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The Jersey Law Review – February 2004
CASE SUMMARIES
The Editorial Board has decided to include in this section of the Review selected cases from Guernsey which might be of interest to subscribers. The following key indicates the court to which the case reference refers.
JRC - Royal Court of Jersey.
GRC - Royal Court of Guernsey.
JCA - Jersey Court of Appeal.
GCA - Guernsey Court of Appeal.
JPC - Privy Council, on appeal from Jersey.
GPC - Privy Council, on appeal from Guernsey.
CIVIL PROCEDURE
PLEADING – STRIKING OUT
Cole v Committee for Postal Administration and States of Jersey Police Royal Ct: (Birt, Deputy Bailiff, Jurats de Veulle and Quérée) [2003] JRC 152.
The plaintiff in person; D. J. Benest for the defendants.
The plaintiff, C, appealed against the decision of the Master striking out his claim as frivolous or vexatious and/or an abuse of process.
C had applied to the first defendant for temporary employment over the Christmas period. He completed an application form, answering a question about past convictions by stating that he had none. A police check showed that C did have previous convictions which would however have been spent under the English Rehabilitation of Offenders Act 1974 ("the 1974 Act"). As a result of the police check. The first defendant withdrew a provisional offer of employment.
C issued proceedings claiming: (a) compensation against the Police for breach of the Data Protection (Jersey) Law 1987 ("the 1987 Law") and the 1974 Act; (b) against both defendants for breaches of the European Convention on Human Right or the Human Rights (Jersey) Law 2000, by reason of the disclosure of his spent convictions, without his consent; (c) damages for negligence against the first defendant, for using an application form which did not make it clear that police criminal records would be checked and specifically that the 1974 Act did not apply in Jersey; and (d) damages for negligence against the Police for, inter alia, breach of their duty to ensure that they were acting within the terms of the 1987 Law.
Held, dismissing the appeal, that –
(a) there had not been a breach of the 1987 Law, since the disclosure by the Police had been to a recipient included in the Data Register, pursuant to the terms of the law, as one of the persons to whom the Police might wish to disclose data;
(b) in any event, the States had not intended to confer on data subjects a private law cause of action for breach of the 1987 Law, in the circumstances of this case;
(c) no claim could be brought under the 1974 Act, as it had no application to Jersey;
(d) the Human Rights (Jersey) Law 2000 was not yet in force and the Court had no jurisdiction to make an award of damages, or to give any other remedy for its breach, even if proven;
(e) an employer owed no duty of care towards a potential employee in respect of the processing of applications for employment (Kapfunde v Abbey National Plc and hence the first defendant could not be liable, even if the application form had been negligently prepared;
(f) the claim in negligence against the Police was likewise incapable of succeeding, since the Police owed C no duty of care.
WITHDRAWAL AND DISCONTINUANCE OF ACTION
Barclays Private Bank & Trust Ltd. v Grima Royal Ct: (Birt, Deputy Bailiff) [2003] JRC 212.
M.J. Thompson for the plaintiff; P.C. Sinel for the defendant.
Upon the allegation of the defendant’s brother, supported by certain handwriting evidence, the plaintiff bank alleged that the defendant had forged his mother’s signature in order to transfer monies from a joint account into the defendant’s sole name. Subsequent to the grant of a Mareva injunction freezing the transferred monies, both the mother and the brother died so that the monies originally held in the joint account would have accrued by survivorship to the defendant in any event. The plaintiff accordingly sought to discontinue the proceedings with no order as to costs. The defendant applied for costs and enforcement of the plaintiff’s undertaking in damages given in support of the injunction.
Held, adjourning the applications, that –
(1) the Court should first decide whether or not to enforce the undertaking in damages. If it decided to do so, then it had to go on and decide the separate issues as to what damage had been suffered and what compensation should be ordered;
(2) the party discontinuing proceedings had to provide some justification that took his case out of the ordinary so as to avoid costs and the enforcement of any undertaking in damages;
(3) whilst it was undesirable to force parties to proceed to trial merely to decide costs or the enforceability of the undertaking in damages, there was a competing consideration that discontinuance would prevent the defendant from rebutting the serious allegations made against her;
(4) having weighed up the various considerations in this case, the Court directed that there should be a hearing to determine whether or not the Court should enforce the undertaking in damages against the plaintiff, upon the assumption that the defendant had not forged the transfer instructions.
CONFLICT OF LAWS
Hindocha & ors v Gheewala Privy Council: (Lords Hoffman, Hope of Craighead, and Walker of Gestingthorpe, and Sir William Aldous) [2003] JPC 212B.
The name of counsel for the appellant is not reported; Miss Dohmann QC (of the English bar) for the respondent.
This was an appeal against the judgment of the Jersey Court of Appeal reported at 1999 JLR 154 that set aside the order of the Royal Court reported at 1998 JLR N-7. The Royal Court had held that it was more suitable for the action to be tried in Kenya and accordingly had granted a stay of proceedings in Jersey on the ground of forum non conveniens.
Held, allowing the appeal that –
(1) the defendants who opposed the action proceeding in Jersey had missed a tactical advantage in not applying to set aside the grant of leave to serve proceedings out of the jurisdiction as this would have placed the burden upon the plaintiff to show that Jersey was the appropriate forum. Nevertheless, such failure did not disentitle the defendants from applying for a stay;
(2) an application to stay proceedings was essentially a matter of case management and had to be disposed of in a reasonably summary way. An appeal should be rare and the appellate court should be slow to interfere (dicta of Lord Templeman, Spiliada Maritime Corporation v Cansulex Ltd. applied);
(3) the Court of Appeal’s criticisms of the Royal Court, although not wholly unfounded, were not such as to lead to the conclusion that the Royal Court’s exercise of discretion was fatally flawed. Accordingly, the Court of Appeal ought not to have interfered with the exercise of the Royal Court’s discretion.
CRIMINAL LAW
SENTENCE – MENTAL ILLNESS
Att. Gen. v Le Blanq Royal Court: (Bailhache, Bailiff and Jurats Le Ruez and Georgelin) [2003] JRC 165.
A.J.Belhomme, Crown Advocate, for the Crown; P.J. Le Cornu for the defendant.
The defendant had been convicted after a jury trial of grave and criminal assault upon his father whom he had threatened and struck with an iron bar at the father’s home in the early hours of the morning. The defendant was further found guilty of demanding money with menaces. Whilst the jury had rejected the defence that he was not guilty by reason of insanity, the defendant was suffering from a serious mental illness that required treatment.
In sentencing the defendant to 3 years’ probation upon conditions, inter alia, that he co-operate with the care and treatment directed by the consultant psychiatrist, the Court noted the lack of any power to impose a hospital order that would have been its preferred option. The only available alternative to probation was a sentence of imprisonment where the defendant might not receive appropriate treatment and his condition might deteriorate. The Court recommended that the legislature give urgent consideration to reform of the law so as to confer such power. The Court observed that this defect had been pointed out in the Court of Appeal decision in Att. Gen. v Coutanche and in other subsequent cases.
CRIMINAL PROCEDURE
APPEALS
Green v Att. Gen. CA: (Bailhache, Bailiff, Southwell and Beloff JJA) [2003] JCA 125A.
R. Juste for the appellant; M. R. Renouf, amicus curiae; C. E. Whelan, Crown Advocate, for the Crown.
The Court considered conflicting decisions of the Court of Appeal in relation to the exercise of the discretionary power conferred by art. 35(4) of the Court of Appeal (Jersey) Law 1961 to disallow up to six weeks of the time spent in custody pending appeal by “specially treated” prisoners in computing the length of the sentence of such prisoners. Those decisions were McClements v Att. Gen. and Breen and others v Att. Gen.
Held,
(1) that appellants were “specially treated” notwithstanding that other prisoners were in fact allowed most of the privileges accorded to appellants, and that Crawford v Prison Board was correctly decided;
(2) that the Court did have a discretion under the relevant statutory provision to disallow time;
(3) that, having regard to Monell and Morris v UK and other ECHR jurisprudence, the procedural rules and the administration of the legal aid system fell short of the express and implied desiderata for the application of such a discretionary power;
(4) that the rules should be changed or practice directions should be issued so as to ensure that there was compliance with ECHR jurisprudence before the discretionary power conferred by article 35(4) was exercised.
Editorial note: such a practice direction has now been issued. See Court of Appeal Practice Direction 2003/11 of September 19th, 2003, now at paragraph 3A of the Court of Appeal Consolidated Practice Direction.
INCOME TAX
PROFITS FROM TRADE
Bath Ltd. v Administrator of Income Tax Royal Ct: (Talbot, Lieutenant Bailiff) [2003] GRC 3rd November 2003.
StJ. Robilliard for the appellant; R. McMahon, Crown Advocate, for the respondent.
The appellant company had entered into a transaction at arms length with an English investment company in need of funds whereby it invested £500,000 in the English company through the purchase of 500,000 preference shares with a par value of £1 per share. The appellant granted the English company a series of options allowing it to purchase batches of the preference shares at specified prices increasing with the passage of time and expressed by reference to the par value. In default of exercise of the call options, the appellant was able to exercise put options to sell its shares at fixed prices if it did not wish to retain them. The English company in fact exercised the call options within a comparatively short period. The respondent assessed the appellant as liable to income tax on the profits received. The appellant contended that these were capital receipts and therefore not liable to taxation. The Guernsey Tax Tribunal held that the receipts were liable to income tax. The appellant appealed to the Royal Court.
Held, the Court was bound by the findings of fact made by the Tribunal to the extent that they were true findings of fact based on the evidence as opposed to “facts” found by the Tribunal themselves by considering their own experience of business life. The true construction of documents of the kind material to this case was, generally, a question of law. The Tribunal had misdirected itself as to the evidence in the case and had done far more than rely upon their own experience in the way that finders of fact sometimes do when exercising a judicial or quasi-judicial function. The Tribunal had seriously misunderstood the way in which the option provisions operated. The only safe course was to ignore the reasoning of the Tribunal. Rather than remit the case to a differently constituted tribunal for re-hearing it was possible for the Court to decide the appeal itself. It was also in the interests of justice and of the parties to do so. The law of Guernsey in the present context closely resembled the law of Englandbefore capital gains tax was introduced in the United Kingdom. Accordingly, English cases were of value in deciding the issue. It was necessary to look at the structure of the transaction to identify whether any profit which might be received would be received as capital or income. The provisions of the relevant agreement were capable of one legal meaning only throughout the material period. The “profit” elements in the sale proceeds of the preference shares were capital receipts, which included capital gains received on the realisation of investments by the appellant company in the English company, and not income receipts. Any dividends received by the appellant company would have been received as income for which it would have been assessable to income tax under section 2(4) of the Income Tax (Guernsey) Law 1975.
Per curiam: The Tribunal was criticised for delays in failing to give its written reasons until 10½ months after the oral hearing, and for taking a further 9½ months to produce the Case Stated.
LAND LAW
SERVITUDE RÉELLE
Russell & Caine v Gillespie & Ford Royal Ct; (Rowland, Deputy Bailiff) [2003] GRC 17.
N.J. Barnes for the plaintiffs; F.J. Haskins for the defendants.
The parties were the successors in title respectively of adjoining parcels of land in the vicinity of Le Gouffre. The land had been in the ownership of a single individual who had bequeathed what was now the plaintiffs’ cottage to his former housekeeper. The gift included “the right on foot and with all vehicles over and by way of the drive and yard owned with the (other property - a house) … to pass and repass at all times between the premises devised … and the public road.” After the death of the testator the will was registered in the normal way following application to the Royal Court. The house was subsequently sold. The former housekeeper was added as a party to the conveyance in which the right of way to the cottage was confirmed and ratified (as well as the boundaries) with the purchasers expressly acknowledging that the former housekeeper and her successors in title would be allowed right of way on foot and with all vehicles over and by way of (the driveway). Subsequently the defendants’ immediate predecessors in title erected a gate and posts across the driveway. The gates were re-hung by the defendants who claimed that because the will did not express the right of way to be in perpetuity the testator had granted a right of way to the former housekeeper personally which could not benefit successors in title. It was said also that the subsequent conveyance did not vary or enhance the right of way. Although the land was enclavé and had been in the ownership of a single individual the plaintiffs did not claim a servitude of necessity and/or rights arising through the principle destination du père de famille given the uncertainty and cost involved in negotiating such with the defendants (although neither principle was in doubt).
Held, the servitude was a servitude réelle, following the classification of Basnage, which classification had also been adopted by Laurent Carey in his Essai sur les Institutions, Lois et Coutumes de Guernsey. The servitude ran with both the servient and dominant land. This was the essence of a praedial or real servitude in Roman law, a real right in English law and a servitude réelle or servitude prédiale in the Coutume de Normandie. If a servitude was a servitude réelle then, by its very nature, it was to be regarded as enduring for the benefit of successors in title unless expressly restricted. The Court cited passages in Fournel, Traité du Voisinage, and Pardessus, Traité des Servitudes both of which were treated as authorities in Guernsey on matters concerning servitudes. If the parties could not now reach agreement as to the placement of the posts and gate it would be a matter for the Jurats as a question of fact whether or not it was reasonable for them to be maintained in the present position, having regard again, inter alia, to Pardessus’ observations concerning the manner in which the owner of a servient tenement must tolerate a servitude réelle.
Per curiam: Should the matter have to come back before the Jurats the Court would expect counsel to have researched thoroughly the relevant Norman and French authorities.
ROAD TRAFFIC
DISQUALIFICATION FROM DRIVING
Mahé v Att. Gen. Royal Ct. (Superior Number): (Bailhache, Bailiff and Jurats de Veulle, Tibbo, Le Breton, Georgelin and Allo) [2003] JRC 204.
S. E. Fitz for the appellant; S. Sharpe, Crown Advocate, for the Crown.
The appellant was sentenced to a term of imprisonment for various road traffic and other offences and disqualified from driving for two years “to commence from release”. He appealed against the disqualification contending that the Inferior Number had no power to defer its operative effect in that way. Counsel relied upon the English cases of R v Sibthorpe and R v Meese in support of her contention. The Crown Advocate contended that neither of these authorities should be followed and that the Court was free to set its own policy.
Held, allowing the appeal, that –
(1) as a matter of general policy a punishment should take effect when it was imposed;
(2) administrative action permitting conditional early release of prisoners in certain circumstances would have the effect of causing uncertainty as to when a period of disqualification had commenced;
(3) the disqualification would take effect from the date of sentence.
SHIPPING
ACCIDENT AT SEA
Thompson & another v Masterton & another Royal Ct: (Newman, Lieutenant Bailiff and Day, Lieutenant Bailiff) [2003] GRC July 2nd and September 11th.
G.S.K. Dawes for the plaintiffs; A.M. Merrien for the first defendant; M.G. Ferbrache for the second defendant; HM Comptroller as amicus curiae for the interest issue.
The plaintiffs had suffered serious injuries in an accident at sea. In an earlier hearing the defendants had each been found liable to the plaintiffs. After quantum had also been determined the defendants took two further points decided in separate judgments of Lieutenant Bailiffs Newman and Day respectively. The defendants argued first that that the limited liability provided for by the Convention on Limitation of Liability for Maritime Claims 1976, as incorporated into Guernsey law by the Merchant Shipping Act 1979 (Guernsey) Order 1980, included liability for costs; and secondly that the rate of interest payable on the amount as limited by the Convention ran at 0% in Guernsey law because of a failure on the part of the Advisory and Finance Committee to set a rate.
Held,
(1) the Convention did not limit a defendant’s liability for costs. Liability for costs was not a claim within the meaning of the Convention. Accordingly the defendants were each (potentially) liable for costs in addition to an amount up to the limitation figure in respect of loss and damage;
(2) the rate of interest payable was in fact 12% from the date of the accident until constitution of the fund, when and if a fund were constituted. On a proper construction of the 1980 Order, the Merchant Shipping (Liability of Ship Owners and Others) (Rate of Interest) Order 1986 made by the Secretary of State for Transport (and registered by the Royal Court) had effect in Guernsey. It was immaterial both that the Advisory and Finance Committee had power to set a rate and that the interest rate in the United Kingdom had since been reduced progressively to 1% over base rate for the time being.
Editor’s note: In a further hearing devoted to costs, Day, Lieutenant Bailiff, awarded the costs of the proceedings against the defendants with minor exceptions for certain interlocutory matters. Costs were largely ordered to be paid on an indemnity basis by the first defendant and to a lesser extent by the second defendant. Guidance was given concerning the use of expert evidence in civil proceedings.
SUCCESSION
WILLS – INTERPRETATION
Thompson v Surcouf and another Royal Ct: (Le Cras, Commissioner and Jurats de Veulle and Tibbo) [2003] JRC 175.
P.M. Livingstone for the representor; the first respondent appeared in person; A. Clarke for the second respondent.
The representor was a beneficiary under his mother’s will of immovable estate. He applied to the Court to admit extrinsic evidence bearing upon the interpretation of the will and, further, to have the will amended. The mother had devised to the representor “a garage” which he contended, properly construed, ought to include a carport and some land. In support of his contentions, he relied upon a mistake in the provenance of the land in question.
Held, the terms of the will were clear and unambiguous and, regardless of how the mother had described the provenance to the land in question, she must have known what the devise of a “garage” meant. Accordingly, extrinsic evidence would not be admitted and the application would be refused.
WILLS – REGISTRATION IN ROYAL COURT
In re Estate Hacquoil Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Allo) [2003] JRC 163.
C.J. Dorey for the representor; S. C. Nicolle Q.C., Solicitor General, for H.M. Receiver General.
The executed original will of the deceased could not be found but a photocopy held by the advocates of the deceased did exist. The photocopy was incomplete in that the signatures of the two attesting witnesses could not be ascertained from the copy.
Held, admitting the photocopied will to probate, that
(1) on a balance of probabilities, the will had been correctly executed but the photocopy had simply not captured the whole page of the will;
(2) the presumption established in JSPLA v Rees, namely, that a will traced to the possession of a testatrix but not forthcoming at her death had been destroyed with the intention of revoking it, did not apply in the circumstances of this case, where the will had never been sent to the testatrix, but only to her son.
TORT
NEGLIGENCE; DUTY OF CARE; HIGHWAYS
Dobson v Public Services Committee Royal Ct: (Birt, Deputy Bailiff) [2003] JRC 150.
The plaintiff did not appear and was unrepresented; D. J. Benest for the defendant.
The defendant appealed against the decision of the Master refusing to strike out the plaintiff's claim on the basis that it disclosed no reasonable cause of action. The plaintiff had tripped on an uneven paving slab. He asserted a duty on the part of the Committee to maintain the roadway and claimed damages for breach of that duty, which he asserted arose from statute (the Loi (1914) sur la Voirie) and at common law.
The defendant asserted that such duty as there was to repair the highway did not give rise to a private law cause of action and that it was under no common law duty of care to the defendant in respect of the repair of the highway.
Held, allowing the appeal and striking out the defendant’s claim –
(1) that, applying the principles establishing in X (Minors) v Bedfordshire CC, no private law cause of action arose for breach of statutory duty by the Committee to repair the highway;
(2) that no parallel common law duty of care arose on the part of the defendant.
The Court recommended, however, that the Jersey Law Commission review the law in this area and that the relevant Committee consider introducing appropriate legislation.
TRUSTS
VARIATION
In re Foster Will Trust Royal Ct: (Carey, Bailiff and Jurats Guille, Jory and De La Mare) GRC [2003] 035.
R.Clark for the applicant.
Mrs Foster bequeathed her residuary estate to the Rector and Churchwardens of the Town Church, St Peter Port, subject to certain life interests, “to be used by them in their absolute discretion for the repair, maintenance and improvement of the Town Church …”. The value of the reversion was in excess of £400,000. The Court had already consented to an application that the trust should be brought to an end. However, much of what was to be included in the proposed use of the bequest was already covered by the parochial rate. Equally there was no question of the gift to the church failing and the cy-près rule applying. The monies were in fact required for works to the rectory, but this purpose was held to be outside the terms of the bequest. Application was therefore made pursuant to s.55 of the Trusts (Guernsey) Law 1989 which provides -
“(1) Where trust property is held for a charitable or a public purpose, the court, on the application of Her Majesty’s Procureur or the trustees, may approve any arrangement which varies or revokes the purposes or terms of the trust or enlarges or modifies the power of management or administration of the trustees, if it is satisfied that the arrangement:
(a) is now suitable or expedient; and
(b) is consistent with the original intention of the settlor and the spirit of the gift.
(2) The court shall not approve an arrangement under sub-section (1) unless satisfied that any person with a material interest in the trust has had an opportunity of being heard.”
HM Procureur appeared at the original directions hearing but was content for the Court to deal with the matter as it thought fit.
Held, although the Church of England was not a congregational church, the Court required the Town Church’s congregation’s views to be obtained, which were found to support the application. The Court granted the application whilst noting that applications under s.55 should be approached with care. It was important that the original wishes of testators and givers of funds for charitable and other purposes did not find that their original intentions were set aside capriciously or without due cause.
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