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The Jersey Law Review - February 2003
STAY OF PROCEEDINGS
Obelisk International Trust Company (Guernsey) Ltd v Grand Circle Safaris LLC. Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Clapham)  JRC 208.
A.J. Clarke for the representor; J.P. Speck for the respondent.
The representor and the respondent agreed in writing to the formation of a Jersey company as part of a joint venture. That agreement included a clause that referred to arbitration any dispute between the parties in respect of a breach or the termination or any matter arising out of the termination of the agreement. The original object of the company was, however, no longer capable of fulfilment owing to differences between the parties which included allegations by the representor of breach of the agreement by the respondent. The representor (who was a 50% beneficial owner of the company) applied under article 155 of the Companies (Jersey) Law 1990 for the company to be wound up upon just and equitable grounds. The respondent, being the other 50% beneficial owner, sought to enforce the arbitration clause and applied under article 6(1) of the Arbitration (Jersey) Law 1988 for the proceedings to be stayed.
Held, that whilst there were certain matters alleged in the representation that amounted to a breach of contract, there were other relevant matters that did not. Further, the issue of a potential breach of contract was entirely separate from the question of the continued existence of the company and, accordingly, the relief sought in the representation was not a matter covered by the arbitration clause and article 6(1) of the Arbitration (Jersey) Law 1988 did not, therefore, apply.
Obiter: had the provisions of article 6(1) of the 1988 Law been satisfied, the Court would have been required to order a stay and would have had no discretion in the matter.
RECIPROCAL ENFORCEMENT OF ORDERS
In Re Bomford Royal Ct: (Bailhache, Bailiff and Jurats Rumfitt and Tibbo)  JRC 164.
S. Young for the trustee in bankruptcy.
The Exeter County Court had requested the assistance of the Royal Court in respect of collecting in the assets of the bankrupt pursuant to s. 426 of the Insolvency Act 1986. The major creditor in the bankruptcy was the Inland Revenue whose claims amounted to 90% of those filed with the trustee in bankruptcy.
Held, notwithstanding the rule that the Court will not directly or indirectly enforce the penal or revenue laws of another state, the existence of other creditors in the bankruptcy made it appropriate for the Royal Court to grant the assistance requested pursuant to article 48 of the Bankruptcy (Désastre) (Jersey) Law 1990.
Glazebrook v Housing Committee of the States of Jersey CA: (Nutting, Smith and Rokison JJA)  JCA 21.
P.C. Sinel for the appellant; S.C. Nicolle Q.C., Solicitor-General, for the respondent.
This was an application for leave to appeal against an interlocutory order of the Royal Court under article 13(e) of the Court of Appeal (Jersey) Law 1961. Leave to appeal had not been sought before the Royal Court.
(1) Following Mayo Associates v Cantrade Private Bank, Switzerlandand States Greffier v Les Pas Holdings Ltd., an application for leave to appeal ought to be made initially to the lower court. An applicant who applies for leave to the Court of Appeal without having applied below, may expect to be penalised in costs in default of a cogent explanation for not having followed the proper procedure;
(2) an applicant seeking leave to appeal to the Court of Appeal at a plenary session of that Court, should normally prepare for the leave application as if it were a full application to that Court;
(3) leave to appeal ought only to be granted where: (i) applying the dictum of Vaughan Williams LJ there was a clear case of something having gone wrong in the court below. The test of a prima facie case that an error had been made by the lower court, had been wrongly attributed to Vaughan Williams LJ and ought not to be applied; (ii) the case involved a question of general principle, decided for the first time (per Lord Esher Ex p Gilchrist, re Armstrong; (iii) the case involved an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage (per Bankes LJ Buckle v Holmes).
JUDGMENTS AND ORDERS
Jersey Evening Post Ltd v His Excellency Sheikh Hamad Bin Jassim Bin Jaber Al-Thani and others Royal Ct: (Bailhache, Bailiff and Jurats de Veulle and Allo)  JRC 227.
N.M. Santos-Costa for the representor; F.B. Robertson for the first respondent; D.F. Le Quesne (guardian ad litem) cited as second respondent; M.J. Thompson for the third respondent; J.D. Kelleher for the fourth respondent; C. E. Whelan for the fifth respondent.
The first respondent had made an application under article 47 of the Trusts (Jersey) Law 1984 in respect of which the Court made an order on October 10th, 2001, (“the first order”) directing that the Court should sit in camera until further order. As a result of an article being published by the representor that related to such proceedings, the Court ordered on November 21st, 2001, (“the second order”) that there be no publication in the media of any material or information or report relating to, or connected with, the in camera proceedings. The representor applied for the discharge of the two orders.
Prior to the hearing of the representor’s application, however, the substantive trust proceedings were discontinued. As a consequence, the first respondent argued that the Court was functus officio and unable to review or alter its previous two orders.
In respect of the application to discharge the first order and, further, to allow the representor access to part or all of the related Court transcripts, the first, third and fourth respondents further argued that:
(i) confidential information had been given to the Court upon the basis that the Court was sitting in private. To release the transcripts now would cause unfair and disproportionate prejudice to the first respondent;
(ii) in respect of the fourth respondent (the State of Qatar), the disclosure of the transcripts would endanger the national security of that country;
(iii) a related investigation into alleged regulatory offences had not been concluded in respect of the third respondent and the disclosure of the transcripts might prejudice that ongoing process.
Held, allowing the application in part,
(1) whilst the doctrine of functus officio applied to all civil proceedings, the second order that prohibited the reporting of the in camera proceedings was a continuing obligation. Accordingly, it was open to the Royal Court to review or discharge that order. Further, the representor had brought proceedings seeking to discharge both orders prior to the substantive trust proceedings being discontinued. The Court thereby enjoyed jurisdiction to determine such application. In any event, the Court had an inherent jurisdiction to discharge an order if it was just to do so. (The Bank v A Ltd and othersfollowed).
(2) Whilst it had not yet found statutory expression, the principle of open justice applied in Jersey (Scott v Scott and G v A followed). The principle could not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it was necessary to do so in the interests of justice.
(3) On occasions, there had been a confusion of terminology as to whether or not a court was sitting in camera or in chambers. (Barclays Private Bank & Trust Ltd v Bhander; Hodgson v Imperial Tobacco Ltd considered.) The place where the Court sat to conduct its business was entirely a matter of convenience and did not affect the important principle as to whether or not the Court was sitting in public or private. In future, a hearing “in private” ought to be preferred to the words “in camera” and consideration should be given to amending the Royal Court Rules in so far as they refer to the term “sitting in chambers”.
(4) Where the Court sits in private, it should consider whether it is appropriate for a judgment to be given in open court, announcing the order which is being made and giving some account of what has happened at the private hearing.
(5) Whilst it was not appropriate to be too dogmatic as to which applications under article 47 of the Trusts Law ought to be heard in private or in public (Re S Settlement applied), where a trustee surrenders his discretion to the Court and voluntarily discloses sensitive or confidential information relating to the affairs of the trust, the Court should sit in private to determine the application. (In re the Esteem Settlement; Barclays Private Bank & Trust Ltd v Bhanderfollowed.) Hostile litigation must be conducted in public in the ordinary course of events but where the Court is sitting administratively, or exercising a quasi-parental jurisdiction, the Court should generally sit in private. Such a private hearing was not in conflict with article 6(1) of the European Convention on Human Rights.
(6) The representor or any other member of the public was not entitled to see, examine or copy a document simply on the basis that it had been referred to in Court. (Gio Services Ltd v Liverpool and London Ltd applied.)
(7) The first order would not be discharged and the representor would not be granted access to the transcripts. Disclosure would be damaging to the national security of the fourth respondent and would be unfair to the first respondent who had disclosed confidential material. Further, any ongoing investigation into regulatory offences might prejudice future criminal proceedings against the third respondent.
(8) Subject to the Court warning that any publication of the transcripts of the proceedings that had been held in private, would amount to a contempt of court, the second order would be discharged.
Garfield Bennett v Phillips Royal Ct: (Birt, Deputy Bailiff and Jurats Le Breton and Georgelin)  JRC 214.
L.J. Springate for the plaintiff; M.L. Preston for the defendant.
In 1990 an amount of £405,000 was advanced to the defendant by Mr. Blaker (“the deceased”) for whom the plaintiff was the executor. The defendant claimed that the money was a gift so that she could purchase a house. The plaintiff claimed that the money was the consideration for the defendant’s promise to look after the deceased, who was suffering from motor neurone disease, until his death. It was said that the defendant had failed to perform this promise and that there was no cause for the money advanced. Proceedings were not however instituted until March 2000, two months before the expiry of the ten-year limitation period. The action was adjourned sine die by consent and placed on the pending list in September 2000. An answer was filed in October 2000. No action was taken in November 2000 to set the case down for trial but in March 2002 the plaintiff issued a summons for directions. In April 2002 the defendant issued a summons to strike out the action. This application was successful and the Master dismissed the action. The plaintiff appealed.
Held, dismissing the appeal and applying Birkett v James, that there had been inordinate and inexcusable delay in prosecuting the action, particularly in the context of the plaintiff’s dilatoriness in instituting proceedings, and that this delay had been prejudicial to the defendant.
Obiter: the Court considered that it was arguable whether the principle laid down in Birkett v James that an action should not generally be dismissed before the expiry of the limitation period should any longer hold sway; the principle appeared to be at variance with the modern approach to litigation.
VOLUNTARY WINDING UP
In re Leveraged Income Fund Ltd Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Potter)  JRC 209.
M. Chambers for the representor; M. Cavey on behalf of the Viscount; R. Henkhuzens, director of a shareholder company; J. Pallot on behalf of the Jersey Financial Services Commission.
The directors of Leveraged Income Fund Ltd (“the company”) applied for a winding-up order under art. 155 of the Companies (Jersey) Law 1991. The company was hopelessly insolvent and owed substantial sums to a bank which was nonetheless prepared to advance £40,000 to secure an orderly winding-up. A creditor company was concerned that this would not be sufficient to investigate the potential liability of directors of the company, and mooted the possibility of a declaration en désastre. The Viscount however had no funds to pursue possible litigation.
Held, granting the application, that it was just and equitable to appoint liquidators of the company.
CONFLICT OF LAWS
Koonmen v Bender & others CA (Nutting, Smith, Rokison JJA)  JCA 218
A.R. Binnington for the plaintiff; D. J. Benest for the first defendant; N.F. Journeaux for the second defendant; M.H.D. Taylor for the third, fourth and seventh defendants; the remaining defendants were not represented.
Leave to serve proceedings out of the jurisdiction had been granted by the Greffier in respect of certain allegations involving a trust known as the Amber Employee Benefit Trust (“AEBT”). The Royal Court had refused to set aside the grant of leave (together with service of those proceedings) except in respect of a specific claim of resulting trust and, further, had refused to grant a stay of the proceedings on the ground of forum non conveniens. The defendants appealed.
Held, allowing the appeal,
(1) whilst the jurisdiction of the Jersey Court can be invoked on the ground that there is alleged to be trust property within the jurisdiction (Rule 7 of the Service of Process (Jersey) Rule 1994) there were two further questions that needed to be considered:
(i) had the plaintiff shown that there was a serious issue to be tried;
(ii) had the plaintiff shown that Jersey was clearly the most convenient forum for the resolution of the issues?
(2) In respect of the first question, whilst the Court may need to examine the case pleaded against each defendant, the Court should not embark upon a trial of the action. In this case the Royal Court was probably right in concluding that the plaintiff had not established a serious issue to be tried in respect of the resulting trust claim. However, it was doubtful that the Court had been right to refuse leave on that issue when it had allowed the primary case to be advanced. A conclusion on the first question was, however, unnecessary as the Royal Court had fallen into error when dealing with the second issue.
(3) Whilst the Court of Appeal would not substitute its discretion for that of the Royal Court, there was one significant factor that had effectively been dismissed from the Royal Court’s consideration that should have been taken into account; the trust deed contained an express choice not only of Anguillan substantive law, but of Anguilla as the forum for the resolution of disputes relating to the trust. There was no meaningful distinction between such a clause and a clause that expressly conferred exclusive jurisdiction. The Court should only override an agreed choice of forum in exceptional circumstances and such circumstances did not apply in the instant case. Accordingly, leave to serve the proceedings out of the jurisdiction, and the service thereof, would be set aside.
(4) The above factors were similarly relevant with regard to the application to stay the proceedings. Anguilla was clearly and distinctly the more convenient forum for the resolution of the dispute as a whole. Accordingly, the proceedings would be stayed.
Croke and others v Att. Gen. CA: (Southwell, Nutting and Tugendhat JJA)  JCA 167.
C.J. Scholefield for Croke; B.H. Lacey, Crown Advocate, for the Crown.
C pleaded guilty to two counts of possession of heroin with intent to supply and one count of importation of heroin, and was sentenced on the possession with intent to supply counts to 7 years’ and on the importation count to 11 years’ imprisonment concurrent. The evidence showed that he had lived off the proceeds of drug trafficking since 1995 and had no other employment during that time. He recruited a courier and was involved in the onward supply of heroin. The Royal Court, applying the reasoning in Att. Gen. v Valler, took a starting point of 14 years’ imprisonment for the importation count and deducted three years for the available mitigation.
On appeal counsel contended that the Royal Court should have applied a starting point from the relevant sentencing band in Att. Gen. v Rimmerof 10-13 years.
Held, dismissing the appeal, that the Royal Court had been right to take into account inter alia the offences other than the importation in determining C’s degree of involvement in drug trafficking and the appropriate starting point.
Att. Gen. v Holden Royal Ct: (Birt, Deputy Bailiff and Jurats Querée and Allo)  JRC 170.
C.E. Whelan, Crown Advocate, for the Crown; J.C. Gollop for the defendant.
The defendant, a man aged 34 and of previous good character, had pleaded guilty to manslaughter resulting from a single punch to the face of his victim whom he had pursued, despite the efforts of the defendant’s friends to restrain him from doing so.
Held, the “starting point” of 12 months’ imprisonment for “one punch manslaughter” cases as stated in R v Colemanwas not of general application or some form of straitjacket. [Attorney General’s Reference No. 100 of 2001, (Alfred Robert Walch) followed]. The appropriate sentence in this case was found to be one of 3 years’ imprisonment.
Snooks and Dowse v UK ECHR (Fourth section)  JECHR 182A.
The applicants were convicted of drug-related offences and sentenced to terms of imprisonment. They complained inter alia (1) that in the case of one applicant the Deputy Bailiff had summed up to the Jurats in private and (2) that in both cases the Deputy Bailiff had retired with the Jurats when they were considering their verdicts and/or decisions as to sentence. The UK Government responded as to (1) that the usual practice was now that summings-up were delivered in public and that this point had not been taken before the Court of Appeal, and as to (2) that there was nothing untoward about this practice in that the Deputy Bailiff was a reserve judge of fact as well as being a judge of law.
(1) that the applicant had failed to exhaust his domestic remedies and the complaint was therefore inadmissible;
(2) that the fact that the Jurats retired with the Deputy Bailiff did not affect the impartiality or the independence of the Royal Court; it was not incompatible with art. 6 of the Convention that the independent and impartial constituent parts of a single tribunal retired together to deliberate on the decisions before them; the application was manifestly ill-founded and was therefore inadmissible.
EXCLUSION OF EVIDENCE
Att. Gen. v Caboz Royal Ct: (Hamon, Commissioner)  JRC 206
N.M. Santos Costa, Crown Advocate, for the Crown; R. Tremoceiro and M.L. Preston for the accused.
The accused was charged, inter alia, with the attempted murder of his wife. The prosecution sought to adduce evidence of the violent conduct of the accused during the marriage. The accused sought to exclude it on the basis that there was no evidence of motive and that, relying upon an unreported decision of the English Court of Appeal in R v Berry, evidence of his previous violence should be excluded.
Held, applying R v Williams, that where the continual background of history relevant to the offence charged would be incomplete or incomprehensible without evidence which might establish the commission of some other criminal offence, such evidence should not necessarily be excluded, and would not be excluded in this case.
Per curiam: the Court criticized the standard of translation of some documents from Portuguese and suggested that if necessary a translator outside Jersey should be found.
Att. Gen. v Knowles Royal Ct: (Hamon, Commissioner)  JRC 178.
N.M. Santos Costa, Crown Advocate, for the Crown; D. Cadin for the accused.
The accused was committed for trial by the Royal Court, pursuant to the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998 (a paper committal) on a charge of grave and criminal assault. In correspondence the Crown Advocate indicated that he intended to call the accused’s girlfriend to give viva voce evidence but later changed his mind. Counsel for the accused applied to compel the Crown to call the girlfriend.
Held, rejecting the application and applying the principles set out in R v Russell-Jones, that the Crown had a discretion whom to call as witnesses for the prosecution, that that discretion should be exercised with due regard to traditional considerations of fairness, and that the Court would not on the facts of this case interfere with the Crown Advocate’s exercise of discretion.
INVESTOR PROTECTION - PRESCRIPTION
Jersey Financial Services Commission v AP Black (Jersey) Ltd and others CA: (Southwell, Nutting, Tugendhat JJA)  JCA 168.
A. J. Olsen for the appellant; D. Gilbert for the first and fourth respondents; A.R. Binnington for the second respondent; W. Grace for the third respondent; A. D. Hoy for the investors.
This was an appeal against the decision of the Royal Court reported at 2002 JLR 294. The appellant had commenced proceedings in 2000 against each of the respondents pursuant to article 20(7) of the Collective Investment Funds (Jersey) Law 1988 (“the 1988 Law”). Article 20(7) enabled the Court to order the respondents to pay monies into Court, inter alia, for distribution to investors who, in this case, had sustained losses under an investment scheme that had collapsed in 1993.
Upon considering the question of prescription as a preliminary issue, the Royal Court had held that (i) the appellant was seeking to enforce a right of action vested in it by article 20(7); (ii) the right of action was one “founded on tort” and therefore fell within article 2(1) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960 (“the 1960 Law”); (iii) the right of action had arisen more than three years prior to the issue of proceedings and accordingly (iv) the proceedings were prescribed.
Held, allowing the appeal, that
(1) applying Arya Holdings Ltd v Minories Finance Ltd, “tort” in Jersey law was the same as in England insofar as it involved the existence of three essential elements: (i) a duty owed to the plaintiff by the defendant; (ii) breach of such duty by the defendant and (iii) actual or threatened damage caused by and flowing from that breach;
(2) proceedings pursuant to article 20(7) of the 1988 Law did not meet such criteria: there was no duty owed by the respondents to the appellant; there was no damage or loss sustained by the appellant or any question of damages being paid to the appellant. Article 20(7) gave the appellant a regulatory power exercisable as a matter of public law to apply to the Court for a civil, as opposed to a criminal sanction; it did not confer a right of action in tort;
(3) there was in fact no prescription period applicable to proceedings under article 20(7) of the 1988 Law and the Court would not conjure up a prescription period where none existed by development of Jersey customary law. Instead, the respondents were protected from the effects of delay by their ability to strike out proceedings as an abuse of process; apply for judicial review of the decision to institute proceedings and, finally, in the discretion that the Court ultimately enjoyed were it to make any order.
Per curiam: the Court repeated the warning in Public Services Committee v Maynardthat the hearing of preliminary issues tended to delay proceedings rather than to shorten them.
Editorial note: the respondents’ application for special leave to appeal to the Privy Council was refused on December 19th, 2002.
STATUS OF FOETUS
In the matter of X Royal Ct: (Bailhache, Bailiff and Jurats Potter and Clapham)  JRC 202.
S. Sharpe, for the applicant; V. Stone as guardian ad litem of X.
The Attorney General applied for a declaration that the Health and Social Security Committee would not be acting unlawfully in releasing samples from X’s aborted foetus to the police. X had been aged 14 at the time of conception and was 16 at the date of the hearing. The samples were necessary so as to enable the police to carry out DNA tests and establish the paternity of the foetus with a view to the prosecution of the father for unlawful sexual intercourse with a child pursuant to article 4 of the Loi (1895) modifiant le droit criminel. X refused to give her consent to the release of such samples but the parents of X had sworn affidavits agreeing to their release.
Held, refusing the application, that
(1) applying Davis v Davis, the foetus was not capable of forming the subject of a true property interest, but X had an interest in the foetus that was in the nature of ownership; she had the authority, within the bounds of public decency and the general law, to make decisions concerning its disposition;
(2) accordingly, X’s consent was required before the Committee could release tissue from the foetus to the police;
(3) notwithstanding that X was 16 at the time of the hearing, and therefore still a child, the parents’ wishes for the tissue to be released did not override X’s refusal to grant consent but did amount to a matter that ought to be taken into consideration by the Court: Gillick v West Norfolk and Wisbech Area Health Authorityapplied;
(4) whilst the Court had inherent jurisdiction in relation to minors and could override X’s refusal to grant consent, the Court was not satisfied that the interests of X would be served by overriding such refusal: Re an Infant; Re W (a minor) (medical treatment) applied.
Per curiam: the Court observed, however, that any evidence of non-consensual sexual intercourse, duress or pressure applied to X so that she withheld her consent to the release of the samples, might have justified overriding her views.
DUTIES OF ADVOCATES
Moran v Comprop Ltd and Perry’s Ltd CA (Southwell JA)  JCA 220A.
J.Bell and A.P.Begg for the appellant; S.J.Young for the respondent.
During the course of an application for a stay it emerged that the current practice as to the allocation of legal aid certificates was that a fresh certificate is issued to a different advocate for any appeal proceedings. Southwell JA observed that this practice inevitably involved duplication of time, effort and expense as the new advocate read himself or herself into the case. It was not in the interests either of the litigant or the legal profession. The judge of appeal directed that these observations be referred to the Bâtonnier in order that consideration could be given to a change in practice.
CREATION - CERTAINTY
In re Double Happiness Trust Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Allo)  JRC 235A.
J.P. Speck for the representor; C.G.P. Lakeman, guardian ad litem of minor beneficiaries.
The Double Happiness Trust (“the settlement”) was drafted by accountants in Hong Kong in 1997. The trustee sought directions from the court as to the construction of certain provisions or, in the alternative, a declaration that the settlement was void for uncertainty. Clause 1 of the settlement described the beneficiaries as being inter alia “the children or remoter issue of the settlor and Mrs. GW namely ..” and there followed four names. Two were the children of the settlor and two were the children of Mrs. GW. None was the child of the settlor and Mrs. GW. The further question arose as to whether the word “namely” precluded any further children of the settlor and Mrs. GW from being beneficiaries. Clause 4 provided that on the Vesting Day (which was not defined) the trustee should transfer the trust fund to the beneficiaries named in a particular sub-paragraph in equal shares absolutely; only the settlor was however named in that sub-paragraph. As to the trusts applicable between the date of creation of the settlement and the Vesting Day, the deed was silent. There was however a provision that “in default of any appointment whether by the settlor or the trustees …. the trustees shall hold the trust fund … for the benefit of the individuals specified in Schedule 2…”. The deed conferred no power of appointment on the settlor and no trusts were discernible from the terms of Schedule 2.
Held, that a valid trust required certainty as to the subject matter, the beneficial interests and the beneficiaries; that the provisions regarding the beneficiaries were confusing and inconsistent, and that it was impossible to construe the deed in such a way as to create certainty with regard to the beneficial interests; that the settlement would accordingly be declared void for uncertainty.
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