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The Jersey Law Review - June 2004
CASE SUMMARIES
The Editorial Board has decided to include in this section of the Review selected cases from Guernsey which might be of interest to subscribers. The following key indicates the court to which the case reference refers.
JRC - Royal Court of Jersey.
GRC - Royal Court of Guernsey.
JCA - Jersey Court of Appeal.
GCA - Guernsey Court of Appeal.
JPC - Privy Council, on appeal from Jersey.
GPC - Privy Council, on appeal from Guernsey.
CIVIL PROCEDURE
APPEALS
Smith v Slawther CA: (Southwell, Beloff, and Smith JJA) [2003] GCA 220.
The applicant in person, the respondent was neither present nor represented.
The applicant sought leave to appeal to the Judicial Committee of the Privy Council against the judgment of the Court of Appeal dismissing her appeal from the Royal Court’s decision in a boundary dispute. The application was made 5 years after the Court of Appeal judgment.
Held, Appeals to the Privy Council were either as of right or by leave granted at the discretion of the Court appealed from (the Court did not concern itself with the third category of appeals by special leave of the Privy Council). Appeals lay as of right from any final judgment when the matter in dispute on the appeal amounted to, or was of the value of, the specified sum or when the appeal involved directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the like value. Even when an appeal lay as of right, application for leave to appeal had first to be made to the Court from which the appeal was to be brought; and it was the duty of that Court to form a judgment as to whether the appeal lay or did not lay under the statutory provision. There was no evidence of the value of the right claimed by the applicant and accordingly the Court’s discretion was engaged. Equally, there was no express provision in Guernsey law as to the time within which such leave should be sought. The Court held that an application for leave must, in the interests of justice, be made within a reasonable time. There was no basis for any extension of time in the present matter. There had to be finality to litigation. There would be clear prejudice to the respondent in re-opening the matter now. The application was dismissed.
CASE MANAGEMENT
Luce v Manning Royal Ct: (Birt, Deputy Bailiff) [2004] JRC 014
C. Parslow for the plaintiff; O. Blakeley for the defendant.
The plaintiff, L, appealed against the decision of the Master which had confined his costs in relation to the proceedings to a maximum of £750.
The defendant M, a solicitor, instructed L to value certain properties in the context of M's administration of an estate. No terms were agreed as to fees and L submitted a fee note based on a scale fee which totalled £8,687.50. After some delay, M reverted to L saying that the fee charged was excessive and that in his experience the usual fee for such work was between £100 and £250. After some exchange of correspondence, proceedings were issued which were defended by M. He asserted that although L was entitled to a reasonable fee for the work done, the sum claimed was far from that. M made a payment into Court in the sum of £4,000, only one month before trial, which was accepted by L. An issue arose as to whether L should have his costs to the date of the payment in. The evidence was that those costs were some £13,000. The Master, principally to express the Court’s displeasure at what was viewed as an excessive level of costs given the size of the claim, although awarding L his costs to the date of the payment in, capped those at £750. L appealed .
Held; allowing the appeal and awarding L 50% of his taxed costs to the date of the payment in, that -
(1) the Court should seek to give effect to the sentiments of the Court of Appeal in Esteem, that the overriding objective was to bring proceedings to trial at a level of cost which was reasonable and commensurate with the sum in dispute;
(2) ordinarily a party who accepts a payment into Court can expect to be awarded his costs up to the date of the payment in. There required to be good reason to depart from that policy;
(3) in this case L had not been an unambiguous winner and the justice of the case suggested that he should receive only half of his costs;
(4) the Master had been wrong to assess the costs summarily without proper information as to the costs, beyond their overall level. The proper forum for an assessment of the reasonableness of costs was taxation. Any move toward a summary assessment of costs would require a rule change;
(5) on taxation the taxing officer should consider whether the costs were reasonable in the context of the particular case having regard to the amount and issues at stake. In a small money case, it followed that unless satisfied that the steps taken by the receiving party’s lawyer were absolutely essential, the costs should be disallowed.
STAY OF EXECUTION
Murfitt v States of Alderney CA: (Southwell, Beloff, and Smith JJA) [2003] GCA 049.
The applicant in person; R.J. McMahon, Crown Advocate, for the respondent.
The applicant sought a stay of execution of an eviction order made by the Court of Alderney pending an application to the European Court of Human Rights. His appeal to the Royal Court was dismissed. His appeal to the Guernsey Court of Appeal was also dismissed. His application for special leave to appeal to the Privy Council was refused.
Held, The applicant was confronted by an insuperable obstacle. There was no basis for any jurisdiction in the Court of Appeal to order a stay pending such an application to the ECHR, particularly when the Privy Council had rejected an application for leave to appeal. The Court of Appeal was functus officio. Even if the Court of Appeal had jurisdiction a stay should not be granted. The European Court of Human Rights was not a Court of Appeal from the Guernsey Court of Appeal, or from the Privy Council. The Court adopted the reasoning of Hart J in Westminster CC v Porter to the effect that the ECHR was not constituted as a further court of appeal from the courts of (England). The proceedings in the ECHR would be against the United Kingdom. The ECHR would not determine the legal issue between the (original) parties. A favourable decision of the ECHR would not affect the judgment of the English court. The proposition that English courts, in deciding whether to enforce their own judgments or to allow enforcement of their own judgments, have to have regard to what the ECHR might ultimately say as a result of a petition to that court was inconsistent with the principle that the ECHR had not been constituted by Parliament as a court of appeal from that jurisdiction. The same principles were entirely applicable in Guernsey. The application was refused.
CRIMINAL LAW
MONEY LAUNDERING
O’Brien & others v Att. Gen. CA (Southwell, Gloster and Vaughan JJA) [2003] JCA 228.
R. Tremoceiro for O’Brien; D. Gilbert for Mrs O’Brien; M.L. Preston for Dunne; S.M. Baker, Crown Advocate, for the Crown.
All three defendants faced charges of money laundering under the Drug Trafficking Offences (Jersey) Law 1988 (“the Law”), together with two other defendants whose appeals were adjourned. O'Brien (“O’B”) faced two counts of transferring the proceeds of criminal conduct (article 16(a)(1) of the Law); his wife (“Mrs O’B”) and a friend (Dunne), numerous counts of assisting another to retain the benefit of drug trafficking (Article 17(1) of the Law). O’B had pleaded guilty; Mrs O’B and Dunne had been found guilty after a trial lasting 11 days. O’B received a sentence of four years; Mrs O’B seven years and Dunne nine years. O’B appealed against his sentence; his wife and Dunne, against both convictions and sentence.
Held, Mrs O’B’s conviction -
On the totality of the evidence against Mrs O’B, the Jurats could not have decided that she knew or suspected (i) that her husband was trafficking in drugs or (ii) that the moneys which she had paid into his personal bank accounts for him were the proceeds of drug trafficking. The verdict therefore could not be supported by the evidence and Mrs O’B’s conviction was quashed.
Dunne conviction -
Dunne’s defence was, in summary, that the money he received from O’B was his own money, which he had handed to O’B to evade has obligations to the UK Revenue. There was, however, evidence before the Jurats on which they were entitled to disbelieve Dunne’s version of events and, having rejected the positive case run by Dunne, entitled to infer that he knew or suspected that the moneys paid by O’B to him were the proceeds of drug trafficking. Accordingly Dunne’s conviction was upheld.
O’B’s sentence -
O’B had pleaded guilty in England to drug trafficking offences and had been sentenced there already to six years. The English court had taken into account his activities in Jersey. However, confiscation proceedings had failed in the UK because of delay. The Court surmised that the Jersey proceedings against O’B were brought with a view to securing, in Jersey, the confiscation order not available in England rather than a further custodial sentence.
Whilst the factual basis of O’B’s plea had not been accepted by the Crown – he alleged that he had made no more than £180,000 from the drug trafficking – his guilty pleas had been secured on the basis of a confirmation by the Crown that it would move for a non-custodial sentence. It was expressly stated by the Crown, however, that it could not, of course, bind the Court, which could, of its own volition, pass a custodial sentence.
The sentencing court, in the event, made it clear that it did not consider itself bound by any “plea bargain”.
The Court of Appeal in reducing the sentence from four years to one year, stated that although there was still uncertainty as to the legitimacy of a plea bargain in Jersey - and the Court came to no concluded view on that - it recognised, however, that in certain English cases it had been suggested that the higher courts would uphold any legitimate expectations on the part of a defendant that if he pleaded guilty neither the prosecution, nor the sentencing tribunal if it were involved, would resile from the representations on which the defendant had relied and was entitled to rely in coming to that decision.
In this case, therefore, the Crown Advocate, at sentencing, should not have resiled from that bargain; nor should the sentencing court, in advance of any submissions, have stated that it would not be taking account of the plea bargain. It was incumbent on the Court to give substantial weight to the decision of the Attorney General, upon which O’B had relied in deciding to plead guilty.
That said, it was still open to the Court to impose a custodial sentence. The sentence was reduced since the Court had failed to give any weight to the plea bargain or to the other available mitigation.
Dunne’s sentence -
The Court, reducing the sentence from nine to five years, stated that the starting point of 12 years had been excessive. Further, there was disparity with the sentence of O’B which allowed the Court to substitute a lower sentence.
CRIMINAL PROCEDURE
PROCEEDS OF CRIMINAL CONDUCT
Ani v Barclays Private Bank and Att.Gen. Royal Ct: (Birt, Deputy Bailiff) [2004] JRC 069
O.A.Blakeley for the representor; M.J.Thompson for the first respondent; A.J.Belhomme, Crown Advocate, for the Crown.
The first respondent was trustee of a trust known as the Eyo Trust and, in accordance with the obligations imposed upon it by article 32 of the Proceeds of Crime (Jersey) Law 1999 (“POCL”), reported to the police in 2002 its suspicion that certain trust property might be the proceeds of criminal conduct. The police refused to grant its consent to the trustee dealing with the trust property and pursued an investigation into any possible connection between the trust and the affairs of the late Nigerian dictator, General Abacha. The trust property was thereby effectively frozen and the trustee was unable to comply with requests by the representor for a capital distribution for fear of committing a criminal offence. The representor sought relief against the trustee seeking payment of the trust fund. By December, 2003, the police investigation had revealed no wrongdoing and was finally closed. The representor sought leave to discontinue the representation and costs against both respondents.
Held, there was no clear guidance from the Courts on the appropriate procedure to resolve matters where a customer is denied access to his funds because of a suspicious transaction report and the refusal of the police to consent to any distribution. There were two potential courses open to the aggrieved customer: (i) judicial review of the refusal by the police, or (ii) a conventional private law action against the Bank (Amalgamated Metal Trading Ltd. v City of London Police Financial Investigation Unit & others; Governor & Company of the Bank of Scotland v A Ltd.considered.) Accordingly, the application for costs against the Attorney General was misconceived, inter alia, as it was the refusal of the police that was material to article 32 of POCL. Further, as the proceedings had not been pursued and the trustee had not behaved unreasonably, it too would not be penalised in costs. The parties would be ordered to bear their own costs.
SENTENCE – SENTENCING PRINCIPLES
Harrison v Att. Gen. CA: (Birt, Deputy Bailiff, Southwell, Nutting, Smith and Vaughan, JJA) [2004] JCA 046.
R. Tremoceiro for the appellant; W.J. Bailhache Q.C., Attorney General, and S. M. Baker, Crown Advocate, for the Crown; T. J. Le Cocq, as amicus curiae.
The appellant had been granted leave to appeal against his sentence of 3½ years’ imprisonment for grave and criminal assault and 12 months’ imprisonment (concurrent) for contempt of court. The appellant submitted that whilst the Royal Court had been correct to adopt a starting point methodology in sentencing the appellant upon the grave and criminal assault offence, the starting point adopted of 5 years was too high and/or the appellant’s sentence was manifestly excessive. The Crown submitted that the role of the Court of Appeal was such that it ought only to interfere if it found that the sentence imposed by the Royal Court was contrary to principle or manifestly excessive and that such matters did not arise in the instant case. The amicus curiae submitted that it was appropriate for the Royal Court to adopt the starting point methodology in cases such as the present and that it should not be confined to drug trafficking offences.
Held, dismissing the appeal, that -
(1) procedural fairness was a cardinal principle of Jersey law and required the Court to provide a sufficient explanation of the reasons which had led it to the sentence imposed. It was therefore incumbent upon the Court of Appeal to make binding rulings on that sentencing process where the interests of justice so required. Whilst it was desirable for the Royal Court to identify starting points when sentencing an offender, the Court declined to direct the Royal Court to do so in all cases;
(2) in broad terms, the Court of Appeal would interfere with a sentence in four circumstances: (a) when the sentence was not justified by law; (b) when the sentence had been passed on the wrong factual basis; (c) where some matter had been improperly taken into account or there was some fresh matter to be taken into account; or (d) where the sentence was wrong in principle or manifestly excessive (Archbold: Criminal Pleading, Evidence and Practice and Procedure 2003 at para 7\136 applied;
(3) in arriving at a starting point, all matters relating to the offence, including aggravating factors and factors which reduced its gravity ought to be taken into account. Matters such as personal mitigation, plea of guilty, time awaiting trial, good character or personal circumstances, ought to be excluded. The sentencing court should then make the appropriate allowance for any plea of guilty as a deduction from the starting point for the offence, and thereafter make such further deductions as it thought fit for other mitigating factors. The Court, however, need only calculate a single comprehensive discount for all such factors. Provided that the reasoning of the Royal Court was clear, its discretion in the sentencing process (including whether or not to adopt a starting point) would not easily be questioned or overturned on appeal;
(4) in considering the sentence imposed upon the appellant for grave and criminal assault, it was not necessary for the sentencing court to examine whether or not the offence had been committed with intent as intent was not a necessary ingredient of the offence of assault in Jersey. (Mallet v Att.Gen. not followed). A non-exhaustive list of factors that should be taken into account on any case of grave and criminal assault were as follows -
(i) the nature of the deliberation with which the assault was carried out;
(ii) whether the blow was aimed or random;
(iii) whether the incident arose as a result of loss of temper or was committed in cold blood;
(iv) what was the degree of force with which the blow must have been struck;
(v) the nature, extent, gravity and permanence of the injury occasioned;
(vi) if a weapon was used, the nature of such weapon;
(vii) whether the weapon was carried or seized in the instant;
(viii) how many were concerned in the assault and the circumstances which gave rise to their involvement;
(ix) the nature and extent of any provocation offered by the victim;
(x) whether the offender had a record of committing the same or similar offences or constituted a danger to himself or the public.
(5) in the circumstances of the instant case, the sentence of 3½ years’ imprisonment for the grave and criminal assault would be upheld but a period of three months’ imprisonment concurrent would be substituted for the offence of contempt. Had the Court not taken into account the period served by the appellant abroad, pending extradition, a sentence of 6 months imprisonment consecutive to that imposed for the principal offence would have been appropriate.
EVIDENCE
ADMISSIBILITY OF EVIDENCE IN PRIOR CRIMINAL PROCEEDINGS
Gosselin v Capital Properties Ltd. Royal Ct: (Hamon, Commissioner) [2004] JRC 019A
C.J. Scholefield for the plaintiff; N.M. Santos-Costa for the defendant.
The plaintiff brought a claim for damages arising out of personal injuries sustained whilst on the defendant’s premises as a result of an alleged assault by the defendant’s employee. In previous criminal proceedings brought against the plaintiff, the Relief Magistrate had acquitted the plaintiff of grave and criminal assault and had made scathing comments about the treatment meted out to the plaintiff by the defendant’s employee. The plaintiff sought to have admitted in evidence in the civil proceedings, the judgment of the Relief Magistrate, as well as statements made in the criminal proceedings and the transcript of oral evidence. The defendant company argued against the reception of such evidence.
Held, refusing to admit the evidence, that the opinion of the criminal court was irrelevant on the trial of the issues in the civil court. (Hollington v F. Hewthorn and Company Ltdapplied). The court further refused to consider the provisions of the Civil Evidence (Jersey) Law 2003 which, whilst registered, had not been brought into force. However, were any witness to depart materially from anything said on oath in the Magistrate’s Court, then an application could be made in the absence of the Jurats for that recorded evidence to be put to the witness concerned in cross-examination. (Howaz v Thomas Cook Group Ltdapplied.)
FAMILY LAW
FINANCIAL PROVISION
L v V Royal Ct: (Bailhache, Bailiff and Jurats de Veulle & Quérée) [2004] JRC 033.
C. M. B. Thacker for the petitioner; A. D. Hoy for the respondent.
With the benefit of legal advice, the husband and wife reached a separation agreement during 1998, and the wife received a lump sum of £45,000. That agreement was subsequently renegotiated by the wife and ratified by the Greffier Substitute in 2002 as a consent order under which the husband agreed to make an additional lump sum payment of £250,000. The husband failed to make the payment because he had difficulty in selling the former matrimonial home for a sum in the region of £850,000 which he had earlier understood to be its value. By a further consent order in February 2003, the parties agreed that would subsequently repay to the husband a sum of £75,000, provided that the husband continued to discharge the children’s school fees. In July 2003 the property was sold for £610,000, leaving £358,493 as the net proceeds of sale. Upon different legal advice being given, the husband sought to set aside the consent orders made in 2002 and 2003 pursuant to the Court’s power under Article 32 of the Matrimonial Causes (Jersey) Law 1949 to vary a lump sum order.
Held, setting aside the consent orders, that -
(1) where an agreement between parties to matrimonial proceedings is submitted to the Court for ratification, it is the duty of the Court to make certain basic inquiries so as to satisfy itself that the interests of minor children are protected and that the agreement is fair and just. (Rennell v Le Mière). In performing that task, the Court was neither a “rubber stamp” nor some kind of “forensic ferret” (Tommey v Tommey and Harris v Manahan). To that end, the Registrar might find it useful to draw up a questionnaire for the parties to complete before any agreement is submitted for ratification in similar terms to that utilised in England by rules of Court;
(2) whilst the Court would have been prepared to set aside the consent orders upon the basis of “an intervening event”, namely the greatly inferior price at which the house eventually sold, it would set aside the orders upon the basis that there was no evidence that the Greffier Substitute had applied his mind to the fairness of the agreement and subjected it to any degree of judicial scrutiny;
(3) having particular regard to the housing needs of the parties and to those of the children, the equity from the house should be divided 60% to the wife and 40% to the husband. In making such assessment, the £45,000 lump sum payment made in 1998 could only fairly be treated by the Court as representing the wife’s capitalised claim for maintenance.
JUDICIAL SEPARATION BY CONSENT
X v X CA: (Bailhache, Sumption, and Nutting JJA) [2004] GCA 20th April.
G. Dawes for the appellant; C. Whitmore for the respondent
The appellant husband had entered into a judicial separation consent order whereby all the equity in the matrimonial home was given to the wife together with maintenance for her and the children of the family amounting to approximately 2/3 of his income. He had not been represented at the time, despite the promptings of the advocate for the wife. The appellant sought a variation of the order pursuant to article 45 of the Matrimonial Causes Law 1939. At first instance the order was varied to a limited extent to reduce the maintenance payable directly to the wife to a nominal amount; however the husband remained liable to pay 40% of his income for the benefit of his wife and child with no interest in the former home. The husband appealed, contending that the judicial separation consent order was invalid and of no effect but that in any event the order should be varied further.
Held, dismissing the appeal;
that two forms of judicial separation existed under Guernsey law, namely judicial separation equivalent to the canon law a mensa et thoro (but) by consent, and judicial separation upon the grounds set out in the 1939 Law. No grounds needed to be proved for a consensual judicial separation. Furthermore the Court had done all that was required at the original hearing when the consent order was made to ensure that the husband had understood what he was doing and that he consented. The husband was an experienced man who had consciously considered his own pension provision as opposed to his wife’s lack of any equivalent provision. The order would not be varied further, although a future application to vary could be made if there was a material change of circumstances.
INJUNCTIONS
FREEZING ORDERS
Tracey et al. v Seed International Ltd.CA: (Southwell, Smith, and Hodge JJA) [2003] GCA 055.
A.M. Ozanne for the appellant; A.D. Laws for the respondents.
A freezing order had been obtained against the appellant. The issue on appeal related to the extent of the ancillary disclosure order which had also been made. There had not been sufficient evidence of fraud presented to the Court to enable a Bankers Trust v Shapira order to be made, nor was the order sought on the basis of Norwich Pharmacal. The Court of Appeal reviewed the law relating to freezing orders generally.
The principles underlying freezing and ancillary disclosure orders in both English and Guernsey law were as follows:
1) the objective was the prevention of abuse;
2) the jurisdiction was a wide one, to make freezing and disclosure orders so far as necessary for the prevention of abuse;
3) it was for the Court, in the light of the particular circumstances of each case, to decide whether or not to exercise its discretion to make a freezing or disclosure order at all, and if so, how widely such orders should extend in order to achieve that objective.
The Court held that a proprietary claim as opposed to a merely personal claim to recover damages was not a necessary pre-condition to a freezing order; although a freezing order might be granted more readily in support of a proprietary claim. The essential question was whether there was an abuse to be prevented. The Court cited with approval the English Court of Appeal case of Grupo Torras SA et al v Sheikh Fahad Mohammed Al-Sabah (16th February, 1994) to the effect that unless a court could make a sufficiently wide disclosure order, a freezing order would be toothless. Likewise it adopted the suggestion that, in reality, the freezing order was (often) ancillary to the disclosure order rather than vice versa. Although English jurisprudence to the effect that disclosure orders should not go further than the injunction was considered, the Court concluded that the principal requirement was to ensure that both the freezing order and disclosure order should be made in terms which would meet the needs of justice in the particular case. The jurisdiction to make disclosure orders with a wider ambit than the associated freezing order was recognised in English law, albeit the need for such a disclosure order would have to be established clearly on the facts of the particular case. As to Guernsey law, the power to make interim injunctive orders was found in s.1 of the Law Reform (Miscellaneous Provisions) (Guernsey) Law 1987. That power would be exercised if the Royal Court was satisfied that it was just and convenient to do so. In exercising this jurisdiction “… the Courts of Guernsey need to keep in mind the special circumstances of a small island community and the needs of the financial services established in the Island, particularly the need to maintain the highest standards of probity in circumstances in which legal proceedings concerning funds held in Guernsey are likely to be pursued in larger jurisdictions rather than in Guernsey”.
The Court noted that in Solvalub Ltd. v March Investments Ltd., the Court of Appeal of Jersey had not followed the English House of Lords decision in The Siskina, holding instead that a freezing order could be made in respect of assets in Jersey in circumstances in which the substantive proceedings would be in another jurisdiction and there was no cause of action arising in Jersey. The Guernsey Court of Appeal adopted the reasoning of the Jersey Court; viz that if the Royal Court were to adopt the position that it was not willing to lend its aid to courts of other countries by temporarily freezing the assets of defendants sued in those other countries, it would amount to a serious breach of the duty of comity which courts in different jurisdictions owe to each other. The Guernsey Royal Court had a clear jurisdiction to make a disclosure order, ancillary to a freezing order, where there was no proprietary claim. Furthermore the Guernsey Courts had power to make a disclosure order with an ambit wider than that of the associated freezing order; although this did not mean that the grant of disclosure orders wider in scope than the associated freezing orders was to be commonplace. A strong case had to be made out by the applicant before any such wider disclosure order was made.
On the facts of the present case the disclosure order went beyond the ambit of the freezing order to a relatively small extent. The relevant foreign court had no power to order disclosure. Funds had been transferred to, inter alia, Guernsey. In so far as moneys had been moved out of Guernsey, it was clearly in the interests of justice that the plaintiff should know, at the least, to which bank account or other place outside Guernsey the monies had moved. The disclosure order was, accordingly, confirmed, subject only to two provisos. The first was that the documents or information obtained were only to be used for the purpose of legal proceedings between the parties unless the Royal Court otherwise directed. The second was that if the documents or information enabled the plaintiffs to commence new proceedings in a foreign jurisdiction they should seek the leave of the Royal Court beforehand. It was also emphasized that the burden of upholding an ex parte order was upon the plaintiffs. The Court ended by giving general guidance as to the need to deal with interlocutory applications of the present kind swiftly; with strict and short timetables laid down by the Royal Court. The Court also hoped that a practice direction could soon be made.
MEDECINE
MEDICAL TREATMENT
Att.Gen. v X (Birt, Deputy Bailiff and Jurats Tibbo and Allo) [2004] JRC 010.
S.C. Nicolle Q.C., Solicitor General, for the Crown; R. J. Juste for the respondent, X.
X, a prisoner, commenced a hunger strike, taking no fluids or food. The Attorney General sought declarations as to how the prison and hospital authorities should proceed in the event of X continuing with his expressed intention of starving himself to death.
Held, declaring that the hospital and/or prison authorities might lawfully observe and abide by X’s refusal to receive nutrition and/or hydration and/or medical treatment and might lawfully abstain from providing him with nutrition or hydration or medical treatment unless and until he wished to be provided with the same, that -
(1) although the Court had to balance the principle of the sanctity of human life with that of self determination, that balancing fell in favour of the latter individual right;
(2) in the case of an adult of full mental capacity, his or her decision to refuse treatment or food and drink must be respected. It was a tortious assault to perform any invasive act by way of treatment or force feeding where such a person had refused consent to such action;
(3) The right to decide one’s fate, however, presupposed full mental capacity. There was a rebuttable presumption of such capacity. A person lacked capacity if he was unable to make a decision whether to consent to or refuse treatment. Such would occur when he was unable to comprehend the information which was material to the decision, especially as to the likely consequences of having or not having the treatment in question; he was unable to retain that information, believe it and weigh the information which he had received in the balance in reaching his decision.
In this case the Court found that X was competent to make the decision he had taken.
PLANNING LAW
PRELIMINARY DECLARATION AS TO PLANNING PERMISSION
Barrett & Barrett v Island Development Committee CA: (Southwell, Smith, and Hodge JJA) [2003] GCA 054.
The appellants in person; R.J. McMahon, Crown Advocate, for the respondent.
The appellants, who lived in the vicinity of a proposed development, challenged the grant of a preliminary declaration under s. 27(1) of the Island Development (Guernsey) Law 1966 (as amended) by way of an application for judicial review rather than by way of the statutory right of appeal because of an earlier decision to the effect that qua neighbours they would not be “persons aggrieved” so as to give them locus under the Law. Notwithstanding the earlier case and the limits of the statutory right of appeal it is a necessary inference of the decision allowing the application that the appellants’ locus to apply for judicial review of the Committee’s decision was accepted. The Court of Appeal analysed the nature of a preliminary declaration and concluded that the Committee had asked itself the wrong question. The test was not whether the Committee was satisfied that a particular policy in the relevant area plan was clearly a bar to the proposed development. The Committee was instead required to form at least a prima facie view that the proposal was likely to meet the requirements of the relevant policy, which it had not done. Accordingly the preliminary declaration was set aside without in any way judging the merits of the proposal itself.
ROAD TRAFFIC
LICENCES
Environment and Public Services Committee v Tantivy Holiday Coach Tours Ltd. Royal Court (Birt, Deputy Bailiff, and Jurats Bullen and Clapham) [2004] JRC 042.
S.C. Nicolle Q.C., Solicitor General, for the plaintiff; F.B. Robertson for the defendant.
The defendant introduced and conducted a new passenger service called ‘Easylink’ throughout the summer season of 2003. The plaintiff claimed that the service had been unlawfully operated in that it was an omnibus service which required a licence under the Motor Traffic (Jersey) Law 1935 (“the 1935 Law”). The 1935 Law defines an ‘omnibus service’ as ‘a service that consists of the carriage by motor vehicles of passengers for hire or reward at separate fares, stage by stage, and stopping to pick up or set down passengers along the line of route’. The defendant submitted inter alia that the phrase ‘stage by stage’ qualified the preceding words ‘separate fares’ and that the existence of flat rate fares meant that the service could not be an omnibus service. Counsel also submitted that the service was not a char-à-banc service. The Solicitor General contended that the Easylink service involved the carriage of passengers for reward (i) at separate fares (ii) stage by stage, and (iii) stopping to pick up or set down passengers along the line of route. These three elements being present, it was an omnibus service.
Held, accepting the Solicitor General’s contentions, that Easylink was an omnibus service which required a licence under the 1935 Law.
SOLICITORS
PROFESSIONAL NEGLIGENCE
Pickersgill and Le Cornu v Riley PC: (Lords Nicholls, Hoffmann, Hope, Scott and Baroness Hale) [2004] JPC 040.
V. Livesey Q.C. (of the English Bar) for the appellants (defendants); M. J. Thompson and N. Rive for the respondent, (plaintiff).
This was an appeal from the decision of the Court of Appeal upholding the defendants’ liability for breach of the implied contractual duty to use reasonable skill and care in the provision of legal services to the plaintiff. The defendants had been found to have been negligent in failing to investigate, or advise the plaintiff to investigate, the financial standing of a company for which the plaintiff had obtained an indemnity.
Held, allowing the appeal, that
(1) while a duty of care arises when a solicitor is instructed by a client to act in a transaction, the scope of that duty of care is variable and will depend, first and foremost, upon the content of the instructions given to the solicitor by the client. There will also be other relevant factors including the characteristics of the client so that, for example, a youthful client, unversed in business affairs, might need greater explanation and advice from his solicitor than would be the case with an obviously experienced businessman. The scope of a solicitor’s duties may in some cases justify his description as an “homme d’affaires” but the bestowing of that description cannot alter or add to the extent of the duty of care that he would otherwise owe;
(2) the Court of Appeal had misdirected itself by its categorisation of the plaintiff as an “homme d’affaires”. The defendant had discharged any duty he had to warn the plaintiff as to the danger in accepting a contractual undertaking from a company. It was thereafter a matter for the commercial judgement of the plaintiff as to what he chose to do. Accordingly, the Privy Council would advise that the appeal should be allowed with costs.
TRUSTS
REMOVAL OF PROTECTOR
Re Freiberg Trust Royal Ct: (Bailhache, Bailiff and Jurats Bullen and Allo) [2004] JRC 056.
J. P. Speck for the trustee; M. Renouf for the infant, unborn and unascertained beneficiaries.
The trustee applied for directions seeking the removal of the protector of the trust who had been imprisoned for fraud. One of the offences of which the protector had been convicted in Holland involved the misappropriation of trust property. The trust instrument empowered the trustees to remove the protector if he were found to be bankrupt or insane but not in the circumstances in question. The Trusts (Jersey) Law 1984 empowered the Court to remove a trustee, but not a protector.
Held, that the Court had an inherent jurisdiction to remove a protector from office for due cause, and would exercise its power to do so in this case.
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