Enforcement of Unless Order

[2025]JRC098

Royal Court

(Samedi)

4 April 2025

Before     :

Advocate David Michael Cadin, Master of the Royal Court

 

Advocate N. B. R. Mière for the Plaintiffs and David Fisher.

The Defendant not appearing.

Advocate G. D. Emmanuel in attendance.

judgment

the MASTER:

Introduction

1.        This is my judgment in relation to an application by the Plaintiffs seeking judgment against the Defendant.

Background

2.        The proceedings relate to the estate of the late Janet Angela Walker (née Watson) (the “Deceased”) who died on 8 January 2019.  The parties to these proceedings are the children of the Deceased.

3.        By a Will of Movable Property dated 26 November 2014 the Deceased left her movable estate to be divided equally between the parties, and the Defendant was named as Executrix. 

4.        In November 2020, proceedings were brought by the Plaintiffs against the Defendant seeking her removal as executrix and requiring her to make rapport à la masse of all avances that she had received.

5.        By an Act of Court dated 12 March 2021, the Royal Court ordered that the Defendant make rapport in respect of the lifetime gifts that she had received from the Deceased.

6.        By an Act of Court dated 14 July 2022, Master Thompson ordered that the Defendant pay into Court the lifetime gifts that she had received, which were then quantified in the Act of Court in the sum of £54,043.00.  That figure was subsequently revised and by an Act of Court dated 14 September 2022, Master Thompson quantified the amount of the lifetime gifts in the sum of £61,255.98.  Master Thompson’s judgment in relation to that hearing was reported at Fisher and Anor v Walker [2022] JRC 201.

7.        In addition, on 14 July 2022, Master Thompson also ordered the Defendant to provide certain information and documents, as listed in paragraphs 8, 9, 10 and 11 of the Act of Court.

8.        The proceedings came back before Master Thompson in November 2022, when for the reasons set out in a judgment reported at Fisher and Ors v Walker [2022] JRC 256, he ordered that unless the Defendant provided the information and documents previously ordered, her claims in relation to loans allegedly made to the Deceased would be struck out and the amount for which she would have to make rapport à la masse would be increased by £39,570.24.  He noted, at paragraph 21 of his judgment, that “[t]his order will take effect automatically if the defendant does not comply.”

9.        On 7 December 2022, for the reasons set out in a judgment reported at Fisher and Ors v Walker [2022] JRC 281, the Royal Court appointed David Fisher, the husband of the First Plaintiff, and the Second and Third Plaintiffs as joint executors of the Deceased’s estate.

10.     As set out in an affidavit sworn by the Second Plaintiff on 25 March 2025 (albeit incorrectly dated 24 March 2024):

“27. The Plaintiffs were also successful in obtaining an unless order on 10 November 2022. The Defendant failed to provide the ordered disclosure and, as a result, certain parts of her statement dealing with the alleged loans were struck out. As a result, the monies were to be treated as gifts and the amount of the Defendant's lifetime gifts increased by £39,570.24.

11.     No monies were paid into Court. Nor have the Plaintiffs been able to contact the Defendant.  Unsurprisingly, this is causing difficulties for the executors.  As the Second Plaintiff deposes:

32. The estate consists of our parents' belongings in their home in Seyne-Les-Alpes, some of my father's art work being looked after by myself, and a number of household effects that were stored in a lockup in Jersey, The total of valuations for these assets is around £10,000. There is also a few hundred pounds in the bank, but outstanding creditors amount to about £20,000. In addition, the Children have each received an equal share in our parent's property in Seyne-Les-Alpes, valued at around €120,000. It is currently impossible for us to sell the property, because that would require the Defendant's signature as a co-owner.

33. Having taken legal advice in France, we are informed that there are two options open to us to dispose of the property: 

a. If it can be shown that a co-owner owes more money than would be realised by the sale of their share of the property, that property may be sold without the co-owner's consent. Here, the proceeds otherwise due to the Defendant would be used to repay a proportion of her outstanding debt (i.e. her rapport à la masse). My understanding is that this can be approved and performed by a notaire in France and does not require any court proceedings there; or 

b. If it can be shown that the Defendant is consistently refusing any contact or dealings with the other co-owners, she can be removed entirely as a co-owner of the property. However, I understand that this is a long and difficult process, requiring court hearings, normally lasting several years. 

34. As a co-executor, I find myself in a position where I am unable to move the estate forward. This is directly caused by the Defendant avoiding all contact; presumably so that she can hope to retain the money that the Court ordered her to account for to the estate. As things stand: 

a. The defendant has all the liquid value of the estate, so we cannot repay debts; and 

b. We cannot begin to sort out our parents' effects, because the Defendant is due an equal share and she is not in contact with us. 

35. A judgment in favour of the Plaintiffs would finally provide a way forward for dealing with our mother's estate…”

12.     Against that background, the Plaintiffs have issued a summons seeking to have the Defendant’s Answer struck out and judgment entered against her in the sum of £100,826.23, being the amount found by Master Thompson as the amount of the lifetime gifts received by her from the Deceased.

13.     Advocate Emmanuel was previously instructed by the Defendant but has had no contact with her since 2022.  He attended this hearing out of courtesy to the Court but had no instructions in relation to any of the matters raised.

Discussion

14.     On the basis of the Second Plaintiff’s affidavit, I have no hesitation in finding that the Defendant has failed to comply with the terms of the Act of Court dated 10 November 2022 and has failed to provide the information and documents ordered.

15.     In Halabi v Farrow and Ors [2024] JRC 243, Commissioner Thompson held that the Court has a discretion as to whether it enforces the sanction threatened by an unless order:

“30.     In [Leeds v Admatch [2008] JRC 086], Birt, Deputy Bailiff (as he then was), at paragraph 17, set out the principles in the Supreme Court Practice (White Book) which Master Wheeler had cited as follows:

"The Master reminded himself of the principles as set out in the Supreme Court Practice (White Book) at paras 3/5/2 - 3/5/4, 3/5/9 and 3/5/10. He quoted a number of extracts but we would refer to the following extract from 3/5/10:-

“The court observed that each case had to be considered on its own facts but the underlying approach might be encapsulated by the following:

1. An unless order was an order of last resort, not made unless there was a history of failure to comply with other orders. It was the party's last chance to put its case in order.

2. Because it was the last chance, a failure to comply would ordinarily result in the sanction being imposed.

3. The sanction was a necessary forensic weapon which broader interests of the administration of justice required to be deployed unless the most compelling arguments were advanced to exonerate the failure."

31.     He then stated the following at paragraphs 33 and 34:

“33. The applicable principles in relation to 'unless' Orders are correctly stated in the passage from the White Book quoted at para 17 above. In particular, an 'unless' Order is a party's last chance to put its case in order and failure to comply with such an order will ordinarily result in the sanction referred to in the Order being imposed.

34. However, there is a discretion to extend time retrospectively which, however rarely, may in the particular circumstances of the case be exercised where the Court is satisfied that the failure to comply with the 'unless' Order was not intentional and contumelious.”

…

36.     In my judgment, the starting point for breach of an unless Order is still Leeds v Admatch and the approach set out at paragraphs 17, 33 and 34.  I consider that the remarks of Sir Michael Birt apply with equal force today and have not been qualified by Newman v De Lima.  Newman concerns what sanctions to impose where an order has been breached.  While the extracts I have quoted recognise the significance of a party being deprived of its day in court, I consider that Sir Michael was well aware of that principle.  He recognised that a party facing an unless order had already been given a final chance to put its house in order.  Even then he recognised the power to grant relief from sanction where a breach of an unless order was not intentional or contumelious.  While that could be a breach due to the acts of a third party, paragraph 34 is wider than that as is the Supreme court extract.  As the latter observes a “failure to comply with such an order will ordinarily result in the sanction referred to in the Order being imposed” (emphasis added). 

37.     In Powell v Chambers, which was approved in Sheyko, the relief from sanction was granted because notwithstanding that an unless order had been made, on the particular facts of that case, I concluded that it was a disproportionate sanction for the breaches that had occurred at that stage.  The Court’s discretion may therefore go beyond unintentional breaches but may also extend to breaches where to give effect to an unless order would clearly be unfair and it would be wrong to deprive a party in breach of an unless order of a trial.  I wish to stress however that such a case would be exceedingly rare and that deliberate failures or breaches where there is no justification are highly likely to lead to the unless order taking effect.  This conclusion does not detract from the approach in Newman.  By the time a court is reviewing a breach of an unless order, the party in default has already been given at least one, if not more than one, opportunity to comply.  That party’s right to a trial has therefore already been recognised and respected. Something more is therefore required to avoid the effects of an unless order taking effect.

38.     To the extent that Master Cadin suggested at paragraph 6 of his second judgment dated 30 May 2024 that he had no further discretion, while I agree with him that the more draconian the order the greater the scrutiny to be applied to the condition, I do not agree that he does not possess any further discretion where a breach of an Unless Order has occurred.  In my judgment, Leeds v Admatch always gives a discretion to retrospectively excuse a breach, albeit this will be very rarely exercised for the reasons I have given.”

16.     In relation to the current proceedings, Master Thompson, as he then was, set out in his judgment why he was imposing the sanction he did and in particular, he held that:

“20. In relation to the sanction to be applied, the order sought by the plaintiffs was a fair order. Without the documents being provided a fair trial on whether the defendant did make loans to the deceased could not take place. It was therefore appropriate to make an order carrying the sanction if there was noncompliance by the defendant with the orders made previously.”

17.     I do not disagree and accordingly, whilst the Court has a discretion as to whether to enforce the terms of an unless order, in this case it seems to me appropriate so to do.  In my judgment, the effect of so doing is to quantify the amount of the lifetime gifts received by the Defendant from the Deceased in the amount of £100,826.23.

18.     New executors have been appointed, and I acceded to an application, sur le champ, by Advocate Miere to substitute David Fisher, the husband of the First Plaintiff and one of the joint executors, in place of the First Plaintiff.

19.     Having determined today the amount of the lifetime gifts following implementation of the unless order dated 10 November 2022, and the Royal Court having previously ordered the Defendant to make rapport à la masse of those lifetime gifts, I give judgment for the Plaintiffs in the sum of £100,826.23.

20.     The only matters outstanding on the face of the pleadings are for costs and in my judgment, costs should follow the event:

(i)        In my judgment, the Defendant’s non-engagement with the Court and/or her Advocates and/or the Executors over a protracted period of time amounts to unreasonable conduct such that the Defendant should pay the costs incurred by the Plaintiffs and the former First Plaintiff, of and incidental to this application, to be taxed on an indemnity basis if not agreed.

(ii)       Unless otherwise ordered, I order that the Defendant pay the costs incurred by the Plaintiffs and the former First Plaintiff, of and incidental to these proceedings, to be taxed on a standard basis if not agreed.

Authorities

Fisher and Anor v Walker [2022] JRC 201.

Fisher and Ors v Walker [2022] JRC 256.

Fisher and Ors v Walker [2022] JRC 281.

Halabi v Farrow and Ors [2024] JRC 243.