Representation of D. J. Sheppard - re Clameur de Haro 29-Mar-2021

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Court of Appeal re Clameur de Haro

[2021]JCA088

Royal Court

29 March 2021

Before :

James McNeill QC, President;

George Bompas QC, and

Sir William Bailhache

Between	Caroline Elizabeth Powell née Chambers	Appellant
And	David John Sheppard	Respondent
And	Her Majesty’s Attorney General	Partie Publique

IN THE MATTER OF THE REPRESENTATION OF D J SHEPPARD SEEKING AN ORDER SETTING ASIDE AN INJUNCTION IMPOSED BY A CLAMEUR DE HARO RAISED BY CAROLINE ELIZABETH POWELL NÉE CHAMBERS

The Appellant in person

Advocate M. L. A. Pallot for the Respondent

M. T. Jowitt QC, HM Solicitor General for the Attorney General

judgment

the president:

1. On 25 February 2021 the Appellant raised a Clameur de Haro against Officers of the Viscount, who attended at La Vallette, Parcq de L’Oeillière, Le Mont de la Pulente, St Brelade (“the property”) in which she was residing for the purpose of putting the Respondent and his wife in possession of that property under the provisions of an Act of Court dated 27 November 2020 which had conferred ownership of that property on the Respondent and his wife and had ordered the Appellant to vacate the property by 31 January 2021.

2. The effect of raising the Clameur was to frustrate the Order of the Court of 27 November. As Le Geyt, Lieutenant Bailiff of the Island, described in his Privilèges, Loix & Coustumes de L’Isle de Jersey in 1698, Titre VIII at page 37:

“ Article 2

S’il arrive quelque trouble en la possession, on doit, pour s’y maintenir, interjetter sur le Champ la Clameur de Haro contre le Turbateur, sans qu’il soit permis de repousser la force par la force, si ce n’est au mesme instant, principalement aprés avoir en vain interjetté la Clameur.

Article 3

La Clameur de Haro sequestre tacitement la chose en main de Justice; elle oblige les parties à donner caution respective, l’une de poursuivre & l’autre de soutenir, si ells sont capables d’en donner; elle ne se peut vuider sans amende & se traite à present à la Cour de Brieveté, trois jurez pour le moins assistans. “

3. The requirement for three Jurats to sit has long since gone, but this extract demonstrates the immediacy of the remedy provided by raising the Clameur. Indeed, writing some thirty years earlier, Poingdestre, also Lieutenant Bailiff of the Island, in his Commentaires sur L’Ancienne Coutume de Normandie said this:

“ Le Chapitre de Harou est non seulement practiqué au regard des causes criminelles, comme anciennement, mais on l’a estendu à toutes causes possessoires, et il a la force d’un interdit (retinendae possessionis) en tous cas où it peut arrive force, dessaissine, empiètement ou empeschement; et non seulement pour les terres mais aussi pour rentes, services, servitudes …. “

4. Thus the Clameur operated in modern terminology as an injunction restraining those against whom it was raised from disturbing the possession which the Appellant as criant had in the property which she occupied. It is particularly unusual as an injunctive process because it requires no affidavit from the person raising it, no undertaking in damages and indeed no justification other than that that person’s rights to possession were being disturbed. There is no order from a Court granting it; and in a case like the present, there is no doubt at all that the Court would not have granted it, had there been an application in the usual way by Order of Justice, for the reasons to which we will come.

5. The resultant proceedings to lift the injunction created by the Clameur were commenced by the Respondent. Although a similar procedure occurred in re Sarre (unreported 2000/61 [2000 JLR Note 53a], the better course is for the proceedings to be brought by the Attorney General. It is his responsibility to do so, as demonstrated by AG and Bailhache v Williams 1968 JJ 991 and AG v De Carteret (1987-88 JLR 626). It is because the proceedings must be concluded with a fine on either the Criant or the wrongdoer that the Attorney has the obligation to bring the proceedings and advise the court as Partie Publique and, unless released by the Court, is present when the Clameur is considered.

6. The Respondent’s application could have been heard on 26 February 2021 but was adjourned by the Deputy Bailiff to 2 March 2021. In its judgment on that day, the Royal Court found that the Clameur had been wrongly raised, discharged the injunctions brought about by it and imposed a nominal fine of £50 on the Appellant. The Appellant lodged an appeal, and this court granted a temporary stay pending hearing. As Clameur proceedings must be dealt with as a matter of urgency, and as the plenary court was scheduled to sit in the week of 22 March, we determined to hear the appeal on 24 March. The Appellant sought adjournment of the appeal and recusal of the scheduled judges and we were able to accommodate a hearing on those matters on 23 March.

Procedure

7. On 23 March the Appellant made her recusal application. In respect of McNeill and Bompas JJA, the ground was that they had each sat as appellate judges in earlier, connected, proceedings. As regards Sir William Bailhache JA, the ground was that, some thirty years ago, she had been employed for three years in a law firm of which he was then a partner. We declined to recuse ourselves. In the first place, prior judicial engagement in associated proceedings is, of itself, no basis for recusal. As regards association in a working environment, that, without more, is no basis for recusal.

8. The principal basis for the application for adjournment was that the determination of the Royal Court on 2 March had been made ex tempore and the court had indicated that full reasons would be given later. As full reasons had yet to be issued, this would preclude the Appellant from having a full understanding of the case which she had to meet.

9. We decided to refuse the requested adjournment. The fundamental reasoning of the Royal Court had been set out in the ex tempore judgment, and it was no disadvantage to the Appellant not to be aware of any fuller reasoning on the part of the lower court. Clameur proceedings must be dealt with as a matter of urgency and the Criant must be assumed to know why she or he had raised the Clameur. Indeed, absent fuller reasoning from the lower court, it is in theory more open to the Criant to persuade the Appellate Court that the circumstances were such that the Clameur was raised properly. The Court was also aware that the Appellant, although a litigant in person, had, in the recent past, been well able to show a command of understanding of the detail of her cases and, on the afternoon of 23 March, appeared still well able to do so with some cogency. We were shown a letter dated 23 February 2021 from the Appellant's General Practitioner, which narrated in succinct form various ongoing medical issues, symptoms and treatment. The doctor requested that these matters including ongoing therapies, poor mental state and difficulties engaging with the legal process could be taken into consideration in respect of possible extensions of time. We note that the letter was dictated some three days before the raising of the Clameur but that no specific legal proceedings are identified. The letter narrated that the Appellant "has consistently expressed great concern that she felt unable to cope with the litigation on her own behalf and would sometimes not bring herself to read essential documents as she found the contents too upsetting. Sometimes she found herself too stressed to follow the thread of arguments or events."

10. That narration is at odds with the way in which the Appellant has been able to conduct litigation over several years, and it was not borne out by the Appellant’s presentation to this Court on 23 or 24 March 2021. The Appellant can be repetitive and, on occasion, has to be asked to slow down her delivery and listen to the questions from the court; but she has a detailed understanding of the various litigation processes with which she has been involved and is well able to understand and engage in the concepts of argument and counter argument.

11. In the whole circumstances, including the fact that the appeal was in respect of a matter to be dealt with urgently and which, until disposed of, would leave the Order of 27 November 2020 in abeyance so far as concerned occupation of the property, we refused to adjourn the hearing of 24 March.

The Appeal

12. Despite the Appellant's failure to lodge Contentions in accordance with Rule 8(4) of the Court of Appeal (Civil) Rules 1964, we heard her appeal. Albeit without written Contentions, the Appellant's case was clear. She was aware that Re Sarre [supra] was against her but knew that it was open to her to seek to persuade us that that authority could be distinguished. The decision in question predated the coming into force of the Human Rights (Jersey) Law 2000 (the “2000 Law”), in 2006. She was therefore able to rely on the 2000 Law and, especially, upon the provisions of Article 3 of the Convention. Separately, the authority had been a simple case whereas hers had a very complex background. Separately again the Respondent’s title was tainted when its history was investigated. Finally, for various reasons, the Viscount should be viewed as a joint tortfeasor upon the basis of certain earlier involvements.

13. The authority against the Appellant is In Re Sarre. In that case the Royal Court (Birt, DB; and Jurats Potter and Le Breton) stated:

"The Clameur de Haro can only be raised in the case of an appert péril and there must be a wrongful act. In this case the Viscount's Department was simply putting into effect an eviction order made by the Petty Debts Court. It was therefore in our judgment not open to the defendant to raise the Clameur de Haro in respect of the Viscount's actions. The Clameur was wrongfully raised, and we therefore discharge the injunction which was brought into effect as a result of the raising of the Clameur."

14. The Appellant did not seek to argue that the case of Sarre was wrongly decided at its time. For our part we would support the decision. The appearance of Viscount or Viscount's officers to effect an eviction order may, or may not, be an appert péril; but it is not a wrongful act. Assuming there to have been an order of a competent court and the putting into effect of that order by a duly authorised officer of the court, the actions taking place at the time when the Clameur is raised are not wrongful. They may be distressing to the individual against whom they are being put into effect, but they are being done in accordance with law.

15. We therefore turn to the grounds upon which the Appellant asked us to distinguish Sarre. The first is Article 3 which seeks to protect people from torture or inhuman or degrading treatment or punishment. The Appellant maintained that she had been subjected to torment and dehumanising treatment through having been subjected to the process of dégrèvement which had failed to take into account the many complexities in her financial circumstances following her divorce and which had led to her inability to meet her debts as they fell due.

16. Second, the Respondent's title was tainted. The individual from whom the Respondent obtained right to the tenancy had acquired the tenancy of the property through the dégrèvement process. He had been a minor creditor, had promised the Appellant that he would not go to court but, deceitfully as she put it, had done so and obtained judgment at the Petty Debt Court. In addition, the Respondent had had some earlier involvement in the failed remise proceedings and it may have been through his lowering his offer price that the remise failed.

17. The Viscount should be seen as a joint tortfeasor whose actions or inactions had resulted in the failure of the remise. As a result of the whole process, the Appellant had been placed into a position of having no control over the disposal of her property.

18. For all these reasons the Appellant asked the court to distinguish Sarre and to allow her appeal. When it was put to her that the result of a successful appeal would be that the Viscount could never give effect to the order for possession and that the Representor as owner of the property would have no beneficial interest, she accepted that this would be the result.

Discussion

19. This appeal is one part of a significant number of connected litigations arising out of changes in economic circumstances for the Appellant following her divorce. At each stage the Appellant has done her utmost to protect her position and that of her two sons. All available lines of argument have been deployed.

20. On 18 September 2015 Acorn Finance obtained judgment against the Appellant in the sum of £223,846.34 with interest and costs, a sum claimed to be due under a loan agreement dated 20 December 2012. The Appellant sought to appeal that judgement and her issues came before this court in March 2016 Acorn Finance Limited v Powell [2016] JCA 063 when the Appellant appeared in person and Advocate Heath appeared as amicus curiae. In that decision the Court explained why the various grounds of appeal put forward were unsustainable and that the judgment had to stand.

21. On 22 April 2016 the Appellant's immoveable and moveable property was adjudged by the Royal Court to be renounced and the court ordered that a dégrèvement take place. However, the Appellant persuaded the Royal Court to grant permission for a remise and this was done on 31 January 2017 Representation of Caroline Elizabeth Powell, née Chambers [2017] JRC 022B.

22. The remise was granted for a period of six months, but the appointed Jurats had to return to court for orders compelling the Appellant to cooperate. Orders were pronounced on 14 June 2017.

23. After further procedure matters returned to the Royal Court in April 2018 Representation of Powell [2018] JRC 073 when the court confirmed that, notwithstanding the Appellant's expressions of concern over the actings of the Jurats, the remise had ended on 31 January 2018, a year after it had first been imposed.

24. The Appellant then sought to appeal that judgment and the matter came before me as a single judge. Her proposed grounds of appeal were set out in some nineteen individual, numbered paragraphs, only one of which went to the legal basis for the judgment of 20 April. The Appellant wished to contend that there was an arguable case for extension of the remise because of exceptional circumstances and the need for her to be given the opportunity to respond to the Jurats' report. In the judgment on that matter Representation of Powell [2018] JCA 113, at paragraph 5, I observed that the Appellant's narration of events was expressed with sufficient clarity, precision and cogency to indicate that she was well aware of the nature of the proceedings and able to participate in them. I refused leave to appeal. Among other matters, the Appellant's suggestion that she might be able to prove that an extension had been agreed with creditors or should be implied, suggesting some entitlement to prove acquiescence by the secured creditors, failed to recognise that the process in which she was involved was not a simple adversarial process but one within the control of the court. Further, in that application the Appellant had made the submission, repeated before us, that the dégrèvement process was draconian and in breach of human rights. It was pointed out to the Appellant that the process did provide protection for the debtor in the availability of the remise, allowing a form of disposal of property under the control of the court as opposed to the control of the creditors. It was also pointed out that creditors, too, were entitled to protection of their economic interests.

25. It was after the whole of that process that a Representation came before the Royal Court in November 2020 seeking confirmation of the tenure of the property, subject to dégrèvement. As the learned Deputy Bailiff indicated, the role of the Court at that stage was limited and the obligation was to confirm the tenancy subject to identifying the proper terms of the Order. The Royal Court therefore adjudged the property to the present Respondent and his wife, authorised the Viscount to put the present Representor and his wife in possession and ordered the Appellant to vacate the property by 31 January 2021.

26. Against this background the Appellant's attempt to distinguish her circumstances from those in Sarre cannot succeed. A contention that a process of law has resulted in inhuman or degrading treatment will be rare in a civilised country. Here, the Appellant has had every opportunity to engage in the process. She has sought to take matters on appeal when dissatisfied with the decision at first instance. On each occasion she has had a full judicial explanation in clear terms as to why her arguments have not succeeded and she has had the advantage of an extended remise to attempt to have some control over the disposal of her property. At no stage have her creditors been able to press their claims against her except under the control of the first instance and appellate courts.

27. The considerations which have just been mentioned also deal with the Appellant's contentions that there were improprieties at earlier stages which in some way compromised the position of the Viscount. At the stage of the remise there was every opportunity to the Appellant, and taken by her, to bring to the attention of the Royal Court or of this court as to unacceptable actions and events within that process. Each of her complaints was considered judicially and dealt with. There is nothing in those earlier parts of the process which, now, can in some way taint the position of the Viscount when seeking to obtain possession in February.

28. However, and for the avoidance of doubt, even if there had been something at an earlier stage, which put the Viscount, as an individual, in a compromised position, or placed the office holder in a position where there might have been doubt as to the propriety of continuance in office, nothing in that could affect the propriety of the Viscount's actings in February. The Viscount had no personal interest in the obtaining of possession for the Respondent and was merely, as ordered by the Court, carrying out the lawful orders of the Royal Court. By February 2021, the Appellant well knew that she ought no longer to be in possession of the property and, in any event, had she listened to the Viscount, she would have understood the basis upon which the Viscount was present.

29. The final point prayed in aid by the Appellant is that the title of the Respondent is tainted. Neither of the bases put forward by the Appellant support this contention. The fact that the Respondent may have expressed an interest in the property at the time of the remise and may have acted in a certain way does not prevent the Respondent from being entitled to accept an assignation from the individual creditor who had accepted the tenancy under the dégrèvement procedure. The Appellant's second contention, namely, that the accepting tenant had behaved deceitfully in obtaining a judgment debt when he had promised not to do so, does not vitiate the whole dégrèvement process, which was instituted by the Appellant's principal creditor, Acorn Finance. In any event, even if the Appellant’s contention could be justified on the facts, the alleged deceit was known to her after judgment was taken and she did not appeal.

Conclusion

30. For all these reasons there was no "wrong", as a matter of law, being done to the Appellant when she raised the Clameur. The Royal Court in November 2020 had pronounced an order which it was entitled to pronounce; and that order confirmed entitlement to ownership and thus possession for the present Respondent, authorised the Viscount to enforce that possession and confirmed, with some generosity, a period within which the Appellant should vacate. This was not a sudden, unexpected event for the Appellant. On the matters of her indebtedness and right to property, she has been personally and intensively engaged in relevant litigation and appearances in the courts of this jurisdiction for over five years.

31. The Clameur de Haro in this, and a neighbouring, jurisdiction allows to the individual a very considerable power to prevent legal wrongs being done. There may be occasions when there is doubt as to whether a legal wrong is being done. This is not one of them. The Appellant has been well aware of the finality of her claims to avoid loss of her property since the middle of 2018. As a result of the Order of the Royal Court on 22 April 2016 ordering a dégrèvement to take place, the Appellant’s property was adjudged renounced and she no longer had more than a “precarious interest” in it, as described by Sumption JA in re Super Seconds Limited [1997] JLR 112. Although the Appellant was later granted a remise, that process failed. On the conclusion of the remise process, her status was that of a person who has “bare title to the property but no valuable interest” [per Sumption JA, supra]. That “bare title” she lost when the tenancy was confirmed in November 2020. Accordingly, she had no right to the possession she had in fact. The Royal Court had given her time to 31 January to vacate the property and after that date, she was in effect a trespasser in it.

32. The Criant was required to say “Haro, Haro, Haro, à l’aide mon Prince, on me fait tort”. That demonstrates that there must be a wrong committed before it can be said the Clameur is properly raised. Here there could have been no proper perception of wrong when the Clameur was raised because the Criant had no title to the property and no right to possession of it; and indeed because the Royal Court had expressly said so in November 2020 when confirming the tenancy of the Respondent and his wife. Accordingly, there is no basis upon which this court can or should interfere with the determination of the Royal Court and accordingly the Appeal is dismissed.