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The Jersey Law Review - June 2003

CASE SUMMARIES

COURTS

COURT OF APPEAL – INHERENT JURISDICTION

Jakobsson v Offshore Nautical Sales Ltd. CA: (Southwell JA) [2003] JCA 029.

D.F. Le Quesne for the plaintiff; A.J. Olsen for the defendant.

The plaintiff, J, obtained judgment in the Royal Court for £125,000 against Offshore Nautical Sales Limited (“ONS”).  ONS appealed, but its legal advisers indicated to J’s advisers that the judgment debt would not in any event be satisfied.  J sought a stay of the appeal unless ONS paid into court or otherwise secured the judgment debt plus interest.  By a cross summons ONS sought a stay of execution of the judgment debt pending appeal.  It was argued before the single judge that there was no jurisdiction in the Court of Appeal to make the order sought by J.  Counsel for J submitted that there was an inherent jurisdiction.

Held, (1)     applying Mayo v Cantrade[1] that where the Court  was faced with abuses of its process the threshold for deciding that inherent powers were necessary to curb such abuses  was not high;

         (2)     that stay of execution would be granted on condition that £160,000 was paid into court or otherwise secured within 2 weeks; in default, the appeal would be stayed.

CRIMINAL LAW

MURDER

Holley v Att.Gen. CA: (Southwell, Carey and Hodge JJA) [2003] JCA 013.

J.C. Gollop for the appellant;  D.E. Le Cornu, Crown Advocate, for the Crown.

The appellant admitted killing Cherylinn Mullane, with whom he had a long-standing relationship, by seven blows of an axe to her head and neck. He pleaded not guilty to murder upon the basis of provocation. The appellant suffered from a number of disorders including chronic alcoholism that was said by an expert for the defence to cause the defendant to drink involuntarily.  The appellant was convicted of murder, and appealed principally upon the ground that the trial judge had wrongly directed the jury that they should take no account of the fact that the defendant was drunk at the time of the killing or was more easily provoked by reason of being under the influence of alcohol.

Held,          allowing the appeal, that -

the judge had failed to distinguish between the ordinary situation where a person would have no defence to a charge of murder upon the basis that he was drunk, and the situation where the defence of provocation had been put forward. In the latter case, the jury were entitled to take account of the personal characteristics of the accused.   (R v Smith (Morgan[2])  applied.)  One  of the  chief characteristics of the accused in this case had been his chronic alcoholism and this ought to have been a matter that the jury took into account. (R v Tandy[3]considered.) Accordingly, there had been a serious misdirection and the conviction would be quashed.

Obiter:  there were other criticisms of the way in which the trial had been conducted albeit insufficient on their own to justify allowing the appeal -

(1)              case management directions should have made provision for a document to be prepared setting out briefly the aspects of the case on which the various experts were agreed, and the issues between them in so far as they were not agreed.   Such a document would have much assisted the jury in their deliberations;

(2)              regard ought to be had by the Jersey courts to the standard directions given to juries and published by the Judicial Studies Board of England and Wales;

(3)              the closing speech of prosecuting counsel had been inappropriate, particularly in its lack of objectivity and its unduly disparaging remarks about the defence expert evidence. The duties of prosecuting counsel are onerous and counsel must act as a “minister of justice”. Crown advocates ought to be supplied with appropriately modified versions of the guidelines provided by the Farquharson Committee as well as the standards applicable to criminal cases published by the General Council of the Bar of England and set out in the Bar’s Code of Conduct;

(4)              as a matter of practice, any attendance of counsel before the trial judge should, save in exceptional circumstances, be held in the presence of the accused unless the accused wishes not to attend.  Further, it is desirable that a proper recording is made of any such hearings in the same way as it is of the hearings at which evidence is adduced. 

Editorial note: In a subsequent judgment at [2003] JCA 019, a retrial was refused and the appellant was sentenced to 8 years’ imprisonment.

SENTENCE

Att.Gen. v McCormack Royal Ct: (Hamon, Commissioner and Jurats Le Ruez, Rumfitt, Querée, Georgelin and Clapham) [2003] JRC 030.

W.J. Bailhache, Q.C., Attorney General, for the Crown; A. Clark for the accused.

The accused pleased guilty inter alia to grave and criminal assault.  After a minor altercation at a party some hours before, the accused broke into the victim’s room and stabbed him about ten times with a broken bottle causing serious injuries which required a blood transfusion and emergency surgery.  The accused was drunk at the time of the incident.  The Attorney General moved for 6 years’ imprisonment, having regard to the observations of the Court of Appeal in Mallet v Att.Gen.[4] emphasizing the desirability of starting points and indicating that a starting point of 8 years was appropriate when there was an intent to cause serious harm.

Held,          applying Mallet v Att.Gen. that English cases which did not refer to a starting point were of limited assistance and the conclusions would accordingly be granted.  The accused was sentenced to 6 years’ imprisonment.

SENTENCE

Holden v Att.Gen. Royal Ct: (Bailhache, Bailiff and Jurats de Veulle, Rumfitt, Le Brocq, Le Breton, and Allo) [2003] JCA 017.

J.C. Gollop for the applicant; C. E. Whelan, Crown Advocate, for the Crown.

H applied for leave to appeal against a sentence of three years’ imprisonment for manslaughter.  After a verbal exchange at a nightclub the deceased had gone to a lodging house where H was staying.  H had felt threatened and had pushed the deceased down some steps on to the pavement.  The deceased began walking away but was followed by H.  After more verbal exchanges H hit the deceased with a single blow of sufficient force to knock him backwards off his feet.  The deceased’s skull was fractured on the pavement and he died some hours later.

H submitted that the English guideline case of R v Coleman[5] suggested that 12 months imprisonment was the appropriate sentence for single punch manslaughter. 

Held,          dismissing the application, that the appropriate starting point for manslaughter of this kind was 5-6 years’ imprisonment; the sentence of three years was not manifestly excessive.

SAISIE JUDICIAIRE

In re O’Brien, Royal Ct: (Bailhache, Bailiff) [2003] JRC 001.

R. Tremoceiro for the representor; A.J. Belhomme, Crown Advocate, for the Crown.

The representor sought to vary a saisie judiciaire made pursuant to the Drug Trafficking Offences (Jersey) Law 1988 (“the Law”), to enable him to receive a sum for his ordinary living expenses and to pay legal fees arising out of related criminal proceedings in Jersey for offences under the Law.

Held,          refusing the variation, (but allowing a variation for certain travel expenses necessarily involved in attending Court in Jersey) that there should be no automatic expectation that either legal expenses or a living allowance will be made available to a defendant whose property is subject to a saisie judiciaire.  Although the Court retains an unfettered discretion under Article 9(b) of the Law, its exercise to allow a variation on those grounds should be rare. 

(Re Peters[6]and Commissioners of Customs and Excise v Norris[7],  both decisions of the English courts, distinguished).

SENTENCE

Att.Gen. v Le Marquand, Royal Ct: (Birt, Deputy Bailiff and Jurats Potter and Georgelin) [2003] JRC 043.

C.E. Whelan, Crown Advocate, for the Crown; Mrs S.A. Pearmain for the accused.

Le M pleaded guilty to one count of possession of indecent photographs of a child contrary to the Protection of Children (Jersey) Law 1994 (“the Law”) and to 35 counts of making indecent photographs of a child contrary to the Law.  Some 2700 indecent photographs (including video clips) of children were found on the hard drive of Le M’s computer, some of which had been printed on to paper, (hence the “making” counts).

Held,          sentencing Le M to 15 months’ imprisonment on the possession count and 18 months’ concurrent on each of the “making” counts, that the Court would be guided, in the absence of local authority, by the categories of such material identified in the English case of R v Oliver and others[8].  However, given the differences in the maximum sentences in the two jurisdictions, caution had to be exercised.  The Court expressed the view that the maximum sentence (3 years in Jersey) was too low.

JURISPRUDENCE

NATURAL JUSTICE - RECUSATION

Simpson v Att.Gen. CA: (Southwell, Carey and Hodge JJA) [2003] JCA 007.

R. Juste for the applicant; A.D. Robinson, Crown Advocate, for the Crown.

S pleaded guilty to one count of importation of cannabis resin and was sentenced to 9 years’ imprisonment. His paper application for leave to appeal was refused by a single judge of the Court of Appeal and he renewed his application to the plenary Court of which the single judge was a member.

He made a preliminary application to recuse the single judge on the basis of a reasonable apprehension of bias on his part if that judge heard the renewed appeal; alternatively that such a state of affairs was incompatible with his rights under the European Convention on Human Rights.

Held,          refusing the application, that -

(1)              rule 15(5) of the Court of Appeal (Criminal) (Jersey) Rules 1964 envisaged that a single judge who had refused an application could sit as a member of the Court hearing the renewed application;

(2)              any perceived unfairness or bias was not reasonable given that when a single judge considered an application for leave, he did so on limited papers; he did not have the benefit of written contentions or oral submissions; further the single judge knew that the application could be renewed to the full court;

(3)              the practice was not incompatible with convention rights.  Save in exceptional circumstances, there was no reason,as a matter of principle, to regard a single judge in such circumstances, as being anything other than a proper and impartial member of the plenary court.[9]

[The appeal was allowed on its merits and a sentence of 7½ years’ imprisonment substituted].

LAND LAW

RESTRICTIVE PRACTICES

Colesberg Hotel (1972) Ltd. v Alton Hotel Ltd. Royal Ct: (Bailhache, Bailiff and Jurats Potter and Le Breton) [2003] JRC 26.

J. Martin for the plaintiff; D.J. Benest for the defendant.

The defendant was in the course of constructing 24 flats on land adjoining that owned by the plaintiff.  The defendant enjoyed a right of way over a private road belonging to the plaintiff and intended to use it as the sole vehicular access to its flats from the public road.  The defendant further intended to construct its development against a wall that belonged to the plaintiff pursuant to a droit de jointure granted in a deed of 1899 entered into by the parties’ predecessors in title, and to build in excess of a 10 feet height restriction that applied to such wall.  The plaintiff alleged that the development had extinguished the right of way by aggravation and, in so far as the defendant planned to build above the wall, that it would have to leave a relief.

Held,          dismissing the plaintiff’s claim, that -

(1)              the right of way enjoyed by the defendant was expressed in the widest and most general of terms possible:  “toutes fois et quantes et à tous usages”. In this context, “usage” meant “use” or “purpose”.  Whilst it embraced the manner in which the right of way could be exercised, it also meant that the defendant could use the way generally, for any purpose reasonably incidental to the enjoyment of the defendant’s land.  (Le Feuvre v Mathew[10] distinguished; Dalloz, Nouveau Répertoire de Droit applied).  The defendant’s proposed use of the right of way therefore fell within the terms of the deed;

(2)              the plaintiff’s ownership of the wall would ordinarily imply a relief of 18 Jersey inches, measured from the outer face of the wall, that would prevent the defendant from building on, or occupying the strip of land that abuts the wall.  However, the defendant’s right to join to the wall removed such relief and thereby allowed the plaintiff to build up to the boundary line.  Further, since this clause had not been expressed to be subject to the subsequent clause that restricted the height of the plaintiff’s wall, the defendant’s planned construction did not infringe the plaintiff’s rights.

MONEY

SECURITY INTERESTS

EM TV & Merchandising v Aktiengesellschaft Bayerische Landesbank and others Royal Ct: (Bailhache, Bailiff) [2003] JRC 039.

F. B. Robertson for the plaintiff; M.J. Thompson for the defendant and interveners.

The plaintiff purported to create a security interest in its shares that were held in a particular company so as to secure its obligations and liabilities to the defendant and interveners. The plaintiff, however, now alleged that the security interest was invalid for failing to “specify” the events that were to constitute events of default in accordance with article 3(1)(f) of the Security Interests (Jersey) Law 1983 (“the Law”).  The plaintiff argued that the events of default had to be all contained within the security interest agreement itself, and that the agreement was invalid because it purported to incorporate other documents by reference. 

Held,          dismissing the plaintiff’s application, as the events of default were definitely or explicitly identified in the security agreement and the documents incorporated by reference, the requirements of art. 3(1)(f) of the Law were satisfied.

PLANNING LAW

COMPULSORY PURCHASE

Planning & Environment Committee v Lesquende Ltd. & others CA: (Southwell, JA,) [2003] JCA 021.

M.St.J. O’Connell for the representor; M.L.Preston for the fourth respondent.

The representor applied for leave to appeal against the refusal of the Royal Court on October 15th, 2002, to make an order pursuant to the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961, (“the CP Law”) that a special case be stated upon a point of law described as “Issue 2”. The application for leave to appeal had been refused by Birt, Deputy Bailiff [2003] JRC 004 for the following reasons -

(i)               on the assumption  that there was a right of appeal, leave to appeal was required pursuant to art. 13(e) of the Court of Appeal (Jersey) Law 1961 because the decision as to whether or not to state a case was an interlocutory order only. The classification as to whether a judgment or order was final or interlocutory depends upon the test applied in Salaman v Warner[11], namely, that a judgment or order is final only where it is made upon an application or other proceedings which must, whichever way it is decided, determine the action. A judgment or order is interlocutory where it cannot be said that in either event the action will be determined;

 (ii)              however, art.12 of the C P Law provides that any decision of the Royal Court upon a case stated is final. Accordingly, it should not be possible to appeal from the Royal Court against an order preliminary to such decision, including a refusal to state a case;

(iii)              in any event, leave to appeal ought to be refused upon the merits.

Held,    refusing leave to appeal, that –

(1)              the Royal Court had been correct in the reasons that it gave for categorising the decision not to state a case as interlocutory: the decision was not decisive of the parties’ rights but was merely one of the interlocutory steps in the matter; 

(2)              the Royal Court was wrong in holding that art.12 of the C P Law excluded a right of appeal against the decision not to state a case. Upon its express wording, it prevented an appeal only as to the decision made upon the case stated;

(3)              upon the merits, leave ought to be refused. “Issue 2” was a matter of fact, upon which it would have been wrong to state a case.

Per curiam: The exclusion of a right of appeal may be incompatible with the Human Rights (Jersey) Law 2000 once in force.

TRUSTS

CONSTRUCTION

In re the Taylor Settlements, Royal Ct: (Le Cras, Commissioner, [2003] JRC 038.

N.G.P. Pearmain for the trustee; S.J. Young for the legitimate grandchildren; P.C. Sinel for the illegitimate grandchildren.

This was an application by the trustee for directions as to the construction of two trust deeds which were in virtually identical terms.  The trusts had been created in 1969 and the settlors had died in 1982 and 1984 respectively.  When the trusts were executed, the settlors, who were husband and wife, had four children, all of whom were named in the settlement but no grandchildren.  The trust deeds provided that the beneficiaries were to include “the issue” of the settlors.  The four children had, between them, six children two of whom were legitimate and four of whom were illegitimate.  The point on which the trustee sought directions was whether “issue” included the illegitimate grandchildren.

Held, (1)     that there was no ambiguity in the wording of the relevant clauses;

         (2)     that the Court should consider the objective meaning that the words of the document convey to the Court when considered as a whole in the light of the surrounding  circumstances;

         (3)     that it was desirable that the same term should mean the same thing whether used for wills or for trusts; and

         (4)     that there was a presumption that issue meant legitimate issue, and that this presumption had not been rebutted in this case.

POWERS AND DUTIES OF TRUSTEES

Parujan v Atlantic Western Trustees Ltd.  Royal Ct: (Bailhache, Bailiff and Jurats Le Brocq and Le Breton) [2003] JRC 045.

M.H.D. Taylor for the plaintiff; D.F. Le Quesne for the defendant.

In 1994 the plaintiff established a discretionary settlement known as the Maple Trust of which the defendant was the trustee. Pursuant to the plaintiff’s letter of wishes, the defendant regularly consulted with one of the plaintiff’s brothers, Harshad Kapadia  (“HK”), later described by the defendant as a “difficult client”. During 1995, HK requested that the defendant prepare a trust deed on the same terms as the Maple Trust for what became known as the Pan-Am Trust, for the purpose of owning the shares in a company known as Shearson International Business Corporation. (“Shearson”). The trust deed was not returned to the defendant and therefore was never executed by it. After various disagreements between the plaintiff and the defendant, the plaintiff issued a representation in 2000 claiming directions pursuant to art.47 of the Trusts (Jersey) Law 1984 (“TJL 1984”), inter alia, as to the following matters (i) whether or not the defendant had the right to charge fees for the administration of the Pan-Am Trust; (ii) should the defendant repay to the Maple Trust amounts taken in order to meet legal fees incurred by it in connection with its disputes with the plaintiff; (iii) had the defendant overcharged the trusts; and (iv) should the defendant be removed as trustee.

Held, (1)     that the defendant had no right to charge for administering the Pan-Am Trust but was only entitled to a proportion of its fees upon a quantum meruit basis. A discretionary trust may come into existence in two ways.  First, a trust deed may be signed by a settlor and counter-signed by a trustee acknowledging the receipt of property that is held upon the trusts set out in the deed.  Secondly, a person may receive property and execute a declaration of trust stating that he holds that property upon the trusts set out in the deed. In this case, no trust deed was ever executed by the defendant and, accordingly, the Pan-Am Trust never came into existence.  Further, the Trust could not have been validly created as it lacked certainty as to the beneficiaries and their beneficial interests. (Re Malabry Investments Limited[12] applied.) Accordingly, the defendant held the issued share capital of Shearson on a bare trust for the beneficiaries of the Maple Trust;

         (2)     that the defendant had committed a clear breach of trust in using the trust fund to pay its own legal fees in circumstances where it was engaged in hostile litigation with the beneficiaries of the trust.  The amount involved was ordered to be repaid to the trust, together with interest; 

         (3)     that the defendant had not acted competently within the terms of art.17(1) of the TJL 1984. The defendant had failed to exercise sufficient control over the trust and had constantly found itself trying to recover information that ought to have been in its possession at the outset. The defendant was, however, entitled to a reasonable sum upon a quantum meruit and any excess above that which had been charged by the defendant was to be repaid to the Maple Trust;

         (4)     that pursuant to arts. 15 and 47 of the TJL 1984, the defendant should be removed as trustee. The beneficiaries had requested that the defendant retire as trustee in 1999 but the defendant had not done so, despite having agreed to retire. Further, the breakdown of relations between certain beneficiaries and the defendant, coupled with the findings made by the Court as to overcharging and breach of trust, were all relevant in reaching such a conclusion.

POWERS OF TRUSTEES

In re the Green GLG Trust, Royal Ct: (Birt, Deputy Bailiff and Jurats Querée and Le Breton) [2002] JRC 235.

M.J. Thompson for the representor.

Pursuant to powers given to it within a Jersey law settlement, the trustee made 4 appointments of capital to one of the beneficiaries.  At the time of making the appointments, and having taken advice on the point, the trustee believed that there were no adverse tax consequences in so doing.   However, it seemed that between making the decision to appoint the capital, and those appointments being make, changes were introduced to the UK tax regime, such that if the appointments were valid, the settler of the trust would be liable to capital gains tax on any unrealised gains in the entirety of the trust fund.  The Court was satisfied that had the trustee known that the UK tax changes would trigger such a charge to tax it would not have resolved to make the appointments (and indeed that the protector of the trust would not have consented to them).

The trustee sought a declaration that the appointments of capital it had made were void.

Held,          granting the relief sought, that –

(i)               the principle in Re Hastings-Bass[13] was a principle of Jersey law;

(ii)               the Court could intervene with a decision made by a trustee where (1) what he had achived was unauthorised by any power conferred on him or (2) it was clear that he would not have so acted had he not taken into account irrelevant factors or ignored relevant ones;

(iii)              this was simply a manifestation of the general principle that a trustee must act in good faith, responsibly and reasonably.

Obiter: the Court should be satisfied that the trustee would not, rather than might not, have come to the decision, if it had known the correct facts.

PROCEEDS OF CRIME : ACT OF STATE

Re Yaheeb Trust and others,[14] Royal Court: (Bailhache, Bailiff) [2001] JRC 476 C.

G. R. Boxall and F. B. Robertson for the representor; D. F. Le Quesne for the minor beneficiaries etc; M. J. Thompson for the trustee; J. D. Kelleher for the State of Qatar; W. J. Bailhache Q.C., Attorney General, party convened.

The representor was a senior minister in Qatar and the principal beneficiary of trusts established in Jersey to receive fees or commissions paid to the representor for services in relation to various contracts entered by the State of Qatar.  A police investigation had begun into the legitimacy of these payments following a report under the Proceeds of Crime (Jersey) Law 1999.  The Attorney General applied to cross-examine both the representor and the managing director of the trustee.  The representor objected, inter alia, that such a cross-examination would offend the doctrine of Act of State and that the Court ought to exercise judicial restraint.  The trustee objected that its managing director had no relevant evidence to offer on the underlying issues in dispute.

Held,

 (1)             that the doctrine of Act of State was part of the law of Jersey and that the Court would exercise judicial restraint in appropriate circumstances;

(2)              that the representor, who claimed to be acting in a private capacity in relation to the contracts in question, could not rely upon the doctrine of Act of State to prevent his cross-examination; the Attorney General’s application would therefore be granted in his respect;

(3)              that the managing director of the trustee had no relevant evidence to offer and the Attorney General’s application would in that respect be refused.        

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