| Return to Contents L C Pallot (Tarmac) Ltd v Gechena Ltd Royal Ct: (Bailhache, Bailiff and Jurats Le Ruez and Querée)July 15th 1996 unreported. R. A. Falle for the plaintiff; P. Landick for the defendant. The plaintiff claimed £6,480 on an arbitration award in respect of minor building works executed in 1991. The defendant denied existence of binding agreement to submit to arbitration but also sought to challenge the conduct of the arbitration and the reasonableness of the award. The Court heard argument on two preliminary points judged to be capable of determining the issues between the parties - viz (1) was there a binding agreement to submit to arbitration?, and (2) was the defendant estopped from challenging the arbitrator’s award on the ground that it was a chose jugée? Held, (1) there was a binding agreement; and (2) the defendant was estopped from challenging the award. The Jersey law of arbitration was rooted in contract and the Court will look to Pothier as a guide but may well develop the law by reference to English authorities provided that they do not derogate from fundamental principles. The Court will set aside an arbitrator’s award only in a narrow band of circumstances, e.g. where the arbitrator has failed to answer the questions referred to him, or where there is an error on the face of the record.
Bankruptcy
Désastre
Re Shirley Royal Ct: (Hamon, Deputy Bailiff and Jurats Myles and Le Ruez) August 9th 1996 unreported. A. P. Begg for the applicant; M. P. G. Lewis, S. J. Habin, B. Lacey for the other creditors. An application to declare the property of Jerseycard Ltd. en désastre wasopposed by three creditors who had obtained judgments seven days before. The applicant had a preference by virtue of an earlier judgment. Held, the application would be granted.
Civil Procedure
Affidavits
Wright v Rockway Ltd and others Royal Ct: (Hamon, Deputy Bailiff ) September 23rd 1996 unreported. R. J. Michel for the plaintiff; The plaintiff sought leave to adduce evidence by affidavit in connection with the quantification of his claim for damages arising out of an accident in Bangkok. The defendants did not appear and were not represented. Rule 6/18 of Royal Court Rules 1992 required evidence to be heard in open court with the proviso that evidence could be heard on affidavit. The cost of requiring the plaintiff and medical experts to come to Jersey would have been high. Held, that the Court would hear evidence on affidavit.
Stay Of Proceedings
Mayo Associates SA and others v Cantrade Private Bank etc and others CA: (Collins, Harman and Crill JJA) August 2nd 1996 unreported.
P. C. Sinel for the plaintiffs; A. R. Binnington for the first defendant The defendant applied for a stay of the action pending an application for leave to appeal against the order of the Royal Court setting aside the order of the Judicial Greffier directing the plaintiff to pay the defendant £250,000 by way of security for costs. The defendant argued that the plaintiff’s claim, which arose from alleged wrongful conduct by the defendant in relation to the plaintiff’s speculation in the foreign exchange market, was inflated. The defendants conceded that the plaintiffs, who were all foreign corporations, had no assets to meet any order for costs. The plaintiffs argued that the action would be stifled if security were ordered. Held, A balancing exercise was applied and the application was refused. Criminal Law Drugs; Sentence Benedito and others v Att. Gen. CA:(Le Quesne, Calcutt, Gloster JJA) September 26th 1996 unreported. D. M. C. Sowden for Benedito; A. J. Olsen, Crown Advocate, for the Crown. The appellant was sentenced to 7½ years’ imprisonment for drug trafficking offences. At the date of sentencing both prosecuting and defence counsel and the Court were under the mistaken impression that she was aged 21 whereas in fact she was 20. Held, the appeal would be allowed but only to the extent of substituting 7½ years’ youth detention pursuant to the Criminal Justice (Young Offenders) (Jersey) Law 1994. Att. Gen. v Buesnel Royal Ct: (Bailhache, Bailiff and Jurats Blampied, Gruchy, Le Ruez, Herbert, Rumfitt, Potter, de Veulle, Jones and Querée) August 21st 1996 unreported. M. C. St. J. Birt, Q.C., Attorney General, for the Crown; D. E. Le Cornu for the accused. The defendant, aged 18, was found in possession of one ecstasy tablet but admitted swallowing two others when arrested by the police; he was also in possession of traces of cannabis. In mitigation he was a first offender and had had an unhappy and disturbed adolescence; since his arrest he had repudiated contact with drugs, and sought medical help. The Attorney General referrease to the Superior Number in order to review the policy of the Court in Att. Gen. v Young [1] which laid down that those in possession of Class A drugs, even in small quantities, should receive custodial sentences other than in exceptional circumstances. Held, that the policy was too much of a straight jacket and did not allow sufficiently for the variety of circumstances which might be relevant both to the offence and to the offender. The possession of a Class A drug, even in a small quantity, should however generally attract punishment. If aggravating features were present, a custodial sentence should usually be imposed. On facts of this case, B ordered to perform 100 hours of community service. Criminal Procedure Committal Proceedings Att. Gen. v Corcoran, Royal Ct. (Bailhache, Bailiff and Jurats Blampied and Potter) October 25th 1996 unreported. A. J. Olsen, Crown Advocate, for the Crown; R. G. Morris for the accused. The accused was charged with grave and criminal assault and attempted robbery. He had followed the victim out of a nightclub, beaten him savagely about the head and face with a belt, and pushed and kicked him whilst lying on the ground. The accused then attempted to steal a wallet containing £40 from the victim’s trouser pocket. On the first charge the accused pleaded guilty, the Relief Magistrate committed him for trial before the Royal Court. On the second charge, to which the accused pleaded not guilty, the Relief Magistrate conducted a hearing, convicted him, and remanded him to the Royal Court for sentence pursuant to Art.4A of the Police Court (Miscellaneous Provisions)(Jersey) Law 1949, as amended. Held, -
that the use of the Art.4A procedure in such a case was entirely wrong. The power to convict and to commit for sentence should be used only where the Court, exercising its function as a court of summary jurisdiction and intending to deal with the matter itself, becomes appraised at the end of the hearing of facts which lead it to the conclusion that its powers are insufficient to deal with the case. The power should not be exercised where there was no doubt from the outset that the case must be dealt with in the Royal Court because this would diminish the right to trial by jury; -
that the error had been compounded by committing the accused for trial on the first charge. The Court granted the accused an absolute discharge on the second charge and sentenced him to two years’ youth detention on the first charge. Crimial Procedure Sentence Graham v. Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats Blampied, Myles, Gruchy, Rumfitt and Querée) October 1st 1996 unreported. A. Messervy for the appellant; D. E. Le Cornu, Crown Advocate, for the Crown. The appellant was sentenced on 8th December, 1995, to probation for one year subject to a condition of performing 240 hours of community service for offences of assault and grave and criminal assault. Prior to sentence he had spent five months and 19 days in custody on remand. The appellant breached his probation order by committing further offences and, on representation before the Inferior Number, was sentenced on 26th July, 1996, to 12 months’ imprisonment. The appellant sought leave to appeal on the ground that the Inferior Number ought to have made full allowance when imposing sentence for the time spent in custody on remand. Held, dismissing the application, that the time spent on remand was a relevant consideration, but that the extent to which allowance should be made was a matter for the Court’s discretion given the individual circumstances of the case. Evidence Memory Refreshing Att. Gen. v Mackenzie Royal Ct: (Hamon, Deputy Bailiff and Jurats Myles, Potter and Querée) September 18th 1996 unreported. T. J. Le Cocq, Crown Advocate, for the Crown; N. M. Santos Costa for the accused. The accused sought leave to refer to notes made by him while giving evidence at his trial for larceny and false accounting. The notes amounted to a full statement of his actions covering a period commencing several years before his arrest. Held, that the notes were not contemporaneous within the memory refreshing rule and could not be referred to in the witness box. Privilege Pacific Investments Ltd v Christensen and others Royal Ct: (Le Cras, Lieut. Bailiff) September 3rd 1996 unreported. N. F. Journeaux for the plaintiff; W. J. Bailhache, for the defendants. A director of the plaintiff represented that part of a subpoena duces tecum issued by certain of the defendants should be set aside on the ground that he was required to produce privileged documents. Argument took place in camera but the Lieut. Bailiff delivered part of his judgment in open court in which he set out the submissions of counsel on the distinction between litigation privilege and legal professional privilege, waiver of privilege and whether disclosure of part of a document involves waiver of privilege. Housing Att. Gen. v Hotel L’Oasis Ltd. Royal Ct: (Bailhache, Bailiff and Jurats Potter and de Veulle) July 24th 1996 unreported. C. E. Whelan, Crown Advocate, for the Crown; Mr. B. Shelton, director of the defendant company. The Housing Committee attached a condition to a consent granted to the defendant company in 1972 in the following terms: "... that the private dwelling accommodation at the said property ... should be occupied by [qualified] persons ...". The defendant company was prosecuted for a breach of that condition. The evidence showed that substantial reconstrudction of the hotel had taken place between 1972 and 1995. Held, that there was doubt whether the private dwelling accommodation occupied by the unqualified persons in 1995 was that same accommodation to which the condition had been attached. The defendant company was discharged. Rent Control Daisy Hill Real Estates Ltd. v The Rent Control Tribunal Royal Ct: (Le Cras, Lieut.Bailiff) September 26th 1996 unreported. W. J. Bailhache for the representor; P. Matthews for the respondent. By consent, the Court approved an order declaring void a decision of the respondent fixing rents at Marett Court and ordering the respondent to re-assess the rents. The normal method of assessment would be to establish the market rental and to deduct a figure in respect of scarcity, if any
Injunctions
Mareva Injunction
State of Qatar v Sheikh Khalifa and another Royal Ct: (Hamon, Deputy Bailiff and Jurats Bonn and Le Ruez) August 15th 1996 unreported. B. E. Troy for the plaintiff; C. G. P. Lakeman for the defendants. In breach of a Mareva injunction the defendants caused moneys in Jersey to be transferred out of the jurisdiction. Held, that the contempt was purged by the apology of the defendants and by their undertaking to repatriate the money within 10 days. Solvalub Ltd v Match Investments Ltd Royal Ct: (Hamon, Deputy Bailiff and Jurats Blampied and Herbert) September 13th 1996 unreported. J. P. Speck for the plaintiff, D. J. Pettit for the defendant The plaintiff obtained an ex parte Mareva injunction restraining the defendant, an Irish company, from dealing with assets in Jersey. The underlying dispute concerned a contract for the sale of gas oil signed in Moscow but expressed to be subject to English law. The plaintiff claimed that the oil had been delivered but that payment had not been made. Proceedings had been instituted in England. The plaintiff conceded that it had no proprietary right to the injuncted monies and that there was no substantive cause of action in Jersey. Held, applying Middle East Engineering Ltd v Edwards 1980 JJ 25 and Mercedes-Benz A-G v Leiduck (1995) 3 All ER 929, that the injunction should be discharged. Johnson Matthey Bankers Ltd v Arya Holdings Ltd and another 1985-86 JLR 208 not followed. [Note: at the time of going to press this decision had been reversed by the Court of Appeal. A full report will appear in Issue 2.]
Inquest
Representation Cotter (1996) Royal Ct: (Hamon, Deputy Bailiff and Jurats Gruchy and Querée) October 4th 1996 unreported. P. Landick for the applicants; M. Wilkins, the Viscount. The applicants, the parents of a deceased young woman, applied to review a decision of the Viscount pursuant to the Inquests and Post Mortem Examinations (Jersey) Law 1995 refusing to summon a jury for the purpose of the inquest. The Court described the circumstances leading up to her death as "extremely disturbing" but did not consider that there was a risk to the health or safety of the public. Held, that the Viscount’s refusal to summon a jury would therefore be upheld. ON APPEAL to CA (Bailhache, Bailiff, Single Judge) October 9th 1996 unreported, a stay of the inquest was ordered pending the determination of the appeal.
Plannings Law
Compulsory Purchase Lesquende Ltd. v Planning and Environment Committee CA: (Le Quesne, Southwell, Smith JJA) November 1st 1996 unreported. M. M. G. Voisin for the plaintiff; W. J. Bailhache, Crown Advocate, for the defendant. The defendant appealed against a judgment of the Royal Court ordering it to pay the plaintiff’s costs in relation to arbitration proceedings. The question was whether the provision that "all expenses incurred in proceedings under this law shall be paid by the acquiring authority" in Article 14(2) of the Compulsory Purchase of Land (Procedure)(Jersey) Law 1961 obliged the defendant to meet a claim for costs in the sum of £658,010.16. Held, allowing the appeal and setting aside the judgment of the Royal Court, that Article 14(2) applied only to expenses incurred for the performance of duties imposed by the law and that the law made no provision for the costs of the arbitration. Development Permission Fairview Farm Ltd. v Island Development Committee CA: (Le Quesne, Calcutt and Gloster JJA) October 30th 1996 unreported. T. J. Le Cocq for the appellant; S. C. Nicolle, QC, Solicitor General, for the respondent. The respondent committee appealed against a judgment of the Royal Court allowing the appellant’s appeal against conditions attached to development permission. The conditions restricted the use of proposed packing sheds to the packing of agricultural produce grown on the land owned or leased by the appellant. The appellant had contended before the Royal Court that the conditions were capricious, inconsistent and unreasonable. Held, dismissing the appeal, that the conditions were unreasonable. Development Lesquende Ltd. v Planning and Environment Committee Royal Ct: (Hamon, Deputy Bailiff ) July 15th 1996 unreported. M. M. G. Voisin for the plaintiff; W. J. Bailhache, Crown Advocate, for the defendant. The question before the Court was whether the Interest on Debts and Damages (Jersey) Law 1996 applied to an order for costs made in compulsory purchase proceedings. The judgment for costs had been given prior to the coming into force of the Law on 1st July, 1996. Held, that the Law was not retrospective. Stephen Hotton Ltd. v Island Development Committee Royal Ct: (Hamon, Deputy Bailiff ) October 11th 1996 unreported. R. G. S. Fielding for the appellant; P. Matthews, Crown Advocate, for the respondent. In 1993 the Committee issued notices under Article 13 of Island Planning (Jersey) Law 1964 directing the company to "cease the use of" certain land for storing vehicles, machinery and other equipment and to "remove" all vehicles, machinery etc. The land had been used as a general haulage yard since 1963. Article 13 provided that if it appeared to the Committee that "the amenities of any part of the Island are seriously injured by the condition of any land", the Committee could serve a notice requiring the abatement of the injury. The appellant conceded in terms that the use of the land created an eyesore but contended that the notices were invalid on the ground that the condition of the land itself had not been adversely affected by the debris situate upon it. Held, upholding the validity of the notices, that "the condition of the land" meant the state of the land; if it were an eyesore, it was detrimental to the amenities of the locality. Trusts Powers And Duties Of Trustees Lloyds Bank Private Banking (Channel Islands) Ltd. v Cala Cristal SA and another Royal Ct: (Hamon, Deputy Bailiff and Jurats Blampied and Herbert) September 10th 1996 unreported. M. J. Thompson for the applicant; A. D. Robinson for the respondents. The applicant applied for the costs of a representation seeking directions under Articles 47 and 49 of Trusts (Jersey) Law 1984. There was evidence that the trust had been administered not by the applicant but by Lloyds Bank plc in London. Following the settlement of litigation in England involving the respondents, the applicant paid away the substantial trust fund without ascertaining whether the recipients were in fact beneficiaries. Held, that although a trustee is normally entitled to costs out of the trust fund in relation to an application for directions, the application would be refused on the ground that the trustee had acted unreasonably. |