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The Jersey Law Review – June 2005
CASE SUMMARIES
This section of the Review contains selected cases from Guernsey as well as Jersey. 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
ADMINISTRATIVE LAW
JUDICIAL REVIEW
Webster v Parole Review Committee; Singleton v Parole Review Committee Royal Ct: (Carey, Bailiff) [2004] GRC 60.
J. White and M. Baudains for the applicants; R.J. McMahon for the respondent.
The applicants were convicted prisoners who had been refused parole. They alleged Wednesbury unreasonableness in the Parole Review Committee’s decision-making.
Held dismissing the appeal, that –
(1) Guernsey parole legislation gave no guidance to the Committee, the material Ordinance being completely silent as to the criteria to be applied;
(2) The decisions on the present facts would not be set aside, as the Committee was to be allowed a discretion which should not in general be interfered with by the Court.
Note: the Court was critical of the failure of the Guernsey authorities to keep abreast of developments in England where parole had been abolished for prisoners serving less than 4 years’ imprisonment.
CIVIL PROCEDURE
DISMISSAL FOR WANT OF PROSECUTION
De Freitas & others v Citadel Trust Ltd. Royal Ct: (Bailhache, Bailiff and Jurats Le Breton and Morgan) [2005] JRC 035C.
M.R. Renouf for the plaintiffs; R.J. MacRae for the defendant.
The plaintiffs instituted proceedings to enforce an option agreement in August 1998. Pleadings were filed but, although negotiations took place intermittently, no procedural steps were taken after March 1999. In March 2004, having given notice pursuant to Rule 6/20(3), the Master struck out the action. The plaintiffs applied to the Master to reinstate the action on the basis that they had failed to respond to the notice as the result of a clerical error. The Master refused, stating that he had no jurisdiction to do so. The plaintiffs appealed asserting (1) that the Master (and thus the Court) had an inherent jurisdiction to reinstate an action struck out pursuant to Rule 6/20(3), and (2) that the Court had, on appeal from the Master, discretion to allow the action to continue.
Held, dismissing the appeal, and applying Ebor SA v Incat Construction (Holdings) Ltd and Rastin v British Steel plc, that –
(1) the Court had no inherent jurisdiction to reinstate an action which had been struck out pursuant to the exercise of a judicial discretion;
(2) notwithstanding the clerical error, the failure to take any procedural steps for 5 years was inexcusable and there were no grounds upon which a striking out might have been resisted before the Master.
NORWICH PHARMACAL JURISDICTION
Systems Design Ltd. & Logo Ltd. v President of Equatorial Guinea & others CA (Southwell, Carey and Vaughan JJA) [2005] GCA 354.
N. Barnes for the first and seconds appellants; A Merrien for the first and second respondents; M. Ferbrache for the third respondent.
The respondent Head of State sought relief pursuant to the principles in Norwich Pharmacal Co. et al v Customs and Excise Commissionersostensibly to support civil proceedings against persons connected with an alleged attempted coup in Equatorial Guinea. Orders had been made ex parte but were challenged inter partes and maintained. The appellants appealed.
Held, allowing the appeal and ordering the return of certain documents disclosed, -
(1) applying Tracy et al v Seed International Ltd., the jurisdiction to grant Norwich Pharmacal relief was available to the Guernsey courts;
(2) the jurisdiction to grant relief ex parte should however only be exercised where (a) the grounds were sufficiently clear and (b) there was an urgent need to make the order so as to preserve the position between the disputing parties;
(3) there was doubt as to whether Norwich Pharmacal could be granted in aid of criminal proceedings;
(4) the proposed “civil” claim upon which the first and second respondents relied was a novelty and not to be taken seriously. The claim of the Republic for “damages represented by the expenses of investigation, increased security, and the detention and trial of the alleged conspirators” could not be regarded as a serious claim, given the regularity of attempted coups against the President and the alleged use of torture to extract confessions so that no additional expense under these heads was likely..
STRIKING OUT
Gamlestaden Fastigheter AB v Baltic Partners Ltd. and others CA (Smith, Clarke and Rokison JJA) [2005] JCA015.
N.M. Santos Costa for the appellant; T.J. Le Cocq and R.J.Macrae for the respondents.
The appellant, which was a shareholder and creditor of the first defendant (“Baltic”), had claimed damages and other relief against the respondent directors of Baltic on the basis that their alleged negligence and breach of duty had led to unfair prejudice within the meaning of art. 141 of the Companies (Jersey) Law 1991. The respondents had succeeded before the Royal Court in striking out the appellant’s claim on the grounds (i) that art. 141 relief was not available because, as Baltic was so hopelessly insolvent, there could be no value to the appellant qua shareholder, and (ii) that the action, which had been instituted in 1998, should be struck out for want of prosecution. The appellant appealed, and the respondents cross-appealed on the ground that the action should also have been struck out on the basis that the appellant could not claim damages on behalf of Baltic.
Held, dismissing the appeal and cross-appeal, that-
(1) the Royal Court had been right in holding that the facts pleaded disclosed no reasonable cause of action; there was no relief that the Court could grant which would protect the appellant’s interest as a shareholder of Baltic;
(2) as to the dismissal of the claim for want of prosecution, there was a period of inordinate and inexcusable delay of 15 months and not 24 months as the Royal Court had found; this delay had not caused more than minimal prejudice which did not warrant striking out the action on this ground;
(3) as to the cross-appeal, it was impractical to require the appellant to institute separate proceedings in the name of Baltic, and the cross- appeal would be dismissed (Re a companyapplied).
CONSTITUTIONAL LAW
ELECTION OF CENTENIER
In re the election of a centenier of St John Royal Ct: (Birt, Deputy Bailiff and Jurats de Veulle and Tibbo) [2005] JRC 020B.
S. Sharpe, Crown Advocate, for the Attorney General; Connétable of St John in person.
The Parish of St John had failed on three occasions to elect a centenier, notwithstanding successive orders of the Royal Court.
Held, fining the Parish £5000, that –
(1) the honorary police were at the heart of the criminal justice system and that the Parish had a duty to elect a centenier upon an election being ordered by the Court;
(2) the ordering of a further election would be adjourned in order to give the Parish more time to comply.
CRIMINAL PROCEDURE
JUDGE’S SUMMING UP
Benyoussef v Att. Gen. CA (Southwell, Carey, and Hodge JJA) [2005] JCA 024.
J.Bell for the appellant; C.M.M.Yates, Crown Advocate, for the Crown.
The appellant was convicted by a majority verdict of (i) grave and criminal assault and (ii) indecent assault. He appealed against his convictions on a number of grounds, inter alios that there had been misdirections as to (i) the identification evidence, including CCTV footage which was furthermore replayed to the jury after their retirement in the jury room and not in open court, and (ii) the relevance of the appellant’s good character.
Held, allowing the appeal and quashing the convictions, that –
(1) the detailed Turnbull guidelines on identification evidence should be applied in a modified form where photographs or video recordings are concerned; (R v Blenkinsop considered); whilst the judge had not expressly dealt with the CCTV footage, the guidance given to the jury on identification evidence generally had been sufficient; in future however any replaying of recordings upon request of the jury should be in open court;
(2) as the appellant had put his character in issue, the judge had been correct in directing the jury as to the effect of good character upon credibility, but had failed to deal with its relevance to the propensity of the appellant to commit the offences; there was no settled Jersey practice as to the giving of such a two-limb direction (Snooks v Att. Gen.considered) but in this case it had been essential to give such a direction in order to put the defence before the jury in a fair and balanced way (R v Vye, Wise and Stephenson applied); in future the courts should apply the principles set out in Vye.
Per curiam: It was good practice for judges to provide counsel with a copy of the proposed direction on issues of law in advance of the summing up so that counsel could draw the judge’s attention to any possible deficiency.
ECCLESIASTICAL LAW
DISCLOSURE OF ECCLESIASTICAL COURT RECORDS
X v Registrar of the Ecclesiastical Court Royal Ct: (Brelsford, Lieut.Bailiff) [2004] GRC 46.
M. Dunster for the applicant; the Registrar in person; HM Comptroller as amicus curiae.
The applicant alleged that a grant of probate had been obtained fraudulently and sought disclosure of all documents in the possession of the Registrar. He also sought a declaration that the documents were in the public domain and available for inspection and copying.
Held, granting the application in part, -
(1) by s.3 of the Ecclesiastical Court (Jurisdiction (Bailiwick of Guernsey) Law 1994, the Ecclesiastical Court had no jurisdiction in disputed cases; in any such proceedings the Royal Court could give such directions in relation to a grant of probate or letters of administration as it thought fit;
(2) having considered the position under English law, an order would be made in respect of certain specific documents; the Court would not however make a declaration that all records of the Ecclesiastical Court were open to public inspection.
Per curiam: the Court recommended the relevant authorities to consider clarifying the position by statute.
EVIDENCE
INTERPRETATION OF ARBITRATION AWARD
In re Brownstone Insurance (Guernsey) Ltd. (in compulsory liquidation) Royal Ct: (Newman, Lieut.Bailiff) [2004] GRC 43.
A.Ozanne for the applicant; R. Shepherd for the respondent.
An issue arose in the liquidation of a Guernsey company as to the meaning of a New York arbitration award. The applicant sought a ruling that affidavits made by two of the three arbitrators (the third had withdrawn his consent for his affidavit to be used) should be ruled inadmissible. The Court considered first the parol evidence rule under Guernsey law, viz. s.35 of the Loi relative aux preuves 1865, noting that there were two exceptions of potential relevance, (a) where a claim was made to rectify a document, and (b) where the Court had to construe the words used in an agreement it would look at the surrounding matrix of fact. However, the Court was not in this case construing an agreement but an order of the New York court and the award to which the court order gave effect.
Held, refusing the order sought, that the following principles were relevant –
(1) extrinsic evidence was in general inadmissible to contradict or vary judicial documents; an award in an arbitration spoke for itself;
(2) judges could of course eliminate ambiguities from, or correct errors in, their judgments after they had been given;
(3) when orders were drawn up, the parties should identify any ambiguities likely to cause difficulty and promptly seek clarification; the same principle applied to arbitrators but selective approaches to only one of a multi-member panel were to be discouraged;
(4) although the meaning of the passage in question was governed by New York law, the admissibility of evidence, and its own judicial process, were matters for Guernsey law.
VIDEO LINK
McCann v Bateman & others Royal Ct: (Page, Commissioner) [2005] JRC 027B.
P.S. Landick for the plaintiff; D.J. Benest for the defendants.
The defendants applied for leave for a witness, who had travelled out of the jurisdiction in ignorance of the date fixed for trial, to give evidence by video-link from Australia. The credibility of the plaintiff and of the witness were in issue at the trial.
Held, granting the application, that the normal expectation was that a witness should be present in court to give evidence; giving evidence by video-link was not a mere optional alternative; a judge did however have a discretion to allow evidence to be given in this way in the interests of justice, which included the efficient management of the litigation.
FAMILY LAW
ACCESS TO CHILDREN
G v A Royal Ct: (Birt, Deputy Bailiff and Jurats Bullen and Le Cornu) [2005] JRC 129.
V.Stone for the petitioner; S.E.Fitz for the respondent.
The mother applied for access to the two children of the marriage, who were aged 8 and 7 and argued that the father had alienated them from her. The evidence, including that of a child care officer and a clinical psychologist, was that the father had influenced the children against their mother and was preventing her from having reasonable and regular contact with them.
Held, ordering immediate access to the children for the mother with a review in one month’s time, that –
(1) the best interests of the children were paramount and it was almost always in the interests of a child to have access to both parents ( Re S applied);
(2) where an allegation is made that the parent with care and control has alienated the child from the non-residential parent, a court should make a finding on any such allegation ( Re T applied);
(3) in this case the father and his family had alienated the children from their mother and she should be granted an order for access; in the event that the father continued in his behaviour the Court would consider the imposition of sanctions including fines and imprisonment and ultimately transferring care and control on the basis that it was in the child’s best interests to live with a parent who positively encouraged access to the other parent ( V v V approved).
Per curiam: For the better conduct of cases involving issues of access the Court, the legal profession and the Children’s Service should read and become familiar with two judgments of the English courts, viz Re D (Intractable contact dispute: publicity) and V v V cited above. It was essential to avoid delay when dealing with access problems and that the matter be progressed before the Court with due expedition. Furthermore allegations of misconduct should not automatically result in access grinding to a halt; the Court should resolve issues speedily and not leave them unresolved. Judicial continuity assists the process and avoids inconsistency. It was the responsibility of the legal profession to alert court officials to the need for continuity in particular cases.
INJUNCTIONS
DISCIPLINARY HEARING
Haworth & others v Policy and Resources Committee Royal Ct: (Birt, Deputy Bailiff and Jurats Tibbo and Allo) [2005] JRC 014.
O.A. Blakeley for the plaintiffs; S.C. Nicolle, QC, Solicitor General, for the defendant.
The plaintiffs were civil servants employed by the defendant at Police Headquarters. They were being investigated by the police on allegations of criminal misconduct. The defendant wished to pursue disciplinary proceedings against them. The plaintiffs sought an injunction restraining the defendant from conducting such a hearing on the ground that it might prejudice later criminal proceedings. The defendant had undertaken that the hearing would be in private, that only the Deputy Chief Officer, an inspector who was head of the Professional Standards section, and the members of the panel would be present, and that no disclosure would be made of any material before the panel until termination of the investigation or prosecution or further order of the court.
Held, dismissing the application, that –
(1) the burden of persuading the court to grant the injunction lay on the plaintiffs;
(2) it was for the plaintiffs to show that there was a real danger of a miscarriage of justice in the criminal proceedings in continuing the disciplinary hearing;
(3) in this case the undertakings offered by the defendant were sufficient to avoid any real risk of injustice.
Per curiam: It should be rare that difficulties arose in relation to disciplinary proceedings where a criminal investigation was in train.
PARTNERSHIP
ESSENTIAL ELEMENTS
Bennett v Lincoln Royal Ct: (Bailhache, Bailiff and Jurats de Veulle and Bullen) [2005] JRC 029A
P.D. James for the plaintiff; S.J. Young for the defendant.
A dispute arose between the parties, inter alia, as to whether a joint venture in which they were involved amounted in law to a partnership.
Held, that a partnership (contrat de société) was a contractual relationship by which two or more persons obliged themselves to carry on business or to hold something in common with a view to an honest profit which they committed to share amongst themselves.
TORT
DISTINCTION BETWEEN MISFEASANCE AND NONFEASANCE
De Carteret v States of Guernsey Royal Ct: (Finch, Lieut.Bailiff) [2004] GRC 56.
N. Barnes for the plaintiff; G. Dawes for the defendant.
Oil had been spilt on a highway during the night and the police had been alerted. They, with the Fire Brigade and Public Works Department attended. Sand was spread and lights and signs put in place. The next day the plaintiff lost control of her scooter and fell, suffering injury. Proceedings were instituted and exceptions de fond pleaded to the effect that the claim was unfounded, there being no statutory or common law duty owed.
Held, dismissing the exceptions save as against the Fire Brigade, that –
(1) the immunity resulting from the distinction between nonfeasance and misfeasance remained part of Guernsey law;
(2) the issue here was not whether the defendant was under a duty to make the road safe, but rather whether the defendant escaped liability if it did not do the work properly;
(3) in any event any immunity was confined to the highway authority and the liability of the police and Fire Brigade had to be decided on basic common law principles;
(4) following the reasoning in Ancell v McDermott, there was no sustainable claim against the police.
Note: the plaintiff later abandoned her claim.
TRUSTS
DISCLOSURE OF TRUST DOCUMENTS
Countess Bathhurst v Kleinwort Benson (Channel Islands) Trustees Ltd. & others Royal Ct: (Talbot, Lieut.Bailiff) [2004] GRC 38.
P.Richardson for the applicant; R.Shepherd for the first respondent; N. Barnes for the second and third respondents.
The applicant was the only sibling of the deceased settlor with whom she had enjoyed a close relationship until the last months of his life. The settlor had married shortly before he died, and the applicant had then been excluded as a beneficiary of the trust. All the trust assets had been appointed out. The applicant sought disclosure of information relating to the trust, including deeds, accounts and letters of wishes.
Held, applying Stuart-Hutcheson v Spread Trustees Company Ltd. and citing with approval the Privy Council case of Schmidt v Rosewood Trust Ltd., and ordering the disclosure of certain documents, -
(1) the Court had an inherent jurisdiction to supervise and, where appropriate, to intervene in the administration of a trust. As to disclosure, it was neither sufficient nor necessary for an applicant to have a proprietary right to disclosure, nor did a vested beneficial interest entitle a beneficiary to disclosure as of right; it was a matter for the discretion of the Court;
(2) the powers of the Court extended to existing and excluded beneficiaries, and to trusts which had come to an end. As a matter of first principle, an exclude beneficiary was entitled to apply to the Court for relief relating to periods when she was a named beneficiary and a potential object of discretionary power;
(3) the power to order disclosure extended to letters or memoranda of wishes. The Court declined to follow the Royal Court of Jersey in Re Rabiotti’s 1989 Settlement as being “unduly restrictive”; there was “… no limit on the jurisdiction of the Royal Court to make orders for the disclosure of letters of wishes in a proper case”;
(4) the purported exclusion of s22 (1) of the 1989 Law (right of beneficiary to information, subject to the terms of the trust) by the trust instrument was not effective to oust the jurisdiction of the Court.
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