Court of Appeal
9 July 1998
Before: The Rt Hon The Lord Carlisle of Bucklow, QC, (President); RC Southwell, Esq., QC; and MG Clarke, Esq., QC
BetweenLily Ellen Mary Le MaistreRespondent/Plaintiff
And Roger Sydney BenestAppellant/Defendant
Appeal by the Appellant/Defendant from the Order of the Royal Court (Samedi Division) of 26th March, 1996: (1) granting the application of the Plaintiff/Respondent for an Acte à peine de Prison; and (2) directing the Appellant/Defendant to pay the Plaintiff/Respondent’s costs of and incidental to the said Order.
Advocate AP Begg for the Appellant/Defendant
Advocate Mrs ME Whittaker for the Respondent/Plaintiff
JUDGMENT
SOUTHWELL, JA: In this case Mrs Le Maistre obtained judgment against Mr Benest on 4 March 1993, in the sum of £19,336.82 plus interest at 17% per annum in respect of moneys lent by her to Mr Benest. The judgment remained substantially unsatisfied. On 26 March 1996, an application by Mrs Le Maistre for an Acte à peine de prison came for determination before the Royal Court.
The origins of such an order lie in the inherent powers of the Royal Court developed through the common law of Jersey. The existence of the power to make such an order was recognised and confirmed by the States as a legislative body in 1886 by the enactment of the Loi (1886) sur l’Emprisonnement pour Dettes, by which a maximum period of imprisonment of one year was laid down. In recent decisions of the Jersey Courts it has been established that the Court has a discretion whether or not, in the particular circumstances of the case, to make such an order. If a debtor is making appropriate efforts to pay in good faith, or shows that he is unable to pay at all and is in good faith, such an order is unlikely to be made. It has also been established that an imprisoned debtor may be ordered to be released even if cession has been refused and even more if cession has not been applied for. In all cases in which an Acte à peine de prison has been applied for, the burden is on the applicant to establish that prima facie the circumstances are such that an order should be made, though once such a prima facie case is made out the burden may shift to the defendant to establish grounds on which the order should not be made, for example that the defendant is in good faith and has no means of paying, or that the defendant is in good faith making strenuous efforts to pay. Further, it seems to me clear that once a case for the making of such an order has been established to the satisfaction of the Court, it should in the future be for the Court to decide when and in what circumstances the debtor is to be committed to prison: it should not be for the potentially arbitrary decision of the creditor whether and when the debtor is to go to prison. Equally it is for the Court to decide on the release of the debtor from prison, unless release has already been agreed. It has also to be borne in mind that a debtor, against whom an Acte à peine de prison has been made, can apply for the discharge of the order if he can show a material change of circumstances.
On 26 March, 1996, there were before the Royal Court Mr Benests affidavit of means dated 8 July 1994, and his supplemental affidavit dated 12 January 1996. Mr Benest was examined at some length on these affidavits and the Royal Court had the opportunity of seeing him in the witness box. In a short judgment delivered by Lieutenant Bailiff Le Cras the Royal Court indicated that it had no hesitation in granting the Acte à peine de prison "on the evidence before us". The Court stated that:
"The consistent failure of Mr Benest to give proper information, or to take reasonable steps to meet the Plaintiff’s claim, together with his evidence which we found to be less than satisfactory, disqualify him from the relief which he claims (i.e. that the Court should not order the Acte"].
The Royal Court granted the Acte à peine de prison as sought by Mrs Le Maistre. The Royal Court did not, however, give any directions as to when or in what circumstances Mr Benest should go to prison. In the absence of any such directions, if Mrs Le Maistre wished to have Mr Benest committed to prison, she should have to return to the Royal Court seeking the appropriate directions.
I emphasise again that the Royal Court found Mr Benests evidence unsatisfactory.
Notice of appeal was given on 24 April 1996. The appeal was not pursued with due vigour. On 12 February, 1998, the Bailiff sitting as a Single Judge of the Court of Appeal ordered a stay of enforcement of the Acte until 24 September 1998, provided that the appeal was brought on for hearing as soon as possible. On 2 April 1998, the Court of Appeal ordered a further stay in case the appeal should not be heard by 24 September, 1998. In the event the appeal came on for hearing before us on 8 July 1998. I would like to make it clear for the future that if a party does not carry forward their appeal with due expedition, they may find that the appeal is struck out for lack of prosecution.
Given the conclusion of the Royal Court on 26 March 1996, which I have already emphasised, and the fact that Mr Benests liberty is at stake, it might have been expected that clear and up to date information as to Mr Benests financial position and the efforts which he has made to pay Mrs Le Maistre, together with copies of relevant documents including bank statements, would have been prepared and sworn to by Mr Benest by affidavit for the purposes of the appeal, or of an application to discharge the Acte of 26 March 1996. After all, Mr Benest has had over two years since 26 March 1996, to swear such an affidavit. No such affidavit was prepared by Mr Benest. Advocate Begg, who appeared for Mr Benest, apparently proposed to present his client’s appeal without reference to any further information concerning Mr Benests financial position or his efforts to pay.
This was the more surprising in the light of the correspondence between the parties since March, 1996, which Advocate Mrs Whittaker for Mrs Le Maistre produced. This correspondence shows continuing attempts by Mrs Whittaker to obtain further information and documents, and to secure a practical and sensible agreed arrangement for repayment. I refer in particular to Mrs Whittakers letter of 3 April 1996, to which Mr Begg did not respond; to Mrs Whittakers letter of 25 February 1997, in which she indicated her clients readiness to reduce the rate of interest to 11% per annum from 1 June 1996, and to which Mr Begg did not respond; to the correspondence in July and August 1997, which ended without a proper response from Mr Begg, and to Mr Beggs letter of 14 November 1997, in which he set out - no doubt on instructions - over-optimistic and largely fanciful predictions by Mr Benest as to the moneys which Mr Benest was likely soon to receive.
By November 1997, Mrs Le Maistre was fully entitled to assume that Mr Benest did not intend to make good the deficiencies pointed out in the judgment of 26 March 1996. Accordingly she sought to enforce the Acte à peine de prison. Mr Benest was then out of the Island, and remained out of the Island until the stay to which I have already referred was ordered on 12 February 1998. That Mr Benest stayed out of the Island so long was entirely due to his own conduct in failing to remedy the deficiencies of information and documents which had led the Royal Court to make the Acte à peine de prison, and in failing to bring the appeal on expeditiously, or alternatively, to apply for a discharge on the basis of a material change of circumstances. When the stay was sought in February, 1998, a draft affidavit of Mr Benest was prepared but not used. This was shown to us. It contained none of the information or documents which plainly had to be produced if Mr Benest was to make good the deficiencies in his disclosure.
I will return later to consider those deficiencies further. First, I must refer to the points which Mr Begg argued or sought to argue on the appeal, and in support of which Mr Begg produced a large number of authorities and other documents. Most were of no relevance.
Mr Beggs first submission was that in light of the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR) and other treaties to which, through the United Kingdom on behalf of Jersey, Jersey has acceded, this Court ought to develop Jersey Law by, in effect, abolishing the right to obtain an Acte à peine de prison.
None of the treaties have yet been incorporated into the domestic law of Jersey, though there are some proposals for the incorporation of the ECHR. Accordingly their relevance for the purposes of Jersey Law cannot be put higher than it was put by the English Court of Appeal in Derbyshire County Council -v- Times Newspapers Ltd & Ors [1993] 1 All ER 1011:
(a)to resolve ambiguities in legislation;
(b)in considering the principles on which the Court should exercise a discretion;
(c)when the common law is uncertain.
As I pointed out to Mr Begg at the commencement of the hearing, these are principles which can readily be accepted as applicable in Jersey Law, and accordingly there was little need for the extensive citation of textbooks, reports and other documents. Some were not merely irrelevant, but entirely inadmissible for the purposes of the appeal, including newspaper cuttings, the irrelevance of which even reached the recent visit by President Clinton to the Republic of China.
Mr Beggs first point was, in my judgment, unarguable. The right of a creditor to obtain an Acte à peine de prison was, as I have said, recognised and confirmed in the Loi (1886) sur l’Emprisonnement pour Dettes. This Court has no power to abolish that right: only the States as the legislature of Jersey has that power.
Mr Beggs second point was that, following the principles stated in the Derbyshire case, the manner in which Actes à peine de prison are given and enforced should be developed by the Jersey Courts in line with the ECHR, the ICCPR and other treaties. With regard to the ECHR, in the case of Dick -v- United Kingdom (Application No. 26249/95 (Final Decision of the First Chamber of European Commission of Human Rights) (23rd August, 1997) the European Commission of Human Rights reached the conclusion that the detention of Mr Dick, pursuant to an order obtained ex parte from the Jersey Royal Court, did not constitute a violation of the ECHR: see also the Article by the Bailiff in 2 Jersey Law Review p.44. With regard to the ICCPR, Article 11 provides that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation". But when the United Kingdom became a party to the ICCPR it entered a reservation on behalf of Jersey in respect of Article 11. Nevertheless it seems to me clear that so far as possible the development of the common law and procedure as regards Actes à peine de prison should proceed on lines consistent with the treaty obligations relating to Jersey in accordance with the principles stated in Derbyshire. It is for that reason (amongst others) that I have reached the conclusion (already stated) that the operation of such an order should depend on the directions of the Court and not on the volition of a creditor.
Finally, I return to the position in these proceedings. As I have indicated, Mr Benest has failed to remedy the deficiencies in his disclosure to which the Royal Court drew attention, and which resulted in the making of the Acte à peine de prison, despite the attempts of Mrs Le Maistre to secure either proper disclosure or some proper effort to make payment, as can be seen from the correspondence. Accordingly it follows that Mr. Benest’s appeal must be dismissed. However, in the absence of a further order of a court bringing the Acte à peine de prison into operation, mere dismissal of the appeal would not enable Mrs Le Maistre to procure the detention of Mr Benest. It was apparent from Mr Beggs submissions on behalf of Mr Benest that, on his side, there has been a not inconsiderable degree of misunderstanding of the true legal position. It is right, in my judgment, that Mr Benest should be given one final opportunity to make the proper disclosure in good faith, and in good faith either to make payments in respect of the outstanding judgment debt or to explain fully and frankly why it is that Mr Benest is unable to pay. If Mr Benest fails to take this opportunity, it will be right that the Acte à peine de prison be enforced. Accordingly I would order that:
(1)within 28 days from today (9 July 1998) Mr Benest shall make a full affidavit in explanation and description of his financial position, accompanied by appropriate documentation, including bank statements from all his banks covering the whole period from 4 March 1993 (unless a shorter period is agreed in writing by Mrs Whittaker on behalf of Mrs Le Maistre);
(2)if Mr Benest fails to make such an affidavit within this period of 28 days, the Acte à peine de prison shall be put into effect forthwith on the expiry of that period by the detention in prison of Mr Benest;
(3)any dispute as to whether Mr Benest has duly complied with paragraph (1) above shall be brought for determination before the Royal Court on the expiry of the period of 28 days;
(4)if Mr Benest shall have duly complied with paragraph (1) above, the Acte à peine de prison shall not be put into effect unless and until the Royal Court may so order.
Having regard to the papers supplied to this Court on this and other recent civil appeals, I wish to make some general observations about what should be supplied to the Court of Appeal on all civil appeals. In my view there should be supplied by the Appellant or their Advocate on all civil appeals:
(1)A file containing, in chronological order, copies of all orders, judgments, pleadings and other formal documents made or served to date in the proceedings. This file should be complete, separate from the other documents on the appeal, and always in chronological order.
(2)A chronology of relevant events, relevant for the purposes of the appeal, annotated with references to the relevant documents.
(3)The written submissions should contain (or have as a separate document) a list with explanations of the relevant persons involved.
(4)Other documents should be bundled in appropriate order, eg exhibits and correspondence.
(5)The files of authorities and statutory provisions should contain, first, a section for Jersey authorities and statutes; and secondly, a separate section for authorities and statutes from other jurisdictions including England and Wales. Such authorities and statutes should usually be assembled in each section in chronological order.
In the present case Mr Begg included long extracts from textbooks which were, in many cases, irrelevant. Care should be taken to include only what is relevant.
The chronology referred to at (2) should be agreed, if possible, with the Advocate for the Respondent. If it cannot be agreed, a separate chronology should be supplied by the Respondent. Any documents missing from the file referred to at (1) should be supplied by the Respondent for insertion in that file. The Respondent or their Advocate should prepare other files accompanying their submissions in the form mentioned in (4) and (5) above, avoiding as far as possible any duplication of the Appellant’s files.
Naturally these indications may require some adjustment if the particular circumstances of an appeal so require, or if the appeal comes on for hearing at short notice.
CARLISLE, JA: For the reasons that have been given, I agree with the order that is proposed and have nothing to add.
CLARKE, JA: I also agree and have nothing to add.
SOUTHWELL, JA: Yes, Mrs Whittaker?
ADVOCATE WHITTAKER: In view of the decision of this Court that the appeal be dismissed, may I apply for costs.
SOUTHWELL, JA: Yes, and you ask for taxed costs?
ADVOCATE WHITTAKER: Taxed costs, please, Sir.
SOUTHWELL, JA: Yes, Mr. Begg?
ADVOCATE BEGG: Sir, I concede that the normal order for costs follow the event. I would ask the Court to take into account two things, firstly that I have acceded at le ast in part on the arbitrary aspect of the matter and, secondly, what concerns me perhaps more is the exacerbation of my clients situation by having to have costs in addition to his obligation to pay Mrs Le Maistre, obviously all party to prime concern is that Mrs Le Maistre should be repaid and I (indistinct) that has always been my clients concern. I’ve heard of course what you’ve said in your very helpful and comprehensive judgment. The fact is, however, that as a result of in particular the Royal Court proceedings, costs have been incurred which have meant, I think, that Mrs Le Maistre probably hasnt got paid the payments which my client has actually tried to make on account so far. My concern is from a practical point of view, Sir, is that an already bad situation should not be exacerbated.
SOUTHWELL, JA: The difficulty with that, Mr Begg, is that of course its your clients own fault. If he had provided proper information long since and made clear what his financial position is and how he was going to repay if, indeed, he could then all the proceedings could have been avoided. It is the effect of the judgments which this Court has delivered and I’m afraid the fault squarely lies with your client who has failed to do that. The first point seems to me to be right to that extent you’ve succeeded but I suspect that probably the door was one that if you’d knocked at an early stage might have opened rather speedily. Yes, Mrs Whittaker, we order that Mr Benest pays Mrs Le Maistre taxed costs.
ADVOCATE WHITTAKER: I’m grateful to the Court, Sir.
Authorities
Prof. Richard Stone: "Textbook on Civil Liberties" (2nd Ed’n ) (1997): Preface: pp.1-21
Derbyshire County Council -v- Times Newspapers Ltd & Ors. [1992] 3 All ER 65
Derbyshire County Council -v- Times Newspapers Ltd & Ors. [1993] 1 All ER 1011
Dick -v- United Kingdom Application No. 26249/95 (Final Decision of the First Chamber of European Commission of Human Rights) 23 August 1997
Gray -v- Nadin (1994) JLR 54
Loi (1886) sur l’Emprisonnement pour Dettes
Matthews & Nicolle: "The Jersey Law of Property" Chapter 7: "Insolvency and Property" pp.69-72
Birbeck -v- Midland Bank Ltd (1981) JJ 121 CofA
Porteous -v- Porteous (28 February 1992) Jersey Unreported
Bianchi -v- Gentili (12 July 1990) Jersey Unreported
Pelido -v- Leighton (20 February 1991) Jersey Unreported
Selby -v- Romeril (1996) JLR 210.
Taylor -v- Cooper: "European Litigation Handbook" (1995) pp.1-11, 141-184.
Miliangos -v- George Frank (Textiles) Ltd [1975] 3 All ER 801 HL.
Trendtex Trading Corporation Ltd -v- Central Bank of Nigeria [1977] 1 All ER 881 CA.
R -v- R (rape: marital exemption) [1991] 2 All ER 257 CA
R -v- R (rape: marital exemption) [1991] 4 All ER 481 HL