Jersey Unreported Judgments

Royal Court

(Samedi Division)

3 March 1999

Before: Sir Godfray Le Quesne, QC, Commissioner

Action 94/6

Between:Mayo Associates SA

Troy Associates Ltd

TTS International SAPlaintiffs

And:Anagram (Bermuda) Limited

Robert Young

Maureen YoungDefendants

And:Lionrock Limited

Edgefield Properties Limited

Box Limited

Starshield Limited

Cantrade Private Bank Switzerland (CI) Limited

TSB Bank Channel Islands LimitedParties Cited

Action 94/254

Between:Mayo Associates SA

Troy Associates Limited

TTS International SAPlaintiffs

And:Cantrade Private Bank Switzerland (CI) Limited

Touche Ross & Co

(Being the person listed in Exhibit A to the Order of Justice) Defendants

And:Robert John Young

(joined at the instance of the First Defendant)

Anagram (Bermuda) Limited

(joined at the instance of the First Defendant)

Myles Tweedale Stott

(joined at the instance of the First Defendant)

Michael Gordon Marsh

(joined at the instance of the First Defendant)

Monica Gabrielli

(joined at the instance of the First Defendant)

Touche Ross & Co

(joined at the instance of the First Defendant)

Cantrade Private Bank Switzerland (CI) Limited

(joined at the instance of the Second Defendant)

AG

(joined at the instance of the Plaintiffs)Third Parties

JUDGMENT

THE COMMISSIONER: In these actions orders for further affidavits of documents were made on 27 April 1998. The three defendants to the first action, that is Dr Young, Mrs Young and Anagram (Bermuda) Ltd, did not comply with these orders. Consequently, on 17 September 1998, a further order was made that those defendants should comply within 21 days. There has still been no compliance and the plaintiffs accordingly ask today that I should order that the answers of the defendants be struck out unless the affidavits are sworn within two days.

Dr Young is in prison. The lawyers who acted for him previously, Messrs. Vibert and Valpy, act for him no longer. He applied to the Bâtonnier for legal aid and the Bâtonnier in the usual way appointed an advocate to act for him. That advocate, however, wrote to Dr Young saying that he was not prepared to act for him and that he was himself proposing to bring proceedings relating to the matter. I have been told that a representation by that advocate is to be presented to this Court on Friday. I have not seen the representation but it is said that the point which it will make is that the conduct of the defence in this action would involve so great a volume of work that it would be unreasonable to require the advocate to undertake it.

Whether that be right or wrong as to the contents of the representation, the position at the moment is that the legal aid system which is meant to provide legal representation for those who cannot find it for themselves is not working in the present case and Dr Young is left with no representation.

He has applied to me today to stay the proceedings until legal representation is made available to him. The first of these two actions - that is the action in which Dr Young is a defendant - was started in December 1993. That is to say, it has already been subject to deplorable delay and further delay would be no less deplorable. However, the action raises complicated issues, the sums of money in dispute are very large and it is obvious that a man in the position of Dr Young, that is to say a man who is not at liberty and has no legal assistance, cannot be expected to conduct an effective defence to the claims made.

In these circumstances it seems to me not to be right to grant the general stay for which Dr Young asks, but at the same time not to be right to make against him today the penal order for which the plaintiffs ask. The course I propose to take is to adjourn both the plaintiffs application for this order and Dr Youngs application for a stay to a date after Easter which we shall discuss presently. I am granting this relatively brief adjournment in order to give those responsible for the administration of legal aid an opportunity to consider the position which has arisen in this case and at the same time to consider whether this calls for further action on their part.

It is convenient in my judgment to adjourn the plaintiffs application in relation to all the defendants. The position of Mrs Young and the company is not the same as that of Dr Young, and, although they have not appeared today, I am satisfied that service has been made on Messrs. Vibert and Valpy which, under the terms of Rule 15(4), must be recognised as good service upon them. It seems to me, however, that it will be convenient to deal with the position of all the defendants in relation to discovery together. I shall therefore adjourn the plaintiffs' application in relation not only to Dr Young but in relation to the other two defendants also.

The second point which has been debated today arises out of discovery given by the defendants in the second action. The bank and one of the partners in Touche Ross, Mr Williams, were among the defendants in the criminal proceedings arising out of the same transactions. In the course of the criminal proceedings the Crown disclosed to the defendants, including the bank and Mr Williams, a great quantity of unused material. These documents were in fact stored in a room in Broad Street. The Crown sent copies of some of the documents to the defendants, and the defendants were allowed to go to the room, if they wished, make copies of other documents and take the copies away. Copy documents thus sent or obtained have been included in the affidavits of discovery in these civil proceedings sworn on behalf of the bank and Touche Ross.

After those affidavits had been sworn the Attorney General intervened in the action and argued that the documents which had been disclosed in the criminal proceedings had been disclosed on an implied undertaking that they would be used for the purpose of the criminal proceedings only. Therefore, he said, those documents could not be used in these civil proceedings.

This matter was argued before me in December, and on 8 December 1998 I held that the Attorney General was right in his contention that the documents had been disclosed on an implied undertaking but went on to hold that in the circumstances of the present proceedings that undertaking should be released. The plaintiffs have since then asked to be allowed access to all the documents in the room in Broad Street. This access the Attorney General has refused to allow, and the plaintiffs have asked today that I should order him to allow it. Mr Sinel has also submitted that, on the correct understanding of the judgment which I delivered on 8 December, the order that he should be allowed access to that room has in fact already been made.

In my judgment, the documents in the room in Broad Street were and remain in the possession and custody of the Crown. Mr Sinel has argued that when the defendants in the criminal proceedings were given access to that room and to the documents in it the documents passed into their possession and control. In my judgment this is wrong. The defendants were allowed to inspect the documents and to make copies of them but they did this by the permission of the Crown and the documents remained in the Crowns possession and control. The copies which the defendants were sent or were allowed to make and to remove, on the other hand, were documents in the possession and control of the defendants, though that possession and control was originally subject to the implied undertaking which has now been released. Those copies therefore were liable to be disclosed in this action and have been disclosed, both by the bank and by Touche Ross. The actual documents in Broad Street have never in my judgment been in the possession or control of the defendants and so have never been subject to disclosure in these actions.

What was done on 8 December 1998 is quite consistent with this. The act of Court of that date contains no order against the Attorney General. The judgment which I delivered deals only with the documents which had been included by the bank and Touche Ross in their affidavits. The question which was debated before me on that day was whether the material which had been disclosed in the criminal proceedings had been disclosed subject to an undertaking and whether, if so, that undertaking should be released. It was confined to the position of the documents which had been included in the affidavits of the bank and Touche Ross. There may be expressions in my judgment which could be read with reference to all the documents in the room in Broad Street if the context of those expressions was ignored. They were used in the context of an application relating to discovery in these actions and to the use to be made of documents which had been disclosed in these actions. In that context all that I said in my judgment was clearly confined to the documents which had been disclosed. The issue arose upon discovery. It had no relation to documents which could not be the subject of discovery because they were not in the possession or control of the defendants. No application was made or suggested at that time for discovery against the Crown.

The position is therefore that the copies of documents which were made in the course of the criminal proceedings are now documents in the possession or control of the bank and Touche Ross. They have quite properly been disclosed and as a result of the release of the undertaking which I ordered in December can be used in these actions. The documents in the room in Broad Street are not documents in the possession or control of the defendants; they are in the possession and control of the Crown and cannot be the subject of any order for discovery in this action. It may be today (I say no more than that) that Mr Sinel could obtain access to the documents in the room in Broad Street by adopting some procedure other than that which is before me today, but on the application which is before me today I make no order for access to the documents in Broad Street.

The final matter with which I must deal is that of amendment of the Orders of Justice. Mr Sinel applied a few days before this hearing for amendments to the two Orders of Justice. Mr Wilson, on behalf of the bank, consents to those amendments subject to the replacement of certain schedules by new schedules which Mr Sinel has said he intends to provide.

Mr Journeaux has told me that he has not had enough time to be able to adopt a position and cannot therefore consent to the amendments today, and Dr Young has said the same. It will therefore be necessary for a new date to be fixed upon which, if Mr Journeaux or Dr Young persists in objection to the amendments, I shall have to hear the objections. It remains for us now to consider the period of the adjournment which I propose to make of the application by Mr Sinel for a penal order against the defendants and by Dr Young for a stay of the proceedings, and also to fix the date for the adjourned consideration of the application to amend.

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