Royal Court
(Samedi Division)
20 October 1998
Before: B I Le Marquand, Greffier Substitute
BetweenBarrie Raymond CooperPlaintiff
AndThe Lieutenant Governor Defendant
Application of the defendant to strike out the Order of Justice as disclosing no reasonable cause of action.
The Solicitor General for the defendant
The plaintiff appeared personally
JUDGMENT
THE GREFFIER SUBSTITUTE:In June 1961 the plaintiff was briefly, but unlawfully, detained in the Jersey General Hospital. In July 1974 he petitioned the Privy Council about the matter and the Law Officers in Jersey provided a report to the Privy Council in relation to that petition. An Order in Council was issued on 19 May 1976, which stated that the plaintiffs detention had been unlawful and directed that the Jersey Authorities consider the issue of an acknowledgement of the injustice done to the plaintiff and the grant of compensation to him.
Subsequently an agreement was reached between the Attorney General of the day and the plaintiff in relation to payment of compensation in the sum of £10,500 and on 7 December 1978, the defendant signed a document accepting this sum in full and final settlement of all claims etc which he might have in relation to his unlawful detention at the Jersey General Hospital in June 1961.
In December 1985 the defendant brought a representation before the Royal Court in which he made various complaints and sought additional compensation to that which had already been paid. This representation was rejected by the Royal Court and the matter came before the Court of Appeal which delivered its judgment on April 7 1987. The Court of Appeal then decided that the settlement reached by the defendant and the Attorney General should not be set aside. The plaintiff was granted leave to appeal against that decision to the Judicial Committee of the Privy Council.
Subsequently, in July 1996 the plaintiff brought a further petition before the Privy Council in relation to the same matters but this was dismissed by an Order in Council dated 19 March 1997.
The Solicitor General was under the impression that the appeal of the plaintiff to the Judicial Committee of the Privy Council against the decision of the Court of Appeal dated 7 April 1987, had been withdrawn but the plaintiff believed that it still existed.
The present Order of Justice is clearly inadequate in that it does not set out the claim of the plaintiff in sufficient detail. However, it was clear from the outset of the hearing before me that the defendant was not merely seeking to strike out the Order of Justice by reason of defects in form but on the basis that the claims which the plaintiff was seeking to make therein could not be cured by any amendment thereto.
Paragraph 2 of the Order of Justice indicates that the plaintiff is intending to bring the matters set out above before the European Court of Human Rights under the European Convention on Human Rights. The plaintiff claims that by withholding the report/opinion of the Law Officers which was sent to the Privy Council in 1976, that the defendant is obstructing an application by the plaintiff to the European Court of Human Rights. The plaintiff quoted from paragraph 1 of Article 25 of the European Convention on Human Rights which reads as follows:-
"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."
In paragraph 4 of the Order of Justice the plaintiff requests that in the event that the Royal Court declare it has no jurisdiction in this matter that the Court concede that all domestic remedies have been exhausted in accord with Article 26 of the aforesaid Convention.
In a letter dated 31 July 1998, which the plaintiff wrote to the Solicitor General, he conceded that it was not essential for his application to the European Court of Human Rights for him to have a copy of the report/opinion in dispute but that it would be sufficient for him to inspect the same.
The test in relation to an application to strike out upon the basis of there being no reasonable course of action has been set out in the past in Jersey in relation to many previous applications. It can be summarised briefly by saying that the test is a high test and that it is only in plain and obvious cases and where the case of the plaintiff is obviously unsustainable that striking out should occur.
In my view, there are very many difficulties in relation to this Order of Justice.
First, and most seriously, the issue as to whether or not the settlement agreement reached in 1978 can be set aside is res judicata by virtue of the decision of the Court of Appeal dated 7 April 1987. That decision could only be overturned by virtue of a decision of the Judicial Committee of the Privy Council. The effect of this is that the plaintiff simply has no further cause of action in relation to the matters which relate back to his unlawful detention in 1961. I am bound to follow the decision of the Court of Appeal in this matter.
Secondly, there are currently no proceedings in existence in relation to which the Royal Court could make the order being sought. As I said before, the only continuing proceedings, if they are still continuing, are the appeal to the Judicial Committee of the Privy Council mentioned above. An order for the discovery of documents in relation thereto could only be made by the Judicial Committee of the Privy Council.
Thirdly, the Lieutenant-Governor was not a party to the proceedings which were brought against the Attorney General. Accordingly, the present Order of Justice is a type of attempt to obtain discovery of documents from a third party which would normally be termed as a Norwich Pharmacal application. It is, therefore, one further degree, and in my view a major degree, removed from an application for discovery.
In relation to the plaintiffs contentions relating to Article 25 of the convention, the refusal of the defendant to allow the plaintiff access to this particular report cannot possibly constitute the hindering of the right of the plaintiff to petition the European Court of Human Rights. If the plaintiffs understanding of the situation were correct then where any complaint would be made to the European Court of Human Rights against a government body then the petitioner would be entitled to access to all documents held by that government body irrespective of considerations of privilege. That cannot possibly be correct. The intention of the last sentence of paragraph 1 of Article 25 must be that a High Contracting Party will not in any way hinder a person from bringing a petition and cannot be taken as creating a positive duty to assist to an extent which goes beyond the normal extent of legal procedure.
There is a further difficulty which surrounds the plaintiffs proposed position. Article 26 of the European Convention of Human Rights reads as follows:-
"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of 6 months from the date on which the final decision was taken."
The difficulty which the plaintiff has is that if, as the Solicitor General denies but he believes, his appeal to the Judicial Committee of the Privy Council is continuing then all domestic remedies will not have been exhausted but if that appeal was withdrawn prior to the Order in Council dated 19 March 1997, dismissing his second petition, then more than 6 months will have elapsed since a final decision was taken either upon the basis that the final decision is now that of the Court of Appeal in 1987 or upon the basis that the final decision was the abandonment of his appeal.
It is very clear to me that the plaintiff's Order of Justice is misconceived and hopeless and that it ought to be struck out and the action dismissed.
I will need to be addressed by both parties in relation to the matter both of the costs of and incidental to the striking out summons and of and incidental to the whole action.
Authorities
Royal Court Rules 1992 (as amended): Rule 6/13(1)
The European Convention on Human Rights: Articles 25 & 26
Cooper-v-A.G. (1987-88) JLR 51 CofA
Cooper-v-Resch (1987-88) JLR 428