Return to Contents Shorter Articles And Notes Saisie As Viewed From Strasbourg Philip Bailhache The decision of the European Commission of Human Rights on 23rd October, 1997 in the case k v United Kingdom [1] ought not to be allowed to pass unmarked. The Commission rejected a claim by the Seigneur de St. Jean la Hougue Boete that Jersey’s summary remedy of saisie contained in an Order of Justice and obtained ex parte contravened Article 6 of the Convention. The facts underlying the com are relatively straight forward [2] . In February 1982 Mr. John Dick was married to his second wife Elizabeth and in 1987 they separated. Mrs. Dick began divorce proceedings in Colorado and later in California. During the course of the Californian proceedings she applied for temporary support or maintenance. On the 19th December, 1990 an order was made ("the 1990 order") requiring Mr. Dick to pay a monthly sum of $35,000. It appears that he failed to comply with this order for, on 14th September, 1993, the wife applied ex parte for a saisie pursuant to an order of justice claiming that the accumulated debt owed by him under the 1990 order was $3,222,782.06. On 15th September the then Bailiff, Sir Peter Crill, granted the application and ordered his arrest and incarceration at the debtors’ prison. Caution was set at $2 million. Mr. Dick was out of the jurisdiction when the order was granted having apparently lived in Germany for several years. On 21st November he returned to Jersey for a visit and on 23rd November he was arrested pursuant to the order of justice, and served with a summons to appear before the court on the 10th December. He was taken to HM Prison La Moye, his request to collect his insulin from his home being refused. On 3rd December he appeared before the court when his continued detention was authorised pending payment of the debt or of the caution or further order. On 10th December Mr. Dick appeared again before the court when the provisional orderwas confirmed and it was ordered that he should remain in prison until the debt had been paid together with costs or until the expiry of a year and a day, whichever was the earlier. On 14th December Mr. Dick issued a summons seeking his release inter alia on medical grounds. This summons was heard on 21st December. The court then ordered, on the grounds of Mr. Dick’s poor health, that he be released on conditions that he delivered his passport to the Viscount, resided at his home and did not leave the Island without the permission of the court, and submitted to a medical examination. These conditions were lifted, and the saisie revoked, on 29th April, 1994 when the court accepted that it was arguable that the 1990 order was unenforceable on the basis that it had been procured by fraud. Mr. Dick’s passport was returned and he was able to rejoin his companion in Germany. Mr. Dick’s application to the European Commission of Human Rights was introduced on 5th July, 1994 and registered on 19th January, 1995. On 28th February, 1996 plaints of breaches of articles 5 [3] and 8 [4] of the ention were declared inadmissible [5] but the Cssion decided to communicate [6] the comnder article 6 to the UK Government, as being the signatory state responsible for Jersey . Mr. Dick had complained that the detention proceedings were criminal in nature and that the safeguards afforded under the article for accused persons were not available to him. The Commission found no force in these complaints and no more need be said of them. The Commission did however concern itself with the remainder of the complaint under article 6, the relevant part of which reads as follows:- "1. In the determination of his civil rights and obligations …. everyone is entitled to a fair and public hearing …. ". Mr. Dick alleged that the detention proceedings, beginning with the ex parte order of arrest and detention, violated his right to a fair hearing. He also alleged that the detention in itself as well as the requirement to pay a caution or the debt in full was a determination of his civil rights and obligations. Dealing first with the second point, it was contended for the United Kingdom Government that the proceedings in Jersey did not "determine" Mr. Dick’s civil rights and obligations. It was the order of the Californian court which created the legal obligation on his part to pay a sum of money regularly to his wife. The only question for the Royal Court was whether that obligation could be enforced in Jersey. The saisie was merely a provisional step to assist in the ultimate enforcement of any judgment which might be pronounced in the future. Mr. Dick submitted that the ex parte order involved new and separate determinations of civil rights and obligations independent of those already adjudicated upon by the Californian court. The ex parte order was a provisional finding against him which "determined" that he should be arrested and incarcerated in prison. Furthermore it was argued that the order to pay the debt in full or to pay a caution was not consistent with an interim order. The true effect of the ex parte order was a determination that Mr. Dick was a debtor by virtue of non-compliance with the Californian order. The Commission recat its case-law [7] had already determined that "where interim measures are requested in the course of proceedings which determine civil rights, the proceedings by which the interim measures are ordered do not, themselves, determine civil rights or obligations. … The ee proceedings as such cannot therefore be said to have determined the applicant’s civil rights or obligations." [8] The Commission left open however the question whether the enforcement proceedings as a whole gave rise to a fresh determination of substantive matters which were capable of determining civil rights and obligations. Even if Article 6 did apply in this sense, the Commission viewed the application as manifestly ill-founded in any event. Mr. Dick had argued that the proceedings were unfair because he had received no notice of the hearing on the 15th September, 1993 and was unable to attend. He complained that after arrest he was not able personally to instruct his American lawyers, so that he was obliged to remain in custody while his Jersey lawyer researched the matter and gathered sufficient evidence to lodge an application for his release. Only in January 1994 did his lawyers discover that the Jersey proceedings could be challenged on the grounds that the 1990 Order had been obtained by fraud. The United Kingdom Government had submitted that the fairness of the proceedings was ensured by the party against whom the ex parte order was made having an immediate opportunity to argue that the order be revoked or varied. Mr. Dick had had full access to his Jersey lawyer and, acting through counsel, had chosen not to make any application for his release on 3rd or 10th December, 1993 but only by the summons dated 14th December which came before the court on the 21st December when he was released from prison on grounds of ill-health. He had given no explanation for his failure over more than two years to raise the matter of the alleged fraud in an appeal against the 1990 Order. The Commission’s conclusion on the "fairness" point was as follows:- "Whilst the draconian interim measure which was ordered against the applicant may well have caused him considerable inconvenience, in the context of the Jersey proceedings as a whole, the Commission can see no unfairness in these proceedings. In particular, there is no reason why the institution of proceedings on an ex parte basis should have any impact on the fairness of the proceedings as a whole, provided that full procedural guarantees were available when the proceedings were inter partes. In the present case, once the proceedings were inter partes, the applicant had several hearings, was represented by a lawyer and the case finally ended in his favour." The Commission accordingly declared the application inadmissible. Imprisonment for debt thus remains lawful in international law and the procedure set out in the Loi (1862) sur les saisies en vertu d’ordres provisoires has survived this examination in the context of the European Convention on Human Rights. Nonetheless the employment of the epithet "draconian" in the Commission’s conclusion is a cautionary reminder that the procedure should be invoked with care. Sir Philip Bailhache is the Bailiff and Chief Justice of Jersey . |