application was based upon a professed need for discovery and interrogatories, the case for which was not made out, and on an alleged lack of preparedness on the part of the appellant. However this had to be balanced against the need to resolve the legitimacy of the States’ resolution and in the light of the factors recited in the judgment the application for leave to appeal against the refusal of an adjournment, and against the orders giving directions in relation to the substantive hearing, would be refused. Obiter: there was no need to have one single procedure by which judicial review applications must be conducted, as in some cases it might be appropriate to order pleadings and discovery as in an ordinary action; in other cases, affidavits and skeleton arguments might suffice and in further cases there might be no need even for affidavits and only skeleton arguments would be necessary. The flexibility of the Jersey procedure enabled the Royal Court to bring to an early end an application for judicial review which had been too long delayed or which was misconceived. Administrative decisions or actions might involve immediate effects and delay in bringing a judicial review application could stultify the administrative process. Furthermore, although the Royal Court had ample power to order discovery as and when appropriate in judicial review applications, as a matter of common sense such orders for discovery would be rare, and when ordered related to limited and specific classes of documents or to individual documents. There would be no place for any discovery except where either a clear prima facie case of error by the administrative body had been made out or where the document or documents were necessary to enable the clear prima facie case to be fully established. This would apply equally to interrogatories. Advocates Duties To Court: Legal Aid Representation of the Bâtonnier re P. Sinel Royal Ct: (Bailhache, Bailiff and Jurats Gruchy, Le Ruez, Herbert, de Veulle, Querée, Le Brocq, Tibbo and Bullen) June 8th, 1998 unreported. A.J. Olsen for the Bâtonnier; D.F. Le Quesne for Advocate P. C. Sinel; M.C. St. J. Birt, QC, Attorney General, convened as Partie Publique. Under the legal aid scheme in Jersey the Bâtonnier (or an acting Bâtonnier on his behalf) appoints advocates of less than 15 years’ seniority to represent those whom the Bâtonnier considers to be in need of legal aid. If the client cannot afford to pay, the advocate undertakes the work for no remuneration. The legal aid scheme has generally been considered to be based upon the words of the Advocates’ Oath. On February 6th, 1998 Advocate Sinel wrote to the Bâtonnier to inform him that, with immediate effect, he would be the sole arbiter as to the nature and extent of free or subsidised legal assistance which he would undertake and that he would therefore not feel bound to comply with any allocation of legal aid made by the Bâtonnier. Subsequently he refused to comply with the direction of the Bâtonnier to represent two individuals charged with criminal offences with the result that these individuals found themselves unrepresented in Court. The advocate based his actions upon paragraph 4.1 of the Report of the Legal Practice Committee which states: "The legal aid system in Jersey is not statutory. It is a tradition of the legal profession. All lawyers accept the system as an obligation, but they accept it voluntarily". The Bâtonnier presented a representation to the Royal Court seeking directions. By the date of the hearing Advocate Sinel accepted that he had acted in breach of his oath on the ground that there was a duty to comply with the Bâtonnier’s direction on such matters but stated that he had acted in good faith in that he believed that the scheme was voluntary and he had always intended to assist poor and undefended persons in such manner as he thought fit. Held, (1) that advocates are bound by their oath to represent "veuves, pauvres, orphelins et personnes indéfendues"; (2) that subject to the duty of the Bâtonnier to act properly and fairly in the administration of the legal aid scheme, advocates of less than 15 years’ standing are obliged as a matter of law to act upon the directions of the Bâtonnier to represent a person under the legal aid scheme; (3) that the actions of Advocate Sinel were taken: (a) without notice, (b) without adequate research, (c) without any regard for the clients whom he had been directed to represent and, (d) without any regard for colleagues or for the administration of justice generally, (4) that the actions therefore amounted to serious breaches of professional duty for which the advocate would be formally reprimanded. Civil Procedure Aldridge v Coxshall and Bank of Wales plc and another Royal Ct: (Hamon, Deputy Bailiff and Jurats Le Ruez and Bullen) June 5th, 1998 unreported. P. S. Landick for the applicant; R. F. Pirie for the respondent; A. J. D. Winchester for the parties cited. The applicant, a landlord, sought an order from the Royal Court compelling the parties cited, two banks, to allow her to inspect the accounts of her tenant, the respondent. This was the first reported civil application under article 6(1) and (3) of the Bankers’ Books Evidence (Jersey) Law, 1986. The applicant had previously brought eviction proceedings against the respondent in the Petty Debts Court. That action had been settled by a consent order under which she had agreed to defer eviction for twelve months. The applicant had subsequently asked the Petty Debts Court to set aside the consent order on the ground that the respondent had misrepresented his financial and other circumstances to her when negotiating that order and that she had relied on his misrepresentations. The applicant wished to use any information obtained from the parties cited to support her setting aside application in the Petty Debts Court. Held, granting the application, that the applicant should have liberty to inspect and take copies of any entries in the bankers’ books of the parties cited in the respondent’s name over a specified period calculated with reference to the facts of the case. The court noted that its power to order inspection was discretionary and should be exercised with great caution and only where the grounds are clearly sufficient. The information received was to be used solely for the purpose of the Petty Debts Court action and for no other without the express permission of the Royal Court. Companies Att. Gen. v Young, Cantrade Private Bank Switzerland (C.I.) Limited, and Williams Royal Ct: (Le Quesne, Commissioner, and Jurats Gruchy, Herbert, Rumfitt, Potter, Tibbo and Bullen) May 8th, 1998 unreported. C. E. Whelan, Crown Advocate, for the Crown; D. F. Le Quesne for Young; A. R. Binnington and D. Wilson for Cantrade Private Bank Switzerland (C.I.) Ltd; S. Young for Williams. The two individual accused, Young and Williams, were both charged with four counts of inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive contrary to Article 12(c) of the Investors (Prevention of Fraud) (Jersey) Law 1967 ("the 1967 Law"). The Bank was charged with four counts of inducement to take part in arrangements with respect to the management of property by the reckless making of misleading false or deceptive statements, again contrary to Article 12(c) of the 1967 Law. The Court noted that the maximum penalty for an offence under the 1967 Law was seven years’ imprisonment. In considering the sentence to be imposed on Young, the Court identified two factors which emphasised the gravity of the offences with which he had been charged: first, that Young had made repeated false statements to the investors over a period of years; and secondly, that Young had brought discredit upon the Island’s commercial community. In mitigation, the false statements made by Young had been made to a relatively small number of people, and Young had been of previously good character. In considering the sentence to be imposed on Williams, it was not accepted that Williams did not know or understand what he was doing. However, the mitigating factors which the Court had identified in relation to Young were also held to be relevant to the offences with which Williams had been charged. It was noted that Williams had not derived any personal benefit from what he had done, and that his falsehoods were secondary to those of Young. At the time of the commission of the offences, Williams had been suffering a period of great strain. With regard to the Bank, it was noted that, due to the position occupied by banks in a modern society, the failure to provide reliable and cautious advice was particularly reprehensible. The fact that the Bank had been given permission to carry on business in Jersey, and had then failed to comply with the laws of the Island, was deplorable. By way of mitigation, it was noted that the bank was not the promoter of the fraudulent scheme, and compensation had already been paid to the investors. Held, (1) that Young would be sentenced to a period of imprisonment of 4½ years; (2) that Williams would be sentenced to a period of imprisonment of 18 months; (3) that the Bank would be fined £750,000 on each of the four offences to which it had pleaded guilty, and would be ordered to pay £300,000 towards the costs of the prosecution.; (4) that notice of the convictions be given to the Finance and Economics Committee. [Editorial note: Williams and the Bank did not appeal. Young’s appeal was dismissed by the Court of Appeal] Att. Gen. v Young and Williams Royal Ct: (Le Quesne, Commissioner) March 10th, 1998 unreported. C. E. Whelan, Crown Advocate, for the Crown; D. F. Le Quesne for Young; S. Young for Williams. The two defendants were charged with offences under Article 12(c) of the Depositors and Investors (Prevention of Fraud) (Jersey) Law 1967. The defendants argued as a preliminary issue that the arrangements revealed by the Crown’s evidence, even if accepted entirely, did not fall within the terms of Article 12(c). The Court described in some detail the different types of arrangement which had given rise to the charges, and stated that, in considering whether such arrangements fell within the meaning of Article 12(c), there were two questions for the Court to decide. The first question was whether foreign currency constituted "property" within the meaning of Article 12(c). The second was whether the profits resulting from the arrangement were alleged to arise or were likely to arise from the acquisition, holding, management or disposal of the foreign currency. Held, (1) that the wording of sub-paragraph (c) of Article 12 should be construed as covering all property not already covered by sub-paragraphs (a) and (b), and did therefore cover foreign currency; (2) that the answer was in the affirmative. The Court also commented that it was irrelevant whether or not the investment was made directly by the subscriber or by the direct use of the subscriber’s funds. [Editorial Note: In reaching this conclusion, the Court sought to distinguish the Ese of Hughes v Trapnell [1] , which had been relied upon by Counsel for the two accused, on the ground that the language of the statute interpreted in the Hughes case differed in two material respects from that of Article 12(c), and that the Hughes case could not therefore be an authority on the interpretation of the Jersey statute. The Court went on to note that, following the decision in Hughes, the U.K. statute had been amended, and the provisions of the new law were now in identical terms to those of Article 12(c).] Gheewala v Compendium Trust Company Ltd & others Royal Ct: (Bailhache, Bailiff and Jurats Herbert and Bullen) July 16th, 1998 unreported. M. J. O’Connell, for the plaintiff; M. J. Thompson, for the first, second, eight, ninth and tenth defendants; C. M. B. Thacker, for the third and fifth defendants; A. D. Hoy, for the seventh defendant; M. H. D. Taylor, for the fourth and sixth defendants. The plaintiff issued proceedings in Jersey in relation to a family dispute between the descendants of one S.J.G. Gheewala who had died domiciled in Kenya. The second and eighth defendants issued an application seeking a stay of the Jersey proceedings on the grounds of forum non conveniens in favour of Kenya. The plaintiff opposed the application and also sought to argue that a stay should not be granted because the plaintiff would not obtain justice in Kenya, because the judicial system was corrupt or incompetent. Held, (1) granting the applications and ordering a stay, that Kenya was the place with which the action had the most real and substantial connection; Wright v ckway [2]followed; the connection with Jersey was tenuous; (2) that the Court ot satisfied that the plaintiff had met the burden of showing that he might not receive justice from the Kenyan Courts; The Abidin Daver [3] followed. Constitutional Law Syvret v Bailhache and Hamon Royal Ct: (Beloff, QC, Commissioner) April 28th, 1998 unreported. P. C. Sinel for the plaintiff; M. C. St. J Birt, QC, Attorney General, for the defendants. The facts: The plaintiff was a senator of the States of Jersey. On July 23rd, 1996 he made certain allegations against another member of the States. At a sitting of the States on July 30th, 1996 the second defendant, (the Deputy Bailiff), who was presiding, held that the plaintiff had not justified the allegations and that they amounted to a breach of Standing Order 24(6) (which states that members shall not impute improper motives to another member) and directed the plaintiff to withdraw the allegations. The plaintiff refused on the grounds, inter alia, that the allegations did not impute improper motives and were correct. The second defendant held the plaintiff to be guilty of grossly disorderly conduct within the meaning of Standing Order 30(3) and, pursuant to that Standing Order, directed him to withdraw for the remainder of the sitting ("the first suspension"). Subsequently the first defendant, (the Bailiff), wrote to the plaintiff inviting him to withdraw the allegations but stating that if he refused the first defendant would invite the States to resolve that the plaintiff should be suspended until he had withdrawn his imputation of improper motives. On September 3rd, 1996 the plaintiff delivered to the first defendant a long letter enclosing a personal statement. At the sitting of the States on that day the first defendant put the proposition referred to above to the States which resolved accordingly to suspend the plaintiff until he had withdrawn the imputation of improper motives ("the second suspension"). On February 10th, 1997 a deputy proposed the unconditional re-admittance of the plaintiff to the States but the first defendant declined to allow him to lodge the proposition on the grounds that it was out of order within the meaning of Standing Order 18(4)(c). On March 4th, 1997 the States resolved to censure the plaintiff but to lift his suspension. The Action: The plaintiff subsequently brought an action for judicial review seeking declarations that the first and second suspensions, the censure motion and certain other actions of the first and second defendants were unlawful and ultra vires. Broadly the plaintiff alleged, inter alia, that: (1) the first and second defendants were biased and had acted in bad faith in that they did not genuinely believe that the plaintiff’s allegations amounted to a breach of Standing Order 24(6) but had acted merely to protect another elected member so that their conduct had amounted to unlawful interference in the Island’s political and democratic process; (2) the plaintiff’s allegations could not reasonably be said to impute improper motives in breach of Standing Order 24(6); (3) the defendants had acted in breach of natural justice in relation to the first and second suspensions in refusing to allow the plaintiff to defend himself before the States; (4) the plaintiff’s conduct could not be said to be grossly disorderly within the meaning of Standing Order 30(3), as had been found by the second defendant on July 30th, 1996; (5) the defendants’ actions were in breach of several provisions of the European Convention on Human Rights (ECHR); (6) there was no power in the States to impose the second suspension; (7) the decision of the first defendant to refuse permission for the lodging of the proposition for unconditional re-admittance of the plaintiff was made for reasons of bias and was therefore unlawful and ultra vires; (8) the censure motion was the third punishment for the same offence. The defendants, whilst denying the factual allegations made, applied to strike out the Order of Justice as disclosing no reasonable cause of action on the following grounds: (a) all the actions complained of related to the regulation of the internal proceedings of a legislative assembly and were therefore not justiciable in any court of law. (b) the defendants were at all times acting as members of the States in accordance with the States of Jersey Law 1966, Standing Orders made thereunder or prerogative powers preserved to the Bailiff by Article 59 of the 1966 Law and were therefore entitled to immunity from proceedings under article 37 of the 1966 Law. (c) the ECHR was not part of Jersey law so that even if there had been any breaches of the Convention (which was not admitted) such breaches could not give rise to any remedy in the domestic courts. Held, (1) that the Court has jurisdiction to determine the nature and extent of any privilege claimed by a legislative assembly; (2) that once a privilege is established, the Court has no jurisdiction to review the exercise of a privilege; (3) that following widespread and overwhelming authority a legislative assembly has absolute privilege over its internal proceedings and a Court accordingly has no power to intervene in such matters; (4) that a legislative assembly has as a matter of law all powers necessary to carry out its functions including powers to regulate its rules of debate. It also has power to enforce such rules including the power to expel or to suspend until compliance. It followed that the States had the power to impose the second suspension; (5) that the matters complained of all related to the internal proceedings of the States and were therefore not capable of review by the Court; (6) that in addition article 37 of the 1966 Law conferred a statutory immunity upon the defendants in respect of their actions; (7) that the ECHR was not part of Jersey law and the rights conferred thereby could not therefore be directly enforced by the Courts, and that in any event the facts alleged in the Order of Justice did not disclose any breach of the Convention. For these reasons the Order of Justice was struck out in its entirety. Courts Mayo Associates S.A. & ors. v Cantrade Private Bank Switzerland (C.I.) Limited & ors. CA: (Carlisle, Nutting, Smith JJA) May 28th, 1998 unreported. P. C. Sinel for the appellants; A. R. Binnington for the first respondent; F. J. Benest for the Viscount. 1st Appeal: The appellants appealed against the Bailiff’s refusal to disqualify himself from hearing the respondent’s representation following a challenge on the grounds of an appearance of bias. Held, dismissing ppeal, that the Bailiff’s role as civic head of the Island was not likely to cause him to favour the alleged wrongdoer in this litigation as had been suggested by the appellants. Furthermore, the fact that an advocate is acting for a plaintiff in respect of other litigation against the Bailiff did not even begin to meet the test for appearance of bias set out in R v Gough [4] . 2nd Appeal: The appellants appealed against the Bailiff’s decision to hear the recusal application himself. Held, dismissing the eal, that the procedure set out in the decision of the Guernsey Court of Appeal in Bordeaux Vineries v States Board of Administration [5] was an appropriate one in this jurisdiction and accordingly the Bailiff was justified in dealing with the application. The traditional practice of initially taking the objection by way of an informal approach by counsel to the judge in chambers should continue to be followed. 3rd Appeal: The appellants’ substantive appeal was against the Royal Court’s decision to appoint the Viscount to communicate the respondent’s offer of compensation to investors. Held, allowing the appeal, that the appointment of the Viscount could not be justified on the basis of an exercise of the court’s inherent jurisdiction as the communication of the offer had no bearing on the Royal Court’s capacity to act as an effective court of justice in resolving the issues placed before it by the parties or in effectively enforcing such final order as it may see fit to make in due course. Furthermore the appointment could not be justified as an exercise of an equitable jurisdiction as, whilst the court was inclined to the view that the appellants had the necessary characteristics to be fiduciaries, and could therefore be classified as such irrespective of whether or not the parties to the relationship in question had decided that the law of another country should govern their relationship, the respondent had no locus standi to enforce the appellants’ alleged fiduciary obligations. Criminal Procedure Ashton v Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Le Breton) June 15th, 1998 unreported M. P. G. Lewis for the appellant; A. J. Belhomme for the Crown. The appellant appealed against his sentence of six months’ disqualification from driving following a guilty plea in the Magistrates Court to an infraction of Article 27 of the Road Traffic (Jersey) Law 1956 (failing to stop and report an accident). The Relief Magistrate was provided with a document entitled "Offence Listing" which appeared to treat offences dealt with at the Parish Hall as convictions. In fact, the appellant had two convictions but four other matters had been dealt with summarily at the Parish Hall. Matters dealt with in that way are not convictions. The Constable or Centenier is empowered to impose such a penalty only with the agreement of the offender. The Parish Hall is not a Court of Justice. Held, allowing the appeal, that the Relief Magistrate’s mind might well have been affected by the manner in which the previous convictions and the matters dealt with at the Parish Hall were presented to him. A three months’ period of disqualification was substituted. Baimbridge v Att.Gen. CA (Carlisle, Southwell and Clarke JJA) July 9th, 1998 unreported. R. G. Morris for the appellant; J. A. Clyde-Smith, Crown Advocate, for the Crown. The appellant had been convicted on seven counts of sexual and common assault on his step-daughter and son. The principal ground of appeal was that the trial judge was wrong to have refused an application by the accused for the indictment to be severed so as to allow separate trials in respect of the counts concerning each child. The trial judge had based his decision not to sever the indictment on his finding in law that there was similar fact evidence, namely that the evidence of one child was admissible in relation to the other, and vice versa. He relied u v P [6] where two questions were posed to the House of Lords:- (1) where a father or stepfather is charged with sexually abusing a young daughter of the family, is evidence that he also similarly abused other young children of the family admissible in support of such charge in the absence of any other ‘striking similarities’. (2) where a defendant is charged with sexual offences against more than one child or young person, is it necessary in the absence of ‘striking similarities’ for the charges to be tried separately? Lord Mackay in giving the leading judgment stated:- "I would answer the first question posed by the Court of Appeal by saying that the evidence referred to is admissible if the similarity is sufficiently strong or there is other sufficient relationship between the events described in the evidence of the other young children of the family and the abuse charged, that the evidence, if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect. It follows that the answer to the second question is no, provided there is a relationship between the offences of the kind I have just described." Held, allowing the appeal in part, (1) that the relationship must be between events and not the parties and on the particular facts of this case that the evidence of the two children was not so related as to make it just to admit the evidence notwithstanding its prejudicial effect. The Court could not be sure that the jury, in coming to its decision in respect of the counts involving the son, was not influenced by the evidence of the step-daughter; (2) that the trial judge erred in failing to give the jury any directions on the ingredients of the offences charged even though the sole issue before the jury was whether the acts alleged had been committed or not and on the effect of delay on the defence when dealing with offences committed many years ago; (3) that it is the duty of prosecuting counsel to remind the judge of any omissions in his summing up before the jury retire. Obiter: the Court of Appeal gave guidance for future trials involving video interviews, namely that the transcript should be withdrawn from the jury before they retire and if, exceptionally and with the consent of both prosecution and defence, the jury are allowed to take transcripts with them, they should be reminded of the cross examination of the witness and of any evidence of the defendant given on the matters referred to. Shewan v Att.Gen. Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Le Breton) June 15th, 1998 unreported. D. J. Petit for the appellant; A. J. Belhomme for the Crown. The appellant was convicted in the Magistrate’s Court on the 17th March, 1998, on motor traffic offences. He appealed against his convictions. At the date of the hearing the appellant had not been sentenced by the Magistrate for the offences in respect of which he had been found guilty. Prior to amendment in 1996 Article 14(1) of the Police Court (Miscellaneous Provisions)(Jersey) Law 1949 ("the 1949 Law") was in the following terms:- "(1) A person convicted by the Magistrate’s Court may appeal to the Royal Court - (a) if he pleaded guilty or admitted the facts, against his sentence; (b) if he did not, against the conviction or sentence." A person convicted in the Magistrate’s Court could (in accordance with sub-paragraph (b) of Article 14(1)) therefore lodge an appeal against conviction whether or not he had yet been sentenced. However, following the enactment of the Magistrate’s Court (Miscellaneous Provisions)(Amendment No.5)(Jersey) Law 1996 ("the 1996 amendment"), Article 14(1) now reads as follows:- "A person convicted by the Magistrate’s Court may appeal to the Royal Court - (a) if he pleaded guilty or admitted the facts, against his sentence; (b) if he did not - (i) and was sentenced by the Magistrate, against the conviction or sentence; (ii) and was committed by the Magistrate for sentence under Article 4A of this Law, against the conviction." The question arose as to whether the amended wording of Article 14(1) restricted the right of appeal against conviction so that it was now dependent upon one of the two prerequisites set out in sub-paragraph (b), namely, either - (i) sentence by the Magistrate; or (ii) a formal Act of committal by the Magistrate for sentence pursuant to Article 4A of the 1949 Law. In this case the Magistrate had indicated that he intended to commit the accused for sentence before the Royal Court pursuant to Article 4A at a future date. Held, that once the Magistrate had decided to commit a person for sentence pursuant to Article 4A of the 1949 Law the right of appeal against conviction arose. It was not necessary for a formal Act of committal to have taken place. As the Magistrate had convicted and expressed the intention to commit the appellant to the Royal Court for sentence the right of appeal against conviction had arisen. Housing Att.Gen. v O’Neill Royal Ct: (Bailhache, Bailiff and Jurats Potter and de Veulle) April 3rd, 1998 unreported. S. Sharpe, Crown Advocate, for the Crown; P. M. Livingstone for the accused. The accused pleaded guilty to an offence under Article 14(1)(d) of the Housing (Jersey) Law, 1949. He had purchased shares in a company giving the right to occupy a town house although neither he nor his wife qualified under the Housing Regulations to occupy the property. Before purchasing he had sought legal advice and was fully aware of the restrictions imposed by the Regulations. The accused ignored the legal advice and purchased the shares in 1995 for £135,000, moving in to the town house shortly afterwards with his wife and child. He induced a 19 year old employee who qualified under the Regulations to enter into a sham lease whereby he and his wife purported to lease the town house to the employee who in turn would allow the accused, his wife and child to live there as lodgers. The sham lease required a rent of £200 per week to be paid by the employee to the accused as owner, and £250 per week "lodging" rent was to be paid by the defendant to the employee. None of these payments was actually made and save for one or two nights, the employee never occupied the town house. He then left the accused’s employment. In October, 1997 the matter came to the attention of the Housing Department. While an investigation was under way the accused asked his former employee to sign a second sham lease and told him to lie to the Housing officers. Initially the accused maintained that he was a lodger of his former employee. After 2½ years of illegal occupation, the accused sold the shares in the company for £210,000 making a profit of £75,000. It was accepted however that the capital profit was not relevant to sentence. The Crown moved for a fine of £5,000 and £250 costs. Held, that the proper penalty was a fine of £20,000 or six months’ imprisonment in default. The Court observed that this was "as flagrant a breach of the Housing Law as has come before this Court in recent years". [On appeal to the Superior Number the fine was reduced to £14,000 having regard to the "jump" effect on penalties for housing law infractions.] Mareva Injunctions Daniel Yachia v Seila Yahya Levi, individually and as next friend of Liona Levi, Midland Bank Offshore Limited (party cited) Royal Ct: (Hamon, Deputy Bailiff and Jurats Gruchy and de Veulle) March 26th, 1998 unreported. A. D. Hoy for the plaintiff; J. P. Speck for the defendant; M. J. Thompson for the party cited. The plaintiff, an Israeli national, obtained an injunction ex parte from the Deputy Bailiff against the defendant, who was not resident in or otherwise connected with Jersey save that she had a bank account in Jersey. The injunction was sought in support of proceedings between the same parties in the Texan courts. No substantive relief was sought in Jersey. The claim in the Texan court related to the ownership of shares (or their proceeds) transferred by the plaintiff to the defendant, his daughter. The plaintiff had transferred a portfolio of shares in Texas to the defendant and her infant daughter over which he retained control pursuant to a revocable power of attorney issued to him by the defendant. The defendant revoked the power of attorney and took control of the portfolio. The plaintiff issued proceedings in Texas against the defendant, and obtained an injunction preventing any dealing by the defendant with the portfolio. The defendant protested the jurisdiction of the Texan court. The Texan court found in the defendant’s favour on the jurisdictional issue and raised the injunction. The defendant then transferred a substantial portion of the portfolio to the party cited in Jersey. The plaintiff claimed that the defendant had improperly secured a judgment in her favour and sought a reconsideration by the Texan court of its decision, in the meantime obtaining a further injunction over the assets which remained in Texas. Pending a decision on the merits by the Texan court, the plaintiff sought and obtained an injunction from the Royal Court. The defendant conceded that, in the light of the decision of the Court of A Solvalub Ltd v Match Investments Ltd [7] the Royal Court had jurisdiction in the sense of power to grant an interlocutory injunction in aid of foreign proceedings notwithstanding the absence of a substantive cause of action in Jersey. However, the defendant argued (adopting the obiter dictum of the Court of Appeal in the Solvalub case) that absent an amendment of the Service of Process (Jersey) Rules 1994, the Royal Court lacked territorial jurisdiction over a foreign defendant and could not therefore order service of the proceedings on such a defendant outside the jurisdiction. Held, applying Krohn Gmna Shipyard (No.2) [8] that the wording of Rule 7(b) of the Service of Process Rules permitted the Royal Court to order service of process on a defendant outside Jersey where an injunction is sought which orders the defendant to do or refrain from doing anything within the jurisdiction. Obiter: the Court stated that it might have reached a different decision had this case preceded Krohn, but it felt unable to differ from the court in that case. Benest v Le Maistre CA: (Carlisle, Southwell and Clarke JJA) July 9th, 1998 unreported. A. P. Begg for the appellant; M. E. Whittaker for the respondent. The appellant appealed against an order of the Royal Court of 26th March, 1996 granting an acte à peine de prison in execution of an unsatisfied judgment debt of £19,337. Following the lodging of a notice of appeal the respondent had not enforced the order for some 20 months notwithstanding the failure to pursue the appeal with vigour. Held, dismissing the appeal upon certain terms, that it should not be for the potentially arbitrary decision of the creditor whether and when the debtor should go to prison. In the absence of any directions from the Royal Court at the time when the acte à peine de prison was granted, the respondent should return to the court for appropriate directions when she wished to enforce the order. Constable In the matter of the representation of the curator of Elsie Maud Porée née Le Turgeon Royal Ct: (Bailhache, Bailiff) April 1st 1998 unreported. M. J. Thompson for the Parish of St Helier; S. C. Nicolle QC, Solicitor General, as amicus curiae. The representation before the Court was presented by the curator of E. M. Porée, a resident in a residential home maintained by the Parish of St Helier. The Solicitor General as amicus curiae and the Parish were convened in response to the representation. The proceedings arose out of a capital charge imposed by the Parish on residents of the residential home in addition to a charge covering running costs only. The curator challenged the lawfulness of the capital charge. Three questions arose for determination:- 1. Was the Parish under an obligation to provide accommodation for the elderly poor? 2. Was the Parish entitled to impose a charge in addition to a fee representing the operational costs? 3. Was the proposed capital charge a levy or tax which was unlawful? Held, (1) that the Parish was not under an obligation to provide accommodation for the elderly poor. A parish was however under a duty to provide the means by which such accommodation could be obtained. Whether a parish met that obligation by constructing and operating residential homes or by granting financial assistance was a matter for the Parish; (2) that as there was no duty to provide accommodation, it followed that there was no reason why the Parish could not set charges at whatever level it thought fit subject to agreement with the resident; (3) that the proposed capital charge was not a levy or tax. Firstly the capital charge was not a compulsory imposition on a resident as it was always open to the resident to find alternative accommodation. Secondly the underlying purpose of the charge was to create a fund available to meet the costs of major repairs. It was a service directly referable to the operation of the home and part of the service being offered by the Parish to elderly people. [Note: The judgment contains an extensive review of the history of the obligations of the Parishes as they have developed since the 16th century.] Trusts Representation of Barclays Private Bank and Trust Limited Royal Ct: (Crill, Commissioner and Jurats Potter and Querée) July 15th, 1998 unreported. W. J. Bailhache for the representor; P. C. Sinel for the first, third, fourth and fifth respondents. The representor applied as trustee seeking directions as to the extent to which it should participate in an action commenced by the first respondent against it, to which other respondents as beneficiaries had been joined, in connection with the Desmash Family Trust, a Jersey proper law settlement allegedly executed on 19th April 1988. The trust came into being at the instance of the first respondent’s father and mother. The first respondent’s father died in 1992 leaving his widow, (the first respondent’s mother) the first respondent and the first respondent’s sister, and some grandchildren. In 1997 the first respondent brought proceedings in which he sought the delivery of accounts and documents in the possession of the trustee. The basis of the application for the distribution included an allegation that the monies held by the trustee pursuant to the terms of the settlement were held on bare trusts for the first respondent. The representor sought directions of the Court as to whether it should take any part in the main action other than file the pleading already filed, given that the widow and daughter had now been convened, and had indicated that, while they did not accept the contentions of the first respondent, they did not wish to be involved in the litigation. The trustee also sought authority from the Court for an indemnity out of the trust fund in respect of costs incurred to date and costs to be incurred in connection with the defence of the action and the administration of the settlement. Held, (1) as to procedure, on a Beddoes application of this nature, the Court would sit as if it were a Master in Chambers in the English jurisdiction; it would be appropriate that neither the judge presiding over the application nor the Jurats who sit with him should sit to hear the substantive action; the Court expects to be addressed in the main without the opposing parties being present, and therefore anticipates that the weaknesses as well as the strength of the applicant’s case be disclosed; the applicant should give a resumé of the facts in the presence of the opponent if an appearance is entered, excluding the confidential matters that might be mentioned to the Court in camera, so that the opponent could comment on that which he had heard; as far as possible the Court would expect judgment to be given in public albeit the judgment would not contain any reference to the confidential information received by the Court. (2) as to this particular application, the dispute was not wholly a beneficiaries’ dispute as there was an attack on the corpus of the trust, and was a mixture of a trust and beneficiaries’ dispute. In the circumstances the Court would approve the action taken thus far by the trustee and authorise it to continue the defence of the main action until two months after discovery and inspection, and authorise it further to be fully indemnified out of the trust fund of the settlement in respect of the costs incurred to date and the costs to be incurred of and incidental to the defence of the action, and the costs incurred and to be incurred in investigation undertaken regarding the administration of the Settlement - Alsop Wilkinson eary [9]applied. In the matter of the representation of Chase Bank and Trust Company (C.I.) Limited Royal Ct: (Hamon, Deputy Bailiff and Jurats Le Ruez and Bullen) June 2nd, 1998 unreported. J. P. Speck for the representor; J. D. Kelleher for the unborn beneficiaries. The representor made an application to rectify a deed of settlement which, although executed by the settlor, did not reflect the settlor’s instructions as expressed in a questionnaire completed prior to the drawing up of the trust instrument. Held, applying In the matter of Moody Jersey "tlement [10] that; (1) the Court had a discretionary power to order documents such as voluntary settlements to be rectified; and (2) the deed of settlement was to be rectified retrospectively, since there was more than sufficient evidence of the error in the drafting and the proposed rectification would have no fiscal implications. |