Jersey Unreported Judgments

You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1999/29 - Planning v Lesquende [1999] UR 29 (9 February 1999)
URL: http://www.bailii.org/je/cases/UR/1999/29.html
Cite as: [1999] UR 29

[New search] [Contents list] [Help]

ROYAL COURT

(Samedi Division)

9 February 1999

Before: FC Hamon Esq., Deputy Bailiff,

Sitting as a Single Judge

Between:Planning & Environment Committee of the States of JerseyPlaintiff

And:Lesquende, LimitedDefendant

Application by the Defendant for an Order staying execution of the Order of the Judicial Greffier

of 25 November 1998 [1998.236] - whereby the Defendant was ordered to pay to the Plaintiff

the capital sum of £2,697, 645. 52 - pending determination of the Defendants

appeal against the said Order

Advocate W J Bailhache for the Plaintiff

Advocate S J Habin for the Defendant

JUDGMENT

THE DEPUTY BAILIFF: On 25 November of last year, the Greffier Substitute made an Order giving summary judgment against the Defendant, and by reason thereof condemned the Defendant to pay the sum of £2,697,645.52p to the Plaintiff.

The Defendant was given unconditional leave to defend the claim of the Plaintiff for interest on that sum. I shall now refer to the Plaintiff as the ‘Committee’ and the Defendant at ‘Lesquende’.

Lesquende has appealed against that judgment and the hearing is set down for 1 June, 1999. The application before me today is for a stay pending the determination of that appeal.

The litigation between these parties has been of Olympian dimensions and is still nowhere near conclusion. Basically, and for the purposes of this judgement I will be brief. The facts are these: When the Court ordered the Lesquende land to be vested in the public on the 11 December 1992, the Committee paid £2,512,500.00 to Lesquende in accordance with the provisions of the Compulsory Purchase of Land Procedure (Jersey) Law 1961, as amended. This was in effect 75% of the sum offered by the Committee to Lesquende for the land, less Bank charges.

An Arbitration Board was appointed under the chairmanship of former Senator Ralph Vibert, OBE The Board heard evidence and submissions over six months in 1994, and on the 5 February 1995 the Board made its award which stated that compensation payable to Lesquende was £4.9million. The award was registered on the 7 of February, and on that day the Committee paid Lesquende the balance of £2,697,645.52 - and the matter was seemingly done and dusted. But it was not to be.

Lesquende was not satisfied with the award that had been made. It applied by way of Order of Justice, for a judicial review, and in December 1996, Mr Commissioner Kempster sat with two Jurats to determine the matter. The result was that the Court made certain findings, and in particular quashed the award for irregularity and sent the matter back to the Board with directions to enable the Board to make a further considered award.

It is important for me to note that it was Lesquende that asked for the review. Apparently the Committee was prepared to stand by the original award but when it saw Lesquende set on its course it took its own steps to challenge the award on different grounds.

Now it is necessary to set out what the Court of Appeal said in its judgment of the 13 February 1998, when the Committee successfully appealed part of the Judgement of the Royal Court which referred to matters of zoning that should be taken into account, and I am quoting now from the Court of Appeal Judgement:

"It is clear that the Board, as appointed under Article 7 and 8 has an ad hoc existence for the purpose of deciding the particular question of compensation placed before it by the Inferior Number of the Royal Court on the application of the Greffier. Two members of the particular board are appointed by the Inferior Number from a permanent panel created by the Superior Number, they sit with a Chairman - an Advocate or Solicitor - appointed on each occasion to the particular Board by the Inferior Number. The only continuing body is the panel appointed by the Superior Number from which two members are appointed to each Board. The Board does not have any permanent existence. The first Board, having made its Award, became functus officio. Its Award has been quashed, and there is no appeal against the quashing by the Royal Court. The second Board once appointed by the Royal Court on the Greffiers application will have to decide the compensation afresh, applying the relevant Regulations then in force.

Point (b) is similarly misconceived. Provided that the parties comply with the 1961 Law and the relevant Regulations, they will be free to run different cases from those cases they have previously run, and indeed they will probably have to, in the light of the rejection of some of the contentions previously made.

In my judgment it is important that this should be the conclusion. It is essential that hearings before the second Board are not dominated by wasteful pleading points, and that the next Award is not vitiated potentially by misconduct of the second Board in preventing the parties from putting forward the cases they wish to put forward, however different from the cases previously put forward".

Mr Habin argued that this part of the Court of Appeal Judgment was obiter and of only persuasive value. I do not agree.

In any event the Privy Counsel, in its Judgement of February 11, 1998, may well have foreseen the problem. We are talking on a different point. Lord Clyde let slip a thought of Freudian dimensions:

"If a fresh award is required problems may arise as to the practicalities of the matters being determined by the same Board as heard the matter before, and if the whole matter has to be looked at afresh by a Board differently constituted…." and he goes on to discuss the matter which is then in point.

The Court of Appeal has stated that the powers of the Court to stay execution of a judgment is a discretionary power. I refer to the full and helpful argument on this point contained in the Court of Appeal Judgment in Seale Street Developments, Limited -v- MA Chapman (née Godel) and DH Chapman en désastre (1992) JLR 243 at pages 249 to 251. We can also look at a passage from the English Appeal Court Decision in the case of Linotype-Hell Finance Ltd -v- Baker [1992] 4 All ER 887 at page 888, where the judgment delivered by Staughton, L J, reads as follows:

"In the Supreme Court Practice 1991, volume 1, para’s 59/13/1 there are a large number of 19^th century cases cited as to when there should be a stay of execution pending an Appeal. At a brief glance, they do not seem to me to reflect the current practice in this court, and I would have thought it was much to be desired that all the 19^th century cases should be put on one side and that one should concentrate on the current practice. It seems to me that if a Defendant can say that without a stay of execution he will be ruined and he has an appeal which has some prospect of success, that is a legitimate ground for granting a stay of execution".

The problem of financial return of the monies seems to me to be a problem of Lesquendes own making. Mr David Hunter, a director of Lesquende, swore an affidavit for the purposes of this hearing on the 1 February. Part of that affidavit reads as follows, and I am reading from paragraph 18:

"I further believe that if an order for a stay of execution is not granted the ability of the Company to properly pursue the present appeal or indeed the further hearing before the new Board of Arbitrators, will be seriously prejudiced. It is also my belief that the Committee would not suffer any prejudice or any financial hardship should the Royal Court order a stay of execution of the order of the Judicial Greffier dated 25 November 1998, as, inter alia:

The first phase of the development of the land of some 67 units, which are being sold privately, is nearing completion.
The remainder of the development of the land will include approximately 90 to 100 units, which I believe are to be sold to a Jersey Housing Trust.
The Committee will receive approximately £9million from the development of the land.
The Royal Court is due to appoint the new Board of Arbitrators on Friday 12 February 1999, almost a year after the final decision of the Jersey Court of Appeal on 13 February 1998, to appoint and nominate a new Chairman and members from the panel who will constitute the Board of Arbitrators.

I have studied, with Mr Bailhache, the affidavit sworn for the purposes of the Court of Appeal hearing on 16 April 1996, by Mr Pierre Antoine Guiton, who is a director of Lesquende. What he said there was this:

"There showed in the draft accounts that, after a distribution of £2,275,000.00 made to the shareholders following receipt by the Company of £2,697,281.00 consequent upon the award of the Board of Arbitrators, the Company has retained as at 31 December 1995 the sum of £241,787.00 in order to meet any costs which may be incurred by the Company in: (a) the cost of proceedings, and (b) the appeal as referred to in paragraph 9, above. After payment in 1996 of costs incurred in the cost proceedings, and the Companys Auditors, there remains in the bank account of the Company a sum in excess of £180,000 at today’s date."

I have also with Mr Bailhache examined the draft accounts of Lesquende, for the year ending 31 December 1995. They confirm that there is not a sign of the £2,512,500.00 paid on 11 December 1992. It appears to me that whatever financial hardship the Company may have suffered is caused primarily by the payment out to the shareholders. It is all very well for Mr Hunter, who is an acknowledged expert in valuation to say, as he does in his affidavit, that he is of the opinion that when a new Board of Arbitrators is convened to re-value the land, the value they will arrive at will be significantly higher than the amount awarded by the original Board, but I have to look at that remark in the light of the fact that Mr Hunter is also a director of Lesquende and Mr Bailhache implied, without demur from Mr Habin, that he was also a shareholder.

There may be an emotional objection to the Committees having the land and making it financially productive, but to my mind that is not really the point in issue. The Committee is entitled to have the return of its money given in accordance with an arbitration award that has now been quashed.

I may be proved wrong, but I cannot see initially - and very superficially - any prospect of success on appeal. The part of the judgment that leads me to that conclusion is contained in the words of the Greffier Substitute at page 9 of his Judgment, which is very clear to me. I read it now:

"It is clear to me that the original payment, the return of which is now being sought, was made correctly pursuant to the law upon the basis of the award. It was the Defendant who had received the benefit of the award who chose to launch an attack upon it, although the Plaintiff then joined in that attack. The award itself has been quashed, and has ceased to exist. If the Defendant is allowed to keep an additional sum then a problem will arise in relation to interest, which will require the intervention of the Royal Court applying equitable principles to correct, and the Royal Court might feel unable to do so in the light of the clear wording of the law. In these circumstances it is clearly unjust for the Defendant to be permitted to keep the fruits of the award, i.e. the sum whose return is now being sought, and at the same time to be able to continue to argue for a larger sum, having participated in setting aside the award. Apart from the interest question, if the eventual final award were to be less than the amount of the award, and the assets of the Defendant were to have decreased, it could be a further injustice in that the Defendant might not be in a position to make a full repayment of any reduction in the award together with interest. Therefore, in my view any Court of equity would be bound to come to the conclusion that it is unjust for the Defendant to be able to retain the sum and that the Defendant must make restitution to the Plaintiff. In my view the point of law is very clear in this case; it is sufficiently clear for me to grant summary judgment for the capital sum being sought".

I therefore exercise my discretion and refuse a stay. Now, could I just say this in conclusion. Lesquende deserves some sympathy in this matter and I would hope that the Committee will exercise a certain sensitivity in it’s demand for the return of the capital sum.

Authorities

Lesquende Limited -v- Planning and Environment Committee (17 February,1997) Jersey Unreported

Lesquende Limited -v- Planning and Environment Committee (11 February 1998) Jersey Unreported, Privy Council; (1998) JLR 77 Privy Council. [1998.031]

Lesquende Limited -v- Planning and Environment Committee (13 February 1998) Jersey Unreported CofA; (1998) JLR 85 CofA [1998.033]

Seale Street Developments Limited -v- Chapman et al (3 December 1992) Jersey Unreported

Linotype-Hell Finance Limited -v- Baker [1992] 4 All ER 887