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Cite as: [1999] UR 210A

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ROYAL COURT

(Samedi Division)

10 December 1999

Before: F C Hamon, Deputy Bailiff and

Jurats Potter, and Allo

Between Maurice Charles John Keenan and

Fiona Morag Keenan (née Hughes) Plaintiffs

AndTimber Tech LtdDefendant

Applications by the Plaintiffs for an Order confirming their Order of Justice, which includes an immediate interim injunction, requiring the Defendant to replace windows and doors removed from the Plaintiff’s property, and to make it properly secure and wind and watertight.

Advocate J G P Wheeler for the Plaintiff

Michael J O’Connor & Tracey Williams, Directors of the Defendant Company, for and on behalf of the Defendant.

JUDGMENT

THE DEPUTY BAILIFF: An Order of Justice came before the Deputy Bailiff, as a Single Judge this morning. It showed, on the face of it, an extraordinary state of affairs but I declined to grant a mandatory injunction ex parte.

Today two directors of the company, Miss Williams and Mr O’Connor, appeared before us. We heard no oral evidence, but as it transpired the facts are not disputed.

Timber Tech installed a staircase, four doors and nine windows in the property owned by Mr and Mrs Keenan at Vallee des Vaux. A dispute arose after an initial payment of £4,000. No further sum has been forthcoming.

The company, in the light of the dispute, filed an Order of Justice dated 2 July 1999, and an answer was filed with a counter-claim to it on 13 August 1999. There the matter rests. The company, however, corresponded with Mr and Mrs Keenan, and apparently on four occasions made arrangements with a surveyor to visit the property, but entry was denied by Mr Keenan, who now lives in Ireland and is separated from his wife.

The company is a small company, with five employees, and because of the present situation, in which it is owed some £10,400 by Mr and Mrs Keenan, is in a parlous state. What happened is in our view remarkable and unprecedented. The company checked the weather, telephoned the police to tell them what was intended - they had apparently also spoken to the police a week before - and at around lunchtime on 8 December the workforce removed the windows and the doors.

At this point a police car arrived with a policeman and a policewoman. It appears that the company had been advised to effect this removal while nobody was inside the property, as the police felt that there could have otherwise have been a breach of the peace.

Mrs Keenan was telephoned at work, and told that if she came to agreeable terms the property would be re-instated. She declined to answer without speaking to her lawyer, and since then the matter has remained in this quite extraordinary state with the property boarded up.

There are five lodgers and two children aged 12 and 10 living in the property with Mrs Keenan. It may be helpful to read for a moment from the affidavit that was filed by Mrs Keenan in support of her Order of Justice this morning. It says this:

"Some ten to fifteen minutes later I was interrupted by the receptionist at work, she had Miss Williams on the line who told her to impress upon me the seriousness of the situation. I should return home. She was standing there with a policeman, and they were removing all the windows, doors, and stairs. I took the call and told Miss William once again that she was not to call me at work, that everything was to be dealt with through our Solicitors. Approximately 5 minutes later I received a telephone call from PC Latham, who informed me that he was at the property, that I needed to come home and secure it as the windows and doors had been removed. PC Latham informed me that in his opinion the defendants had not done anything illegal and they had been advised by the Crime Prevention Officer that they were within their rights to remove the windows and doors. So I immediately cancelled my appointments with my patients for the rest of the day and went home where I met my brother, whom I had telephoned, PC Latham and a WPC I saw for myself that all the windows and exterior doors supplied by the Defendant had been removed. At no time did I give permission for this. A short while later Miss Williams and Mr O’Connor of the Defendant Company returned to the property wanting to speak to me. Mr O’Connor made various accusations about my husband, and demanded that I settle the balance of their account immediately. I told him that I needed time to consider the matter and take advice, and that in any event I would not be able to lay my hands on sufficient cash immediately as my husband and I are in the middle of divorce proceedings. They told me that if I paid the amount claimed or gave them an undertaking, they would replace the windows and doors, but not otherwise."

Now we need for a moment to look at the law and how that stands, because this is an application for a mandatory injunction, and if we look at 4 Halsbury, volume 24, paragraph 847 on injunctions, we find this:

"Where the injury done to the Plaintiff cannot be estimated and sufficiently compensated for by damages, or is so serious and material, that the restoration of things to their former condition is the only method whereby justice can be adequately done, or where the injury complained of is in breach of an express agreement, the Court will exercise its jurisdiction and grant a mandatory injunction even though the expense and trouble of obeying the injunction will be far in excess of any sum which could reasonably be awarded by way of damages…"

And then at paragraph 848:

"A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances it will not normally be granted."

We should say in passing that we are convinced that the property in the goods passed to Mr and Mrs Keenan when windows, doors, and in fact the staircase were installed, because there is nothing in the contract to give us any different view.

We have no doubt that however justified the Defendants may have felt; however aggrieved they may be, it is not possible in this Island for anyone - be they ever so high or ever so low - to take the law into their own hands. The fact that legal advice has become too expensive to prosecute the case before the Royal Court is not a reason to take the law into one’s own hands.

We have of course been referred to some other cases, and perhaps this may be an opportunity in passing to say that in Mendonca -v- Le Boutillier (1997) JLR 142, the fact that property passed is made quite clear; I am referring now to page 145 of that Judgment which says this:

"This is a fair description of Roman Law which would have been well known to the Norman and English legislators, who no doubt shared much of their knowledge. It is well set out in Hunters Introduction to Roman Law, 9^th Edition, (revised), at 56 (1934):

"If a person who delivered a thing was really the owner then the delivery at once operated to give the ownership to the transferee"

And again at page 146:

"Jersey is a customary law jurisdiction. It takes its authority in the matter of contract from Roman Law. In England the Factors Act 1889, and the Sale of Goods Act 1893, were later refined by the Hire Purchase Acts dealing specifically with the problems that face me today."

But, as far as we are concerned, there is common law which is well codified in the Sale of Goods Act 1893, and which applies in this Island. And then again if we just for a moment look at the other two cases that were cited to us: The Union of Communication Workers -v- Richard Le Maistre (30^th November, 1992) Jersey Unreported, where the Court said this at page 5:

"The Cynamid guidelines are not relevant to mandatory injunctions. The case has to be usually strong and clear before a mandatory injunction will be granted at the interlocutory stage even if it is sought in order to enforce a contractual obligation. However, where it is necessary that some mandatory order has to be made ad interim, the Court will make the order whether or not the high standard or probability of success at trial is made out"

And then again in Nicholas Le Quesne Blampied -v- Thomas & Thomas (18^th July,1991) Jersey Unreported, the Court said at page 3 of the judgment:

"The matter for decision by the Court this morning should have been a comparatively simple one, as is stated by the learned author of Bean on Injunctions (3^rd Edition) at page 29: "An interlocutory application for a mandatory injunction is a very exceptional form of relief (Canadian Pacific Railway -v- Gaud [1949] KB239 at 249: the Courts will not normally compel a Defendant to do so serious a thing as to undo what he has done except after a full hearing (Abbot (1862)6 LT852). The learned author goes on to say in the same paragraph "the case must be ‘unusually sharp and clear’ (Shepherd Holmes Ltd -v- Sandham [1971] Ch 340) and the Court must feel a high degree of assurance that at the trial a similar injunction would probably be granted. If there is doubt about this, the interlocutory injunction must fail." Hounslow London Borough Council -v- Twickenham Garden Developments Ltd [1971] Ch 233."

Now, Mrs Keenan may have no substantial liquid assets, but she does have lodgers. She has paid employment, and the Keenans, we presume, are fondés en héritage. It is December, and there are children and lodgers quite innocent of this dispute living in the property. It is for that reason that we feel that the reasons are exceptional. We will grant the injunction, and we will order the company to restore the windows and the doors by close of business on Tuesday of next week. We can only advise that the company urgently seeks legal advice to expedite what might be - on the face of what we have seen but we say nothing more about it at this stage - what might be a very real claim against Mr and Mrs Keenan for monies not yet paid.

At this stage, the costs are to stand over until this case is decided. The costs order is made, but it is not to be put into effect either until the case is decided or until, if necessary if it is not going to be progressed.

If it is impossible to replace the windows by Tuesday I will give you what is called "liberty to apply"; that means you must come back to Court, but you must come back to Court with a very good reason as to why the work cannot be done.

Authorities

Blampied -v- Thomas & Anor (18^th July, 1991) Jersey Unreported

Chitty on Contracts (28^th Ed’n): Vol 2: pp.1239-40: para 43-348

Clerk & Lindsell on Torts (16^th Ed’n): pp 1291-2: para 22-114

4 Halsbury 24: pp443-4: para 846

Mendonca -v- Le Boutillier (1997) JLR 142