Jersey & Guernsey Law Review – February 2009

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

BANKRUPTCY
Dégrèvement—stay of proceedings

Burby and Burby v Thompson and Bertram Royal Ct: (Birt, Deputy Bailiff) [2008] JRC 133

MLA Pallot for the applicants; MJ Thompson for the respondents.

Article 91 of the Loi (1880) sur la Propriété Foncière provides:

“Aussitôt qu’il aura obtenu la permission de procéder au dégrèvement d’un héritage … l’Attourné s’adressera au Greffier, afin que celui-ci fixe un jour pour ledit dégrèvement; lequel jour ne pourra être moins de 4 ni plus de 6 semaines après la date de l'acte accordant ladite permission …”

The question was raised as to whether the dégrèvement was void if the proceedings had been subject to successive stays by the Court with no date being fixed on the application of the Attournés and total time during which there had not been a stay now exceeded the six week period provided for in art 91.

Held, refusing the application:

The requirements of art 91 did not exclude the Court’s jurisdiction to adjourn the hearing of the dégrèvement beyond that limit if there were valid grounds for doing so, as there were in this case. The Court had all the powers which it normally has to adjourn a date where necessary in the interest of justice and there was nothing in art 91which excluded such powers. It followed that there had not been a breach of the requirements of art 91.

Obiter: A legislature often imposes time limits for certain actions to be done without spelling out the consequences of failure to comply. In the past the courts resolved the problem by deciding whether the requirement was “mandatory” or merely “directory”. In R v Soneji [1] the House of Lords substituted a new test of posing the question whether Parliament could fairly be taken to have intended total invalidity as a consequence of non-compliance with the statutory requirement. The principles established in Soneji were equally applicable in Jersey: Att Gen v Da Silva. [2] In the present case, the States could not fairly be taken to have intended total invalidity as being the consequence of non-compliance with the time limits set out in art 91.

CIVIL PROCEDURE
Costs—Calderbank offer

Cole v Chief Officer of the States of Jersey Police Royal Ct: (Clyde-Smith, Commr) [2008] JRC 191

The plaintiff appeared in person; DJ Benest for the defendant.

The plaintiff instituted proceedings which, as amended, sought damages from the defendant for breach of confidence or misuse of private information. On 13 June 2007 the defendant made a “Without prejudice save as to costs” offer of £2,500 in full and final settlement of the damages element of the claim. The offer remained open for a period of 9 days. It was not accepted by the plaintiff. Following the hearing of the action judgment was given by the Royal Court on 13 December 2007 in favour of the plaintiff in respect of his claim and he was awarded damages for hurt feelings of £750. Costs were reserved. The plaintiff’s appeal against the amount of damages was unsuccessful. The Court now sat to determine the plaintiff’s application for costs and the question arose as to whether the Court should follow the English Court of Appeal decision in Trustees of Stokes Pension Fund v Weston Power Distribution (South West) plc. [3]

Held, dismissing the application:

Stokes followed the introduction of the Civil Procedure Rules 1998 (“CPR”) which disapplied the decision in Cutts v Head [4] preventing the making of a Calderbank offer where a payment into Court could be made. Cutts had been followed in Jersey: Sim v Thomas. [5] The issue arose as to whether the Royal Court was bound by the decision in Sim, unless it found it was clearly and plainly wrong. The Court in Sim simply followed English law which, as Page, Commr, pointed out in Watkins and Connell v Egglishaw and Others [6] has been the practice of the Royal Court in this area. Article 2 of the Civil Proceedings (Jersey) Law 1956 gave the Court the widest discretion in relation to costs. Rule 6/33 of the Royal Court Rules 2004, dealing with payments in to Court, provides under sub-paragraph (6) that the Court, when awarding costs, may take into consideration the fact that payment into court has been made, but it goes on to provide in subparagraph (7) that nothing in the rule derogates from the discretion of the Court to make such order as to costs as it deems just. There was every good reason to follow English practice in relation to the appropriate approach to costs following the impact of the CPR in England and it would be inconsistent to follow the English approach in relation to costs but not offers. There were sound policy reasons for taking offers into account in order to encourage settlements.

Exceptions de fond—empêchement d’agir

Yaddehige v Credit Suisse Trust Limited et autres CA (Beloff, Smith and Carey JJA) [2008] GCA 5

NJ Barnes for the plaintiff; AM Ozanne for the first defendant; SH Davies for the second defendant; JP Greenfield for the third defendant.

The plaintiff brought claims against various defendants in respect of alleged breaches of duties of care owed both in tort and in contract. Proceedings were brought in 2005. The defendants lodged exceptions de fond claiming that the claims were prescribed, the proceedings having been brought more than 6 years after the events upon which they were based. The plaintiff denied that the claims were prescribed, alleging a later date for time to start running. At first instance some claims were held to be prescribed and others not. The plaintiff appealed and the defendants cross-appealed.

Held, allowing the plaintiff’s appeal and dismissing the cross appeals:

(1) While it was not unreasonable to apply English common law rules as to when time started to run in contract and tort, the essential issue was whether on the pleaded facts (as opposed to the way in which the case was put in the pleadings) the plaintiff could succeed on any basis in persuading the court of trial that his claims were not prescribed.

(2) Recognising the principle of empêchement d’agir and the Jersey authorities from which the modern Guernsey principle was derived, the facts as pleaded by the plaintiff in the present case could succeed in this respect also.

(3) Likewise, it was arguable that Guernsey procedural law had evolved in a manner similar to New Zealand law in adopting a test of when the relevant matter complained of became apparent or ought to have been discovered, the “reasonable discoverability” approach.

(4) Per Beloff JA: The issues of limitation and, especially, empêchement, were acutely fact sensitive and raised not altogether easy points of law. Such features made an application to strike out inappropriate, further illustrating the truth of the epigram that A short cut is sometimes the longest way round.

(5) Per Carey JA: Empêchement d’agir appeared to have developed as what might be called an equitable remedy tempering the way in which the strict rules of prescription of the Common Law were to be applied. “We must remind ourselves that the Island courts have never formally distinguished between law and equity in the way that the courts of England did, but that does not mean that the Royal Court over the centuries did other than endeavour to apply the law fairly in accordance with the principles of justice then prevailing”.

Comment: [GSK Dawes] The case is noteworthy for a number of reasons. It emphasises the importance of the pleaded facts rather than the way the pleader has put the case in terms of the law. It emphasises also the dangers of seeking a procedural short-cut in areas which are themselves dependent on findings of fact which cannot be made without a trial or else will be assumed in the plaintiff’s favour at an interlocutory stage. Carey JA went as far as to say about prescription generally: “… I consider that in an age where the prudent man is encouraged to place his affairs … in the hands of professional consultants, that the client should be entitled to rely on such advice or services being rendered to him with competence and care … I venture to suggest that it may be inequitable for that consultant … to be able to use prescription as a shield by alleging that the client should have been aware of the failings …”. A point raised at first instance but not tackled on appeal was the question of whether the French law principle of the non-cumul des deux ordres de responsabilité had any application in Guernsey law. This is the notion that when parties are in a contractual relationship they cannot rely upon extraneous tort law duties on the basis that it is the contract which makes the law between the parties. In other words they cannot claim in tort in the alternative with all of the attendant consequences for, say, prescription. At first instance, Hancox, Lieut. Bailiff was clearly of the view that the principle did not apply in Guernsey law; whether rightly or wrongly remains to be seen. However, it is just this kind of uncertainty which could and, arguably should, be resolved by codifying the Channel Island law of obligations. For the principe du non-cumul, see the notes to art 1147 Code Civil at p 1303 and following of the 2009 Dalloz edition.

Security for costs—litigant in person—non-resident plaintiff

Leeds United Association Football Club Limited and Leeds United 2007 Limited v The Phone–In Trading-Post Limited, Royal Ct: (Birt,Deputy Bailiff) [2008] JRC 141

NF Journeaux for the second plaintiff; R Weston as Director of the defendant.

On an appeal by the defendant against the decision of the Master to limit security for costs to be given by the second plaintiff to £5000, the questions arose as to (1) whether a company represented by a director is a “litigant in person” capable of recovering costs, and (2) whether the Court can, in the light of European Convention on Human Rights, as implemented by Human Rights (Jersey) Law 2000, properly require security for costs simply on the ground that the plaintiff is resident outside the jurisdiction and in particular whether the Court should follow the decision of the English Court of Appeal in Nasser v United Bank of Kuwait [7] in limiting the amount of security, not to the envisaged cost of defending the litigation, but only to the extra cost that would be incurred in having to enforce a costs’ order overseas.

Held, allowing the appeal:

(1) A company represented by a director is a “litigant in person” for the purposes of Rule 12/6 of the Royal Court Rules 1984, is entitled to recover costs as such and is therefore potentially entitled to security for those coasts; Jonathan Alexander Limited v Proctor [8] distinguished. Whilst the terms of Rule 12/6 did not happily apply to a company represented by a director, the taxing officer would simply have to do his best to apply the somewhat unsuitable language to the situation and this difficulty was not sufficient to outweigh the conclusion that, on a proper construction, a company represented by one of its directors is a “litigant in person”. The Court recommended that Rule 12/6 be reviewed in respect of the likes of self-employed individuals and companies.

(2) In Nasser the English Court of Appeal held that the effect of arts 6(1) (right to a fair trial) and 14 (prohibition against discrimination in Convention rights) was that it would be discriminatory if the mere fact of residence in a particular jurisdiction justified a decision on security for costs. Each case had to be considered on its own merits. In particular, inter alia, conduct which would otherwise by unlawful would not be in breach of the Convention if it was objectively justified (i.e. pursued a legitimate aim) and the conduct must also be a proportionate means of achieving that aim. In Nasser the English Court of Appeal held that the proportionate means of achieving protection for the defendant was to limit the amount of security to the extra cost which would be incurred in recovering costs in a relevant jurisdiction overseas. The Royal Court differed from this view. The solution adopted in England in Nasser did not provide a fair and adequate solution to the problems posed by non-resident plaintiffs in Jersey. Conversely a discretion to award security in the amount of the likely costs to be incurred by the defendant in defending the proceedings was proportionate and held a fair balance between the need for non-resident plaintiffs to have access to the Jersey courts and the need for defendants to be protected against empty orders for costs in the event of success. Such discretion had a legitimate objective and was a proportionate means of achieving it. It did not, therefore, breach Convention Rights.

COMPANIES LAW
Winding up—“just and equitable”

Bisson v Bish Royal Ct: (Clyde-Smith, Commr and Jurats Tibbo and Morgan) [2008] JRC 193

The representor appeared in person; AD Hoy for the first respondents; the Viscount appeared in person.

The relationship between the three shareholders in a Jersey company had broken down to such extent that there had been a complete and irreversible loss of trust and confidence making it impossible for them to work together and manage the business, in which they were all engaged. The question arose as to whether the Court should order a winding up on “just and equitable” grounds pursuant to art 55 of the Companies (Jersey) Law 1991.

Held, granting the application for a just and equitable winding up:

Article 55 is based on a similar provision in the Companies Act 1985 and English authorities are of assistance. “Just and equitable” are general words to be interpreted flexibly. The categories developed by the courts are useful but not exclusive: Jean v Murfitt, Murco Overseas Limited and the Viscount; [9] Re Leveraged Income Fund Limited; [10] In the matter of Belgravia. [11] It was clear from both Murco and English authority that deadlock is of itself a sufficient reason to wind up a company on just and equitable grounds. As to what constitutes deadlock, the Court referred to and quoted from French, Applications to Wind Up Companies, 2nd ed, para 7.10. Deadlock involves a division of the membership and directors into two opposed and uncooperative factions inhibiting decisions on matters crucial to the company’s prosperity. On the facts the present case was a clear case of deadlock justifying an order for a just and equitable winding up.

CONFLICT OF LAWS
Enforcement of foreign judgments—non-monetary judgments

Brunei Investment Agency and Bandone Sdn BHd and Others v Fidelis Nominees Limited and others, Royal Ct: (Clyde-Smith, Commr and Jurats Allo and Morgan) [2008] JRC 152

KJ Lawrence for the representors; FB Robertson for the eighth respondent; RJ Macrae for the first, second and third respondents; MHD Taylor for the fourth, fifth, sixth and seventh respondents.

The eighth respondent (“Prince Jefri”) was ordered by the High Court of Brunei Darussalam to transfer certain shares in two Jersey companies to the order of the first representor pursuant to a Settlement Agreement. Prince Jefri’s appeals against the Brunei order (including two appeals to the Privy Council) were dismissed. Prince Jefri, however, still failed to comply with the Brunei order and the first representor sought an order of the Royal Court that the shares be transferred under principles of comity (Lane v Lane; [12] Compass Trustees Limited v McBarnett [13]). Resisting this, Prince Jefri argued (a) that the Brunei judgment being a non-monetary judgment, it was not possible for it to be enforced in Jersey or if there was are residual jurisdiction to do so it was confined to the Court’s supervisory jurisdiction under art 51 of the Trusts (Jersey) Law 1984; (b) that to give effect to the Brunei judgment would be to give extra-territorial effect to the public laws of a foreign state since the parties included the Head of State of Brunei Darussalam as represented by his government and the Brunei Investment Agency (“BIA”); (c) that the Brunei judgment purported to take effect in rem and was accordingly an exorbitant use of the Brunei court’s jurisdiction; and (d) that to the extent that the Royal Court had a discretion it should not on the facts be exercised so as to give effect to the judgment.

Held, granting the representors’ application:

(1) Brunei was not a jurisdiction to which the procedure of registration of foreign judgments under the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 applied but the 1960 Law did not affect the Court’s inherent jurisdiction to enforce a foreign judgment. The Jersey courts have regard to English common law in relation to the private international law (Nicolle, Origin and Development of Jersey Law, para 15.33) and in particular Dicey, Morris and Collins, The Conflict of Law. The enforcement of foreign judgments at common law is dealt with under r 35(1) of Dicey (14th ed). It is inter alia a condition under r 35(1) that the judgment is “for a debt, or definite sum of money ...”. The restriction on the enforcement of foreign non-monetary judgments dated from 1808. [14] The world had changed considerably since then and the restriction had been reappraised and removed in Canada (Pro Swing Inc v Elta Golf Inc [15]) and the Cayman Islands (Miller v Gianne and Redwood Hotel Investment Corporation [16]). Further, the opinion, though obiter, of the Privy Council on appeal from the Isle of Man in Kamlesh Mansukhal Damji Pattni v (1) Nasir Ibrahim Ali (2) Dinky International SA [17]) disapproved Sadler and carried very substantial weight in giving a clear indication as to which direction the Royal Court should proceed. The reasons that had compelled the courts in Canada and the Cayman Islands to change the common law rule were equally compelling in Jersey. The rule against enforcement of foreign non-money judgments should therefore be amended in Jersey so as to give the Court discretion to enforce such judgments; but that discretion should be exercised cautiously.

(2) The claim fell, however, to be characterized by the Court and it was a patrimonial claim by which the BIA sought to recover property due to it under the Settlement Agreement and this irrespective of the features relied upon by Prince Jefri. It was not a claim to enforce a public law or to assert sovereign rights or governmental interests: Mbasogo and another v Logo Limited and others. [18] Claims by states to recover their stolen property do not fall within the “public law” preclusionary rule expressed by Dicey and cannot be characterised as being claims in respect of which the “central interest of the state bringing the action is governmental in nature” which ought not to be entertained: Government of the Islamic Republic of Iran v The Barakat Galleries Limited. [19] Accordingly proceedings by the BIA to have its in personam rights under the Settlement Agreement recognised in Jersey were not precluded by the rule.

(3) For a judgment to have effect in rem it had to be a determination regarding the status or disposition of property which was to be valid as against the whole world and not merely the parties to the action: Kamlesh Mansukhal Damji Pattni v (1) Nasir Ibrahim Ali (2) Dinky International SA. An order purporting to transfer property was to be distinguished from an order determining contractual rights. The Brunei judgment was of the latter kind and was therefore a judgment in personam.

(4) On the facts, the Court exercised its discretion to grant the representor’s application for following reasons: (a) the Brunei court had jurisdiction in accordance with Dicey r 35(1) and its judgment was final and conclusive; (b) the terms of the Brunei judgment and the  order sought in Jersey were clear and specific; (c) there was little likelihood of further supervision being required by the Court; (d) the Court was not required to extend greater judicial assistance than the Court would do in respect of its own litigants; and (e) there were no grounds on which the discretion should be refused—on the contrary the court was mindful of observations of the Privy Council (in its judgment dismissing one of Prince Jefri’s appeals from the courts of Brunei) that the complications in the case were the result of Prince Jefri seeking a means to extract himself from the Settlement Agreement.

CRIMINAL LAW
Deportation of offender—human rights

Att Gen v Benyoucef Royal Ct: (Birt, Deputy Bailiff) [2008] JRC 157

TVR Hanson, guardian ad litem, appeared in person; ML Preston for the defendant; Crown Advocate SE Fitz for the Attorney General.

Advocate Hanson was appointed the guardian ad litem of two children of the defendant for the purposes inter alia of applying to the Court for leave to intervene in any application by the Attorney General for a recommendation to the Lieutenant Governor for deportation. This was the first occasion that an application had been made on behalf a family member to be heard in the matter. The guardian ad litem argued that the children should be heard separately as they had rights under art 8 (right to family life) of the European Convention on Human Rights which required separate consideration. On behalf of the Attorney General it was argued that allowing an offender’s family to intervene in the sentencing process would be contrary to principle and give rise to practical problems.

Held, granting the application of the guardian ad litem:

(1) The test for making a recommendation was well-established and derived from R v Nazari. [20] The Court must first consider whether the continued presence of the defendant in the Island is to its detriment. If so, the Court must go on to consider what effect the order would have upon others not before the Court and who were innocent persons. However, in Camacho v Att Gen [21] the Jersey Court of Appeal declined to follow the decision of the English Court of Appeal in R v Carmona: [22] in Jersey it is necessary to take rights under art 8 into account when making a recommendation for deportation to Lieutenant Governor. The Court of Appeal also emphasised that the art 8 rights of the offender as well as his or her family must be considered albeit that the former would carry less weight. The Court had to consider whether the art 8(2) factors such as public safety, the prevention of disorder or crime or the protection of the rights and freedoms of others provide sufficient justification for possibly severing a family, always bearing in mind the doctrine of proportionality.

(2) There was no precedent for the present application, as hitherto the interests of the family had been represented by counsel for the offender. On balance, and with some reluctance, the Court was persuaded by the arguments of the guardian. The rights of the children under art 8 would be greatly affected by a decision of a court to make a recommendation. In Camacho the Court of Appeal had reaffirmed the duty of the Court to consider art 8 rights of the family and the Court’s recommendation was likely to be very influential with the Lieutenant Governor. The ability of the children to intervene was a procedural guarantee of real benefit. This did not mean that the family of an offender were able to intervene on the question of sentence. It would be a matter of discretion which (if any) members of a family would be given leave to intervene and, if more than one, the Court could control the situation by insisting they were all represented by the same Advocate.

Comment: [T Hanson] Prior to this decision, the conventional position in the Bailiwicks of Jersey and Guernsey (and also in England and Wales) had been that the defendant’s legal team argue against deportation, and that other than the Crown and Defendant, family members are excluded from being heard directly.

The reality is, however, that the voice of the offender’s family has not always been heard as clearly as it should have been in the process, and notwithstanding that their art 8 right to family life has long been acknowledged by the Jersey Courts as being engaged and relevant in the decision-making process.

In this ground-breaking decision, the Deputy Bailiff permitted the children to intervene on the issue of any recommendation for deportation of their father. In justifying the conclusion reached, the Royal Court built creatively upon the exceptional case of Att Gen v Smith, 2004 JLR 346 (where third parties had been permitted to intervene in criminal proceedings) and applied certain key English authority (CF v Secretary of State for the Home Department, [2004] EWH C111; and Mabon v Mabon, [2005] 2 FLR 1011) where children’s rights had similarly been championed. Such a bold solution provided by the Royal Court, but based upon sound legal principle, is to be welcomed, not least by those that see the development of our cherished laws and customs as the best means of ensuring their continued existence.

EVIDENCE
Exclusion of evidence—pre-trial agreement

Glover v Attorney General CA (Sumption, Nutting and Pleming, JJA) [2008] JCA118

RJ MacRae for the appellant; AR Binnington, Crown Advocate.

At his trial before a jury on a count of grave and criminal assault, the appellant pleaded not guilty on the basis of self-defence. Prior to the trial the Crown and the defence agreed that evidence to the effect that the appellant had committed two assaults on previous occasions on a female third party would not be placed before the jury. However the victim of the alleged grave and criminal assault, being unaware of that agreement, referred to the alleged previous incidents in giving his evidence in chief. He had not witnessed the previous incidents but had seen the injury sustained as a result of one of them and his belief that these assaults had occurred was the reason for the relevant altercation which took place between him and the appellant, resulting in the alleged grave and criminal assault by the appellant on him. After the complainant had given his evidence, counsel for the defence submitted that a re-trial should be ordered on the grounds that the agreement reached between counsel had been broken, that prejudicial evidence had been adduced against his client, that he had no instructions on which to challenge the evidence and that the damage done could only be repaired by the discharge of the jury. In refusing that application, the Royal Court (a) found that had been an agreement between the Crown and the defence to exclude the evidence; (b) found that the agreement was unrealistic and the that the defence should have anticipated that the alleged victim would give evidence of the background; (c) suggested that an attempt by the Crown to acquaint the victim of the details of the agreement would have amounted to “coaching” and would have been impermissible; (d) acknowledged, in the circumstances, that the victim’s evidence of these matters would necessarily go unchallenged because the defence lacked instructions to deal with them; and (e) ruled that since the admission of the evidence was relevant only to the state of mind of the victim, any disadvantage to the appellant could be cured by a direction to the jury that the evidence was admissible on that issue alone. The appellant was found guilty by the jury. He appealed against his conviction on the ground the re-trial should have been ordered.

Held, allowing the appeal:

(1) It was often the case that the prosecution agrees to exclude background evidence, subject to the proviso that if, as a result of cross-examination or other evidence given by the defendant or his witnesses, the “excluded” evidence is thereby rendered admissible, the prosecution may adduce the evidence in re-examination or rebuttal. As a general rule, however, the prosecution is obliged to call all relevant evidence in proof of their case. Background evidence of whatever kind should be called, including evidence as to the alleged commission of other offences not charged, if the absence of such evidence would result in a deficient or distorted picture being presented to the Court (R v Pettman [23]); but this is also subject to the Court’s discretion to exclude such evidence, notwithstanding its admissibility, if its prejudicial effect outweighs its probative value: R v Fulcher [24]). Agreeing with the Royal Court, the Court of Appeal found that the “excluded” evidence in this case was a necessary part of the background. The agreement to exclude it was unrealistic and incapable of fulfilment and should not have been accepted by the Crown. It was, however, wrong to assert that the defence should have anticipated that the witness would give evidence in breach of the agreement. It was for the Crown, not the defence, to bear the consequences of the fact that agreement was not fulfilled.

(2) It is crucial that the Crown takes steps to ensure any agreement to exclude evidence is effective; such an agreement is no different from a ruling to like effect by a judge. It may be appropriate for the officer in the case to request the witness not to refer, when giving evidence, to certain passages in his statement unless specifically asked. In cases where allegations are made against prosecuting officers themselves, it may be appropriate for the Crown, with the consent of the defence, to make the request. In cases of special sensitivity it may be best for the judge to make the request in open court in the absence of the jury. It may also be sensible for the Crown, with the consent of the defence, to ask leading questions to ensure that the agreement is going to be fulfilled or the ruling observed. Warninga witness to forebear to mention matters which have been agreed to be, or ruled, inadmissible would not be activity caught by the prohibition against “rehearsing, practising or coaching” a witness under r 705 of the Bar Code of Conduct for England and Wales.

(3) In the present case, the evidence was given notwithstanding the agreement that it should be excluded. The appellant had a legitimate expectation that steps would be taken to prevent the jury hearing the evidence but no such steps had been taken. Although the approach of the Royal Court, in ruling that the evidence was limited in relevance to the victim’s state of mind, had been impeccable in law, there were practicable difficulties in the application of that principle in this case. The victim did not rely on hearsay; he had seen himself the results of one of the previous assaults. This would have provided the defence with stronger grounds for the exercise of judicial discretion to exclude  the evidence. Since evidence was given in defiance of the agreement the defence had had no opportunity to appeal the exercise of the Royal Court’s discretion to exclude the evidence. The consequence was that the defence had been placed in the worst of both worlds: the evidence had been given in defiance of the agreement and the defence had had no instructions to contradict that evidence since it had been assumed the agreement would be complied with. The appellant was therefore prejudiced by the refusal of the Royal Court to grant a discharge of the jury, or alternatively not to grant a short adjournment of the trial. The appeal was accordingly allowed and the conviction quashed.

FAMILY LAW
Financial provision—enforcement of final order

C v C Royal Ct: (Collas, Deputy Bailiff) [2007] GRC 31

AN Brown for the petitioner; FJ Haskins for the respondent.

A final order of divorce had been made between the parties in 2004. In 2006, the petitioner applied for a lump sum by way of ancillary relief. On the morning of the financial dispute resolution hearing the parties reached agreement as to ancillary relief. Subsequently, the respondent sought to resile from the agreement on the basis that a valuation of the house had produced a lower figure than a previous valuation and the bank would not now lend the monies required.

Held, dismissing the petitioner’s application to give effect to the agreement:

(1) Article 27 of the Matrimonial Causes (Guernsey) Law 1939 provided that “No agreement for or in relation to separation between married persons … shall have any legal validity in the Bailiwick unless it is sanctioned pursuant to a decree or pronouncement of judicial separation by a Court in the Bailiwick competent to make such decree or pronouncement”.

(2) While art 27 was only concerned with agreements made during a marriage, before a judicial separation had been pronounced, any agreement made between the parties had to be approved by the Court before it would have legal effect.

(3) However, the fact of the agreement was one of the circumstances which the court could take into account along with the other factors identified at s 25 Matrimonial Causes Act 1973 (the English legislation not itself being directly applicable).

(4) If the petitioner wished to argue that the true reason for the respondent not complying with the agreement was not the bank’s refusal to lend then he would have the opportunity to do so.

(5) It would, accordingly, be wrong to make an order giving effect to the agreement without hearing evidence. If the court was satisfied that the respondent withdrew from the agreement because she could not raise the required funds then it would be highly unlikely to approve the terms of the agreement.

LAND LAW
Passing of conveyance—procedure in Sark

Barclay v Seigneur and Seneschal of Sark Royal Ct: (Talbot, Lieut. Bailiff) [2007] GRC 42

GSK Dawes for the plaintiff; CJ Hay for the first defendant; HM Comptroller for the second defendant.

The plaintiff had agreed to purchase a Sark tenement, being one of the 40 parcels of land into which Sark was divided after the grant of Letters Patent by Queen Elizabeth I to Helier de Carteret on the resettlement of the Island of Sark in 1565. In Sark, any conveyance of realty was required to be put before the Seneschal (the appointee of the Seigneur of Sark and both Judge of the Island court and presiding officer of the Island’s assembly) to be “passed” before registration. One of the ancient feudal rights conferred on the Seigneur was the right to receive an amount equivalent to a treizième (thirteenth) of the purchase price of realty in return for the Seigneur’s congé (permission) for the sale and purchase to proceed. The plaintiff challenged the lawfulness of the right to treizième as being contrary, inter alia, to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and sought the Seneschal’s confirmation in correspondence that he would not require payment of treizième as a pre-condition for passing the conveyance for registration. The Seneschal refused to do so and proceedings were brought in the Royal Court of Guernsey seeking declaratory and other relief, the plaintiff contending that the Seneschal was acting in the role of registrar, wrongfully refusing to pass a conveyance. The Seneschal applied to strike out the plaintiff’s claim as disclosing no reasonable cause of action against him.

Held, granting the application and striking out the proceedings against the Seneschal:

(1) It was a most unusual course to take to sue the Judge of the Seneschal’s Court without taking proceedings in that court. The cause did not disclose a reasonable cause of action and the alleged claim against the Seneschal was also capable of being described as frivolous and vexatious, while leaving open the question of whether it could properly be described as scandalous as well.

(2) The Seneschal, as the Judge of the Seneschal’s Court, when deciding whether or not to pass a conveyance for registration was acting as a judge and carrying out a judicial function. It was necessary for the Seneschal to decide as facts in relation to a conveyance of a tenement presented to him to pass or not pass, first, whether the parties named in the conveyance were before the court or represented by valid and effective powers of attorney, secondly, that they both or all consented to the transaction, thirdly, that the congé of the Seigneur had been given or waived and, lastly, that the treizième had been paid or waived.

(3) Accordingly, an appeal would lie to the Royal Court against any decision of the Seneschal, for instance, not to pass a particular conveyance, under s 23(2) of the Reform (Sark) Law 1951.

(4) The proceedings would be dismissed with costs on a recoverable basis.

TORT
Nuisance—voisinage

Yates and Yates v Reg’s Skips Limited, JCA (Steel, Jones and McNeill JJA) [2008] JCA 077B

CGP Lakeman for the appellant; MStJ O’Connell for the respondent.

The Royal Court found in Yates and Yates v Reg’s Skips Limited [25] [2007] JRC 237 that the amount of noise caused by the appellant’s skip-sorting business, which it operated as the tenant of a property adjacent to that of the respondents, constituted a breach of the duty of voisinage owed by the appellant to the respondents. The appellant appealed on inter alia the following grounds—

(i)            that, on the basis of dicta of the Court of Appeal in Gale v Rockhampton Apartments Limited, 2007 JLR 27, excessive noise was not actionable at all in voisinage;

(ii)           that the duty of voisinage was owed by the owner of property, that it could not be delegated to a tenant and that accordingly the appellant, as tenant, had been the wrong party to the respondents’ action; and

(iii)           on the basis of Gillingham v Medway Chatham Dock Co Ltd, [26] that the planning permissions granted to the appellant for storage and skip storage and sorting had taken the public interest into account, had changed the character of the neighbourhood, had rendered the skip-sorting business lawful and thus removed the ability of the respondents to bring an action seeking redress for the noise.

Held, dismissing the appeal:

In Rockhampton Apartments the Court of Appeal noted that the limits of voisinage might be set at a point which excluded “merely personal harm or inconvenience” and that the doctrine might also be limited to situations where the properties in question were contiguous. It was, however, unnecessary for the purpose of the present appeal to determine the boundaries of voisinage or the precise jurisprudential basis of the respondents’ undoubted right of action. Excessive noise would, if not actionable in voisinage, nevertheless be actionable in accordance with the older Royal Court decisions of Key v Regal [27] and Magyar and Magyar v Jersey Strawberry Nurseries. [28] The essential facts which the respondents had to establish were the same: that is, that the activities of the appellant were productive of noise which, on an objective view, exceeded what the average person could be expected to tolerate. The Court of Appeal would in any event be reluctant to embark upon such a determination without the highly valued views of the Bailiff, which, on account of the joint approach of the parties in the Royal Court, were in this instance not available. In particular, determining the precise boundaries of voisinage would have implications regarding prescription. The prescriptive period for an action in voisinage was 10 years, as opposed to the three-year period applicable in tort, and thus, in an action such as the present one, contiguous neighbours might be subject to a different prescriptive period to that applying in the case of more remote properties. Resolving such difficulties could require developing the customary law which, wherever possible, was something to be considered in the first instance by the Royal Court rather than by the Court of Appeal without the Royal Court’s assistance.

Since the duty of voisinage was a quasi-contractual duty owed by both owners and occupiers of land (Searley v Dawson [29]) the appellants, as tenant of the property adjacent to that of the respondents, had been a correct party to the respondent’s claim in voisinage.

The planning consents granted in respect of the property occupied by the appellant were different both in nature and effect from those in Gillingham (which related to planning consent to develop a disused naval dockyard as a commercial port). In Gillingham it was held that a planning consent which “changed the character of a neighbourhood” and “inevitably” resulted in what would otherwise have been an actionable nuisance to neighbours could remove a right of action in nuisance. Distinguishing Gillingham, the Court found that it could not be said that the planning consents in the present case either changed the character of the neighbourhood or inevitably resulted in nuisance.

TRUSTS
Variation—foreign court order

In the matter of the IMK Trust, Mubarak v Mubarak and Others Royal Ct: (Birt, Deputy Bailiff and Jurats Le Brocq and Liddiard) [2008] JRC 136

CGP Lakeman for the representor; the first and second respondents did not appear and were not represented; MP Renouf appeared in person; JMP Gleeson for the fourth respondent.

The question arose whether the Royal Court would give effect to an order of the Family Division of the English High Court (Holman J, Mubarak v Mubarak [30]) varying a Jersey trust for the purpose of providing ancillary relief to a wife. The trust held substantial assets comprising the husband’s business interests. The husband had originally been ordered to pay the wife £4.9 million in 1999 but had persistently avoided making payment and caused her to embark on very protracted legal proceedings. Although the wife was initially a beneficiary under the trust the husband had exercised his powers in 1998 so as to remove her revocably as a beneficiary and he had declared her to be an Excluded Person. The trustee had no power to add her as a beneficiary. In his judgment, which by the present action the wife sought to enforce, Holman J referred to the observations of Bailhache B, in Re the Fountain Trust [31] and In Re B Trust [32] and recognised that “as a general rule it will be an exorbitant exercise of jurisdiction for [the High Court] to purport to vary the terms of a Jersey settlement”. However this was “a wholly exceptional case” and Holman J considered that he had no alternative but to “vary” the Jersey trust pursuant to s 24(1)(c) of the Matrimonial Causes Act 1973 so as to require the Jersey trustee to pay to the wife the sums due by the husband under the 1999 order. The trustee did not submit to the jurisdiction of the English court. An important further aspect of the case was that, as a condition of further participation in the English proceedings, the husband was required by Bodey, J in 2006 to fulfil a number of pre-conditions, one of which was to write a letter to the trustee confirming that he was bound by the 1999 order (to make the payments to his wife) and that he wished the trustee to assist him in meeting his obligations under that order. The husband chose to continue to participate in the English proceedings and had therefore written a letter in the required terms to the trustee in August 2006.

Held, granting the wife’s application:

(1) Since it was not a judgment under which “a sum of money” was payable, a judgment of the English High Court varying a trust was not one to which the Judgments (Reciprocal Enforcement) (Jersey) Law 1960 applied. It was also hard to see how such a judgment, not being for “a debt or definite sum of money”, fell within the requirements at customary law for the non-statutory enforcement of overseas judgments: r 35, Dicey and Morris (14th ed). Moreover, unless the trustee submitted to the jurisdiction of the overseas court, the Royal Court would not have jurisdiction in any event, either under the 1960 Law or the customary law. Although it appeared from Lane v Lane [33] the Royal Court may nevertheless have a discretion to enforce a non-monetary foreign judgment, it was unnecessary to decide the point since in Lane the defendant had submitted to the jurisdiction of the foreign court, whereas the trustee in the present case had not.

(2) It was helpful to distinguish between two different senses in which a trust might be said to be “varied”. In the first sense (which it was useful to distinguish by calling it call an ‘alteration’) the variation is of the trust deed itself in a way which would be outside the powers of the trustee. In the second sense, the trusts are varied in a way which the trustee could itself have done by exercising a power granted to it under the trust deed. The Court has no jurisdiction to alter the terms of a trust, whether under art 51 of the Trusts (Jersey) Law 1984 or its general supervisory jurisdiction.

(3) With regard to the relationship between art 9(1) and art 9(3)(b) of the Trusts (Jersey) Law 1984, the view of Daniel Hochberg [34] was to be preferred to that of Professor Jonathan Harris:35[35] whilst these provisions were not as clear as they might be, it was manifestly not the intention of the legislature that art 9(1) should be confined only to cases where the settlor was domiciled in Jersey. Article 9(1) of the 1984 Law provides that questions of variation of a Jersey trust shall be determined solely in accordance with the law of Jersey. It followed that a judgment of the Family Division varying a Jersey trust under English law was ‘inconsistent’ with art 9(1) and was accordingly not enforceable in Jersey by reason of art 9(4). This is so even if the trustee has submitted to the jurisdiction of the English court.

(4) Where the order of the foreign court varies, but does not alter a trust, it is open to the trustee to take the view, without seeking the approval of the Royal Court, that it is an appropriate exercise of its powers to take note of the foreign judgment and take action corresponding to the foreign court’s order if it in the interests of the beneficiaries. The trustee might also seek the approval of the Court under art 51 of the 1984 Law (which approval would depend on whether the Court found its proposed course of action to be reasonable) or surrender its discretion (in which case the Court would stand in the place of the trustee and determine how its powers should be exercised in the interests of beneficiaries in the light of all the circumstances). Alternatively the Royal Court might be asked to give directions as to whether a trustee’s course of action was unreasonable. Directions under art 51 do not amount to enforcement for the purposes of art 9(4): In Re B Trust [36] (Bailhache, B) and In Re the H Trust [37](Clyde-Smith, Commr.) followed.

(5) Where, however, the foreign court’s order alters the terms of the trust, there is no jurisdiction on the part of the Royal Court to give directions to approve or direct the trustee to act in a manner which is outside the powers conferred on it by the trust deed.

(6) In the present case, the wife was no longer a beneficiary and the trustee had no power to add her as a beneficiary. It followed that the order of the English court amounted to an alteration of the trust deed and thus, in accordance with the above, the Court had no power to direct the trustee to comply. However, pursuant to the rule in Saunders v Vautier, all the beneficiaries, if adult, may effectively agree to alter the trust and the Court may under art 47(1) approve such an alteration on behalf of any minor or unborn beneficiaries. On the particular facts, the husband’s letter of 2006, by which he had freely confirmed to the trustee that he was bound by the English order, amounted to his consent to the alteration of the trust so as to give effect to the order. On the application of the wife under art 51 (who, as a non-beneficiary, was granted leave) the Court found that all the adult beneficiaries had consented to the alteration and that it was also in the interests of the minor and unascertained beneficiaries and the Court therefore approved it. The alteration of the trust envisaged by the English order was accordingly given effect.

(7) On account of the complex structure and financial position of the business which formed the underlying asset of the trust, Counsel for the trustee argued that it was desirable that two representatives of KPMG be appointed as receivers of the trust, with defined powers, in order to realise the liquidity that was required for the wife to be paid the sums due to her. Like the Chancery Division in England, the Royal Court has, as a matter of inherent jurisdiction, power to appoint receivers of a trust. It is an exceptional remedy to be granted only where there is a clearly identified need: Lewin on Trusts, paras. 38–28 to 38–39. On the facts, the trustee lacked the resources and expertise to carry out the necessary exercise. It was, moreover, inappropriate for KPMG to be appointed as agents or delegates of the trustee as this would lead to endless uncertainty as to who had ultimate authority to authorise particular actions. It was therefore desirable for KPMG to be appointed as receivers.