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Cite as: [1998] UR 65

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ROYAL COURT

(Samedi Division)

30 March 1998

Before: FC Hamon Esq., Deputy Bailiff

and

Jurats Potter, and de Veulle

Between:David EvesPlaintiff

And:Terence John Le MainDefendant

Application by the Defendant for an Order:

under Rule 6/13 of the Royal Court Rules 1992, as amended, striking out paragraphs 1 - 16, inclusive, and 19 of the

Plaintiffs Order of Justice.

severing paragraphs 1 - 16, inclusive and 19, and all parts of the Prayer of the said Order of Justice from the remainder thereof; and

directing the Plaintiff to pay the Defendants costs of and incidental to this application on a full indemnity basis.

Advocate AJ Belhomme for the Defendant

The Plaintiff did not appear and was not represented

JUDGMENT

THE DEPUTY BAILIFF: This is an application by the Defendant to strike out, or in the alternative to sever paragraphs 1 to 16 inclusive, and paragraph 19, of the Plaintiffs Order of Justice, which, in fact, runs to 20 paragraphs in all.

Striking out is sought on the ground of prescription, on the basis that the claims made by the Plaintiff - in the relevant paragraphs in the Order of Justice - are founded in tort and are therefore subject to a prescriptive period of three years, and also - and we have given leave to extend the summons today - severance is sought on the ground that the Order of Justice contains two entirely separate alleged causes of action and that would embarrass or delay the trial if they were tried together. However, in the light of the judgment we are about to deliver, we do not need to consider the question of severance.

The striking out application is made of course under Rule 6/13 of the Royal Court rules which reads:

Striking Out:

6/13- (1) The Court may at any stage of the proceedings order to be struck out or amended any claim or pleading, or anything in any claim or pleading, on the ground that -

it discloses no reasonable cause of action or defence as the
case may be; or
it is scandalous, frivolous or vexatious; or
it may be prejudice, embarrass or delay the fair trial of the action; or
it is otherwise an abuse of the process of the Court;

and may make such consequential order as the justice of the case may require.

This, however, is an unusual application because it is made in the absence of the Plaintiff, and it is necessary for the purposes of this judgment to set out why the Plaintiff is not before us today.

Advocate Livingstone acts for the Defendant, (if this application succeeds) on the paragraphs of the Order of Justice that remain. That is because Advocate Belhomme is acting on behalf of the Crown, and paragraphs 1 - 16 and paragraph 19 fall within the public domain. Advocate Belhomme wrote on the 5 February 1998, to file his Answer. He served a summons to fix a date with the Bailiff’s Secretary on Thursday the 12 February at 10.00am. He duly appeared at that date and time, and a date was fixed for today, 30 March for the Hearing.

The following day, he received a letter from the Plaintiff to say that he had been rushed to Hospital late on the afternoon of Wednesday the 11 February for emergency treatment, following an accident at St Ouens Bay, and although he was not kept in overnight, he had to return to Hospital that morning- that was the day that the application for fixing the date was heard - for further treatment, and he completely overlooked the date-fixing. He telephoned - it appears - Mr Livingstones secretary to say that he would not, in any event, be able to attend the Court on the 30 March.

On the 19 February Advocate Belhomme wrote to Mr Eves at his address 61, La Collette, and said that he was going ahead with the application for severance, and/or striking out, of certain parts of the Order of Justice on the 30 March unless he received some cogent explanation as to why Mr Eves would be unable to attend Court on that day.

On 20 February there was a reply from the Plaintiff, which said he was unable to attend because of a long standing family commitment out of the Island. He would not be here at that time; he apologised for any inconvenience and merely asked Advocate Belhomme to fix a new date. Advocate Belhomme was not at all put out by that invitation, and declined to accept it, and on the 26 February he again wrote to the Plaintiff and asked him if he would amplify in detail what was meant by a long standing family commitment out of the Island, and asked him if he could confirm four points: (1) the nature of the family commitment. (2) the location of the function. (3) when the date of the commitment was fixed, and :(4) why the date of the commitment could not be changed, and he asked for supplementary evidence that Mr Eves would, in fact, be out of the Island at that time.

A letter was then sent by the Plaintiff on the 6 March, which was a Friday, and although Advocate Belhomme complained that he only received it on the 9 March after Mr Eves had left the Island, we cannot see anything of any great moment in that point. The letter enclosed a print-out of the reservation details for the Plaintiff and his wife to go to England and the Plaintiff added that he considered all the other matters raised in the letter were:

"An invasion of my privacy, and irrelevant to the matter,"

The Plaintiff then went on to say this: "From my own experience, I have always found the Courts pleased if dates can be vacated, so I would be obliged if you would now cancel the 30 March and reissue a new summons in due course, sometime after Easter, if you still wish to proceed in the same way. My apologies for any inconvenience caused."

Nothing more has been heard from the Plaintiff since that time.

Now we have to say this, in the light of our decision to continue with this hearing in the absence of the Plaintiff: Mr Eves is not unknown to the Courts of this Island - and to Courts outside the Island. He has appeared regularly before the Royal Court, regularly before the Court of Appeal, and indeed before the Privy Council. In January 1995, the President of the Court of Appeal in Hambros Bank (Jersey) Limited -v- Mr Eves et Uxor, (11 January 1995) Jersey Unreported CofA, said this at the opening of the Court’s judgment:

"Mrs Eves informed the Court last Friday evening that Mr Eves was unwell and unable to come to Court. Mrs Eves was informed that the Court would require a medical certificate. Accordingly, on Monday morning, that is two days ago, Mrs Eves produced a medical certificate. In our view the medical certificate was quite inadequate for the purpose for which it was used. It was not given very recently, but on the 21 December 1994; it was not issued for any purpose connected with this case, but it is headed for Social Security purposes, and what it certifies is that Mr Eves was incapable of work. There is no sign that the Doctor was asked to consider the question - which is not the same question - whether Mr Eves would be capable of attending Court. In those circumstances regarding the certificate, as I have said, as inadequate, we have informed the parties that the adjournment would not be granted. I should add that we were influenced in coming to that decision, by the fact that it appeared to us then, and it appears to us now, that the application for leave to appeal is hopeless because it is clearly excluded by existing decisions of the Court",

We regard the explanation to arrange a new date by Mr Eves, as being totally inadequate, and, as I have said, we intend to continue with the hearing today. Furthermore, we need to cite, the case of Hallam -v- Riley, (1975) JJ 193, which says at page 194:

"There is authority for this Court to sit and hear and adjudicate on a case in the absence of the Defendant, and I need only refer to two; I cite Williams, ayant la garde -v- Le Corre, 1951 (247 Ex 7) and a more recent affiliation case, Brunton -v- Rabet which was heard on the 1 March 1972 (260 Ex.53). The Court is, therefore satisfied that it was proper for it to proceed to hear the case and indeed it did so".

So, as I say, we are quite determined that this case shall proceed now for two reasons; first, any other course might involve an extensive delay in the light of the increasing pressure on the Court calendar; and secondly because we are not in the least certain that in relation to the argument that has been put before us - very carefully put before us - by Advocate Belhomme, that Mr Eves could add anything at all that might help us on a question which is partially of fact, but substantially a matter of law.

The application is then basically for a striking out on the basis that the claims made in the Order of Justice are prescribed. Advocate Belhomme has cited to us the judgment in re: Wooley [1991] JLR N.11; (2 December 1991) Jersey Unreported; which makes it very clear that the striking out in this case should be on the ground that it is frivolous, vexatious and an abuse of the process of the Court. The Court relied heavily there upon the English case of Ronex Properties Limited -v- John Laing [1983] QB 398, (1982) 3 All ER961; (1982) 126, Sol Jo 727, and particularly the judgment of Lord Justice Stephenson. At page 6 of that Jersey judgment the Court said this:

"The right course is therefore for a defendant to apply to strike out the plaintiff’s claim as frivolous and vexatious and an abuse of the process of the Court on the ground that it is statute - barred".

Although Advocate Belhomme has very carefully trawled all the relevant authorities in very great detail before us this morning, and cited to us the case of Le Cocq -v- Gillespie [1991] JLR N5; (12 March 1991) Jersey Unreported, which deals with the inherent jurisdiction of the Court, we do not need in our view to examine that aspect of inherent jurisdiction, nor indeed the case of Mauger (née Kenny) -v- Batty [1995] JLR N9; (9 October 1995) Jersey Unreported, although of course we have considered all the cases very carefully.

We say that because the Court of Appeal in Minories Finance Limited -v- Arya Holdings Limited [1994] JLR 149, CofA has examined the principles of law that we should adopt in this type of proceeding and in particular after saying that: "The burden on the Defendant in seeking to stop the proceedings before trial is a heavy burden"- a point that we have taken very carefully on board - the learned Court of Appeal Judge, Southwell, JA, says this at page165:

"Where a prescriptive defence and raised and it is entirely clear on the pleadings and the other material before the Jersey Court that the prescriptive defence will in any event succeed, an action may be struck out as being an abuse of process: compare the decision of the English court of Appeal in Ronex Properties Ltd -v- John Laing Constr.Ltd. But I stress that this will be a ground for striking out only in a very clear case".

The Court of Appeal goes on at page 167 to say this:

"Arya therefore has no answer to prescription in respect of its tort claims, which must be struck out".

Could we say this in passing: Mr Eves, an experienced litigant, having drafted his Order of Justice, must have been well aware that, on 10 February 1998, in David Eves et Uxor -v- Richard John Michel & Ors, practising as Crills: (10 February 1998) Jersey Unreported, (this was an application to strike out on four grounds, the second of which was: The action was founded in tort and therefore prescribed:) The Court said this:

"It is not necessary for us to deal with the other three grounds except, as I have said, that in view of the clear position as regards prescription in respect of tortious actions - this action being clearly tortious - even if we had not found in favour of the Defendants on Foss -v- Harbottle, we would have been, I think, faced with an impossibility of finding other than the action was itself prescribed"

That case would have alerted him to what was in his Order of Justice, and in our view, he should at that point have gone back to re-examine it in detail.

We really need to go no further on the matter except to look at what is alleged in the Order of Justice. The Order of Justice sets out at paragraph 1, the following facts: there is an alleged conspiracy by members of the Tourism Committee, including the Defendant, to close down the Glendale Hotel, which was the property run by Mr Eves at the time. It refers to a meeting of the Tourism Committee on the 5 October 1989, and that, of course, is the tort of conspiracy to damage the Plaintiff’s business interests. The case relied upon there would be Golder -v- Peak & Ors (1966) JJ 555, and alternatively, the tort of administrative malfeasance the case there being Sauvage -v- Agriculture and Fisheries Committee [1991] JLR 60.

Paragraph 2 sets out is an alleged breach of the Defendant’s Oath of Office and support by the Defendant of "‘Lynch Justice’ which he knew to be unlawful", by confirming that he supported the Committees decision to close down Glendale Hotel for reasons unrelated to those put forward by the Committee. Misfeasance in public office and administrative malfeasance, 8 October 1989.

Paragraph 3 alleges outrageous breach of conscience and deliberate failure to discharge duties as a States Member by failure to oppose the Tourism Committees decision to close down the Glendale Hotel. Those torts apparently are misfeasance in public office, administrative malfeasance. The date 10 October 1989

Paragraph 4 alleges abuse of the Defendants position as a member of the Tourism Committee by allowing Glendale Hotel to re-open under new management upon conditions the Defendant knew to be unlawful and fraudulent. Misfeasance in public office, and administrative malfeasance. The date: 30 October 1989.

Paragraph 5 alleges collusion with the President of the Tourism Committee, with other members of the Committee, with Tourism Department, and Mr Brown to ensure that Glendale Hotel was not ready to accept a party of old age pensioners, thereby defaming the reputation of the Plaintiff. Conspiracy, defamation, and malicious falsehood, are the relevant torts, That was on or around the 17 May 1990.

Paragraph 6 alleges collusion by the Defendant and other Tourism Committee members with the "Jersey Evening Post" to give maximum publicity to the circumstances outlined above and publicly to destroy the reputation of the Plaintiff and his wife. That again is the tort of conspiracy and defamation. The cases are Woolmer -v- WE Guiton & Company Limited [1966] JJ 667, and Johnson -v- Lucas [1982] JJ 67, and that deals with various Tourism Committee meetings in the Spring of 1990.

Paragraph 7 sets out the alleged carrying out by the Defendant of acts which he knew to be fraudulent, unlawful and in breach of his oath of conscience as an elected Member of the States, in connection with conditions imposed by the Committee on the reopening of the Glendale Hotel. Those torts are misfeasance in public office and administrative malfeasance, and occurred in the Spring of 1990.

Paragraph 8 alleges divulgence of confidential information to the "Jersey Evening Post", relating to an emergency meeting of the Tourism Committee on the 16 July 1990, constituting a further breach of the Defendant’s oath of office and a deliberate act to erode the reputation of the Plaintiff and his business. Those offences are defamation and the torts are defamation and malicious falsehood and the relevant date is the 16 July 1990.

Paragraph 9 alleges involvement of the Defendant in a personal vendetta against the Plaintiff and his wife, constituting further breach of the Defendant’s oath of office as an elected Member of the States, by supporting an act he knew to be dishonest, deceitful, and an abuse of power. Those torts are misfeasance in public office and administrative malfeasance and occurred on the 2 August 1990.

Paragraph 10 sets out an alleged breach of the Defendant’s Oath as a States Member, making false and misleading statements, duress, and being party to illegitimate acts of the Tourism Committee. The torts there again are misfeasance in public office and administrative malfeasance on or around the 30 August 1990.

Paragraph 11 alleges support by the Defendant of a Tourism Committee decision in breach of his oath of conscience, conspiracy to destroy the Plaintiff’s business interests, being party to an illegitimate threat and blackmail by the Tourism Committee. Those are torts of conspiracy and malicious falsehood. The date is the 8 September 1990.

Paragraph 12 alleges involvement by the Defendant in conspiracy to put the Plaintiff out of business, and breach of oath of conscience as a States Member. Those torts are conspiracy and misfeasance in public office and administrative malfeasance, and they occurred on or before the 27 September 1990.

Paragraph 13 alleges breach of the Defendant’s oath of office, by being party to bringing the Plaintiff and his wife before the Royal Court for contempt, and failing to discharge duties in an honest manner, and of causing chaos to the Plaintiffs business. Those torts are misfeasance in public office and administrative malfeasance, and those occurred on the 11 October 1989.

Paragraph 14 alleges an attack on the Plaintiffs reputation by the placing of an advert in the "Jersey Evening Post" seeking complaints against the Plaintiffs tour operating business, in an attempt to defame the Plaintiff and or his business. Those torts -defamation, malicious falsehood, misfeasance in public office and administrative malfeasance - occurred around the 12 February 1992.

Paragraph 15 alleges outrageous abuse of privilege as a States member, by asking questions in the States, causing damage publicly to the Plaintiff and his business, as a result of a Radio Jersey broadcast and a "Jersey Evening Post" article. Those torts are misfeasance in public office, administrative malfeasance, defamation and malicious falsehood, and occurred on or around the 20 March 1992.

Paragraph 16 alleges damaging publicity in the "Jersey Evening Post" against the Plaintiff and his business, arising from failure by Mr Clucas to gain permission to board a flight booked through Blue Horizon Holidays Limited. An alleged vendetta against the Plaintiff in his business in conjunction with the President of the Tourism Committee. Those torts are defamation, and malicious falsehood, and occurred on or around the 4 June 1992.

Paragraph 19 alleges a deliberate act of bad faith on the part of the Defendant and a breach of his Oath as a States Member, misleading the Tourism Committee by remaining silent. That is the tort of misfeasance in public office and the tort of administrative malfeasance, and those occurred around 8 October 1989.

We are clearly of the view - indeed there is no doubt in our minds - that there has been a clear prescription period from the time the alleged events occurred, to the time that the Order of Justice was served.

Rule 6/5 of the Royal Court Rules 1992 is perfectly clear:

"Prescription of a right of action is interrupted inter alia on service of the summons in the action for appearance before the Court".

And just so that we can understand the dates, the Order of Justice was served on the Defendant on the 18 December 1997, and all the allegations occurred, more than three years prior to that date. There is an absolutely clear prescription applicable to all those paragraphs of the Order of Justice.

We are not at all certain that had Mr Eves been here, he would have been able to help us. We are very grateful to Advocate Belhomme, and we regret we have not done full justice to the immense amount of work that he has carried out in preparing all the cases and the background for us, but we feel that what we have outlined here is quite sufficient for us to reach the decision that we have today.

We therefore order those paragraphs to be struck out, which leaves Mr Eves then with two paragraphs available to him, but those are still being dealt with by Advocate Livingstone. We would merely add this: When Mr Eves receives a copy of this Judgment - which we will ask the Greffier to send him as soon as it is transcribed - he should be cautious in our view, before he proceeds further.

Authorities

Hambros Bank -v- Eves (11^th January 1995) Jersey Unreported CofA

Hallam -v- Riley (1975) JJ 193

Golder -v- Peak et aus (1966) JJ 555

Sauvage -v- Agriculture & Fisheries Committee (1991) JLR 60

Woolmer -v- W.E. Guiton & Co Ltd (1966) JJ 667

Johnson -v- Lucas (1982) JJ 67

In re: Wooley [1991] JLR N.11; (2^nd December 1991) Jersey Unreported.

Le Cocq -v- Gillespie [1991] JLR N.5; (12^th March 1991) Jersey Unreported

Mauger (née Kenny) -v- Batty [1995] JLR N.9; (9^th October 1995) Jersey Unreported

Eves et Uxor -v- R.J. Michel et aus practising: (10^th February, 1998,) Jersey Unreported

Minories Finance Limited -v- Arya Holdings Limited [1994] JLR 149 CofA

R.S.C. [1997 Ed’n] Volume 1: 0.18/19/11:

0.18/19/13;

0.18/19/19;

Royal Court Rules 1992, as amended: Rule 6/13

Law Reform (Miscellaneous Provisions) (Jersey) Law, 1960: Article 2