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The Jersey Law Review – June 2006
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
ARBITRATION
STAY OF PROCEEDINGS
Miller & Baird (CI) Ltd. v States of Guernsey; Royal Ct: (Hancox, Lieut. Bailiff) GRC [2005] 51
J.P. Greenfield for the plaintiff; F. Raffray for the defendant.
The plaintiff contracted with the defendant to build a marina at St Sampson’s Harbour, Guernsey. An issue arose as to whether a certified amount was in fact payable given delays in the works and the obligation of the plaintiff to repay sums relating to works no longer forming part of the contract. The plaintiff sought summary judgment on the certificate, and the defendant sought a stay of the proceedings and referral to arbitration pursuant to the contract’s arbitration clause.
Held, refusing to grant a stay and permitting the plaintiff to proceed with its application for summary judgment -
(1) there were no material differences for present purposes between the Arbitration (Guernsey) Law 1982 and the English (but since superseded) Arbitration Act 1950;
(2) the Court had no hesitation in looking to the English authorities which had arisen “as the Courts here habitually do, for guidance in arriving at a just decision”;
(3) there were conflicting lines of authority in English case-law as to the circumstances in which summary judgment might be given as opposed to staying the proceedings and referring the matter in its entirety to arbitration;
(4) however, in the case of Croudace Ltd v Lambeth Borough Council it had been held that among the factors which would weigh against granting a stay was the absence of any defence on liability and (inter alia) unmeritorious conduct by the party seeking the stay;
(5) the defendant’s engineer’s failure to notify the plaintiff that no further extension would be given within a reasonable time of the due date for completion created anything but certainty. In the circumstances no stay would be granted.
Comment [G.Dawes]
The judgment contains a painstaking analysis of a large number of conflicting (at least in emphasis) English cases concerning a narrow point of English procedural law. Channel Island courts are not, of course, bound by such authorities. Where, as here, English case law is not particularly helpful, it is suggested that the Court should instead set such case-law to one side and form its own judgment as to how best to proceed, in the interests of clarity and of saving both time and cost.
BANKRUPTCY
PROTECTED CELL COMPANIES
Messenger Insurance PCC Ltd. v Cable & Wireless Plc et autres; Royal Ct: ( Rowland, Bailiff) GRC [2005] 50
M.G. Ferbrache for the applicant; A.D. Laws, J.P. Greenfield, K. Le Cras & S. H. Davies for the respondents; J.M. Wessels for the Guernsey Financial Services Commission.
Cable & Wireless, acting in breach of the fiduciary and other duties had dishonestly caused approximately £85 million by way of insurance premiums to be paid to the applicant, a protected cell company owned by them. Freezing orders had been obtained in England and Guernsey; the substantive proceedings were in England. Administrators were appointed on the application of the respondents. An issue arose as to whether the freezing order in Guernsey should be discharged. The present case was the first litigation to consider the Guernsey PCC legislation.
Held, discharging the Guernsey freezing order -
(1) it was imperative that careful attention should be paid to the costs likely to be incurred given that there was no public funding of administration in Guernsey;
(2) the applicant had carried on insurance business and there were many matters which had to be resolved; an administration order had been made and the Guernsey Financial Services Commission was actively engaged. The Court had a duty to ensure that the Administrators were not unduly fettered in the discharge of their duties, that there should be no duplication of effort and that costs should not be incurred unnecessarily;
(3) there were in place a number of controls. The Court had exercised and would continue to exercise close supervision of its own orders and of the administration;
(4) notwithstanding the proprietary claims of the respondents to certain cellular assets the Administrators would be permitted to continue funding the administration from those assets, dicta from (inter alia) Armco Inc. and four others v Donohue and six others applied;
(5) the Court was mindful that the case was fraught with difficulties and in the exercise of its discretion had arrived at what it considered to be a sensible and pragmatic decision. Should the English High Court come to a different view the parties would be at liberty to return to the Court.
CIVIL PROCEDURE
NORWICH PHARMACAL RELIEF
President of Equatorial Guinea and others v Royal Bank of Scotland International Ltd. and others; GPC (Lords Bingham, Hoffmann, Rodger, Walker & Brown) [2006] UKPC 7
Sir Sydney Kentridge QC, H Matovu & J McLinden for the appellants; Philip Shepherd QC & B Shah for the respondents.
The appellant head of state sought orders pursuant to the principles set out in Norwich Pharmacal Co et al v Customs and Excise Commissioners ostensibly to support civil proceedings in another jurisdiction against those persons connected with an alleged coup attempt in Equatorial Guinea. Orders were granted ex parte but later challenged inter partes. The appeal was against various orders made by the Royal Court in relation to the original ex parte order. The Guernsey Court of Appeal allowed the appeal, ordering the return of such documents as had been disclosed (subject only to the right to keep copies for a four week period whilst any onward appeal was considered). The case is reported more fully at (2005) 9JL Review 260. On appeal to the Privy Council-
Held, allowing the appeal, that the orders of the Lieutenant Bailiff be provisionally reinstated -
(1) At the prompting of the Court of Appeal, the interveners had amended their notice of appeal to incorporate additional grounds raised by the Court of Appeal itself, “which duly featured in the Court of Appeal’s judgment in favour of the interveners” which was not a legitimate exercise of appellate authority as the Court was not exercising an original jurisdiction;
(2) Norwich Pharmacal relief existed to assist those who had been wronged but who did not know by whom. If they had straightforward and available means of finding out, it would not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they had no means of finding out, Norwich Pharmacal relief was in principle available if the other conditions of obtaining relief were met. Whether it was just and convenient in the interests of justice to grant relief, or necessary in the interests of justice to grant it, made little or no difference of substance;
(3) the Court of Appeal should not have reversed the Lieutenant Bailiff’s decision, largely on grounds of its own, and nor should the present Board;
(4) notwithstanding the above, the Board expressed concern that the question of whether the Lieutenant Bailiff lacked jurisdiction to make the order on the ground that it could be regarded as the enforcement of the public law of a foreign state, had not been addressed. Citing Lord Denning MR in AG of New Zealand v Ortiz the relevant principle was that, by international law, no sovereign state had sovereignty beyond its own frontiers. Here it was well arguable that the claims which the appellants said they wished to make in the substantive English proceedings represented an exercise of sovereign authority, namely the preservation of the security of the state and its ruler;
(5) accordingly, although the Lieutenant Bailiff’s order would be reinstated, the order would be suspended until the English Court of Appeal had decided whether the appellants had a cause of action enforceable in English law. If they did not, it would be open to the respondents to apply to the Royal Court for the Lieutenant Bailiff’s order to be discharged.
Comment [G Dawes]
The Privy Council expressed itself unusually forcefully in stating that the Court of Appeal had, in effect, overstepped the mark. The case should be read with AG for Jersey v O’Brien where the Privy Council called into question the way in which the Jersey Court of Appeal was said to have usurped the function of the Jurats.
SERVICE OF DOCUMENTS – SUBSTITUTED SERVICE
Abraham v Perry Royal Ct: (Birt, Deputy Bailiff and Jurats Bullen and Morgan) [2005] JRC 150A.
A. D. Hoy for the plaintiff; the defendant in person.
Rule 5/10(1) of the Royal Court Rules provides that “If, in the case of any document which by virtue of any provision of rules of court is required to be served personally on any person, it appears to the Court on an ex parte application that it is impracticable for any reason to serve that document personally on that person, the Court may make an order for leave to effect substituted service of that document”. The question arose as to the meaning of the word “impractical” in this context.
Held, inter alia, that “impracticable” in Rule 5/10 does not mean “impossible” and it is not obligatory in every case to take the steps to effect personal service which are required in England by the White Book, paragraph 65/4/9. However there must be material before the Master from which he can properly conclude that reasonable efforts have been made to effect personal service and that it can therefore properly be said to be impractical to achieve such personal service. On the facts there was insufficient evidence before the Master to satisfy that test.
COMPANIES
REGISTRATION OF RESOLUTION
In re the Westbury Property Fund Ltd. Royal Ct: (Hancox, Lieut. Bailiff) GRC [2005] 37
J.P. Greenfield and K.M. Le Cras for the applicant; N. van Leuven, QC, HM Procureur, as amicus curiae.
Section 73(2)(b) of the Companies (Guernsey) Law 1994 requires a copy of any special resolution to be delivered to HM Greffier (qua Registrar) within 21 days; failure to comply with this requirement renders the resolution void ab initio (and is also a criminal offence). There was affidavit evidence to the effect that the resolution in question had been sent to the Greffe in the ordinary pre-paid post. Section 11 of the Interpretation (Guernsey) Law 1948 provided that service should be deemed to be effected at the time at which a letter would be delivered in the ordinary course of post. However, s.116(7) of the 1994 Law provided that, notwithstanding any other rule of law, no document to be given or delivered to the Greffier should be deemed to have been given, delivered or served until it was “received”. Although there was some suggestion that the resolution may have been received, the Greffe had no record of it. Prima facie the resolution was void ab initio, with catastrophic consequences for the applicant, including de-listing from the London Stock Exchange. The applicant sought a declaration that the special resolution was to be deemed to have been received by HM Greffier in accordance with the requirements of s.73(2)(b).
Held, allowing the application-
(1) the Court was satisfied that it had jurisdiction to grant a declaration simpliciter, such power stemming from the Court’s paramount duty to do the fullest justice to a party;
(2) the Court’s power to make declarations was unfettered if (the relevant) facts had been established to the Court’s satisfaction;
(3) there was credible evidence that the resolution had been received by HM Greffier and nothing to gainsay the evidence that it had been sent to the Greffe;
(4) the factual basis for the declaration had been made out. The considerations which moved the Court to accede to the application overwhelmingly transcended the mischief that would occur if rejected.
COURTS
COURT OF APPEAL - JURISDICTION
Durant and others v Att. Gen. and the Republic of Brazil CA: (Sumption, Steel and Vos JJA) [2006] JCA 039
G. Robinson for the appellants; S. M. Baker, Crown Advocate, for the Crown; P. D. James for the Republic of Brazil.
The appellants appealed against the refusal of the Royal Court to order, by way of judicial review, the Attorney General to disclose to them letters of request from the Republic of Brazil relating to investigations into alleged corruption, embezzlement of public funds and money-laundering in Brazil by Paolo Maluf and certain bank deposits held by the appellants in Jersey. The Attorney General argued that the Court of Appeal did not have jurisdiction to hear the appeal as it was a criminal, rather than civil, matter and in criminal matters appeal to the Court of Appeal only lay in respect of a convicted person against sentence or conviction. He further submitted that the appeal should in any event be dismissed.
Held, dismissing the appeal –
(1) the historical background to the Court of Appeal (Jersey) Law 1961, and the way in which it had been drafted, showed that it was intended to create two categories of appeal which between them would cover all decisions of the Royal Court (other than those in respect of which it was expressly provided that there should be no right of appeal). One comprised decisions of the Royal Court in criminal trials. In this category there was a right of appeal, subject to leave, against conviction or sentence. The other category comprised appeals from all decisions of the Royal Court other than decisions in criminal trials, irrespective of the subject matter. Proceedings in the Royal Court by way of judicial review are proceedings in a civil cause or matter for the purposes of the Court of Appeal (Jersey) Law 1961 and appeal lies from such decisions to the Court of Appeal. McMahon and Proberts v Att. Gen. not followed;
(2) the demands of confidentiality needed to be balanced against the demands of fairness which might otherwise require such a letter of request to be disclosed to a person under investigation. The ordinary starting point is that a letter of request relating to a current investigation is not a disclosable document and disclosure to the person under investigation of information about the nature of the criminal investigation will generally be enough: R v Director of the Serious Fraud Office, ex parte Evans. However, before reaching the stage of balancing the requirements of fairness and confidentiality, the appellants had to suggest some plausible ground on which they may need to see the letters in order to make their representations to the Attorney General as to the disclosure of information to the Brazilian authorities. The reasons advanced by the appellants for seeing the letters were not sufficient and the decision of the Royal Court was affirmed.
CRIMINAL LAW
DISCLOSURE OF LETTER OF REQUEST – INVESTIGATION OF FRAUD (JERSEY) LAW 1991 – CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION (JERSEY) LAW 2001
See Durant and others v Attorney General and the Republic of Brazil under COURTS - COURT OF APPEAL - JURISDICTION above.
MONEY LAUNDERING (JERSEY) ORDER 1999
Bell, Caversham Fiduciary Services Ltd. and Caversham Trustees Ltd. v Att. Gen. CA: (Nutting, Smith and Vaughan JJA) [2006] JCA 014
S. M. Baker for the appellants; B. Lacey, Crown Advocate, for the Crown.
The appellants were convicted by the Royal Court on counts of failing to comply with the requirements of article 2(1)(a) of the Money Laundering (Jersey) Order 1999 (“the Order”) contrary to article 37(4) of the Proceeds of Crime (Jersey) Law 1999 (“the Law”). Article 2(1)(a) of the Order provides that: “No person shall, in the course of any financial services business carried on by him or her in Jersey, form a business relationship, or carry out a one-off transaction, with or for another person unless – (a) the person carrying on the financial services business maintains the following procedures in relation to his or her business –
(i) identification procedures in accordance with Articles 3 and 5, … [and]
(iv) such other procedures of internal control and communication as may be appropriate for the purposes of forestalling and preventing money laundering; …”
Article 37(10) of the Law provides that “In proceedings against a person for an offence under this Article, it is a defence to prove that the person took all reasonable steps and exercised due diligence to avoid committing the offence.” The appellants did not seek to rely on Article 37(10) but at trial at the end of the prosecution case had submitted that there was no case to answer on the basis that the facts alleged by the Crown showed only a one-off breach whereas what was required by the legislation for the offence to be committed was systemic failure “to maintain” the identification and other procedures required by Article 2(1). Commissioner Hamon ruled against the appellants, finding that a one-off breach was sufficient to show that the relevant procedures had not been maintained. The appellants then pleaded guilty but appealed on the ground that the Commissioner's ruling was wrong in law.
Held, dismissing the appeal –
(1) the legislation required anti-money laundering procedures to be both adopted and maintained and the contention of the appellants that the procedures could fail to bite on a particular occasion but nevertheless could be said to be have been “maintained” was untenable. The word “maintained” required the procedures to be kept in proper working order. This is confirmed by the statutory defence in Article 37(10) of the Law and the Commissioner did not err in attaching significance to it.
Obiter: Whilst the appellants had not sought to rely on article 37(10), the Attorney General dealt in some detail in his written argument with the compatibility of article 37(10) with article 6(2) of the European Convention on Human Rights (which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law). The Human Rights (Jersey) Law 2000 being not yet in force, the Convention was only significant for the purposes of Jersey law to the limited extent described by Southwell JA in Benest v Le Maistre. The Commissioner was correct in regarding the offence under article 2(1) of the Order as one of strict liability, not requiring mens rea. The Court of Appeal's view on the compatibility of the legislation with the ECHR could only be tentative at this stage. The Convention did not outlaw presumptions of fact or law and it was open to States to define the constituent elements of a criminal offence excluding the requirement of mens rea. However, the substance and effect of any presumption adverse to a defendant must be examined and must be reasonable. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but by an examination of all the facts and circumstances of the particular provision as applied in the particular case: Sheldrake v DPP. The factors adumbrated by Lord Nicholls of Birkenhead (with whose opinion the other members of the Committee agreed) in R v Johnstone which would justify imposing a burden on the defendant bore a striking resemblance to the present case. The tentative view of the Court of Appeal was therefore that the imposition of the legal burden on the accused by Article 37(10) of the 1999 Law was compatible with Article 6(2) of the ECHR.
Comment [W. A. M. Bridgeford]
Following the ruling of the Court of Appeal in this case the Jersey Financial Services Commission issued, on 3 March 2006, a Policy Statement on Referrals to the Attorney General in connection with the Law and the Order. In the Commission’s view, the case emphasised the importance for regulated entities to maintain adequate procedures to combat money laundering on an ongoing basis. Equally, however, the Commission was aware of concern in the financial community that the judgment means that any breach of the Order, no matter how small, could give rise to a criminal prosecution. The Commission stated that its present policy is to refer a breach to the Attorney General if it is sufficiently serious. A decision on whether to prosecute is a matter solely for the Attorney General. The Commission gave an indicative, though not exhaustive, list of factors relevant to the seriousness of a breach. A breach of the Order will generally be regarded as sufficiently serious if it poses a threat to clients or potential clients or to the reputation of the Island and/or where it casts doubt on the integrity, competence or financial standing of the person concerned. It will also be relevant if the breach was deliberate or premeditated rather than accidental, or if the person (individual or body corporate) has failed to report a material breach to the Commission. Failure, inability or refusal to cooperate with the Commission to rectify a breach, and a history of past breaches or poor regulatory compliance (which may give grounds to believe that the breach is likely to be repeated and/or is part of a systemic failure), will also be taken into account.
SENTENCING
Law Officers of the Crown v Ingram; CA: (Beloff, Steel, Mantell JJA) GCA [2005] 43
J.A.S. White for the appellant; P. Robey for the respondent.
The appellant appealed against sentence on the ground that the day before his own sentencing an identical starting point of 9 years had been taken for importation of three times the amount of heroin as in his own case.
Held, following the English case of R v Large, that unless the Court was fully appraised of all relevant matters, as in the exceptional circumstance of consolidated appeals, disparity would not run as an argument as between unrelated cases.
Per curiam: The drug sentencing guideline case of Richards & ors. v HM Procureur was not attempting to lay down some sort of inflexible code; sentencing remained ultimately a matter for the Court’s discretion. Nevertheless the case offered valuable assistance to sentencers who would seldom need to look beyond Richards in arriving at the correct tariff for drugs offences.
SENTENCE – SUSPENDED SENTENCES
Att. Gen. v Watts Royal Ct: (Bailhache, Bailiff and Jurats de Veulle and Newcombe) [2005] JRC 171
C. M. M. Yates, Crown Advocate, for the Crown; J. M. Grace for the defendant.
The defendant pleaded guilty to four counts of relatively minor offences – breach of the peace, being disorderly on licensed premises, obstructing a police officer and violently resisting arrest. The first two of these counts were committed during the period of an earlier suspended sentence of six months’ imprisonment. The Crown argued that this activated the sentence and invited the Court to deal with the defendant accordingly.
Held, rejecting the Crown's submission –
that Article 3(3) of the Criminal Justice (Suspension of Prison Sentences) (Jersey) Law 2003 provides that “The court shall not make an order under paragraph (2) if it is satisfied that it would be unjust to do so having regard to any circumstances that have arisen since the suspended sentence was passed, including the facts of the further offence”. The fact that a subsequent offence does not warrant a custodial sentence is a strong argument for not activating the suspended sentence. That was the case here in respect of the relevant two counts. The Court did not therefore activate the suspended sentence but imposed fines for all the instant offences.
CRIMINAL PROCEDURE
APPEALS - ROLE OF JURATS
Att. Gen. v O'Brien Privy Council: (Lords Hoffmann, Woolf, Steyn and Mance and Baroness Hale of Richmond), JPC [2006] UKPC 14.
On 5 June 2003 the respondent was convicted in the Royal Court of being concerned in an arrangement to launder the proceeds of drug trafficking by her husband, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988. On 12 November 2003 the Court of Appeal allowed her appeal against conviction on the ground, pursuant to Article 25(1) of the Court of Appeal (Jersey) Law 1961, that the verdict of the Jurats "could not be supported having regard to the evidence". The Attorney General appealed to the Privy Council.
Held, allowing the appeal -
(1) The jurisdiction to set aside a verdict on the ground that it could not be supported having regard to the evidence gave rise to "a limited appeal which precludes the court from reviewing the evidence and making its own evaluation thereof": Lord Tucker, Aladesru v The Queen. The Board was told that no other case had been found since the introduction of the 1961 Law where a verdict of the Jurats been set aside solely on this ground. Such an outcome appeared not merely exceptional but unknown. The reason for this may be that the Jurats, unlike a jury, are not chosen at random but are elected by a special electoral college and are usually individuals with a known history of sound judgment and integrity which has been consistently demonstrated throughout a lengthy professional, business or civic life: see Snooks and Dowse v United Kingdom.
(2) In England the test of a verdict which no reasonable tribunal could have come to (R v Hopkins-Husson) was considered to be too restrictive and was replaced (by s. 2 of the Criminal Appeals Act 1968) with a duty to allow an appeal if "under all the circumstances of the case [the verdict] is unsafe or unsatisfactory". No such change has been made in Jersey but their Lordships would not exclude the possibility of a more liberal interpretation of the Jersey statutory language.
(3) In the present case, it was unclear whether the Court of Appeal, in concluding that there was no evidence on which the Jurats could convict, was saying that there was no case to answer after the end of the prosecution case or whether they were looking at the evidence for the prosecution and defence as a whole. If the Court of Appeal was saying that there was no case to answer after the prosecution evidence, not only was that not the ground of appeal, it was without any basis; the prosecution's case raised a compelling prima facie case, which could be dispelled, if at all, only by oral evidence by the respondent. If, on the other hand, the Court of Appeal was looking at the matter after all of the evidence, it had usurped the function of the Jurats. The Court of Appeal tried the case on the written record and allowed the appeal because, on their somewhat imperfect understanding of the prosecution's case, they would not have convicted. In so doing, they did not appear to have considered the cumulative weight of each item of evidence: it is in the nature of circumstantial evidence that single items of evidence may each be capable of innocent explanation but, taken together, they can establish guilt beyond reasonable doubt. The Jurats had the opportunity of hearing the evidence of the respondent and her husband and the police witnesses. They disbelieved the respondent. The Court of Appeal had not had the same advantages and was not been entitled to disturb the verdict.
FAMILY LAW
CHILDREN – REMOVAL FROM JURISDICITON
I v I; Royal Ct: (Finch, Lieut. Bailiff) GRC [2005] 53
P.A. Allen for the petitioner; S.E. Wallis for the respondent.
The petitioner mother applied for leave to remove the children from the jurisdiction. The respondent father opposed the application on the basis, inter alia, that a 6 month’s delay was required in order to ensure that the younger child should achieve qualified residential status by residing in Guernsey for the required period of 10 years.
Held, granting the mother’s application-
(1) the principles to be applied in cases concerning removal of children from the jurisdiction had been summarised by Brelsford LB in L v M (2003) and were to be found in English case-law. The welfare of the child was the paramount consideration. Refusal of the primary carer’s reasonable proposals for relocation was likely to impact detrimentally on the welfare of the dependant children. Applications to relocate would be granted, unless the Court concluded that it was incompatible with the welfare of the children;
(2) on the present facts the Court disagreed with the conclusion of the Court Welfare Officer. The welfare of the children comprised emotional, physical and psychological elements. Education needs were of signal importance. There were 10 years in which the shortfall could be made up to achieve residential qualification, as opposed to the more pressing need to meet educational needs;
(3) the application would be granted with a delay of 14 days to permit the father to consider the judgment and seek advice.
CHILDREN – REMOVAL FROM JURISDICTION
S v A Royal Ct: (Birt, Deputy Bailiff and Jurats Allo and Le Cornu) [2005] JRC 168
T. V. R. Hanson for the applicant; C. M. B. Thacker for the respondent.
The mother and father of F (who was now 6 years old) were not married but were agreed that they should both have parental responsibility for F. The mother had since married another man and wished to move with him, together with F and their own baby to Qatar, where he had been offered promotion and a substantial increase in salary. The father objected. The question therefore arose as to whether the mother was entitled to move F permanently from the jurisdiction against the wishes of the father.
Held, granting the mother's application –
(1) the Court looked for guidance in this area to the decisions of the English courts. The leading modern English case, in which the law had been comprehensively reviewed in the light of the Human Rights Act 1998, was Payne v Payne. The welfare of the child is the paramount consideration. In accordance with Payne v Payne the Court should ask itself the following questions -
(a) is the mother's application both genuine and realistic?
(b) if the answer to (a) is affirmative, the father's opposition must be carefully appraised: Is it motivated by a genuine concern for the future of the child's welfare or is it driven by some ulterior motive? What is the extent of the detriment to him and his relationship with the child if the application is granted? To what extent will that be offset (where relevant) by extension of the child's relationship with the maternal family and the homeland?
(c) what would be the impact on the mother of a refusal of her realistic proposal?
(d) lastly the outcome of questions in (b) and (c) must be brought into an overriding review of the child's welfare as the paramount consideration;
(2) the emotional and psychological well being of the primary carer remains an important element in giving primary consideration to the welfare of the child;
(3) applying these principles to the facts, the Court found that the mother's application was genuine and realistic, and though the father's opposition was genuinely motivated, it was in the interests of F's welfare to grant the application. The Court made detailed contact arrangements;
(4) the Court also addressed the issue of the father's costs of contact, which would not be inconsiderable. The mother's financial position would be better than the father's and the order had been made for her benefit. It was therefore fair and reasonable for the costs of periodically transporting F from Qatar to Jersey and back for contact should, subject to one exception, be borne by the mother and her husband.
Comment [T. V. R. Hanson]
This is the first reported case under the new Children (Jersey) Law 2002 involving an application to remove a child permanently from the jurisdiction. It is of particular interest in demonstrating the resourcefulness of the court in finding appropriate and practical safeguards so as to ensure that contact takes place between the child and the parent left behind: an approach recommended in Re K (Removal from Jurisdiction: Practice). In the instant case, the Royal Court noted that an “imaginative and creative approach” should be adopted with a view to ensuring compliance of the contact orders that it proposed to make in favour of the father. (See further comparable English case law: Re S (Removal from Jurisdiction)where the order had to be authenticated in the relocation country and funds secured in the meantime; Re T (Staying Contact in Non-Convention Country)where a complex order included provision for a mirror order and notarized agreement to be entered into.) It is further of note that despite the relatively clear guidance on approach that exists in these type of cases, they continue to “pose an agonizingly difficult decision for a court.” (Per Birt, Deputy Bailiff, ibid.)
IMMIGRATION
DEPORTATION OF OFFENDER
Att. Gen. v Vieira Royal Ct: (Bailhache, Bailiff, and Jurats de Veulle, Le Brocq, Tibbo, King, Le Cornu and Newcombe) [2006] JRC 027
C. M. M. Yates, Crown Advocate, for the Crown; L. Buckley for the defendant.
The defendant, a non-national, pleaded guilty to serious offences. The Crown had considered moving for a recommendation that the defendant be deported after serving his sentence but, in the circumstances, decided not to make that request.
Held, inter alia, where a non-national commits serious offences, but the Crown does not move for a recommendation for deportation, the Court wishes to be assured that the Crown has considered whether to move for deportation and has consulted with the Immigration Service. The Court should also be informed of the reason why the Crown has decided not to move for deportation.
INJUNCTIONS
EX PARTE INJUNCTIONS
United Capital Corp. v Bender and other Royal Ct: (Birt, Deputy Bailiff, sitting alone) [2006] JRC 034A
S. J. Young for the plaintiff; J. Speck for the first and second defendants; P. D. James for the fifth and sixth defendants; the third and fourth defendants did not take part in the application.
It was argued, inter alia, on behalf of the applicant defendants that the plaintiff had failed to make full and frank disclosure in applying for an ex parte freezing injunction and further that, in accordance with the practice in England, counsel for the plaintiff should have made a note of the ex parte hearing at which he applied for the freezing injunction and supplied a copy of that note to the defendants.
Held, rejecting these points –
(1) A plaintiff seeking an ex parte injunction owes a duty to make full and frank disclosure as summarised in Goldtron Ltd. v Most Investments Ltd. However, it was also important to recall the cautionary words of Slade LJ in Brink's-Mat Ltd. v Elcombe to the effect that the practical realities should not be overlooked. The nature of the principle is essentially penal. Ex parte applications usually necessitate the giving and taking of instructions and the preparation of the requisite drafts in some haste. Particularly in heavy commercial cases, the borderline between material facts and non-material facts may be somewhat uncertain. While in no way discounting the heavy duty of candour and care which falls on persons making ex parte applications, the application of the principle would be carried to extreme lengths if the punishment is out of all proportion to the offence. On the facts, the plaintiff had not failed to make to make full and frank disclosure.
(2) In England there is also a duty upon those appearing before a judge to obtain ex parte relief to produce a note of the hearing and to supply this to those affected by the order: Interoute Telecommunications (UK) Ltd v Fashion Gossip Ltd (an unreported decision of the English High Court, 1999). The procedure in Jersey, however, is different. Whilst in England there is invariably an ex parte hearing at which counsel will explain to the judge what the case is about and why an injunction is sought, in Jersey there is not normally an oral hearing. But if there is a hearing, either at the request of the judge dealing with the application or the applicant counsel, it was desirable that counsel should in the future ensure that a note is taken of what is said before the judge and provide such note to the defendant(s) immediately, if so requested. Accordingly counsel should in future ensure that they or someone accompanying them take (and subsequently have typed up) such a note. There had been a hearing in the instant case but, given the existing practice, no criticism could be made of the plaintiff's counsel for his failure to prepare a note on this occasion.
PLANNING LAW
APPEAL : REFUSAL TO GRANT CONSENT
Hamon & Hamon v Minister of the Environment Department Royal Ct: (Collas, Deputy Bailiff) GRC [2005] 54
C.H. Edwards for the appellants; R.J. McMahon for the Department.
The plaintiffs sought permission retrospectively to store ice cream vans and trailers in a yard located in an area of landscape value (Green Zone 2) in the Rural Area Plan (Phase 1). The Department refused the application, holding that it was precluded from granting the permission because of the applicable policies. The appellants contended that there were a number of use classes for which no specific provision was made in the Plan. Accordingly the Plan could not be considered an exhaustive statement of planning policy and the Plan was not a relevant consideration.
Held, dismissing the appeal-
(1) applying Island Development Committee v Portholme Developments Limited, if a Plan allowed for development only in certain identified circumstances then, by necessary inference, development outwith those circumstances was not to be allowed;
(2) the Department was obliged to consider the Plan and to have regard to the Plan as a whole, to construe it on a commonsense and straightforward basis, to see whether the application fitted within the planning framework approved by the States. The Plan made it clear that the States intended it to be a comprehensive statement of the polices to be applied throughout the Plan area.
TRUSTS
COSTS – INDEMNITY COSTS OUT OF TRUST ASSETS
In Re Fountain Trust Royal Ct: (Bailhache, Bailiff, sitting alone) 7th November, 2005, unreported.
D. F. Le Quesne for the trustee; M. Renouf for the guardian ad litem; D. Cadin for the first respondent.
The Court had ordered that the costs of the guardian ad litem who had been appointed on behalf of a minor beneficiary under a disputed trust be paid his costs out of the trust assets “on the indemnity basis.” Having being notified of the guardian’s costs, the trustee’s advocate indicated that the costs would shortly be paid but some period later both the trustee and the first respondent (who had been declared entitled to the majority of the trust assets) disputed the amount claimed and asserted that the costs should be taxed. The guardian applied to the Court for directions, inter alia, as to whether or not his claim to costs was in the circumstances susceptible to taxation. By the hearing, the trustee and guardian had reached agreement upon a lesser sum but this was still opposed by the first respondent who threatened to bring proceedings against the trustee for breach of trust if the payment were made.
Held, the trustee should pay the guardian an amount stipulated by the Court that was further reduced from that which had earlier been agreed. However, the guardian would be allowed the option of accepting the reduced sum that the Court was prepared to direct the trustee to pay or, in the event that he felt that this was not sufficient recompense, he should proceed to have his costs taxed.
Comment [T. V. R. Hanson]
This case is of interest in suggesting that notwithstanding that the costs of a guardian ad litem (or those of a trustee) are frequently directed to be paid “on the indemnity basis,” the reference to “indemnity basis” is that contained in the Rule 12/5 of the Royal Court Rules and the Court has power to scrutinize such costs. (See further Den Haag Trust and the English case of Gomba Holdings v Minories Finance Ltd. where the Court of Appeal confirmed that such a power existed even where “a full indemnity as to full costs” existed as a matter of contract). Presumably, however, upon any such taxation, the Factor B uplift rate would be approached by the taxing Master such that the normal charge out rate for the lawyer concerned would be reached in the majority of cases, save where it was positively shown that such an uplift were unreasonable. In taxing such costs, the taxing Master would no doubt have regard to the basic premise that the guardian or trustee is entitled to all costs and expenses properly incurred and, in the circumstances of the instant case, the costs of the guardian, himself, for providing such legal services. The case is also noteworthy for giving weight to a party’s objections that merely had an interest in the trust assets. However, both the Trustee and an interested party would presumably fall within the classification of the “paying party” within Rule 12/5 and therefore have the standing to make such objections.
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