Royal Court
(Samedi Division)
Decision given: 4 June 1998
Reasoned Judgment delivered: 5 June 1998
Before: Francis C Hamon, Esq Deputy Bailiff,
and Jurats Potter and Quérée
BetweenThe Greffier of the StatesApplicant
AndLes Pas Holdings, LtdThe Owner
And The Waterfront Enterprise BoardThe Intervener
In the matter of the Compulsory Purchase of Land (Procedure)(Jersey) Law, 1961.
And in the matter of the application by the Applicant for a vesting order of part of the foreshore West of Albert Pier, St. Helier.
Application by the Owner for an adjournment of the vesting order
application
Solicitor General for the Applicant
Advocate R A Falle for the Owner
Advocate M St J O’Connell for the Intervener
JUDGMENT
THE DEPUTY BAILIFF: This is an application to adjourn. We refused it at 5.00 pm last evening. Our reasons are now set out: Order 35, 3/1 of the 1997 edition of the Supreme Court Practice sets out seven matters which can be taken into account by a Court when deciding whether or not to grant an adjournment. They are:
"1. The importance of the proceedings and their likely adverse
consequences to the parties seeking the adjournment.
proceedings if the application were refused.
adjournment were granted.
Mr. Falle while not citing those matters in his application did cite some authority to us. He relied heavily on a passage in the De Smith, Woolf and Jowell: Judicial Review of Administrative Action (5th Ed’n) and referred particularly to paragraph 9 - 025 on page 448:
"Wrongful refusal of an adjournment to a party unable to attend the hearing or requiring time to produce a witness or other important evidence may also be tantamount to a denial of justice. It may also be contrary to the rules of natural justice for a tribunal to refuse to grant an adjournment where the continuation of the proceedings may prejudice the fairness of the trial or other proceedings, at least if there is a real risk of injustice. In such a situation, the tribunal, or reviewing court, must balance the potential prejudice to the applicant against the public and/or private interest in the speedy determination of the proceedings. However, it has been emphasised that the power to adjourn is one "which has to be exercised with great care and only when there is a real risk of serious prejudice which may lead to injustice". It would appear that, in practice, the test is difficult to satisfy."
Mr Falle also relied on a passage from the case of R -v- Thames Magistrates Court Ex Parte Polemis (1974) WLR 1375 and the Judgment of Lord Widgery CJ:
"To start with nothing is clearer today than that a breach of the rules of natural justice is said to occur, if a party to proceedings, and more especially the defendant in a criminal case, is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said but of the versions of the breaches of natural justice, with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court. And, of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense."
One more case that we need to cite from, again, because it was referred to by Mr Falle, is R -v- Panel on Takeovers and Mergers, ex parte Guiness plc (1990) 1 QB 146, in which the former Master of the Rolls, Lord Donaldson of Lymington, said this at p178:
"I also remind myself, as a general proposition, that a decision whether or not to adjourn a hearing is par excellence a matter for the exercise of judicial discretion by the court or tribunal seized of the matter and that it is well settled that, on an appeal from such a decision, an appellate court will not intervene only on the ground that it thinks it would have reached a different decision. It must be satisfied that the first instance decision was wrong in principle or, which is usually the same thing, that it resulted from a self-misdirection. Where, therefore, a right of appeal exists, but is not exercised, something more is required if relief is to be granted on judicial review. Quite how much or what more defies definition, if only because intervention by the court in such circumstances is wholly exceptional…"
Now, on the 29 May we gave judgment as to why we would not allow a judicial review and the final words of our judgment were these:
"Now Mr Falle no doubt has many things to say, but nothing that he has to say will take him by surprise, because he must have been preparing for this very matter over a considerable period of time. We feel that it is in the interests of everyone in this Island that this matter should be expedited and we are in fact going to comply with the timetable suggested by the Solicitor General. The company is given leave to challenge the making of the vesting order and to show to us that we should not make the vesting order because we are not satisfied in accordance with the terms of Article 4A of the law, but the timetable will be set in this way: affidavit evidence will be filed by noon on Tuesday 2 June, skeletal arguments and authorities will be filed by noon on Wednesday 3 June and we are going to adjourn this matter for a hearing on whether the vesting order should take place to 10.00 o’clock on Thursday 4 June, and if necessary of course, we will run on to Friday 5 June."
That was a tight timetable but we made it in the knowledge and anticipation that the parties to this action had been deeply concerned in this matter for a very considerable period time.
Affidavit and reasons were duly filed but we must put the remarks that we made on the 29 May into context.
The compulsory purchase of the land with which we are dealing was first proposed in a proposition to be debated by the States on 9 December, 1997. There were representations made by Les Pas Holdings’ representative and that proposition was withdrawn. Proposition P2 1998 was lodged au Greffe on 20 January, 1998, and debated fully on 3 February 1998, when the States resolved to acquire the land referred to in the proposition. The voting we were told yesterday was 45 to 2.
On 11 March 1998, the Greffier of the States gave the first notice required under the Compulsory Purchase of Land (Procedure) (Jersey) Law 1961. On 5 May 1998, the Greffier served the second notice that is required under the law. On 14 May, 1998, Advocate Falle wrote to the Bailiff enclosing a draft representation. On 21 May he presented a revised version of the representation which has still not been presented to the Court. On 28 May, 1998, Advocate Falle delivered an extensively amended draft representation. We refused the request for a judicial review.
We were therefore set to hear the case yesterday morning when Mr Falle made an application sur le champs for an adjournment. This took his opponents, and particularly the Solicitor General, by surprise as no notice of that proposed submission had been given to her. We allowed Mr Falle his say but, and I hope that we are not being unkind to him, by 11.00 o’clock in the morning we had had many dark hints as to the problems that his company had before them but, he had failed on four or five occasions to answer a question that was put to him fairly and squarely by the Court. "What further documentation is required before you can plead your case? "
It is perhaps invidious of us to repeat that Mr Falle has been involved as Counsel in all matters pertaining to the affairs of Les Pas Holdings Limited from their inception. We found it impossible to continue until we had an answer to that question. We therefore invited Mr Falle at 11.00 o’clock yesterday morning to submit an affidavit to us by 2.30 pm that afternoon which would clarify the situation. Shortly before 4.00 pm there was made available to us a twenty-five page affidavit. That affidavit contains certain information. In passing we again remind ourselves that we had, in our discretion, refused a judicial review. It is necessary for me to look, not in great detail, but at certain aspects of the affidavit that was submitted. At page 2 of that affidavit are these words:
"Although Les Pas Holdings respectfully submits that leave for judicial review was wrongly refused and is able if necessary, to appeal that refusal, at the present time it has not done so because it considers that it can lawfully raise the same issues in the submissions it wishes to make to persuade the Court that it should not be satisfied that a vesting order should be made."
Then as we go on there is a reference to the Seigneur du fief not being made a party. We find that a difficult concept to grasp because as we understand it, from what the learned Solicitor General told us, Les Pas has acquired in its contract from the Seigneur to "tout et tel droit comme en peut appartenir" and, of course, it is that claim that lays down the foundation for the action which is pending for "pour exhiber titre."
There is attached to the skeleton argument of the Solicitor General the representation which was attached to the Order of Justice which sought the injunctions that we declined to grant.
There is a statement at paragraph 5 which we need to set out because it says this:
"In the event, Counsel concentrated upon trying to get the case ready." (The event there of course is the event of concentrating on the time scale that was set down by the Court, without demur, I have to say, from either side). "Having done so Counsel knows that so far as concerns the way that he wishes to present the case it is not ready. Counsel would not make such a submission having regard to his duty to the Court if it were not true. That should suffice to justify the adjournment. Indeed it is only by endeavouring to get it ready that it has become clear beyond doubt to Counsel that is not ready."
The submissions then go on to say something which again we find in this jurisdiction somewhat strange. Paragraph 7 reads as follows: (typing errors corrected)
"The essence of the reason for seeking the adjournment is that the case is not ready for trial. The legal arguments have not been fully developed. They raise a wide range of issues both as to what are the relevant principles governing the judgment by the Court as to whether it can be "satisfied"; a wide range of authorities relating to how those principles are to be applied to a particular set of facts; and finally submissions relating the applicable principles to the facts of this case. Some of the arguments related to narrow points of construction of the compulsory purchase law and the point at which vesting can be made where title to the land acquired has not yet been proved; other points however, raise complex issues with regard to the extent to which this Court can enquire into the process by which the States came to authorise compulsory acquisition. That matter is of vital importance not just to the States which will argue that it does not wish to be frustrated in achieving objectives which it contends are in the public interest and cannot be achieved without compulsory purchase but also of vital importance to every land owner in the Island of Jersey. It matters not whether it is the owner of a small dwelling house or a large factory, a person may be greatly attached to the house in which he lives and wishes to spend the rest of his days there. It is fundamental to the values which govern the rule of law in Jersey, as in England, that such a person should be allowed to continue to enjoy his privacy unless the public interest requires otherwise. Similarly a factory owner may wish to continue to earn his living by producing goods from his factory both for his own sake and in the interests of his work force. He should be allowed to do so unless the public interest genuinely requires otherwise. It is quite wrong to suggest that compensation is an adequate recompense for two reasons: the first is that it is doubtful whether in Jersey the law of compensation does result in a person being paid the price that the market would be in a genuine open market sale; secondly however, even if the compensation is equivalent to true market value, persons may have their own reasons for preferring to enjoy their property undisturbed rather than to take a sum of money."
Now, that is, or maybe, the summary of an Englishmans view of compulsory
purchase in another jurisdiction but in our view it does not advance the arguments of Les Pas Holdings one iota.
Again, the affidavit goes on to repeat that there are complex legal issues to assemble. Then the affidavit goes on to say:
"That the acquisition by the States is for an unlawful ulterior motive."
There is then a misinterpretation, according to Mr O’Connell, of the Waterfront Enterprise Boards point of view and that is stated in this way.
"There are indications in the documentation before the Court of such motivation for example, in the affidavit of Mr Scally, Managing Director of the Waterfront Enterprise Board, he states at Paragraph 8.1 that the Board "is committed to obtaining the best price and the best deal on behalf of the tax payer". That is a clear indication that the Board, which is wholly owned and controlled by the States, is concerned with making a profit from the land which it can only do as landowner."
Mr O’Connell voiced his protest at that statement with some force.
It would, in our view, be invidious for this Court to be called upon to investigate the motivation of the forty-five members of a properly elected and constitutional body of parliament that voted in favour of the compulsory purchase order. Mr Falle goes on however, to hint darkly at discovery and interrogatories. We then have an extension to the action called exhiber titre. He says at paragraph 11:
"As the Solicitor General submitted this morning the States have already withdrawn one report and proposition following legal objections to it on behalf of Les Pas and prepared and presented a new report and proposition pursuant to which the States have now resolved to acquire. That in itself could be interpreted as a course of conduct by the States intended to improve the apparent legality of its actions."
There is reference to "material not yet identified" and which Mr Falle apparently needs, in order to show "what truly motivates the expropriation". And that point is expanded at paragraph 12 where he says:
"The issues relating to the construction of the statute which involve identifying the purpose for which the land is truly acquired lead one to a further issue namely, even if the land is truly being acquired for a purpose identified in the planning acts, is it necessary to acquire the land compulsorily in order to achieve that purpose rather than leaving the land in private hands?"
It seems to us that he wishes, at this stage, to examine the thought processes of the States members. Mr Falle clearly envisages from what next follows a massive investigation and perhaps where private enterprise is going to develop the land where planning permission and the plans relating to those planning permissions will have to be examined and where he has in his words:
"…no information worthy of the name of the extent to which uncertainty as to the States title has created difficulties for development which nonetheless has now been undertaken or will create difficulties of development still to be undertaken."
Another matter which is also argued is whether there is another way of developing the land, which is assumed to be the Les Pas land, which would be acceptable in planning terms. He puts it this way at page 15:
"At the present time it is manifest that there is no material before the Court of a factual nature that enables it to examine these issues properly. For example, it is probably unavoidable that affidavit evidence will be necessary from both sides by persons with appropriate qualifications such as town planners as to the rival forms of development and the extent to which any of them are so important in the public interest that they should take precedence over any other form even if such other form is otherwise unobjectionable in planning terms."
Again, we have a dark hint at delays. Mr Falle goes on to analyse the representation. Take one short part of that analysis. Although one has to say that he has already said:
"The identification of the questions which the States should have asked itself before resolving to acquire and establishing whether it did ask itself all those questions and if it did whether it did not act perversely in answering them in the way it did answer them, is a lengthy process."
But, let me just have a look at one of the analysis that he sets out. And, I apologise to everyone for quoting at detailed length from part of the affidavit and not quoting it all, I hope we are picking out the salient points. At paragraph 18 he says this:
"Finally, I wish respectfully to return to the question of the vital importance in Jersey of the jurisdiction vested in the Court pursuant to Article 4A. The Court indicated this morning that it is not interested in the safeguard provided in England to the citizen against forcible expropriation of property. However, Jersey Courts constantly refer to English law and practice to guide them in developing their own law and practice. It is submitted that the citizen of Jersey would be ill served if there were not protection other than a purely formal procedural kind against the seizure of their property through compulsory acquisition. It is submitted therefore that the Jersey statute should be construed in a manner that seeks so far as possible to provide protection which at least goes some way to treat Jersey citizens as fairly as English citizens. In England any person whose land is to be compulsorily acquired is able to object and insist on the holding of a public enquiry at which the acquiring authority has to produce evidence to demonstrate that the purpose to which it wishes to put the land is in accordance with acceptable planning controls as well as being in the public interest. Thus, for example, if it sought to acquire land in order to carry out a housing development which it then sought to sell it would be met with the objection that the landowner could perfectly satisfactorily carry out the development for himself and therefore the compulsory acquisition is unnecessary and unfair."
We take the view that Mr Falle has raised many matters which are really for the Arbitration Board - when and if they are appointed - to consider. We feel that we have a duty under the law to be satisfied that the provisions of the law have been complied with and that following the decision of the Court of Appeal in Burt -v- States of Jersey (1996) JLR 1 CofA, we have certain matters which the Court of Appeal requires us to look at and I believe that those matters are fairly and properly summarised by the learned Solicitor General in her outline argument. What she has said is this at paragraph 23.
"(1)It is established by the decision by the Court of Appeal in Burt -v- States (1996) JLR 1 CofA that in deciding whether to exercise the discretion to acquire land the States are acting in an administrative capacity and not in a legislative capacity.
We had no conception when we asked Mr Falle at 11 o’clock yesterday to swear an affidavit outlining what was really what we thought a fairly simple answer to a question that we had asked him several times that his affidavit would go to such lengths. But, on carefully reading it again we have a feeling that if we were to allow this matter to go ahead we would be facing years of litigation, much of which we consider to be totally unnecessary and totally unprecedented in this jurisdiction and it is for these reasons, in our discretion, that we decline to grant the stay that he was applying for.
Authorities
R.S.C. (1997 Ed’n): O.35, r/3/1
De Smith, Woolf, and Jowell: "Judicial Review of Administrative Action" (5th Ed’n): para. 9-025: p.448
R. -v- Thames Magistrates Court, ex parte Polemis (1974) WLR 1375
R. -v- Panel on Takeovers and Mergers, ex parte Guiness plc (1990) 1 QB 146
Burt -v- States of Jersey (1996) JLR 1 CofA
R. -v- Medical Appeal Tribunal (Midland Region) ex parte Carrarini (1996) 1 WLR 883
Lesquende Ltd -v- Planning and Environment Committee (5 January 1998) Jersey Unreported CofA
Lesquende Ltd -v- Planning and Environment Committee (13 February 1998) Jersey Unreported CofA