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The Jersey Law Review – February 2006
CASE SUMMARIES
This issue contains no cases from Guernsey as no reports have been published during the period under review.
JRC - Royal Court of Jersey
JCA - Jersey Court of Appeal
JPC - Privy Council, on appeal from Jersey
BANKRUPTCY
DÉSASTRE – REALISABLE ASSETS
Roach and Lamy v Viscout Royal Ct: (Birt, Deputy Bailiff and Jurats de Veulle and Allo) [2005] JRC 149.
R. Michel for Mr Roach; D. Le Maistre for Mrs Lamy; F. J. Benest for the Viscount.
In two separate désastre applications by debtors, the question arose whether the Court had jurisdiction to grant a declaration where the debtor is cash-flow insolvent, in receipt of an income but has no realisable assets in the sense of assets available for creditors. The Court had previously granted declarations even though the debtor had negligible assets, but no reasoned judgment had been given on the matter.[1]
Held, granting the application of Mr Roach but refusing that of Mrs Lamy –
(1) The general expectation under the customary law and under the Bankruptcy (Désastre) (Jersey) Law 1990 was that the debtor has property at the time of the declaration which can be realised and distributed among the creditors. A person should not, however, be too poor to be declared bankrupt and a wide interpretation should be given to the requirement for "realisable assets". Analysis of the 1990 Law showed that the Court had jurisdiction to grant an application in such circumstances.
(2) It was well established, however, that the Court still had a discretion whether to grant an application. The basic tenor of the law remains that the applicant should have current assets. Bearing in mind this factor, the interests of creditors and the time and cost of a désastre, the power to grant an application where there was only a future expectation of income and no current assets should be used exceptionally.
(3) The conduct of the bankrupt was relevant. On the facts, the Court was satisfied that Mr Roach had behaved very responsibly and had been the victim of misfortune. The Viscount supported his application. His was an exceptional case where discretion should be exercised in his favour. The Court was not satisfied, however, that Mrs Lamy had behaved responsibly in incurring and dealing with her indebtedness. Her application was not supported by the Viscount. Mrs Lamy's case was not one where the Court was able to exercise its discretion in her favour.
DÉSASTRE – ARTICLE 12, BANKRUPTCY (DÉSASTRE) (JERSEY) LAW 1990
Sappé v Vicount and others Royal Ct: (Birt, DB and Jurats Tibbo and Clapham) [2005] JRC 101.
D. Gilbert for the representor; R.J. Renouf for the Viscount.
The assets of B's father were declared en désastre in 1998. In 2002 the Court made an order under article 12 of the Bankruptcy (Désastre) (Jersey) Law 1990 ("BDL") that the father's half share in the matrimonial home be transferred to the mother, subject to the mother paying a deferred sum to the Viscount, which was interest free and secured by hypothèque conventionelle simple. One of the events which would trigger payment under the order was the death of the mother. Tragically the mother died in 2003. B was the sole heir. The representor, as tutrice of B, sought to vary the 2002 order by cancelling or reducing the amount payable to the Viscount on the ground that, as a result of unforeseen circumstances, the order would now cause great hardship to a young child (who was now 7 years old). The representor argued that there was a power to vary an order implied in article 12 itself. Alternatively it was contended that the Court had an inherent jurisdiction to vary an order under article 12 of BDL.
Held, dismissing the application –
(1) Article 12 of BDL contains no express or implied power enabling the Court subsequently to vary an order made under it. An order under article 12 is intended to be a once and for all decision.
(2) Nor does the Court have an inherent jurisdiction to vary the order. Finance and Economics Committee v Bastion Offshore Trust Company Limited[2] could be distinguished since it concerned a procedural point. The Court's inherent jurisdiction is subject to limitations: Mayo Associates v Cantrade Private Bank.[3] In this case, the jurisdiction of the Court under article 12 of BDL to transfer a bankrupt's interest in the matrimonial home to the spouse is entirely statutory and since the legislature did not itself confer a power later to vary such an order, it was not possible to find that the Court had an inherent jurisdiction to do so.
CIVIL PROCEDURE
STRIKING OUT – ABUSE OF PROCESS
Citco Jersey Ltd. and Bowden v Bank of Ireland (Jersey) Ltd. Royal Ct: (Bailhache, Bailiff and Jurats Bullen and Allo) [2005] JRC 097
D.E. Le Cornu for the first and second plaintiffs; M. Preston for the defendant.
The plaintiffs brought proceedings against the defendant by Order of Justice issued on 14 July 1999, alleging that that in or around 1990 the defendant, a bank, had acted contrary to the bank mandate. The claim was defended. After initial filings, there was no further procedural activity for three years between October 2001 and October 2004. By circular letter dated 15 October 2004 the Master included this action in the list of actions he intended to strike out pursuant to the Royal Court Rules. On 16 November 2004 the plaintiffs issued a summons requesting that the action be allowed to continue. The Master dismissed the summons and struck out the action on the grounds (a) that there had been an inordinate and inexcusable delay such that serious prejudice would be likely to be caused to the defendant if the action proceeded to trial and (b) that the delay also amounted to an abuse of the process of the Court. The plaintiffs appealed to the Royal Court. The plaintiffs contended that there would be no serious prejudice to the defendant in allowing the action to proceed because the case was document-based and did not depend on the recollection of witnesses. The plaintiffs further contended that mere delay cannot of itself amount to an abuse of the process of the Court.
Held, dismissing the appeal –
(1) The Master applied the correct principles in accordance with Birkett v James[4] as set out by the Royal Court in Garfield Bennett v Phillips.[5]
(2) As to the question of prejudice, the possibility of oral evidence being required at trial could not be excluded. Even an apparently simple matter of contractual interpretation requires the contract to be examined in context[6] and this may require evidence. Indeed this was suggested by the nature of the plaintiffs' case which did raise issues of knowledge on the part of officials of the defendant as well as claims of breach of contract, breach of trust, negligence and knowing assistance. A number of relevant employees had left employment with the defendant, which had closed down its banking operations in Jersey. The case would not come to trial before 2006 by which time 16 years would have elapsed since the events in question and the fading of memories over such a period was inevitable. There was therefore ample justification in the Master's view that serious prejudice would be caused to the defendant if the action proceeded to trial.
(3) As to the question of abuse of process, delay of itself may amount to an abuse of the process of the Court. There had been a wholesale change in the culture of litigation since Birkett v James was decided in 1978, both in England and Jersey. Following the criticism by the Court of Appeal of the conduct of the litigation in Re Esteem Settlement[7] much had changed. The Royal Court Rules now gave the Court greater authority to manage litigation and in a number of cases the Court had emphasised that litigation should to be brought to a conclusion within a reasonable time and at reasonable cost. The Master had by the circular letter to all members of the legal profession of 31 October 2003 related the Bailiff's wish to have actions disposed of, wherever possible, within twelve months of their commencement. In the present case the cause of action was alleged to have arisen in 1990 but proceedings were not commenced until 1999. In those circumstances it was particularly incumbent on the plaintiffs to proceed with all due expedition. Despite various judicial and official encouragements the plaintiffs neither communicated with the defendant nor the Court for three years; nor did they comply with Rule 6/21 in issuing a summons for directions after that Rule came into force on 1 November 2001. Where a plaintiff finds time slipping away it should comply with Rule 6/21 and seek directions or apply for a stay. The plaintiffs did neither. Procedural inactivity for three years, against the background of a nine-year delay in commencing proceedings, amounted to an abuse of the process of the Court.
Comment [TVR Hanson]
This case is not surprising in deciding that the action should be dismissed for want of prosecution. However, the obiter dictum that the case should further be dismissed as an abuse of the process of the Court represents an important development. First, the Royal Court acknowledged the "wholesale change in culture" to litigation in Jersey that was initiated by the 2000 Court of Appeal decision in Re Esteem. Such a change followed the Woolf reforms that had earlier been implemented in England and is commented upon by Hanson in No legal system is an island, entire of itself.[8] Second, the Court drew upon such change to advance the proposition that many years of procedural inactivity amounting to inordinate and inexcusable delay could, of itself, also constitute an abuse of the process of the Court. In reaching such a conclusion, the Royal Court narrowed the distance between the test for striking out a claim for want of prosecution with that for abuse of process. Whilst the Court went on to state that not every case involving inordinate and inexcusable delay will also ground a complaint of abuse of process, it was unfortunate that the Court did go on to give more guidance upon the criteria that would be relevant in any future case.
In a number of English cases, however, the court has stated that it would be an abuse of process for a plaintiff to issue proceedings but to have no intention of bringing the matter to trial, or to be guilty of a "complete, total or wholesale disregard of the Rules of the Court": see Grovit v Doctor[9] and Habib Bank Ltd. v Jaffer,[10] and Jeffrey v Flanders.[11] It may be that the Citco case properly falls within either or both of these categories although there are some indications that a looser, more pragmatic approach has also been adopted by the English courts into which the Citco case would more clearly fall: see Opec Ltd. v Expandi Systems AB, decision of Master Leslie, Queen’s Bench Division, 2004 where it was held to be an abuse of process to mount a claim that was not pursued for many years.
Given that it is not a requirement for a complaint of abuse of process to show that the defendant has sustained prejudice or that a fair trial is not possible, it is likely that applications to strike out upon this basis will become more common. However, in such circumstances, it will be important for the Court to approach any relevant abuse proportionately as not every abuse will merit an order that the action be struck out. In that respect, it is important to bear in mind article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) which requires the provision of a fair and public hearing in relation to an alleged infringement of rights, albeit that there must be a real and substantial infringement alleged: Jameel (Yousef) v Dow Jones & Co. Inc.[12]
CRIMINAL LAW
INSANITY – RECOMMENDATION FOR DEPORTATION
Simao v Att. Gen. CA: (Beloff, Rokinson and Steel, JJA) [2005] JCA 122.
C. Fogarty for the appellant; B. Lacey, Crown Advocate, for the Crown.
The appellant was sentenced by the Inferior Number to a total of 2½ years' imprisonment on guilty pleas to offences of grave and criminal assault, false imprisonment and malicious damage. The Court also recommended that he be deported after serving his sentence. The evidence at the time of sentence was that the appellant, although suffering from mental problems, was not insane. The appellant sought leave to appeal against conviction and the recommendation for deportation. It was contended by his counsel that the nature and progress of his mental illness, after sentence, showed his problems to be more serious than had been thought and were, in fact, such that the defence of insanity might have been available.
Held, dismissing the appeal –
(1) A person is insane within the meaning of article 2 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 if, at the time of commission of the offence, unsoundness of mind affected the defendant's criminal behaviour to such a substantial degree that the jury consider that the defendant ought not to be found criminally responsible: AG v Prior.[13] It is for the defendant to prove the requisite degree of unsoundness of mind on the balance of probabilities.
(2) The case had to be dealt with under the general appeal jurisdiction under articles 26(1) and 26(2) of the 1961 Law. Article 26(1) provides that the Court of Appeal must allow an appeal against conviction if it thinks, inter alia, that there has been "a miscarriage of justice" on any ground. Where the evidence was placed before a "jury", the question of miscarriage of justice should be determined by asking whether no reasonable jury could have come to the conclusion it did having regard to the totality of the evidence: Swanson v AG[14]; Bayliss v AG.[15] The present case was based upon evidence that was not placed before a jury. The Court of Appeal therefore had to place itself in the position of a notional jury, properly directed and in possession of all the material facts, and ask itself whether there is an arguable case that such a jury would be satisfied that the appellant's unsoundness of mind affected his criminal behaviour to such a substantial degree that he ought not to be found criminally responsible.
(3) Under article 26(2), the Court of Appeal, if it allows an appeal against conviction, must (subject to the subsequent provisions of Part 3) quash the conviction and direct a judgment and verdict of acquittal to be entered. A verdict of "guilty but insane" would be equal to an acquittal: the Criminal Law Commission of 1846.[16] Thus if there was a miscarriage of justice on the ground that the appellant was insane at the time of the offence, article 26(2) of the 1961 Law would apply and the Court of Appeal would quash the conviction and direct an acquittal to be entered.
(4) It was not appropriate for counsel to call the appellant's medical expert to give further evidence of which the Crown had not had notice. As it is common practice for the Court of Appeal to hear an application for leave to appeal and the substantive appeal together, it is the duty of those representing an applicant/would-be appellant to put before the Court of Appeal all evidence on which they seek to rely and to give notice of it to the Crown. The Court of Appeal therefore confined its consideration to the contents of written report of the medical expert.
(5) On the evidence, the required standard of proof under the Prior test was not satisfied.
(6) As regards deportation, the Court of Appeal had to consider whether the recommendation was manifestly excessive in all the circumstances (including the current medical diagnosis) and whether the discretion of the Court was wrongly exercised. The defendant's mental illness was, of itself, not a factor to be taken into account in his favour; nor was the fact that he was dependent on a resident of the Island. In deciding to make a recommendation for deportation, a court must balance (1) any detrimental effect to the country caused by the defendant's continued presence against (2) any adverse effect that the deportation would have on innocent persons, such as the offender's family: Nazari[17]; Mendes v AG.[18] This balancing act was most carefully carried out by the Royal Court and it was not possible to say that in all the circumstances the recommendation was manifestly excessive or that the Royal Court had wrongly exercised its discretion.
CRIMINAL PROCEDURE
COSTS OF AMICUS CURIAE
Ahmed v Att. Gen. CA: (Beloff, Rokinson and Steel, JJA) [2005] JCA 121.
Mrs S. Sharpe, Crown Advocate, for the Crown; the appellant represented himself with S. Baker as amicus curiae
The applicant applied to the Court of Appeal for leave to appeal against sentence in respect of drugs offences, a confiscation order and a recommendation for deportation. Advocate Baker had been appointed at the request of Bailiff as President of the Court of Appeal to assist the applicant in presenting his case. He applied for his costs as amicus curiae to be paid out of public funds.
Held, as regards the costs of the amicus curiae –
It was possible to construe article 3(3)(a) of the Costs in Criminal Cases (Jersey) Law 1961 (which permits the payment out of public funds of the fees of an advocate assigned by reason of the appellant's insufficient means) to cover the case. The better view, however, was that the reasonable fees and expenses of an amicus curiae were not "costs" of either party but rather costs of the administration of justice which should be paid out of public funds in any event without the need for a court order. Nevertheless, out of an abundance of caution, the Court would make the order requested by Advocate Baker.
EVIDENCE
LEGAL PROFESSIONAL PRIVILEGE
United Capital Corp. v Bender, Koonmen and others Royal Ct: (Birt, Deputy Bailiff) [2005] JRC 144.
S.J. Young for the plaintiff; J.P. Speck for the first and second defendants.
In a separate action between the first and second defendants (Koonmen v Bender), the second defendant claimed that he was due 50% of the management profits of certain investment funds managed by them. In connection with these proceedings he filed an affidavit to which were exhibited various items of correspondence with and between lawyers. In the present proceedings, the plaintiff (as assignee of another party, Mr Silverman) claimed, inter alia, to be due 25% of the same profits. The Master ordered the second defendant to disclose to the plaintiff the affidavits sworn in relation to the Koonmen v Bender action. Both the first and second defendants claimed that eight letters exhibited to the Koonmen v Bender affidavit were privileged and appealed to the Royal Court.
Held, allowing the appeal and upholding the claim of privilege –
(1) As to whether the letters were privileged –
(a) If a person wishes to claim privilege he must do so by affidavit. Where the basis of the claim for privilege is not immediately obvious from the description of the document, the affidavit should explain enough in order to make the basis of the claim clear.
(b) The letters in question dealt predominantly or exclusively with an action commenced in 2001 in New York by Mr Silverman against the first defendant and other defendants claiming his alleged share of the profits. In the event these proceedings were discontinued and the present action was brought by Mr Silverman's assignee in Jersey. The second defendant was not a defendant to the New York proceedings. Nevertheless, on the basis of "common interest privilege", privilege could be claimed by both the first and second defendants in relation to the letters: Buttes Gas and Oil v Hammer (No. 3).[19] Both defendants had a common interest in relation to the outcome, since they both knew that the profits Mr Silverman was claiming were being shared between them and litigation against both of them, and entities acting on their behalf, was a reasonable prospect.
(c) Privilege applies only if the dominant purpose for which the letters came into existence was that of being used in connection with the anticipated litigation. The plaintiff claimed that the relevant legal correspondence had originally had another purpose, namely tax planning, and that accordingly privilege could not apply. But the initial purpose of the instructions is not determinative of the issue. On the basis of the description of the documents contained in the affidavit, which was sworn by an advocate, the Court found that, regardless of the original purpose of the instructions, the dominant purpose related to the Silverman action in New York against the first defendant and the possible claim of Mr Silverman against the second defendant. Although the Court had a discretion to inspect the letters themselves (Shirley v Channel Island Knitwear)[20] it was not necessary to do so in the present case.
(2) As to whether privilege had been lost –
(a) There is a general rule that where a party chooses to waive privilege in relation to part of a document by deploying it in his case, both the opposite party and the Court must have an opportunity of seeing the whole document in order to check that what has been released fairly represents the relevant material: General Electric Insurance v Home Insurance.[21] The plaintiff argued that that was effectively the case here and that all the exhibits should therefore be disclosed. The present circumstances were, however, quite different. The defendants were not deploying the affidavit in their case but rather were disclosing it simply because they had been ordered to do so by the Master. They were thus not seeking to deploy the affidavit in a manner which would render it unfair for the other parties and the Court not to see the whole document. In these circumstances the disclosure of the non-privileged part cannot result in the loss of privilege in relation to the privileged part.
(b) The letters in question had been exhibited to an affidavit which was deployed in open court in the Koonmen v Bender action, both before the Royal Court and the Court of Appeal. The plaintiff therefore argued that privilege had been lost. The defendants, however, argued that that since the documents had not actually been read out publicly in court, had not been quoted by any judge and did not form part of the court file available to the public, they had not, in fact, entered the public domain and remained privileged. In the absence of recent authority in point, the Court found this to be the most difficult aspect of the case. Following Goldstone v Williams Deacon[22]the Court held that the test is whether the documents had in fact come into the public domain. In this case they had not. Thus privilege had not been lost merely because the documents were annexed to an affidavit which had been submitted as part of the Koonmen v Bender action.
FAMILY LAW
PARENTAL RESPONSIBILITY ORDER
G v K Royal Ct: (Obbard, Registrar) [2005] JRC 130A
N. S. Benest for the petitioner; A. D. Hoy for the respondent.
The father applied for a "parental responsibility order" under article 3 of the Children (Jersey) Law 2002 in respect of the two children of his unmarried relationship with the mother. This was contested by the mother.
The Registrar reviewed English case law in relation to analogous legislative provisions (notably Re H (Parental Responsibility)[23]) but noted that there appeared to be a recent tendency for the courts in the UK to grant "parental responsibility" to any father whose name appeared on the birth certificate. The Registrar expressed doubt as to whether such a state of affairs would be appropriate. The matter was adjourned pending the preparation of a child psychologist's report. The Inferior Number was shortly to hear the father's application for contact and the matter was therefore also referred to the Inferior Number so that both matters could be considered simultaneously.
EMERGENCY PROTECTION ORDER
VKS and PAS v Health and Social Services Committee Royal Ct: (Hamon, Commissioner and Jurats Le Brocq and King) [2005] JRC 124.
R. E. Colley for the applicants; S. Sharpe, Crown Advocate, for the respondent.
Given a history of poor parenting and suspicious injuries, two children of the marriage of Mr and Mrs S were freed for adoption by the Royal Court on 29 July 2005 without the consent of the parents (In re JS and BS).[24] Mrs S gave birth to further child on 30 August 2005. The Health and Social Services Committee were concerned for the welfare of the new child, whose name had already been added to the Child Protection Register, and, having determined that the child should be removed to alternative custody, wished to act quickly avoid the child bonding with its mother. Accordingly, very shortly after the birth, a representative of the Committee, attended by three police officers, removed the baby into temporary police protection pursuant to article 41 of the Children (Jersey) Law 2002. The following day the Committee applied ex parte to the Lieutenant Bailiff for an "emergency protection order" in respect of the child under article 37(1)(a) of the Children (Jersey) Law 2002. Article 37(1)(a) provides that the Bailiff may make an "emergency protection order" if he is satisfied that "there is reasonable cause to believe that the child is likely to suffer significant harm if (i) he is not removed to accommodation provided by or on behalf of the Committee, or (ii) he does not remain in the place in which he is then being accommodated." The Lieutenant Bailiff granted the order requested but directed that there be an inter partes hearing, which took place on 9 September 2005.
Held, rejecting the contentions of the Committee –
(1) The removal of a child from its mother at or shortly after birth is a draconian measure which requires "extraordinary compelling" justification. The fullest information must be given to the court; the evidence must be full, detailed and precise and the sources of hearsay evidence must be identified. If a baby is to be removed from its mother, arrangements should also normally be made to facilitate contact on a regular and generous basis: In re M[25] (see also article 37(10), Children (Jersey) Law 2002).
(2) The European Convention on Human Rights had not yet been applied by statute in Jersey but the relevant cases relating to article 8 of the ECHR cited by the mother's counsel were of "universal application" and much of the reasoning in those cases could be adopted: e.g. K & T v Finland.[26]
(3) There are situations which justify an ex parte application but an ex parte application will normally be appropriate only if the case is genuinely one of emergency (and even then it should normally be possible to give some form of informal notice) or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on: X Council v B (Emergency Protection Orders);[27] P C and S v UK;[28] Venema v Netherlands.[29] If the application is made ex parte the evidential burden on the applicant is even heavier: there must be the fullest, most candid and frank disclosure of all the relevant circumstances known to it and this duty extends to all relevant matters, whether of law or of fact: Re S (Ex Parte Orders).[30]
(4) Each case turns on its facts. On the facts of this case, the risk to the child had not been shown to be so significant as to justify the removal of the child under article 41 of the Children (Jersey) Law 2002. There must be "a palpable and significant risk" to justify such action. The child was to be returned to Mrs S but was made subject to a supervision order in favour of the Committee under article 24(1)(b) and article 28 of the 2002 Law and the Court additionally imposed a condition that Mrs S and the child live with a neighbouring couple, who had offered to provide support, with Mr S remaining at the matrimonial home.
FINANCIAL SERVICES
REFUSAL OF REGISTRATION AS TRUST COMPANY
Anchor Trust Company Ltd. v Jersey Financial Services Commission Royal Ct: (Birt, Deputy Bailiff and Jurats Le Cornu and Morgan) [2005] JRC 148.
C. J. Scholefield for the appellant; J. D. Kelleher for the respondent.
Anchor appealed under article 11(3) of the Financial Services (Jersey) Law 1998 against the refusal of the JFSC to register it as a trust company business. The ground of appeal under article 11(3) is that "the decision of the Commission was unreasonable having regard to all the circumstances of the case".
Held, dismissing the appeal –
(1) In determining whether a decision of the JFSC was "unreasonable" for the purposes of article 11(3), the test was not whether the decision was one which no reasonable body could have reached ("Wednesbury unreasonableness") but rather whether the decision was, in the Court's view, unreasonable: IDC v Fairview Farm Limited.[31] This is not the same as asking whether the Court would, on the merits, have reached a different decision: the Court must conclude that the decision was both mistaken on the merits and unreasonable before it can intervene: Token Ltd v Planning and Environment Committee.[32] The test of Wednesbury unreasonableness is appropriate in cases of judicial review and demands a greater degree of "wrongness" than that which asks whether the decision was unreasonable. Interface Management Limited v JFSC[33] had set out the position accurately. Walters v States Housing Authority[34] was to like effect and also followed.
(2) On the evidence, the Court was unable to find that Anchor had been treated unfairly or that there were any procedural grounds for quashing the decision. The findings of fact of the Board of Commissioners were (save for certain minor matters) reasonable and it was reasonable for the Board to conclude that Anchor's application should be refused on the grounds set out in its Letter of Reasons.
(3) It was incumbent on the executive arm of the Commission, where it appoints a third party as an inspector or as a reporting accountant, to exert the necessary pressure so as to ensure that matters are concluded with reasonable despatch. In the present case, although there had been delay, it had not prejudiced Anchor because it had given Anchor all the more opportunity to rectify matters.
ROAD TRAFFIC
PARKING IN UNLOADING BAY
Lidgett v Att. Gen. Royal Ct: (Birt, Deputy Bailiff and Jurats Le Breton and Clapham) [2005 JRC 152.
The appellant in person; J. Hawgood for the Crown.
The appellant appealed against conviction by the Magistrate Court on two counts of parking contrary to article 6(4) of the Road Traffic (St Helier) (Jersey) Order 1996 by using a vehicle, other than a vehicle delivering or collecting goods or merchandise, to wait in an unloading bay. On two occasions the appellant parked in the unloading bay on the southern side of Beresford Street, near the market, and delivered goods to shops. He was away from the vehicle for some 40 and 35 minutes respectively. On both occasions he displayed a parking disc showing his time of arrival and a card stating the name and address of his business. The bay was painted "Unloading Bay" on the road and the adjacent signs read "Unloading Bay" 2.00 a.m. – 6 p.m. Disc 1 hour limit 10 a.m. – 6 p.m. Display business name and address". The Magistrate, relying on a previous decision under article 6(4) (Mayger),[35] held that periods of 35 and 40 minutes during which there was no activity in relation to the vehicle in the unloading bay, were too long and accordingly the appellant could not be said to have been "delivering or collecting merchandise". He was found guilty.
Held, allowing the appeal –
(1) There are a number of inconsistencies between articles 6(1)(b) and 6(4) of the Order, two provisions which deal in different ways with loading/unloading from scheduled areas (article 6(1)(b)) and delivering/collecting from unloading bays (article 6(4)). The Committee had applied both provisions to this section of Beresford Street, and to other roads, but this was erroneous as the two provisions were subject to different conditions and requirements. Since the area in question was an "unloading bay" within article 6(4), a driver was not limited by the provisions of article 6(1)(b). The present signage was muddled and misleading. There was an urgent need for the Committee to review these provisions and how they had been applied.
(2) The present offence was under article 6(4) of the Order. Article 6(4) provides -
"(4) A vehicle, other than a vehicle delivering or collecting goods or merchandise shall not wait, between the hours of 2.00 a.m. and 6.00 p.m. on a day other than Sunday, on part of the road (hereinafter referred to as an "unloading bay") which has been set aside for the purpose of allowing vehicles to load or unload goods or merchandise."
The conclusions the Magistrate drew in Mayger were broadly correct. It is an implicit requirement of article 6(4) that the goods must be of a type for which a vehicle is required and the vehicle is only entitled to remain in the unloading bay for as long as is reasonable for the purpose (which might, in rare cases, be longer than one hour).
(3) It is a requirement of article 6(1)(b) that the vehicle is being used for loading or unloading whereas article 6(4) refers to the vehicle "delivering or collecting" as well as using the expressions "loading" and "unloading" in connection with the bay. Where different words are used in a statute, there is a presumption that this is deliberate and that the words have different meanings. This is particularly so where, as in article 6(4), the different words are used in the same provision. The natural construction of "delivering or collecting" is a little wider than "loading or unloading": the former also encompasses the process of going somewhere to fetch and leave something. Nevertheless there are limits. Although there is no explicit reference to "in the vicinity" in article 6(4) (unlike article 6(1)(b) read with article 39) it was nevertheless implied that the location at which goods are delivered or collected is in reasonable proximity to the unloading bay. Ultimately it is a question of fact and degree for the Magistrate.
(4) In the present case, the Magistrate erred in considering that the requirements of articles 6(1)(b) and 6(4) could and did both apply. He referred in his judgment to "loading and unloading" and to the need for the premises to be "in the vicinity" but these expressions were strictly relevant only to the offence under article 6(1)(b). There was therefore some doubt as to the test which the Magistrate was applying and on this ground it was fair to allow the appeal and quash the conviction. Had the correct principles been applied, however, it would have been open to the Magistrate to conclude, depending on his judgment of all the circumstances, that delays of 40 and 35 minutes meant that an offence had been committed under article 6(4).
TORT
CONFIDENTIAL INFORMATION
Cole v The Chief Officer of the States of Jersey Police CA: (Smith, Vaughan and Jones JJA) [2005] JCA 157.
R.J. Michel for the plaintiff/appellant; S. Franckel for the defendant/respondent.
The appellant applied for a temporary position with Jersey Post over the Christmas period in 2001. As part of the application form, he answered in the negative a question as to whether he had ever been convicted of an offence. He was provisionally offered a position by Jersey Post but was expressly told that this was subject to satisfactory police checks. In answer to enquiries by Jersey Post, the States Police disclosed to Jersey Post that the appellant had been convicted of an offence many years before. Jersey Post withdrew their offer of employment. The appellant believed that the Rehabilitation of Offenders Act 1974 applied in Jersey and that, on the basis that his conviction was "spent" under that Act, he was under no obligation to disclose it. The Royal Court[36] struck out the appellant's amended Order of Justice, which sought relief for breach of confidence, on the basis that such a claim was so tenuous as not to warrant further argument. There was, the Royal Court held, no tort of public misuse of confidential information in Jersey and the police, having a public interest to protect and having obtained the information, were bound to disclose it. The appellant sought leave out of time to appeal to the Court of Appeal.
Held, allowing the appeal in part –
(1) The considerations for granting leave to appeal were laid down in Glazebrook v Housing Committee.[37] There must be -
(a) a clear case of something having gone wrong;
(b) a question of general principle to be decided for the first time; or
(c) a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage.
(2) In this case there was a clear case of something having gone wrong and the matter was one of general principle and importance to be decided for the first time. It was not possible to state that there was no tort of public misuse of confidential information in Jersey. Such a matter could not be decided (save in the clearest cases) in interlocutory decisions or by concession. It was not clear beyond argument that the appellant was wrong when he claimed that express consent was required for the disclosure. The question of public interest was also more complex and required consideration of English cases such as R v Chief Constable of North Wales Police,[38] and A v B,[39] the affidavit evidence of the Jersey Police in this case, Home Office circular 45/1986 and other material referred to in the Court of Appeal's judgment.
(3) The proper basis for general damages was not, as had been pleaded by the appellant, his loss of reputation but injury to feelings: McGregor on Damages, 17th edition, paras.40.25 and 40.25A. Counsel for the appellant accepted that the appellant's Order of Justice should be amended so as to claim damages for damage to his feelings as well as loss of potential earnings.
(4) Accordingly, the Court of Appeal extended time so as to allow the appellant's application for leave to be made; granted leave to appeal; and allowed the appeal to the extent referred to above
TRUSTS
RECTIFICATION OF TRUST
Representation of Bedell Cristin Trustees Ltd. re Sesemann Will Trust Royal Ct: (Birt, Deputy Bailiff and Jurats Le Brocq and Clapham) [2005] JRC 151.
D. Cadin for the representor; M. Renouf on behalf of T. Hanson as representative of the interests of the beneficiaries and guardian ad litem of the minor beneficiaries.
In order to avoid a UK income tax liability affecting the settlor, a deed of exclusion was made in 1997 by the trustees of a Jersey discretionary trust whereby the settlor was excluded from benefit. Under s. 660A(2) of the Income and Corporation Taxes Act 1988, however, it was arguable that his spouse should also be excluded in order to prevent the income being deemed to be his. The trustee therefore applied to the Court for rectification of the 1997 deed by adding a provision specifically excluding the settlor's spouse and any future spouse from benefiting under the trust.
Held, dismissing the application –
(1) The test for rectification is well established:
(a) the Court must be satisfied by sufficient evidence that a genuine mistake has been made so that the document does not carry out the true intention of the party/ies;
(b) there must be full and frank disclosure; and
(c) there should be no other practical remedy.
(2) As regards the first requirement, there is a clear distinction between (a) the transaction and (b) the objective behind the transaction. The Court can rectify a document which does not reflect the transaction which the parties intended to achieve but it cannot use rectification as a method of allowing the parties to achieve some other transaction which, in hindsight, would have been more desirable: Racal Group Services Limited v Ashmore;[40] Sherdley v Sherdley.[41] That there is fiscal motive for rectification is in itself no bar; but the proper boundaries of the remedy cannot be exceeded.
(3) Whilst the objective of the 1997 deed was to achieve the result that the income of the trust fund could not be attributed to the settlor for UK income tax purposes, the intended method for achieving this end was to exclude the settlor absolutely from benefit. The 1997 deed did that. What happened was that those advising the trustee had failed to take into account s. 660A. The deed may or may not have failed in its objective, but it did achieve the intention of the parties. The trustee was not advised to exclude the settlor's spouse and that could not therefore be said to be the settlor's intention. Accordingly it could not be rectified now simply because the parties wished that a different document had been drawn up and the application was refused.
Comment [TVR Hanson]
As the Deputy Bailiff observed in an exchange with Counsel, this is the first known case of the Royal Court declining to order rectification of a Jersey trust. In Matthews “Theirs is not to reason why”[42] criticism was made of an apparent lack of vigour in scrutinising one such previous application. However, the Sesemann case makes clear that even where it is only a foreign revenue body who may potentially suffer from a successful application to rectify a deed, the Royal Court does in fact scrutinise such applications with particular care and according to what is now a well developed legal test.
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