CASE SUMMARIES

ADVOCATES

DUTIES TO COURT

Cooper v Att. Gen. Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt, Potter, Le Brocq, Tibbo, Le Breton and Allo) January 10th, 2001 unreported.

S.E. Fitz for the appellant; M.J. O’Connell, Crown Advocate, for the Crown.

The appellant appealed against a sentence of four months’ imprisonment for offences of larceny. It was complained inter alia that the Crown Advocate had used unnecessarily emotive language in presenting the case to the sentencing court; he had stated that the appellant “fudged and flannelled, ducked and dived and changed her story so often that the only conclusion the Crown can draw is that she is a practised liar who has deployed her full repertoire of skills ……. throughout the investigation”.

Held, rejecting the complaint but allowing the appeal on other grounds, that the duty of prosecuting counsel in Jersey was different from that of counsel in England where the prosecution was completely neutral in relation to sentencing.

Per curiam: In representing the Crown in Jersey the Attorney General or his representative had the duty of weighing the aggravating and mitigating circumstances in the balance before arriving at his conclusions and recommending a sentence to the Court. The Crown Advocate was fulfilling a quasi – judicial rôle and should be measured in his language, and conscious of the heavy duty upon him to be both fair and accurate in any assertion that he made.

CIVIL PROCEDURE

COSTS

Macon v QueréeRoyal Ct: (Page, Commissioner) March 27th, 2001 unreported.

D.F. Le Quesne for the plaintiffs (in the original action); J.D. Kelleher for the defendant.

The plaintiffs applied under Article 13(c)(ii) of the Court of Appeal (Jersey) Law, 1961 to the Royal Court for leave to appeal from an order for costs whereby (a) the plaintiffs were not awarded any of the costs of their action and (b) the defendant was awarded 20% of the costs of the action.

Held, refusing leave,

(1) Power to award costs is governed by Article 2 of the Civil Proceedings (Jersey) Law, 1956 and is within the discretion of the Court, and leave to appeal is ordinarily granted unless the appellants have no realistic prospect of success;

(2) the test on appeal from an exercise of discretion by the trial judge, following The Abidin Daver[1], is that the Court of Appeal does not interfere save in three cases:

(i) where the judge misdirected himself with regard to principles in accordance with which his discretion was exercised;

(ii) where the judge, in exercising his discretion has taken into account matters which he ought not to have done, or has failed to take into account matters which he ought to have done; and

(iii) where his decision is plainly wrong.

(3) on the facts the plaintiffs were not in substance the successful parties in the action and there was no other factor which would justify granting leave.

DISCOVERY

Grupo Torras SA and others v The Royal Bank of Scotland International plc and others Royal Ct: (Birt, Deputy Bailiff and Jurats Myles and Querée) January 11th, 2000 unreported.

N.F. Journeaux for the representors; R.J. Michel for R.B.S.I.; N.M.C. Santos Costa for NatWest Offshore Ltd and another.

The representors sought an order releasing them from undertakings which they had given to the Court concerning the use of information and documents obtained from the respondents, or alternatively varying the undertakings to allow them to use the information for the purpose of various civil and criminal proceedings in other jurisdictions.

Held, granting the application,

(1) the use of information which has been obtained compulsorily in civil proceedings is allowed where the Court is satisfied that the interests of justice in that respect outweigh the need to protect privacy and confidential information, so as not to deter litigants from making full discovery in civil proceedings. Applying that test, the Court was willing to agree to the release of the information for use in the civil proceedings, subject to some minor exceptions;

(2) in so far as concerned the request for use in criminal proceedings, applying Jyske Bank (Gibraltar) Limited v Spjeldnaes & Recolte Investments Ltd[2], AG for Gibraltar v May[3] and Bank of Crete S.A. v Koskotas & others (No2)[4], it was clear that the Court did have jurisdiction to give leave for information to be so used, but such a request should be scrutinised carefully in order to ensure that the proper procedures for obtaining evidence in criminal cases were not being circumvented. On the particular facts of this case, which involved the perpetration of a massive fraud, the Court was satisfied that it was in the public interest to authorise the use of information in the manner requested.

GUARDIAN AD LITEM

Payne v Pirunico Trustees (Jersey) Ltd and others Royal Ct: (Bailhache, Bailiff and Jurats Le Brocq and Le Breton) January 15th, 2001 unreported.

A.D. Hoy for the plaintiff; A.R. Binnington for the first and second defendants; M.J. Thompson for the third and fourth defendants.

The plaintiff’s guardian ad litem, appointed under Rule 4/3 of the Royal Court Rules 1992, sought a declaration that he would not be personally liable for any costs’ order made against him in his representative capacity unless he had conducted himself other than as a “bon père de famille”. The third and fourth defendants argued that, by analogy with the English procedural rules, the guardian ad litem of a minor who commences an action (although not one who defends an action) is personally liable in any event. Without such personal liability there would be no effective checks and balances on his conduct of the litigation.

Held, making the declaration, that a guardian ad litem appointed under Rule 4/3 is under the same obligation as a tuteur at customary law to act as a bon père de famille in relation to the interests of a minor, and is not generally personally liable for any costs’ order made against the minor unless guilty of bad faith or gross misconduct of some kind.

SECURITY FOR COSTS

Bermuda Trust (Jersey) Limited and others v Valibhai and others Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Le Breton)

December 11th, 2000 unreported.

M.H.D. Taylor for the representors; F.B. Robertson for the first and second respondents; M.L. Preston for the third respondent.

The first and second respondents made an application for security for costs against the third respondent.

The Court considered whether the principles to be applied in an administrative hearing should the same as those applied in an ordinary action. It was noted that the underlying philosophy of security for costs was that it was reasonable for a plaintiff who chooses to invoke the jurisdiction of a court, and who is non resident, to provide security for the costs of a successful defendant who has not chosen to be actioned. In an administrative action, it was the trustee who brought the action and the respondents were convened thereto. The question therefore was whether the respondents could properly be regarded as being in the position of plaintiffs or of defendants.

Held, dismissing the application,

(1) the application for security had been made too late in the proceedings, and it was likely that prejudice would be caused to the third respondent if the order were made;

(2) in the light of this finding, the Court had no need to determine the principles which should be applied to proceedings of this kind, and declined to do so.

CONTRACT

ESTOPPEL

Macon v Querée Royal Ct: (Page, Commissioner and Jurats Potter and Le Breton) January 9th, 2001 unreported.

P. M. Livingstone for the plaintiffs; J.D. Kelleher for the defendant.

In 1980 the plaintiffs, a newly married couple, moved into rooms at a property owned and occupied by the defendant, a childless divorcee who by the date of trial was in her late seventies. A close relationship developed between the parties and in 1985 the defendant changed her will to include the plaintiffs as the beneficiaries of her immovable estate. Some years later, the relationship changed and the defendant made a new will leaving the property to someone else. The plaintiffs claimed that they had struck a bargain with the defendant that they would look after her in her old age so that she could remain in her own home and in return would inherit the house when the defendant died. They claimed that in revising her will the defendant became liable to them in damages either for breach of contract or in equity on the basis of an estoppel. The damages sought was an amount equivalent to the current value of the property discounted to take account of the life expectancy of the defendant.

Held, (1) the plaintiff’s claim that there was an enforceable contract was unsustainable when tested against the criteria established in Selby v Romeril[5]. Even allowing for the fact that the context was domestic and that the parties should accordingly not be expected necessarily to express themselves in the language of business, the elements of uncertainty were too great to be ignored;

(2) apart from some infelicity of expression on the part of the Court in Pirouet v Pirouet[6] in its reference to the different categories of estoppel the reasoning was to be preferred to that in Felard Investments Limited v The Trustees of the Church of Our Lady, Queen of the Universe[7] at least in a case such as this one;

(3) the assurance element of a potential estoppel was clearly satisfied. The reliance and detriment (by the plaintiffs) element was established to a limited extent, principally as regards capital expenditure by the plaintiffs on the property;

(4) on the facts the defendant’s decision to remove the plaintiffs from her will was understandable and not unconscionable but it was fair in the larger context of equity to award the plaintiffs some compensation for their expenditure on improvements to the property and they were awarded the sum of £25,000 payable, on condition that they vacated the property, when the defendant sold the property or on her death.

COURTS

RECUSATION

Grupo Torras SA v Sheikh Fahad Mohammed Al Sabah and others CA (Vaughan, JA) March 20th, 2001 unreported.

J.A. Clyde-Smith for the trustee; N.F. Journeaux for the plaintiff; P.C. Sinel for the second and third defendants.

The second and third defendants sought the recusal of one of the judges of the Court of Appeal from the hearing of an appeal against a judgment of the Royal Court of January 9th, 2001, in which the Court had declined to direct the trustee to make a distribution of trust assets to the first defendant.

The grounds for the application were that, in July 2000, the Court of Appeal had delivered a judgment relating to certain case management issues arising out of the proceedings, and in the course of that judgment had expressed its preliminary assessment of the likelihood of an order for distribution of trust assets being made. These comments were later criticised by the Judicial Committee of the Privy Council as being “inappropriate in their strength”. The judge whom the parties now sought to recuse had been one of members of the Court of Appeal as it was constituted in July 2000.

Counsel for the second and third defendants also argued as a matter of the law that the judge should not himself determine the application for his own recusal.

Held, dismissing the application,

(1) applying Mayo Associates SA v Cantrade Private Bank Switzerland (C.I) Limited[8], Hirschfield v Abacus (CI) & others, Attorney General v Barra Hotel Limited[9] and Director General of Fair Trading v Proprietary Association of Great Britain[10], it was clear that, save in exceptional circumstances, it would be wrong for a judge who was the subject of a recusal application to leave the objection to others to resolve;

(2) the principles governing the law of recusal were reasonably clear, and had been recently set out in Hirschfield v Abacus (CI) Ltd and others[11]. If a judge had a direct personal interest in the outcome of proceedings, bias was presumed to exist and the judge was automatically disqualified. If the judge did not have such an interest, the question then arose as to whether there was any “apparent bias”. In such cases, the test to be applied was whether there is or was “a reasonable suspicion or apprehension” of bias, and this was an objective test. Where actual bias had not been established, the personal impartiality of the Judge was to be presumed;

(3) the burden was on the applicant to establish bias;

(4) the views expressed by the Court of Appeal at an interlocutory stage, however inappropriately strong, were of no relevance whatsoever to the determination of the substantive issue on the appeal. In these circumstances, the expression of such comments could not give rise to a legitimate fear that the judge might not be impartial in the subsequent appeal hearing;

(5) it would also be wrong in principle for the judge to decide not to sit as a matter of discretion, since this would be to abdicate any responsibility to sit and could encourage applications for judges to recuse themselves. “Judge shopping” was not to be permitted.

CRIMINAL LAW

DRUGS; SENTENCE

Evans v Att. Gen. Royal Ct: (Bailhache, Bailiff and Jurats de Veulle and Bullen) November 13th, 2000 unreported.

C.J.Scholefield for the appellant; C. Yates for the Crown.

The appellant had been convicted in the Magistrates’ Court of the offence of possession of cannabis resin, and sentenced to a fine of £500 or 25 days’ imprisonment. He appealed against the sentence on the grounds that the Magistrate had failed to give sufficient weight to the “special circumstances” of the case, namely the fact that he suffered from a form of epilepsy and cannabis offered him some relief from that condition.

Counsel for the appellant drew the Court’s attention to two decisions of the English Court of Appeal (Criminal Division) in the cases of R v Obiorah[12] and R v Ward[13], in which the existence of a medical condition had been accepted by the sentencing court as a mitigating factor. Counsel also referred to a decision of the Canadian Court of Appeal in the case of R v Parker[14], in which the appellant had contended that the prohibition on the possession of marihuana was unconstitutional, and infringed his rights under the Canadian Charter of Rights and Freedoms. It was submitted that the relevant provisions in the Canadian Charter were in similar terms to the equivalent article of the European Convention on Human Rights.

Held, dismissing the appeal,

(1) a certified medical condition which appeared to be relieved by the consumption of cannabis was a factor which must be taken into account by the sentencing court, and might be a mitigating circumstance;

(2) taking account of the appellant’s previous convictions, and the amounts of cannabis involved, the fine imposed by the Relief Magistrate was neither wrong in principle nor manifestly excessive;

Per curiam: The Court noted that the European Convention on Human Rights was not yet part of the domestic law of the Island, but went on to comment that, when the Human Rights (Jersey) law 2000 came into force, the courts in Jersey would perhaps be required to consider the constitutional issues raised by the judgment of the Canadian Court of Appeal.

INSANITY

Att. Gen. v Prior Royal Ct: (Bailhache, Bailiff) February 9th, 2001 unreported.

D.E. Le Cornu, Crown Advocate, for the Crown; C.M. Fogarty for defendant.

The Court was asked to determine, as a preliminary point of law, the meaning of the word “insane” in the Criminal Justice (Insane Persons) (Jersey) Law 1964. Both counsel agreed that the point had not previously been decided and that the McNaghten Rules were difficult to reconcile with the requirements of the European Convention on Human Rights. Counsel for the Crown submitted that a definition of insanity should be found by adapting the McNaghten Rules to make them compliant with the Convention. Counsel for the defence contended that the McNaghten Rules were outmoded and that the Court should establish a definition which not only complied with the requirements of the ECHR but was also consonant with the current state of medical knowledge relating to mental disease and disorder. Counsel submitted a number of options on the basis of expert medical opinion.

Held, that a person was “insane” within the meaning of the 1964 law if, at the time of the commission of the offence, his unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible.

CRIMINAL PROCEDURE

MODE OF TRIAL

McCarthy v Att. Gen. Royal Ct: (Birt, Deputy Bailiff and Jurats Rumfitt and Le Breton) December 11th, 2000 unreported.

A.D. Hoy for the appellant; C. Yates for the Crown.

The appellant had been charged in the Magistrates’ Court with grave and criminal assault and violently resisting police officers. At the conclusion of the trial, the Assistant Magistrate found that there was a prima facie case to answer. The matter was then adjourned for a background report, and came back before the Assistant Magistrate, at which time nothing further was said about guilt or innocence but the appellant was sentenced to 12 months’ probation.

The appeal was brought on the basis that the Magistrate’s finding of a “prima facie case” was wholly inappropriate when deciding guilt or innocence. It was argued that the procedure adopted related back to the procedure which had been followed before the 1996 amendment to the Magistrates Court (Miscellaneous Provisions) (Jersey) Law 1949.

Held, upholding the appeal and quashing both convictions:

(1) the procedure followed by the Assistant Magistrate was wholly inappropriate, and should never be followed in future;

(2) in cases where the Magistrate’s Court was invited to deal with an offence, and the offender pleaded not guilty, the Magistrate should assume that there was no previous record or other prejudicial material. If, on that assumption, he believed that the case fell within his sentencing jurisdiction, he should proceed to try the case and determine guilt or innocence. Following conviction, he was then entitled to look at the record and other sentencing material and if, as a result of that, he considered his sentencing powers inadequate, he could send the matter up to the Royal Court for sentence under the provisions of Article 4A of the 1949 Law;

(3) a finding of a prima facie case should be reserved in future for committal hearings only.

SAISIE JUDICIAIRE

Representation Batalla Royal Ct: (Bailhache, Bailiff) March 2nd and March 27th, 2001 unreported.

M.P.G. Lewis for the representor; A.J. Belhomme for the Crown.

The representor sought an order setting aside or varying a saisie judiciare granted on February 8th, 2000 and resulting from an application by the Attorney General on behalf of the Attorney General of the United States pursuant to the Drug Trafficking Offences (Designated Countries and Territories (Jersey) Regulations 1997 (“the 1997 Regulations”).

Counsel for the representor submitted that the saisie judiciaire should be wholly set aside on two grounds; first, that the Court’s power to make a saisie judiciaire was restricted to the circumstances set out in Article 8(1) of the 1997 Regulations, and that this Article did not extend to a case where the foreign proceedings were in rem; and secondly, that the Court had no jurisdiction to grant a saisie judiciaire when the foreign Court’s jurisdiction to entertain proceedings depended upon the issuance of the saisie judiciaire, and had no independent basis. Counsel also submitted that the saisie judiciare ought in any event to be discharged to the extent that it embraced property in respect of which no proceedings had been issued before the foreign court.

Held, refusing the application,

(1) Article 8 of the 1997 Regulations was only concerned to identify the stage in the foreign proceedings which justified the making of a restraint order. It was not to be read as requiring a particular form of proceedings, or that proceedings be in personam rather than in rem. Re S-L[15], and In re Illinois District Court[16] applied.

(2) The jurisdiction of the Royal Court to make a saisie judiciare did not depend upon the simultaneous jurisdiction of a foreign court in a designated country to entertain an application for an external confiscation order, but depended upon Article 9 of the Drug Trafficking Offences (Jersey) Law 1988 (“the 1988 Law”). Article 9 of the 1988 Law empowered the Court to make a saisie judiciaire “on an application made by or on behalf of the Government of a designated country”, where the criteria laid down by Article 8 of the 1997 Regulations had been satisfied. Such an application had been made in this case, and the relevant criteria had been satisfied.

Note: in relation to the last submission the Court adjourned the application and subsequently discharged the saisie judiciaire to the extent that it embraced property in respect of which no proceedings had issued.

SENTENCE

Att. Gen. v Hébert and Rainbow Royal Ct: (Bailhache, Bailiff and Jurats Le Ruez and Bullen) March 9th, 2001 unreported.

D.E. Le Cornu, Crown Advocate, for the Crown; P.D. James for Hébert and C.J. Scholefield for Rainbow.

The Court imposed non-custodial penalties for offences of dishonesty on two young offenders but criticized the delays involved in bringing the matter to a conclusion. The first defendant was first charged in September 1999 and the second defendant in March 2000.

In the case of the first defendant, who was aged 17 when charged, the criminal process had taken 18 months; in the case of the second defendant who was 16 when charged, 12 months.

Held, that delays of this order were unacceptable both because it was unfair to have the criminal process hanging over the head of a defendant for an excessive period and because the delay became a factor in sentencing and thus distorted the criminal process.

Per curiam: Young offenders should in general be sentenced within three months of being charged.

EVIDENCE

ASSISTANCE TO FOREIGN COURT

Acturus Properties Ltd & Others v Att. Gen. Royal Ct: (Birt, Deputy Bailiffand Jurats Rumfitt and Allo) January 12th, 2001 unreported.

A. Clarke for the representors; J.A. Clyde Smith, Crown Advocate, for the respondent.

The representors sought to challenge by way of judicial review the decision by the Attorney General to issue a notice under the Investigation of Fraud (Jersey) Law 1991, requiring the production of documents and the furnishing of answers relating to the affairs of the representors.

Counsel for the Attorney General submitted that, applying In re McMahon[17] ,a review of a decision of the Attorney General to issue a notice under the 1991 Law should be limited to questions of vires in the narrowest sense of the term. Counsel also argued that the representors did not, in any event, have locus standi to challenge the decision.

The representors contended, inter alia, that the Attorney General had failed to have sufficient regard to the human rights protected by Article 1 of Protocol 1 and Article 6(1) of the European Convention on Human Rights.

Held, upholding the decision of the Attorney General,

(1) a person whose affairs are the subject of a notice under the 1991 Law does have locus standi to challenge the lawfulness of the decision to issue the notice, following the decision of the Guernsey Court of Appeal in Bassington v HM Procureur[18] and declining to follow the English authorities of R v Director of Serious Fraud office ex parte Smith[19] and R v Director of the SFO ex p Johnson[20];

(2) declining to follow In re McMahon, that decisions of the Attorney General under the relevant provisions of the 1991 Law were subject to judicial review on the normal grounds of illegality, irrationality and procedural impropriety;

(3) following IRC v Rossminster Limited[21], that a presumption of regularity applies to the exercise by the Attorney General of his powers under the 1991 Law. The presumption could only be displaced by evidence of facts which could not be reconciled with there having been reasonable cause for his belief that the documents might be required as evidence, or alternatively with his having held such belief at all. The burden of proof was on the applicant for judicial review, and the evidence produced by the representors came nowhere near satisfying that test;

(4) where the Attorney General’s power was invoked in connection with a criminal investigation, there was no requirement for him to give reasons for the determination that the relevant power existed, or for the manner in which he had chosen to exercise the power. Public interest immunity justified any refusal on the part of the Attorney General to do so, distinguishing Ahluwalia v Employment & Social Security Committee[22];

(5) the claim of a breach of Articles 1 and 6 of the ECHR was not well founded. Even if, technically, the representors had been deprived of possession of their documents, this could be justified in the public interest. Furthermore, Article 6 was of no application, since the proceedings had not reached the stage of a criminal investigation;

(6) there was no duty on the Attorney General to consult with the Home Secretary before exercising his powers under the 1991 Law to give assistance to a foreign jurisdiction.

LAND LAW

DECEPTION D’OUTRE-MOITIE DU JUSTE PRIX

Snell v Beadle Privy Council: (Lords Hope of Craighead, Cooke of Thorndon, Hutton and Millett, and Sir Ivor Richardson) January 29th, 2001 unreported.

Richard McCombe Q.C. (of the English bar) and N.M.C. Santos Costa for the appellant; Michael Fysh Q.C. (of the English bar) and J.D.Kelleher for the respondent.

The respondent agreed, without taking legal advice, to sell to the appellant for £100 a right of way over a strip of land without the benefit of which the appellant was unable to develop his adjacent properties. Having taken advice as to the value of the right of way, the respondent repudiated the agreement on the basis that £100 was a vile prix and that the agreement was accordingly unenforceable as a dol réel arising from a déception d’outre-moitié du juste prix. The appellant brought an action initially seeking specific performance but subsequently damages. In the Royal Court the appellant succeeded on the basis that the Court could find no evidence of dol andthat accordingly the remedy of déception d’outre-moitié du juste prix was not available. This judgment was reversed by the Court of Appeal which held that a sale at less than half of the juste prix entitled the vendor, (other than in circumstances which did not apply in this case), to rescind the contract, the shortfall in price being sufficient evidence of dol in the sense of dol réel.

The appellant appealed to the Privy Council.

Held, allowing the appeal by a majority, (Lords Cooke and Hutton dissenting), that -

(1) the remedy of déception d’outre-moitié was available without the need to prove dol personnel;

(2) the remedy was founded on the principle of good faith and that the parties’ ignorance of the value of the property was sufficient to constitute dol réel.

(3) the remedy was to be applied restrictively and did not apply to an agreement for the sale of a right of way where it was not possible objectively to determine the juste prix; on the facts there was no evidence of an open market value and there was therefore no juste prix which enabled the remedy of déception d’outre moitié to be applied.

Per Lords Cooke and Hutton (dissenting): difficulties in valuing a right of way did not justify drawing a distinction between the sale of land and the sale of a right of way and excluding the latter from the application of the remedy of déception d'outre-moitié.

POLICE

CONSTABLE

In the matter of the Constable of the Parish of St Helier Royal Ct: (Bailhache, Bailiff and Jurats de Veulle, Le Ruez, Rumfitt, Potter, Le Brocq, Tibbo, Bullen, Le Breton, Georgelin and Herbert) February 27th, 2001 unreported.

The Solicitor General for the Attorney General; A.J. Olsen for the Constable.

The Attorney General brought a representation to the Court seeking a decision as to whether it was appropriate for the Constable of St Helier to remain in office, in the light of his failure to comply with certain statutory requirements regarding the investigation of complaints against certain members of the Honorary Police. It was alleged that the Constable had committed a breach of Regulation 5 of the Honorary Police (Jersey) Regulations 1977 (“the 1977 Regulations”) by failing to report to the Attorney General as soon as possible certain complaints which had been made about a former Vingtenier and a serving Centenier, and by failing to refer certain of the allegations to the States of Jersey Police for investigation.

Counsel for the Constable, whilst accepting that he had committed a breach of the Regulations, argued that the Constable had believed that he had a discretion not to report complaints that he considered to be groundless, fanciful or malicious.

Held, reprimanding the Constable, that he had no such discretion, and that although there was no suggestion that he had acted dishonestly, or with any intention of obstructing the course of justice, he had clearly failed to appreciate the extent of his duties under the 1977 Regulations.

Per curiam: The Court did however accept that there was a line to be drawn between a “grumble” on the one hand, and a complaint on the other, but commented that where an expression of dissatisfaction with the conduct of an honorary police officer was formalised to the extent of being put in writing, and drawn to the attention of the Constable, a complaint had been made and the Constable was duty bound to act accordingly.

TRUSTS

COSTS

In re the Esteem Settlement Royal Ct: (Birt, Deputy Bailiff and Jurats de Veulle and Rumfitt) January 15th, 2001 unreported.

J.A. Clyde-Smith for the trustee; N.F. Journeaux for the plaintiff; P.C. Sinel for the second and third defendants.

On January 9th, 2001, the Royal Court refused to direct the trustee to pay out monies from the trust fund to the first defendant (who was insolvent) for the benefit of his principal creditor, the plaintiff. The question arose as to whether the trustee was entitled to its costs from the trust fund. The defendants argued that the trustee should pay its own costs because it had acted unreasonably and in a partisan manner.

Held, granting the trustee’s application for its costs to be paid out of the trust fund on an indemnity basis,

(1) that the trustee had acted reasonably and in the interests of the trust estate; and

(2) that the court was entitled to expect the fullest assistance from a trustee which included laying before the Court the relevant law and the arguments for and against the recommendation which it was making.

Per curiam: It was not in the public interest to encourage a trustee metaphorically to dump the problem in the Court’s lap and to discourage a trustee from making a recommendation for fear of being penalised in costs.

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SUMMARY OF LEGISLATION

1ST JANUARY 2001 - 30TH APRIL 2001

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1. LAWS ADOPTED BY THE STATES

(a) Finance (Jersey) Law 2001 (P.223/2000 - adopted 16.1.2001)

This Law gives effect to various provisions contained in the 2000 Budget Report.

(b) Shops (Sunday Trading) (Amendment No. 4) (Jersey) Law 2001 (P.1/2001 - adopted 30.1.2001)

This Law amends the Shops (Sunday Trading) (Jersey) Law 1960 so that a Connétable may authorize Sunday trading as part of a fair, fête or festival where there is official involvement in the organization of the event.

(d) Projet de Loi (2001) concernant la Police Honorifique de St. Jean (P.8/2001 - adopted 13.2.2001)

(e) Projet de Loi (2001) concernant la Police Honorifique de St. Laurent (P.9/2001 - adopted 13.2.2001)

(f) Projet de Loi (2001) concernant la Police Honorifique de Ste. Marie (P.10/2001 - adopted 13.2.2001)

These Lois increase from three to four the number of Centeniers for the parishes of Trinity, St. John, St. Lawrence and St. Mary.

(g) Criminal Justice (International Co-operation) (Jersey) Law 2001 (P.21/2001 - adopted 27.3.2001)

This Law replaces the Drug Offences (International Co-operation) (Jersey) Law 1996 with new provisions which enable co-operation with other jurisdictions in relation to all offences.

(h) Currency Offences (Amendment) (Jersey) Law 2001 (P.33/2001 - adopted 27.3.2001)

This Law extends the meaning of “current coin” to include those that have been lawfully produced in other countries but are not yet in currency (e.g. the euro).

(i) Financial Services Commission (Amendment No. 3) (Jersey) Law 2001 (P.39/2001 - adopted 24.4.01)

This Law amends the Financial Services Commission (Jersey) Law 1998 by -

(i) inserting a wider definition of “enactment”;

(ii) providing for the States to appoint a Commissioner nominated by the Finance and Economics Committee to be Chairman of the Commission;

(iii) removing the Commission’s role in promoting the Island as a centre for financial services;

(iv) giving the Commission responsibility for functions in respect of financial services that are authorized by or under any enactment;

(v) revising the wording of the provision giving the Commission powers incidental to its functions;

(vi) removing any liability in damages in the absence of bad faith of the Commission, the Commissioners or the Commission’s officers, servants or agents in respect of the Commission’s functions under or authorized by or under any enactment, or of the States or any Committee of the States in respect of any functions delegated to the Commission;

(vii) providing for the Commissioners to elect a Commissioner to chair a meeting in the absence of the Chairman and Deputy Chairman.

(j) Airport Dues (Amendment No. 4) (Jersey) Law 2001 (P.48/2001 - adopted 24.4.01)

This Law amends the Airport Dues (Jersey) Law 1956 to increase certain penalties.

(k) The Royal Bank of Scotland International Limited (Jersey) Law 2001 (P.61/2001 - adopted 24.4.01)

This Law provides for the acquisition of certain of the businesses of Natwest Offshore Limited and the banking business of Coutts (Isle of Man) Limited by the Royal Bank of Scotland International Limited.

2. LAWS, ORDERS IN COUNCIL, ETC., REGISTERED IN THE ROYAL COURT

(a) The Air Navigation (Jersey) (Amendment) Order 2000

(L.1/2001 - registered 12.1.2001. In force - 3.1.2001)

(b) Subordinate Legislation (Amendment No. 2) (Jersey) Law 2001

(L.2/2001 - registered 23.2.2001. In force - on registration)

(L.3/2001 - registered 23.2.2001. In force - on registration)

(d) Finance (2000 - No. 2) (Jersey) Law 2001

(L.4/2001 - registered 2.3.2001. In force - 1.11.2000)

(e) Homicide (Amendment) (Jersey) Law 2001

(L.5/2001 - registered 2.3.2001. In force - 3.3.2001)

(f) Criminal Justice (Forfeiture Orders) (Jersey) Law 2001

(L.6/2001 - registered 2.3.2001. In force - on registration)

(g) Loi (2001) (Amendment No. 8) réglant la procédure criminelle

(L.7/2001 - registered 2.3.2001. In force - day or days to be appointed)

(h) Criminal Justice (Community Service Orders) (Jersey) Law 2001

(L.8/2001 - registered 2.3.2001. In force - day to be appointed)

(i) Rehabilitation of Offenders (Jersey) Law 2001

(L.9/2001 - registered 2.3.2001. In force - day to be appointed)

(j) Finance 1998 (Jersey) Law 2001

(L.10/2001 - registered 9.3.2001. In force - 3.12.1997)

(k) Parish Rate (Jersey) Law 2001

(L.11/2001 - registered 9.3.2001. In force - on registration)

(l) Competition Regulatory Authority (Jersey) Law 2001

(L.12/2001 - registered 30.3.2001. In force - day or days to be appointed)

(m) The Sea Fish (Conservation) (Channel Islands) (Amendment) Order 2001

(L.13/2001 - registered 14.3.2001. In force - 3.4.2001)

(n) Income Tax (Amendment No. 21) (Jersey) Law 2001

(L.14/2001 - registered 27.4.2001. In force 7.12.2000)

(o) Loi (2001) concernant la Police Honorifique de Ste. Marie

(L.15/2001 - registered 27.4.2001. In force - on registration)

(p) Loi (2001) concernant la Police Honorifique de St. Jean

(L.16/2001 - registered 27.4.2001. In force - on registration)

3. APPOINTED DAY ACTS

(a) Police Force (Amendment No. 8) (Jersey) Law 2000 (Appointed Day) Act 2001

(R & O 18/2001)

Law in force 1.2.2001.

(b) Food Safety (Miscellaneous Provisions) (Jersey) Law 2000 (Appointed Day) Act 2001

(R & O 19/2001)

Law in force 15.2.2001.

(R & O 20/2001)

Law in force 1.2.2001.

(d) Petroleum (Jersey) Law 1984 (Appointed Day) Act 2001

(R & O 56/2001)

Law in force 12.4.2001.

(e) Social Security (Amendment No. 14) (Jersey) Law 2000 (Appointed Day) Act 2001

(R & O 61/2001)

Law in force - (i) Articles 1, 2 (in part) 3, 4, 5, 7 (in part), 9, 10, 15, 16(2) and (3), 17(4), 18(1) (in part) (2) and (3) and 19 - 1.4.2001;

(ii) Remainder - day or days to be appointed.

(f) Criminal Justice (Community Service Orders) (Jersey) Law 2001 (Appointed Day) Act 2001

(R & O 79/2001)

Law in force 1.6.2001

(g) Competition Regulatory Authority (Jersey) Law 2001 (Appointed Day) Act 2001

(R & O 80/2001)

Law in force 1.5.2001

4. REGULATIONS MADE BY THE STATES

(a) Housing (General Provisions) (Amendment No. 14) (Jersey) Regulations 2001

(R & O 16/2001 - in force 18.1.2001)

These Regulations reduce the residence period for the purposes of Regulation 1 of the Housing (General Provisions) (Jersey) Regulations 1970 from 20 years to 19 years.

(b) Disability Transport Allowance (Jersey) Regulations 2001

(R & O 17/2001 - in force 18.1.2001)

These Regulations provide for an increase in the rate of disability transport allowance payable under the Disability Transport Allowance (Jersey) 1997.

(R & O 28/2001 - in force for three years from 12.4.2001)

These Regulations restrict underwater fishing for shellfish.

The Regulations do not apply to the extended territorial sea (as defined in the Territorial Sea (Consequential Provisions) (Jersey) Law 1994).

(d) Road Traffic (No. 51) (Jersey) Regulations 2001

(R & O 31/2001 - in force 1.3.2001)

These Regulations increase the maximum fine which may be imposed by an Order made in respect of public parking places.

(e) Terms of Employment (Jersey) Regulations 2001

(R & O 32/2001 - in force for three years from 1.4.2001)

These Regulations require an employer to give an employee a written statement of the terms of his employment.

(f) Health Insurance (Medical Benefit) (Amendment No. 53) (Jersey) Regulations 2001

(R & O 41/2001 - in force 1.1.2001)

These Regulations increase the amounts of medical benefit payable on respect of specified medical services provided on or after 1st January 2001 to persons who are exempt from liability to pay contributions under the Health Insurance (Jersey) Law 1967.

(g) Harbours (Amendment No. 32) (Jersey) Regulations 2001

(R & O 43/2001 - in force 15.3.2001)

These Regulations revise the provisions the Harbours (Jersey) Regulations 1961 which govern the charges for goods overstaying on the harbour.

(h) Housing (Amendment No. 15) (Jersey) Regulations 2001

(R & O 54/2001 - in force 4.4.2001)

These Regulations amend the Housing (General Provisions) (Jersey) Regulations 1970 to provide that a single period of residence of five years (presently three years) outside the Island does not affect a person’s eligibility for consent under Article 10 of the Housing (Jersey) Law 1949. The amendment will apply to any absence that has occurred after 1st February 1993.

(i) Unlawful Public Entertainments (Jersey) Regulations 2001

(R & O 55/2001 - in force for three years from 8.7.2001)

These Regulations prevent the holding of so-called “raves” by making it an offence, in addition to customary law offences, to organize a public entertainment which is held without the permission of the Bailiff.

(j) Petroleum-Spirit (Carriage by Road) (Jersey) Regulations 2001

(R & O 57/2001 - in force 12.4.2001)

These Regulations govern the transport of petrol by road, and control the volatile emissions resulting from the storage of petrol and its distribution from terminal to service station.

(k) Petroleum-Spirit (Storage) (Jersey) Regulations 2001

(R & O 58/2001 - in force 12.4.2001)

These Regulations control the storage of petrol which is not kept for sale.

(l) Règlements (2001) sur l’Etat Civil

(R & O 59/2001 - in force 1.4.2001)

These Regulations increase certain fees payable to the Superintendent Registrar.

(m) Aerodromes (Amendment No. 5) (Jersey) Regulations 2001

(R & O 60/2001 - in force 28.4.2001)

These Regulations amend the Aerodromes (Jersey) Regulations 1965 to make it an offence not to pay the relevant charge to park a vehicle at a place at the Airport where a parking charge is made.

(n) Milk (Sale to Special Classes) (Jersey) Regulations 2001

(R & O 77/2001 - in force for three years from 12.4.2001)

The purpose of these Regulations is to provide for specified quantities of milk to be made available to certain persons at a price lower than the usual retail price.

(o) Criminal Justice (Community Service Orders - Sentencing Powers) (Jersey) Regulations 2001

(R & O 79/2001 - in force 1.6.2001)

These Regulations increase the maximum number of hours of community service that may be ordered by the Magistrate’s Court or the Youth Court from 120 to 180.

5. OTHER SUBORDINATE LEGISLATION OF NOTE

(a) Financial Services (Investment Business (Accounts, Audits and Reports)) (Jersey) Order 2001

(R & O 5/2001 - in force 2.2.2001)

This Order applies to persons who are registered under the Financial Services (Jersey) Law 1998 (“registered persons”) to carry on investment business (and no other financial service business) -

The purpose of the Order is to -

(i) impose a duty on registered persons to keep accounting records;

(ii) require registered persons to prepare an annual financial statement, stipulate what the statement is to contain and the duties of registered persons in respect of the statement and require the statement to be submitted to the Financial Services Commission;

(iii) make provision concerning first balance sheets and change of accounting reference dates;

(iv) make provision concerning the duties of registered persons with respect to auditors and the duties of those auditors;

(v) make it an offence for a registered person to make false statements to his auditors; and

(vi) prescribe the circumstances in which certain matters are to be communicated to the Commission.

(b) Financial Services (Investment Business (Client Assets)) (Jersey) Order 2001

(R & O 6/2001 - in force 2.2.2001)

The purpose of this Order is to regulate the holding of investment business assets by persons registered to carry on investment business under the Financial Services (Jersey) Law 1998. It replaces the Investment Business (Client Assets) (Jersey) Order 1999 and is a consequence of the coming into force of the Financial Services (Extension) (Jersey) Law 2000.

(R & O 7/2001 - in force 2.2.2001)

This Order revokes and replaces the Investment Business (Exemption No. 2) (Jersey) Order 1999 and is necessary solely as a consequence of the changes brought about by the Financial Services (Extension) (Jersey) Law 2000. It introduces no new provisions.

The purpose of this Order is to exempt from certain provisions of the Financial Services (Jersey) Law 1998 insurance companies when carrying on investment business.

(d) Financial Services (Investment Business (Overseas Persons - Exemption)) (Jersey) Order 2001

(R & O 8/2001 - in force 2.2.2001)

This Order revokes and replaces the Investment Business (Exemption No. 3) (Jersey) Order 1999 and is necessary solely as a consequence of the changes brought about by the Financial Services (Extension) (Jersey) Law 2000. It introduces no new provisions.

The purpose of this Order is to exempt from the requirement to register under the Financial Services (Jersey) Law 1998 certain person who have no place of business in the Island (and are not companies incorporated in the Island) but who carry on certain restricted investment business in the Island.

(e) Financial Services (Investment Business (Restricted Investment Business - Exemption)) (Jersey) Order 2001

(R & O 10/2001 - in force 2.2.2001)

The purpose of this Order is to revoke the Investment Business (Exemption No. 4A) (Jersey) Order 1999 (which exempted functionaries in respect of certain regulated investment schemes intended solely for professional or sophisticated investors from the obligation to register under the Investment Business (Jersey) Law 1998, now called the Financial Services (Jersey) Law 1998.

This Order is necessary solely as a consequence of the changes brought about by the Financial Services (Extension) (Jersey) Law 2000. It introduces no new provisions.

The Order includes provisions by which certain powers of the Jersey Financial Services Commission under the Financial Services (Jersey) Law 1998 will continue to be applicable in respect of person exempted from registration under the Law.

(f) Financial Services (Investment Business (Special Purpose Investment Exemption)) (Jersey) Order 2001

(R & O 11/2001 - in force 2.2.2001)

This Order revokes and replaces the Investment Business (Exemption No. 1A) (Jersey) Order 1999 and is necessary solely as a consequence of the changes brought about by the Financial Services (Extension) (Jersey) Law 2000. It introduces no new provisions.

The purpose of this Order is to exempt advisors in respect of certain regulated investment schemes known in the financial industry as “special purpose vehicles” from the obligation to register under the Financial Services (Jersey) Law 1998 (formerly called the Investment Business (Jersey) Law 1998).

The Order also includes provisions by which certain powers of the Jersey Financial Services Commission under the Financial Services (Jersey) Law 1998 will continue to be applicable in respect of persons exempted from registration under the Law.

(g) Financial Services (Trust Company Business (Exemptions No. 3)) (Jersey) Order 2001

(R & O 12/2001- in force 2.2.2001)

(h) Financial Services (Trust Company Business (Exemptions No. 4)) (Jersey) Order 2001

(R & O 13/2001 - in force 2.2.2001)

(i) Financial Services (Trust Company Business (Exemptions No. 5)) (Jersey) Order 2001

(R & O 14/2001 - in force 2.2.2001)

(j) Financial Services (Trust Company Business (Exemptions No. 6)) (Jersey) Order 2001

(R & O 25/2001 - in force 29.1.2001)

(k) Financial Services (Trust Company Business (Exemptions No. 7)) (Jersey) Order 2001

(R & O 26/2001 - in force 29.1.2001)

The purpose of these Orders is to grant exemptions from the Financial Services (Jersey) Law 1998 to certain persons when carrying on trust company business of the types specified in the Order.

(l) The Afghanistan (United Nations Sanctions) (Channel Islands) Order 2001

(R & O 39/2001 - in force 16.2.2001)

This Order restricts the delivery or supply of arms and related matériel and the provision of related technical assistance and training to Afghanistan and restricts the delivery and supply of acetic anhydride to Afghanistan. It also prohibits the making of funds available to Usama bin Laden and his associates.

The Order also imposes restrictions on flights destined for or originating from Afghanistan to take off from, land in, or fly over the Island and prohibits the establishment or maintenance of Taliban offices or the carrying of any business by Ariana Afghan Airlines.

In addition, the Order imposes restrictions pursuant to a decision of the Security Council of the United Nations in its Resolution 1267 of 15th October 1999 by prohibiting any aircraft from taking off or landing in the Island if it is owned, leased, or operated by or on behalf of the Taliban. It also freezes assets of the Taliban or any undertaking owned or controlled by them.

(m) Pet Travel Scheme (Pilot Arrangements) (Amendment No. 2) (Jersey) Order 2001

(R & O 48/2001 - in force 15.3.2001)

The purpose of this Order is to amend the Pet Travel Scheme (Pilot Arrangements) (Jersey) Order 2000 so as to -

(i) allow pets from a number of rabies-free territories to be imported under the Scheme;

(ii) make minor changes to the requirements regarding the treatment against ticks;

(iii) allow a pet to be within the Scheme if vaccinated before it has been microchipped if it has been marked and registered abroad; and

(iv) provide powers of stop and search for inspectors enforcing the Scheme.

(n) Social Security (Contributions) (Amendment No. 6) (Jersey) Order 2001

(R & O 63/2001 - in force 1.4.2001)

This Order amends the Social Security (Contributions) (Jersey) Order 1975, in consequence of the substitution of survivor’s benefit for widow’s benefit and widowed father’s allowance and the introduction of entitlement to a reduced old age pension at the age of 63 by the Social Security (Amendment No. 14) (Jersey) Law 2000.

It also introduces home responsibilities credits for insured persons who have the full-time care of children of their families under the age of five years. The effect is to except such a person from liability to pay contributions, and to credit those contributions to the person. An exception may only be claimed for one child at any one time, and may not be granted for periods that in the aggregate exceed 10 years.

The Order also adjusts from quarterly periods to monthly periods the bases for calculating when exceptions from contribution for Class 2 insured persons who have reached the age of 60 years will commence or be cancelled.

(o) Social Security (Married Women) (Amendment No. 2) (Jersey) Order 2001

(R & O 64/2001 - in force 1.4.2001)

This Order amends the Social Security (Married Women) (Jersey) Order 1974 (“the principal Order”) in the following ways -

(i) it limits the application of the principal Order to women who were married before the commencement of the amending Order and were also insured persons at the commencement of the amending Order;

(ii) it provides that the principal Order will cease to apply to a woman if she remarries after the commencement of the amending Order;

(iii) it adjusts from a quarter to a month the period that is the basis for calculating the commencement of a married woman’s election to be excepted from liability to pay social security contributions; and

(iv) it consequentially amends the principal Order to take account of the introduction of survivor’s benefit by the Social Security (Amendment No. 14) (Jersey) Law 2000.

(p) The Iraq (United Nations Sanctions) (Channel Islands) Order 2000

(R & O 71/2001 - in force 14.12.2000

The Order makes provision to give effect to a decision of the Security Council of the United Nations in Resolution 661 of 6th August 1990. It prohibits the making of funds available to the Government of the Republic of Iraq or persons resident in Iraq, and the remission or removal of funds to Iraq from the Island without a licence. Provision is also made for the Finance and Economics Committee to require certain suspected Iraqi funds to be frozen.

POSTSCRIPT

JERSEY DURING THE FRENCH WARS OF RELIGION

L’an 1597 le 26e jour de Mai, Pour Reprimer les insolences & prophanations qui se comettent aux jours ordinaires de Dimanche par les jeux qui se pratiquent contre l’expres comandement de Dieu lequel a reservé ce jour pour estre dedié et consacré particulierement a son service sans aucunement le divertir ny employer a aucun autre usage Partant sont toutes manieres de jeux interdits & deffendus au jour de Dimanche les Tavernes closes & tous marchés & contracts deffendus avec commandement a toutes personnes capables d’instruction d’assister aux Presches & prieres Publiques & autres exercises de pieté & le reste du jour a lire la sainte escriture Visitation des mallades actions de graces a dieu de ses benefices et autres oeuvres de charité Chrestienne.[23]

[1] (1984) 1 All ER 470

[2] 1993JLR 99

[3] [1999] 1 WLR 998

[4] [1992] 1 WLR 919

[5] 1996 JLR 210

[6] 1985 - 86 JLR 151

[7] 1978 JJ 1

[8] 1998 JLR 173

[9] 2000 JLR 150

[10] December 21st, 2000 English unreported; Law Online C/2000/3582 CA

[11] December 4th, 2000 unreported

[12] June 15th, 1998 English unreported

[13] July 17th, 1998 English unreported

[14] July 31st, 2000 Canadian unreported

[15] [1995] 4 All ER 159

[16] 1995 JLR N-10

[17] 1993 JLR 35

[18] December 2nd, 1998 Guernsey unreported

[19] [1992] 3 All ER 456

[20] January 12th, 1992 unreported judgment of Divisional Court

[21] [1980] AC 952

[22] 2000 JLR N-33; July 27th, 2000 unreported

[23] Extracted from a collection of préjugés of the 16th and 17th centuries assembled by an unknown compiler.

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