Jersey Unreported Judgments

2001/129

ROYAL COURT

(Samedi Division)

 

7^th June 2001 

 

 

 

 

 

Appeal by the Plaintiff, under Rule 15(2) of the Royal Court Rules 1992, as amended, from the Order made by the Judicial Greffier on 20^th October, 1998, striking out the Plaintiff's Order of Justice.

 

 

The Plaintiff on his own behalf;

The Solicitor General for the Defendant.

 

 

judgment

 

the COMMISSIONER:

1.        On Tuesday 8th May 2001 I heard and dismissed an appeal by Mr. Barrie Cooper from an order of the Judicial Greffier dated 20th October 1998 striking out Mr. Cooper's Order of Justice dated 2nd August 1998 and dismissing his action No. PL98/90.  The order appealed from was made on the application of the Defendant by summons dated 6th August 1998 on the ground that the Order of Justice failed to disclose any reasonable cause of action.  Mr. Cooper represented himself and the Solicitor General, Miss Stephanie Nicolle QC appeared on behalf of the Lieutenant Governor.  I now give the reasons for my ruling.

2.        The terms of the Order of Justice were as follows:

"1. That by letter dated 28 January, the defendant informed the Plaintiff that he would not furnish a copy of the document known as the Report/Opinion of the Law Officers relating to the Order of Her Majesty in Council dated 19 May 1976, and withheld from the judicial process under the assertion of privilege derived from the Crown Proceedings Act (1947) that does apply within the jurisdiction of the Jersey Courts.

2. Whereby the Plaintiff has suffered a wrong insofar as withholding the aforesaid document the Defendant is obstructing an application by the Plaintiff to the European Commission/Court of Human Rights under Article 25 of the Convention of the Council of Europe - of which the Defendant was notified.

3. Wherefore the Plaintiff prays that the Defendant be required to show lawful justification for his actions, and that the Defendant be condemned to surrender the aforesaid document forthwith to the Plaintiff.

4. Further that in the event that the Royal Court declare it has no jurisdiction in this matter - the Court concede that all domestic remedies have been exhausted in accord with Article 26 of the aforesaid Convention, and that such concession be contained in the judgment of the Court."

3.        Mr. Cooper served a number of different Notices of Appeal and written submissions or grounds of appeal, but his principal contentions as developed on the hearing of the appeal on 8th May 2001 were (1) that the Judicial Greffier (in fact, the Judicial Greffier Substitute by authority of the Judicial Greffier under Article 9 of the Department of the Judiciary and the Legislature (Jersey) Law, 1965) had no jurisdiction to strike out the Order of Justice; (2) that, if that was wrong, the Judicial Greffier exercised his powers incorrectly in taking account of material that he should not have done, in striking out Mr. Cooper's claim without giving him an opportunity to amend or particularise it, and in preventing him from taking his claim to trial; and (3) that the making of the striking out order involved a breach of Article 6 of the European Convention on Human Rights.  There was also a further, though more muted, point to the effect that the application to strike out had been made without the Lieutenant Governor's authority; but, Mr. Cooper's assertion apart, there was nothing whatever to suggest that this was the case and I proceeded on the assumption that the Solicitor General, Miss Stephanie Nicolle QC who appeared before me on behalf of the Defendant was duly instructed and that the issue of the summons in the first place was properly authorised.

Jurisdiction of the Judicial Greffier

4.        Mr. Cooper argued that the source of the Judicial Greffier's jurisdiction is to be found in Article 11(1)(d) of the Royal Court (Jersey) Law 1948.  That particular part of Article 11 provides as follows:

"(1) Rules of Court may be made by the Superior Number of the Royal Court, with the advice and assistance of the Rules Committee -

(a)......

(b)......

(c)......

(d) for prescribing what part of the non-contentious business of the Royal Court may be transacted in chambers, either before the Bailiff alone, or before the Bailiff and Jurats, or before the Judicial Greffier, and, in respect of the business to be transacted before the Bailiff and Jurats in chambers, for prescribing the number of Jurats whose presence shall be requisite."

5.        The effect of this provision, said Mr. Cooper, is to limit the Judicial Greffier's authority to non-contentious matters, whereas a strike out application is, in the nature of things, a highly contentious affair; moreover, the list of matters given in Rule 13/3 of the Royal Court Rules 1992, under the heading "Non-contentious business which may be transacted before the Greffier" does not include striking out claims or anything like that.  Alternatively, Mr. Cooper argued, the Judicial Greffier's jurisdiction is limited to dealing with interlocutory matters and striking out an Order of Justice is not (he said) such a matter.

6.        The suggestion that the Greffier's authority is limited to non-contentious matters is not, in my view, a sustainable one.  The purpose of sub-paragraph (1)(d) of Article 11 of the 1948 Law is to empower the making of Rules for the handling of non-contentious business, not to define the jurisdiction of the Judicial Greffier.  The whole structure of Article 11 is geared to the making of rules to govern a series of different aspects of the legal process: procedure on appeals, sittings of the Royal Court, the conduct of non-contentious business, costs, evidence, use of English, repeal of certain enactments.  Most importantly, sub-paragraph (1)(a) provides for Rules of Court to be made

"for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the Royal Court in all causes and matters whatsoever in or with respect to which the Court has for the time being jurisdiction (including the procedure and practice to be followed in the Departments of His Majesty's Viscount and of the Judicial Greffier) and any matters incidental to or relating to any such procedure or practice, including (but without prejudice to the generality of the foregoing) the manner in which, and the time within which, any applications which under this law or any enactment are to be made to the Royal Court shall be made."

7.        None of these provisions sets out to define or circumscribe jurisdiction comprehensively.  On the contrary, jurisdiction is assumed to exist: see for example "... all causes and matters whatsoever in or with respect to which the Court has for the time being jurisdiction (including the procedure and practice to be followed in the departments of ...... the Judicial Greffier)" [sub-paragraph (1)(a) of Article 11].

8.        Miss Nicolle submitted that the matter is quite simple: Rule 6/13(1) of the Royal Court Rules 1992 provides, so far as relevant, that "The Court may at any stage of proceedings order to be struck out or amended any claim or pleading ... on the ground that - (a) it discloses no reasonable cause of action ......"; "the Court" is defined by Rule 1/1(10) as meaning any division of the Royal Court, the Bailiff or the Greffier, except in those provisions mentioned in the First Schedule; the First Schedule lists a number of Rules where reference to "the Court" excludes the Greffier, but that list does not include Rule 6/13; when, therefore, Rule 6/13(1) speaks of "the Court" being empowered to strike out any claim or pleading, that must include the Judicial Greffier.  The summons to strike out was, moreover, correctly issued in conformity with Rule 15/1.  It is true, she conceded, that the inquiring bystander wanting to know where to find a comprehensive statement of the jurisdiction of the Judicial Greffier in the 1948 Law or in the Royal Court Rules would be disappointed, because there is no such thing.  The Greffier's jurisdiction is derived from a combination of the Rules of Court, established practice, and decided case law.  As regards practice, I was invited to take judicial notice (as I do) of the fact that the power to strike out claims or pleadings is one that is regularly exercised by the Greffier.  But Miss Nicolle's submission in respect of Rules 6/13 and 1/1 appears to me to be sufficient, without more, to establish prima facie jurisdiction in the Greffier; and it would require a compelling argument way beyond anything in Mr. Cooper's submissions to persuade me that what appears prima facie to be well founded on a natural reading of the Royal Court Rules and what is well established practice is in fact misconceived.  The Rules are expressed as having been made pursuant to (among other things) Article 11 of the 1948 Law and, although it is not stated as such, the source of authority for Rule 6, dealing with striking out, is plainly paragraph 11(1)(a) of that Article.  I can see no case, therefore, for supposing that Rule 6/13 is anything other than properly made under the rule-making power granted by Article 11.

9.        As regards Mr. Cooper's additional or alternative contention that striking out a claim is a final, not interlocutory order, the contrary has long been established: see, for example, Hunt -v- Allied Bakeries [1956]  1 WLR 1396; 3 All ER 513, CA.

10.      Mr. Cooper's submissions on jurisdiction were in any event largely academic in the context of the present case once the matter had come before me.  For the reasons to which I now turn the Order of Justice was plainly one that was bound to be struck out; the Court has power under Rule 6/13 to strike out a claim "at any stage"; the hearing before me was one on which I was entitled to consider the whole matter afresh (de novo) and to act accordingly

The merits

11.      The heart of the matter can be put very shortly.  Two insuperable obstacles face Mr. Cooper.  First, his Order of Justice does not disclose any substantive cause of action: he readily accepts that he makes no proprietary or contractual claim to the documents in question; nor is there any statutory right to them.  Secondly, there is no basis on which their production could be ordered by way of discovery under Rule 6/16 because, as the Judicial Greffier rightly observed, there are no current proceedings before the Royal Court.  Mr. Cooper's application to the European Court of Human Rights - in furtherance of which he claims in his Order of Justice to need the documents of which he seeks production - is not a cause or matter in the Royal Court; nor is any appeal to the Privy Council (arising out of previous proceedings by Mr. Cooper against the Attorney General) that Mr. Cooper may endeavour to re-activate hereafter.

12.      Mr. Cooper complains that the strike-out application was launched and the Greffier's ruling given without an opportunity for him to amend or particularise his claim. But he was unable to offer any clear idea of what else he might have wished to add, and it is impossible to see any way in which the objective that he seeks to pursue could be expressed in terms of a valid cause of action or a legitimate discovery application.

13.      Mr. Cooper also objected that the Greffier, in reaching his decision, had improperly taken account of material that he should not have looked at on a strike-out application based on the alleged absence of a cause of action, Rule 6/13(2) providing that no evidence shall be admissible on such an application.  He objected in particular that regard had been had (he said) to a Report (RC24) presented to the States on 12th May 1998 by the Policy and Resources Committee and to the decision of the Court of Appeal in Cooper -v- Attorney General (1987-88) JLR 51 and pointed to the opening paragraphs of the Greffier's decision as evidence of this.  This, to say the least, was hardly a meritorious submission as Mr. Cooper himself had no compunction about seeking to address me at some length on a variety of related matters many of which were, I have no doubt, far from uncontentious.  But there is in any event nothing in the Greffier's decision to suggest that he was influenced by anything in the Policy and Resources Committee Report (which is not even mentioned in his judgment); I was informed by Miss Nicolle that little more than passing reference was made to it at the hearing; the facts recited in the opening paragraphs of the Greffier's ruling are taken more or less straight from the reported decision of the Court of Appeal in the case already referred to above and were perfectly legitimate - not to say necessary - background material; and Mr. Cooper can hardly be surprised that the Policy and Resources Committee Report was among the papers before the Greffier as it was referred to in a letter he himself wrote to the Greffier in connection with his Order of Justice.

The European Convention on Human Rights

14.      Lastly, Mr. Cooper argued that the order striking out his claim was made in breach of Article 6 of the European Convention on Human Rights, in that he was entitled to but did not receive (in the proceedings before the Greffier) "a fair and public hearing ... by an independent and impartial tribunal established by law."  In advancing this point he laboured under the misapprehension that the Human Rights Act 1998 enacted by Parliament at Westminster, which came into force in October 2000, applies to Jersey.  This is not the case.  The present position in Jersey is that the Human Rights (Jersey) Law 2000, was passed in February last year, received the Royal Assent in May 2000 and was registered in June 2000, but is yet to be brought into force.  Until then the underlying Convention is only of significance for the purposes of Jersey domestic law to the (limited) extent described by Southwell JA in the decision of the Court of Appeal (Lord Carlisle of Bucklow, Southwell and Clarke JJ.A) in Benest -v- Le Maistre (1998) JLR 213, that is (a) to resolve ambiguities in legislation; (b) in considering the principles on which the court should exercise a discretion; and (c) when the common law is uncertain.  Of these, only the second could arguably have any relevance to the present case.  But, even then, once it is clear that a pleading fails to disclose a cause of action the only practical scope for a court to exercise discretion one way or the other is in respect of the giving or refusing of leave to amend so as to cure the otherwise fatal defect.  In the present case there is, as already noted, no prospect of any such curative amendment and, accordingly, no realistic scope for the exercise of any discretion.

15.      I have, in any event, seen and heard nothing, other than Mr. Cooper's unspecific assertion to this effect, to suggest that he received anything other than a fair and proper hearing before the Greffier.  And as regards dismissal of Mr. Cooper's claim without trial, (1) Mr. Cooper accepted that the Greffier had correctly stated the test to be applied ("it can be summarised briefly by saying that the test is a high test and that it is only in plain and obvious cases and where the case of the plaintiff is obviously unsustainable that striking out should occur"); (2) the requirements of that test were and are clearly satisfied (although the Greffier's observations on the subject of res judicata were not strictly relevant to an application to strike out for want of a cause of action and were not relied on by Miss Nicolle); and (3) I am satisfied that Mr. Cooper had a full and fair opportunity to present his case.  The decision of the Greffier was, moreover, one from which Mr. Cooper had - and has exercised - an unfettered right of appeal; and, on that appeal he has had - and has exercised - a fresh opportunity to put his case in full.

Conclusion

16.      The Greffier was in my view entirely justified in concluding that Mr. Cooper's Order of Justice is misconceived and hopeless, and that it ought to be struck out and the action dismissed.

Authorities

Royal Court (Jersey) Law, 1948: Article 11(d) & 15(2).

Royal Court Rules, 1992: 1/1(1); 6/13(1); 1^st schedule.

European Convention on Human Rights: Articles 6, 25, 26.

Cooper -v- Resch (1987-88) JLR 428.

Cooper -v- AG (1987-88) JLR 51.

Syvret -v- Bailhache & Hamon (1998) JLR 127.

Hunt -v- Allied Bakeries [1956] 3 All ER 513 CA.

Benest -v- Le Maistre (1998) JLR 213.