Jersey Unreported Judgments

2000/180

8 pages

                                                             COURT OF APPEAL.

 

14^th September, 2000.

 

Before R.C. Southwell, Esq., Q.C., Single Judge.

 

   Between                                  Catherine Adele Glazebrook                         APPELLANT.

 

   And                          The Housing Committee of the States of Jersey.      RESPONDENT.

 

IN THE MATTER OF

an appeal by APPELLANT against the Judgment of the Royal Court of 31^st January, 2000, whereby the Royal Court dismissed the APPELLANT's appeal, made in exercise of the right of appeal conferred by Article 21 of the Island Planning (Jersey) Law, 1964, as amended, against the decision of the RESPONDENT of 18^th June, 1999, refusing housing consent under sub paragraph 1(1)(g) of the Housing (General Provisions)(Jersey) Regulations, 1970, as amended.

 

Application by the Respondent Committee for an Order that further proceedings in the appeal be stayed pending final determination of the investigation into allegations of criminal misconduct made against two of the witnesses in the proceedings which are the subject of the appeal and the final determination of such proceedings (if any) as may follow thereafter.

 

Advocate P.C. Sinel for the Appellant;

Advocate A.J. Belhomme for the Respondent.

 

 

JUDGMENT.

 

SOUTHWELL JA:

 

1.    Mrs Glazebrook applied for housing consent under paragraph 1(1)(g) of the Housing General Provisions (Jersey) Regulations 1970.  The Housing Committee refused to give such consent.  Mrs Glazebrook appealed to the Royal Court under Article 12 of the Housing (Jersey) Law 1949.

 

2.    The Royal Court held that no appeal lay under Article 12, but treated it as an application for judicial review of the Housing Committee decision.  The Royal Court dismissed the application and upheld the Housing Committee.

 

3.    Mrs Glazebrook has appealed to the Court of Appeal, and the appeal is due to be heard in the Court of Appeal's regular sitting which will start on 23^rd October, 2000.  On 24^th July, 2000, as a single Judge, I made a consent order as to the times for lodging and delivering the parties' cases, and on 23^rd August 2000 I extended the Committee's time until today, 14^th September 2000.

 

4.    The appeal now comes before me as a single Judge on an application by the Housing Committee for a stay of the appeal.

 

5.    The circumstances which have given rise to the application for a stay are these.  Advocate Sinel on behalf of Mrs Glazebrook has lodged on 28^th July 2000 what is described as a supplementary notice of appeal.  In this notice reliance is placed on new evidence obtained since the hearing in the Royal Court in which the evidence given orally in the Royal Court by two Housing Committee officers is challenged.  Mr Sinel's contentions on behalf of Mrs Glazebrook make it clear that the challenge to the evidence of those two officers will be a fundamental one.  At the same time Mrs Glazebrook's father who is acting for her here in Jersey has made a formal complaint to the President of the Human Resources Committee in which (amongst other matters):

 

(1)        he alleges maladministration by the officers of the Housing Committee, and

(2)        he alleges that in their oral evidence in the Royal Court the two officers gave incorrect evidence in which they lied and committed perjury.

 

6.    The complaint by Mrs Glazebrook's father has led to two sets of enquiries: the first by the police, apparently as to whether any criminal offence was committed by the two officers, and the second, an administrative disciplinary enquiry by a Mr Brian Grady of The Gateway Partnership.

 

7.    The application by the Housing Committee for a stay of the appeal is based on the ancient principle (which is as relevant today as ever) that "le criminel tient le civil en état".  Put in other words, civil proceedings are not to proceed, in whole or in part, if to do so might give rise to a real risk of  prejudice to persons who are or who might be defendants in criminal proceedings.  On the other hand if there is not a real risk of prejudice the civil proceedings should be allowed to proceed, because parties to civil proceedings are entitled in those circumstances to take forward the civil proceedings despite the existence (actual or potential) of criminal proceedings.

 

8.    I emphasize at this point that in this case I am concerned only with potential criminal proceedings.  The police are making enquiries.  Their enquiries may or may not result in criminal proceedings being brought.  Furthermore it is important to bear in mind the presumption of innocence.

 

9.    As regards Jersey law there were cited to me the following: first, extracts from Le Gros's Traité du Droit Coûtumier de l'Ile de Jersey (1943); and secondly, the decision of Deputy Bailiff Tomes in Hickman v Hickman (1987-88) JLR 602 at pp.616-618.  What appears from the Deputy Bailiff's judgment is that it is the decision of the criminal proceedings which must take precedence, and that the existence of criminal proceedings does not of itself bar the continuance of interlocutory steps in connected civil proceedings.

 

10.In addition to the Jersey authorities there have been cited to me a number of English authorities (including some which I brought to Counsel's attention).  The family law cases, Keeber v Keeber [1995] 2 FLR 748 CA and H v C [1993] 1 FLR 787 CA, relate to contempt proceedings brought against a spouse contemporaneously with criminal proceedings arising out of the same circumstances.  Those cases establish the principle in English law that civil proceedings are not to be stayed, in whole or in part, unless there is a real risk of serious prejudice.  The mere fact that the spouse in defending the contempt proceedings will inevitably have to answer the allegations about the spouse's conduct on which both sets of proceedings are based, has not been accepted by the English Court of Appeal as being by itself a sufficient reason for staying the civil contempt proceedings.  In each case the Court of Appeal held that, apart from the obvious risks involved in the defendant having to disclose his case in the contempt proceedings before the criminal proceedings were decided (risks which it held to be insufficient to justify a stay), there were no other factors justifying a stay.  I take account of the different considerations arising in connection with contempt proceedings concerning violence within a family, and the need for urgency in reaching a decision in such proceedings.

 

11.There were four other English authorities cited to me.  The first was Harris (Ipswich) Ltd v Harrison [1978] ICR 1256, a decision of the Employment Appeal Tribunal (Phillips J).  In that case an employee was dismissed by his employer at a time when there were pending criminal proceedings against him arising out of an alleged theft by him of property of his employer.  The Tribunal considered (obiter) whether it was improper for the employer in those circumstances to seek to question him in connection with the facts concerning the theft with a view to deciding whether or not to dismiss him.  The Tribunal expressed the view that this was not improper under English law, provided that care was taken to do nothing which might prejudice the subsequent criminal trial.

 

12.The second case was Jefferson v Bhetcha [1979] 1 WLR 898, [1979] 2 All ER 1108 CA.  In that case the claimant was seeking summary judgment in respect of matters which were to be the subject of pending criminal proceedings.  At first instance the judge either adjourned the application for summary judgment or stayed the whole action (it was not clear which).  The Court of Appeal held that the judge had been in error, that the court had a discretion to take steps in relation to concurrent civil proceedings to ensure that the criminal proceedings were not prejudiced, that the "right to silence" which was available in criminal proceedings did not apply in civil proceedings, that the burden of showing that a stay or adjournment of the civil proceedings, in whole or in part, was necessary lay on the defendant, and that in that case this burden had not been discharged.  The Court of Appeal pointed to the following as examples of factors relevant to the exercise of the discretion: that the claimant has the ordinary right to have his civil proceedings heard and decided in the usual way, that there may be "a real danger of the causing of injustice in the criminal proceedings", that publicity about the civil proceedings might influence potential jurors in the criminal proceedings, and that disclosure of the defence in the civil proceedings might lead to a potential miscarriage of justice in the criminal proceedings.

 

13.The third case was R v BBC ex parte Lavelle [1983] 1 All ER 241 Woolf J.  The judge followed Harris (Ipswich) and Jefferson when considering whether disciplinary proceedings concerning an employee should be stayed, pending the determination of criminal proceedings arising out of some of the circumstances in point in the disciplinary proceedings.  The conclusion of Woolf J on the principle applicable was stated in these words:

 

"..... it seems to me that while the court must have jurisdiction to intervene to prevent a serious injustice occurring, it will only do so in very clear cases in which the applicant can show that there is a real danger and not merely a notional danger that there would be a miscarriage of justice in the criminal proceedings if the court did not intervene."

 

14.The last case was In re DPR Futures Ltd [1989] 1 WLR 778 Millett J.  There the company was wound up following what was alleged to be a serious fraud on the company by directors.  Criminal proceedings were pending against the directors on charges of conspiracy to defraud.  The liquidators brought proceedings against the directors to recover money withdrawn from the company by the directors, and obtained orders requiring the directors to swear affidavits setting out what had become of the money withdrawn from the company.  The directors applied for a stay of these civil proceedings.  The judge held that (1) there was a real risk of prejudice to the directors' right to a fair criminal trial if the civil action was heard before the criminal proceedings, particularly by reason of the likely publicity; (2) nevertheless a stay should not be granted in respect of interlocutory steps up to the final stage before trial of the civil action; and (3) steps should be taken to ensure that the affidavits of the directors and the hearing of all interlocutory applications were kept secret so as not to affect the conduct of the criminal proceedings.

 

15.In the light of these Jersey and English authorities, I can summarize what is in my view the true application of the Jersey law principle that le criminel tient le civil en état in this way:

 

(1) where there are, or may be, concurrent civil and criminal proceedings, the Jersey courts have a discretionary power to control the conduct of the civil proceedings so as to ensure that there is no real danger of prejudice to the fair trial of existing or potential criminal proceedings;

 

(2) the burden of persuading the court to exercise this power is on the person seeking such exercise;

 

(3) if the same or similar questions of fact will have to be decided in both sets of proceedings, it will generally be wrong to allow a decision to be made in the civil action before it is made in the criminal proceedings, because that would create a real danger of prejudice to the fair trial of the criminal proceedings;

 

(4) but it may be appropriate even in such a case to allow the interlocutory stages of the civil action to proceed so that there is not undue delay;

 

(5) if and in so far as the civil action can be decided without impinging on the question of fact to be decided in the criminal proceedings, then the civil action can be allowed to go to trial.

 

16.I now turn to the circumstances of the present case.  The affidavits which Mrs Glazebrook wishes to be placed before the Court of Appeal in support of her appeal directly challenge the evidence given in the Royal Court by the two officers.  If those affidavits are allowed to be put before the Court of Appeal, it may be necessary for that court, or a court of first instance, to decide whether or not the evidence of the two officers was or was not correct.  Certainly that decision would be closely linked to the question whether perjury was committed, if the present police enquiries were to lead to criminal proceedings being brought against the two officers.

 

17.For present purposes, in my judgment I must assume that the Court of Appeal will permit Mrs Glazebrook to place the affidavits containing the new evidence before the Court of Appeal.

 

18.The Housing Committee through Advocate Belhomme seek a complete stay of the civil proceedings until any criminal proceedings (if any result from the present police enquiries) have been finally determined.  Mr Belhomme accepts that that might result in the civil proceedings being delayed for months if not years.  The primary points relied on by Mr Belhomme are these:

 

(1) There is, as I have indicated, a close link between some of the issues arising out of Mrs Glazebrook's new evidence and those which would arise in any criminal proceedings for perjury.

 

(2) He submits that the Committee is inhibited in its proper conduct of the civil appeal because:

 

[a] the two officers are being investigated in respect of the alleged perjury;

 

[b] the two officers are responsible for giving instructions on the Committee's behalf in relation to the appeal;

 

[c] the two officers have a right to silence (though not, I have to interpose, in civil proceedings) and a right to a fair trial, and they cannot be compelled to supply information or otherwise to answer the affidavits on which Mrs Glazebrook relies;

 

[d] so the Committee's lawyers cannot take instructions from them on these matters, and cannot address the relevant grounds of appeal;

 

[e] the relevant grounds of appeal, according to Mr Belhomme are:

 

Ground 5 - that the Royal Court erred in concluding that the Committee's decision was not influenced by the fact that Mrs Glazebrook's father is a Deputy except to the extent that it reached an objective and unbiased decision.

Ground 6 - that the Royal Court erred in finding that, although the Committee accepted that there were cases of apparent inconsistency, it did not find that the Committee was thereby acting irrationally or unreasonably.

 

[f] the Committee could not deal with only the other grounds of appeal, and therefore could not settle its written case for submission to the Court of Appeal.

 

19.Before I deal with Mr Belhomme's submissions, I must make it clear that this Court has to take into account, as relevant factors, those affecting Mrs Glazebrook.  As a result of the Committee's decision she points to the disruption in her own and her son's life, because they cannot live with her parents due to her mother's ill health, they cannot live in the house which her parents bought and which is standing empty, and they have had to return to England with potentially adverse effects on her son.

 

20.In my judgment Mr Belhomme is wrong in his submission that only the two officers could provide instructions or evidence.  The Housing Committee has a chairman and other members who are fully able to provide instructions and to swear affidavits.

 

21.Further, it is apparent from my taking Mr Belhomme in detail through the grounds of appeal on which Advocate Sinel relies on behalf of Mrs Glazebrook that most, if not all, of the grounds other than grounds 5 and 6 could be determined by the Court of Appeal without touching on the matters which are being investigated by the police.  It is therefore clear almost beyond argument that Mr Sinel is entitled in any event to proceed on those other grounds, even if I were to stay the appeal in relation to grounds 5 and 6.  But Mr Sinel did not regard with favour such a potential splitting of the hearing of the appeal (which would only occur if he failed on all the other grounds) because of what he described as the additional legal costs to which that might give rise.

 

22.My conclusions on Mr Belhomme's submissions are these:

 

(1) There is no basis for a complete stay of the appeal for the reason which I have just indicated.

 

(2) Mr Belhomme can obtain instructions and evidence from the chairman and other members of the Committee, even if the two officers are understandably unwilling to provide evidence or instructions.

 

(3) The Committee and its members have no "right to silence" in this civil action, and no question of perjury is raised in relation to them.  None of them gave evidence before the Royal Court.  They are in reality the persons who best know, and are best placed to give evidence concerning, what considerations they took into account in deciding to refuse to give Mrs Glazebrook the consent she asked for.  There is no reason why they should not answer the new evidence on affidavit if they wish to do so.

 

(4) The officers would have no right to silence in civil proceedings, and in any event not in these proceedings in which they are not parties.  But the officers do have a right to a fair criminal trial, if any criminal proceedings are brought against them.

 

(5) I am satisfied that at this stage, subject to the need to avoid publicity, there is no basis for staying this appeal.  The Committee is well able to provide instructions and evidence, so that Mr Belhomme can lodge the Committee's case as respondent to this appeal, and the appeal can be heard at the next sitting of this Court in October.

 

(6) However, in view of the continuing police enquiries, and the possibility that criminal proceedings might be brought against the two officers, in my judgment steps should be taken to ensure that there is no publicity which might impact on the fairness of any criminal trial (or indeed on the present police enquiries).

 

23.Accordingly I propose to direct as follows:

 

(i)   All documents, including the parties' cases and other written contentions, and any affidavits or statements of evidence or exhibits thereto, prepared for the purposes of this appeal, and all copies of such documents and the contents of any such document are not to be disclosed to any person other than the lawyers acting for Mrs Glazebrook and the Housing Committee, Mrs Glazebrook, the chairman and the relevant past and present members of the Committee (other than Mr Amy), Mr. Le Ruez, and Mr. Connew.

 

(ii)  If it becomes necessary or appropriate for either Mr Hill or Mr Amy to be consulted in relation to any such documents as are referred to in paragraph (i), so as to enable Mr Sinel to obtain instructions or further evidence, by way of exception to paragraph (i) Mr Sinel will be permitted to show to Mr Hill or Mr Amy for this purpose alone any such documents, provided that before any such documents are shown to either Mr Hill or Mr Amy that gentleman shall have lodged with this Court a written undertaking to comply with paragraph (i).

 

(iii) The hearing of the appeal by this Court will start in camera.  It will be for this Court then to decide whether the whole or any part of the appeal will be heard in camera, and whether the whole or any part of this Court's judgment will be permitted to receive any wider disclosure than to the parties and their lawyers.

 

(iv) both parties will have liberty to apply for further directions.

 

24.So that there is no doubt in anyone's mind about this, I emphasize that any disclosure in breach of this order or of any undertaking given in pursuance of this order will be likely to be held to be a contempt of this Court.

 

25.I have not dealt in full with Mr Sinel's helpful submissions (and intend no discourtesy in not dealing with all of them) because in my judgment, even without the assistance of those submissions, the Committee have failed to discharge the burden which is on them, as I have indicated.

 

26.I will now hear any submissions as to the terms of my proposed order, as to the extension of time for lodging the Respondent Committee's case, and as to costs.

 

Authorities.

 

Housing General Provisions (Jersey) Regulations 1970: regulation 1(1)(g).

 

Housing (Jersey) Law 1949: Article 12.

 

Le Gros: Traité du Droit Coûtumier de l'Ile de Jersey (1943): pp.425-6, 461.

 

Hickman v Hickman (1987-88) JLR 602 at pp.616-618.

 

4 Halsbury 9(1) (re-issue) paragraph 498: footnote 8.

 

Keeber v Keeber [1995] 2 FLR 748 CA.

 

H v C [1993] 1 FLR 787 CA.

 

Harris (Ipswich) Ltd v Harrison [1978] ICR 1256.

 

Jefferson v Bhetcha [1979] 1 WLR 898, [1979] 2 All ER 1108 CA.

 

R v BBC ex parte Lavelle [1983] All ER 241.

 

In re DPR Futures Ltd [1989] 1 WLR 778.

 

R. v Lancashire County Council ex parte Huddleston (1986) 2 All ER 1108.

 

Rukat v Rukat (1975) 1 All ER 344.