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Cite as: [1998] UR 32

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COURT OF APPEAL

13 February 1998

Before: JM Collins Esq., QC President

RD Harman Esq.,

and

RC Southwell Esq., QC

In the matter of the Representation of Louis Emile Jean

BetweenLouis Emile JeanRepresentor/RESPONDENT

AndColin Douglas MurfittFirst Respondent/

APPELLANT

AndMurco Overseas Properties LimitedSecond Respondent

AndThe ViscountThird Respondent

Appeal by the First Respondent/APPELLANT against the Order of the Royal Court (Samedi Division) of 23 April 1997, ( See Jersey Unreported Judgment of that date) whereby the Court:

dismissed the application of the First Respondent/APPELLANT for an Order setting aside the findings of the Royal Court of 17 May 1995, (See Jersey Unreported Judgment of that date) that the signatures of the Representor and his late wife on the agreement referred to as the "Séparation des biens" were not genuine and were accordingly forged; and

granted the application of the Representor/RESPONDENT for an Order raising forthwith the stay ordered by the Court of Appeal in its Judgment of 24 September 1996, (See Jersey Unreported Judgment of that date ), on the enforcement of all Orders in this action relating to the taxation of costs, until such time as the Judicial Committee of the Privy Council shall have determined the First Respondents application for special leave to appeal to Her Majesty in Council from the Judgment of the Court of Appeal on 18 April 1996, and if such leave is granted, pending determination of the appeal

The First Respondent/APPELLANT on his own behalf.

Advocate JD Kelleher for the Representor/RESPONDENT

JUDGMENT

THE PRESIDENT: This matter comes before this Court once more, consequent this time on the making of a Representation by the First Respondent, Mr Murfitt, to set aside the Judgment of the Royal Court of 17 May 1995, on four grounds, each of which had to do with a letter from Advocate Perrot, a Guernsey Advocate, retained by the Representor in the action, Mr Jean, to be the administrator of the Second Respondent.

The Representation was made to the Royal Court, which refused it giving reasons, on the grounds, first, that the matter was a chose jugée having been concluded by the Judgment referred to and then by the Judgment of this Court on 16 April 1996, which Judgment rejected Mr Murfitts appeal and secondly, that the conditions for the reception of fresh evidence in the Court of Appeal, being applicable by analogy, had not been satisfied.

This Court had refused Mr Murfitt leave to appeal to Her Majesty in Council when giving its judgment on 16 April 1996. Thereafter Mr Murfitt applied to this Court for a stay of any Order as to costs in the action pending such an appeal whereupon this Court, on 24 September 1996, granted that application, subject to conditions as to the institution by Mr Murfitt of an application for special leave and due prosecution of the same and of any consequent appeal.

Thereafter the Representor took out a summons - which was heard at the same time as Mr Murfitts Representation - for the raising of this stay on the grounds that the conditions of the same had not been satisfied by Mr Murfitt in that either he had failed to lodge his petition to the Queen in Council on or before 31 October 1996, or alternatively had failed to prosecute the appeal with due diligence.

The Royal Court, again giving reasons, raised the stay on the grounds that Mr Murfitt had failed to lodge an affidavit of service of the intended application as required by the Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 and that he was not prosecuting his petition with due expedition. From both these adverse judgments and orders Mr Murfitt now appeals.

The history of these complex proceedings is set out in the Judgments of this Court of 18 April 1996 and 24 September 1996 respectively and reaches its conclusion with the Judgment of the Royal Court of 11 December 1996, whereby the Court ordered that the Second Respondent be wound up on the grounds that it was just and equitable to do so, this being the principal relief which had been sought by Mr Jeans Representation. Reference should be made to these successive Judgments for the detailed series of events which occupied the Royal Court and the Court of Appeal between the convening of the Respondents on 10 December 1993, and the Judgment of 11 December 1996.

By his Answer Mr Murfitt pleaded to and joined issue as to the allegations made in the Representation which allegations included those of deceit and misrepresentation. And he further raised an allegation that the rights of the parties had been fundamentally changed by an agreement in writing named a séparation des biens undated but alleged by him to have been signed by Mr and Mrs Jean on 18 February 1991.

On 7 March 1995, the Judicial Greffier made an Order by consent that the issue as to whether the agreement referred to as the séparation des biens in Mr Murfitts Answer was signed by Mr Jean or Mr Jeans late wife or by both of them was to be tried as a preliminary issue. It was this preliminary issue which was the subject of the Judgment of the Royal Court and of this Court on the dates referred to above.

The Royal Court in its Judgment of 17 May 1995, decided as follows:

"Our conclusion is that the signatures of Mr and Mrs Jean on the alleged agreement are not genuine and were accordingly forged. The likelihood is, although we make no finding in this respect, that the signatures were forged by Mr Murfitt. The evidence of the two handwriting experts, Mr Hughes and Mr Ansell, would have been sufficient to persuade us of the falsity of the signatures. In addition however we think it is very unlikely that Mrs Jean, an experienced businesswoman, would have been party to an undated document expressed in obscure and convoluted terms without taking legal advice and without even requiring to retain a copy of it. There is evidence that Mr Murfitt tried to implement the terms of the alleged agreement in various ways, but no evidence that either Mr Jean or Mrs Jean acted at any time as if the alleged agreement were in existence. This is hardly surprising given the fact, as we have found, that they did not sign the alleged agreement. We dispose of the preliminary issue in that way."

From that decision Mr Murfitt appealed to this Court. He made a number of applications to call further evidence which were refused by this Court for the reasons given in the Courts Judgment of 16^tApril 1996. His substantive appeal was dismissed, again for reasons which appear in the Judgment. Mr Murfitts case was that the agreement had been signed in the presence only of himself and of Mr and Mrs Jean and yet he had not given evidence himself at the preliminary hearing. This fact, together with the evidence of the handwriting experts, one being called by himself, were held to be fatal to his case. Mr Hughes, called by Mr Murfitt himself, expressed himself thus:

"And again, whilst it is not possible to express any definite opinion as to whether Maud Jean wrote the signatures in her name, my inclinations are that the differences between the question signatures and specimen signatures are significant and that Mrs Jean did not sign those signatures."

The Court of Appeal held:

"…that that conclusion, together with Mr Murfitts failure to give evidence as to the creation of the documents, has the effect (even when looked at in the light of all the other material which Mr Murfitt has urged upon us) of being in the end fatal to his case and indeed in the end fatal to this appeal".

The evidence of Mr Hughes was followed by that of Mr Ansell, a forensic scientist specialising in the scientific examination of documents and handwriting who was until his retirement the Deputy Head of the document section of the Metropolitan Police. He was called on behalf of Mr Jean…

…He considered that the signatures on the original of the alleged Séparation des Biens were not genuine and that on the carbon copy the signature of Mr Jean was not genuine and that of Mrs Jean was probably not genuine".

A feature which was present in Mr Ansells report and which was brought out in re-examination was that the signatures on the carbon were not identical to those on the original. Mr Ansell was unable to give any explanation for this. "It’s difficult", he said "to understand how that had happened if the genuine persons had signed both ones, whether they signed them genuinely or whether they signed them deliberately writing in a different manner" as Mr Murfitt had suggested. He stated that he would "expect them both to differ in the same manner if they’d done that, and they don’t".

Although Mr Murfitt did not give evidence at the trial of the preliminary issue, he did so at the hearing of the Representation itself. And his evidence then was rejected by the Royal Court in the following terms:

"At the preliminary hearing Mr Murfitt did not give evidence. At this trial he did however go into the witness box and asserted that he was present when the Representor and Mrs. Jean signed the alleged agreement. Mr Murfitt did not choose to comment on the expert evidence given at the trial of the preliminary issue nor to give any explanation as to why the Representor and Mrs Jean should have signed the alleged agreement without taking legal advice and without seeking to retain a copy of it. We reject the evidence of Mr Murfitt and we find that the alleged agreement was a fraudulent attempt by Mr Murfitt to divide up the assets of Murco to his own advantage".

Mr Murfitt has appeared in person throughout these various proceedings but it is right for us to bear in mind that he is in receipt of legal aid and does, on occasion, seek advice from his advocates who are on the record. His present application by way of representation is to set aside the judgment of the Royal Court and presumably of this Court on the ground that he has fresh evidence in the shape of a letter from Mr Perrot to Mr Welsh of 9 August 1993. Mr Welsh was the then Assistant Manager at ANZ Grindlays Trust Corporation of St. Helier, the administrators of the Second Respondent. This letter was not listed in Mr Jeans list of documents delivered by his advocates in November of 1994 and it is right to say that it was first made available to Mr Murfitt in one of two bundles of documents handed to him on the first day of the main hearing before the Royal Court.

The setting aside of a judgment on fresh evidence is described thus in Halsburys Laws of England (4^th Ed’n) Vol. 26 at p.561:

"An action will lie to rescind a judgment on the ground of the discovery of fresh evidence which would have had a material effect upon the decision of the Court. It must be shown:

(1) that the evidence could not have been obtained with reasonable diligence for use at the trial;

(2) that the further evidence is such that if given it would have an important influence on the result of the trial although it need not be decisive; and

(3) that the evidence is such as is presumably to be believed".

These prerequisites mirror the principles applicable in cases where it is sought to adduce fresh evidence on appeal (as to which see in this Island Hacon -v- Godel & Anor. (27 October 1989) Jersey Unreported CofA) and the Royal Court having no power to over-rule the judgments of this Court, it seems to me that the proper procedure would have been for an application to be made to this Court and not the Royal Court. Accordingly I consider that the proper course is to treat this appeal as itself an application to this Court to set aside the judgments of the Royal Court and of this Court on the ground of discovery of fresh evidence, namely the letter in question, and for this Court to consider whether the letter itself is such as to satisfy the principles cited above and in particular the second of those principles.

I do not consider that it is legitimate to have regard to such further evidence as is represented by Mr Perrots affidavit which was admitted into evidence by the Royal Court. The admission of this evidence would only become material once the decision had been made as to the introduction of the letter itself into evidence taking that letter on its own. Thus for my part I disregard the contents of the affidavit and I do not consider Mr Murfitts complaint that he was not informed of his right to apply for cross-examination is in point. The letter is dated 9 August 1993, and reads as follows:

"Dear Mr. Welsh,

MURCO OVERSEAS PROPERTIES LIMITED

I refer to your letter of the 4 August.

I discussed with François Jean the capacity or otherwise of Mr. Louis Jean Senior to conduct his affairs. François told me that although for quite some time Louis was not in a position to do anything at all in a legal capacity, his condition has improved markedly, to the extent that he is fully aware now of what he is doing. My understanding is that at the time when Mr Murfitt produced his "Séparation des Biens" neither Louis nor Judy had a clue as to what was going on. I do not for a moment think that a Court would uphold the document. It is simply one of the aggravating things which Mr Murfitt came up with which he managed to persuade an old couple, who didn’t understand the first thing about it, to sign.

In view of Françoiss comments, it does not seem appropriate (at least at present) to apply for a guardian to be appointed to Louis".

Then there is a reference to a possible meeting later on in August. That letter is capable of the construction that Mr Perrot himself at the time that he wrote this letter believed that the separation des biens had been signed by his clients. The date of the letter being 9 August 1993, this was of course before any reports were obtained from handwriting experts and in the light of the grounds for the decision of the Royal Court and of this Court as set out above, I have no hesitation in rejecting the suggestion that the introduction of this letter in evidence would have had an important influence on the trial or the hearing of the appeal.

Accordingly I would reject Mr Murfitts application and make no order in relation to the hearing before the Royal Court save as to any costs which may be the subject of applications. The judgments of the Royal Court and of this Court of 17 May 1995 and 16 April 1996, respectively and of the Royal Court of 11 December 1996 accordingly, in my judgment, stand.

As to the Order lifting the stay imposed by the Court of Appeal on 11 December 1996, I can see no reason to disturb the exercise of the discretion of the Royal Court. Nothing was done to progress the appeal beyond service of the application of the Representor and of an affidavit in support and in particular no affidavit of service was served on the Privy Council as required by the Rules. It suffices to say that the decision of this Court having been made originally on 16 April 1996, and an application for leave to appeal to the Privy Council having then been refused, nearly two years have passed since that time without any progress having been made with the application for special leave to appeal. The absence of an affidavit of service has resulted in a standstill for which Mr Murfitt is responsible. For this absence Mr Murfitt has given differing explanations to the Royal Court and to this Court, neither of which has been found acceptable.

HARMAN, JA: I agree and do not wish to add anything

SOUTHWELL, JA: I agree.

Authorities

Jean -v- Murfitt (17 May 1995) Jersey Unreported

Hacon -v- Godel & Anor (27 October 1989) Jersey Unreported CofA; (1989) JLR N.5

Jean -v- Murfitt (11 December 1996) Jersey Unreported

4 Halsbury 26 p.561