Jersey Unreported Judgments

2001/14

5 pages

ROYAL COURT

(Samedi Division)

 

15^th January 2001

 

Before:  Sir Philip Bailhache, Bailiff,

and Jurats  Le Brocq and Le Breton

 

 

Between                                          Stuart Ricardo Payne

(a minor)

by John Philip Kendall

(his Guardian ad litem)

                                                                   Plaintiff

 

And                                   (1) Pirunico Trustees (Jersey) Limited

                                        (2) United Investments (Jersey) Limited

                                    (3) Jassim Mohamed Abdul Rahman Al-Bahar

                                     (4) Issam Mohamed Abdul Rahman Al-Bahar                    Defendants

 

Application for a declaration that a guardian ad litem of a minor who commences an action in the Royal Court is not personally liable for any costs' order made against him in that capacity unless he has conducted himself other than as a "bon père de famille"

 

 

                                             Advocate A. D. Hoy for the Plaintiff

Advocate A. R. Binnington for the first and second Defendants

Advocate M. J.  Thompson for the third and fourth Defendants

 

 

JUDGMENT.

 

THE BAILIFF:

 

1.    This representation raises a narrow but interesting issue in relation to the appointment by the Court of a guardian ad litem pursuant to Rule 4/3 of the Royal Court Rules 1992, as amended.  The relevant part of that rule provides -

 

            "Actions by and against infants

 

4/3      (1) - An infant may commence, prosecute, defend, intervene in, or make any application in, any action before the Court by a guardian ad litem appointed for that purpose. 

 

(2) - An application for the appointment of a guardian ad litem may be made ex parte to the Court, and where such application is made by a minor it shall be made through his next friend.

 

......."

 

2.    The representation is brought by John Philip Kendall ("Mr. Kendall") as guardian ad litem of Stuart Ricardo Payne seeking a declaration that a guardian ad litem of a minor who commences an action in this Court is not personally liable for any costs' order made against him in that capacity unless he has conducted himself other than as a "bon père de famille".  Mr. Kendall thus seeks to draw an analogy with the liability of a tuteur of a minor who commences an action in the Royal Court. 

 

3.    Counsel for the first and second defendants sought to submit to the wisdom of the Court, and was granted leave to withdraw.

 

4.    Counsel for the third and fourth defendants contended that, by analogy with the English procedural rules upon which it is said that the local rule was based, the guardian ad litem of a minor who commences an action in this Court is personally liable for any costs order which may be made against him in his representative capacity. 

 

5.    This declaratory relief is sought following a judgment of this Court delivered on 27th May, 1999, setting aside an order of the Deputy Judicial Greffier appointing Keith Robert Payne as guardian ad litem in place of Mr. Kendall.  We there stated -

 

            "It would seem to us curious if a guardian ad litem appointed pursuant to Rule 4/3 were in any different position from a tuteur engaged in litigation on behalf of a minor.  We do not however find it necessary to decide whether a guardian ad litem is personally liable for any costs' order made against him."

 

The point does now, however, arise for decision.

 

6.    Mr. Hoy, who appeared for Mr. Kendall, stated that his client was acting on a pro bono basis.   Mr. Payne senior was insolvent and the minor child had no assets.  It was therefore of some importance for Mr. Kendall, and for his insurers, to know what the possible extent of his liability was.  He believed that the minor had a good cause of action against the defendants.  At the time when the application had been made for Mr. Kendall's appointment as guardian ad litem it had not been thought that he was personally at risk of a costs' order being made against him other than in the restricted circumstances in which a tuteur could be made liable at customary law. 

 

7.    Rule 4/3 does not itself throw any light on the matter and is silent on the question of costs.  It employs terminology drawn from English law which is not defined either in the rule itself or elsewhere in the Royal Court Rules.  Rule 4/3 has simply been grafted on to the body of this Court's procedural law without much obvious thought having been given to its inter-relationship with other rules of procedure.  It is not a happy example of the draftsman's craft.  By way of contrast, the Royal Court Civil Rules 1989 of Guernsey provide at Rule 29 that -

 

            "29(1)  An infant or person under legal disability may not be a party to, intervene in or make or resist any application in any proceedings before the Court except by his tuteur or curateur, as the case may be."

 

In our sister bailiwick the rules are thus consonant with procedures at customary law. 

 

8.    Be that as it may, Rule 4/3 exists and we have to construe it.  Mr. Thompson contended that the Court should follow English common law and find that the liability of the guardian ad litem who is appointed under Rule 4/3 and who is acting as plaintiff, is unlimited and personal.  Mr. Thompson did not argue that a guardian ad litem acting for a minor who is a defendant should have that liability;  as is the case in England, he submitted that the guardian of an infant defendant should be personally liable for costs only in the event of gross misconduct.  Counsel drew an analogy, however, between the guardian ad litem of an infant plaintiff in Jersey and the next friend of an infant plaintiff in England.  The next friend of an infant plaintiff in England is not strictly a party to the proceedings, although he has the conduct of the action in his hands.  He is, however, generally personally liable for the costs of the action. 

 

9.    Mr. Thompson submitted that we should hold a guardian ad litem of an infant plaintiff in Jersey personally liable for the costs of the action for two main reasons.  First, if there were no personal liability there would be no effective checks and balances on his conduct of litigation.  The guardian would be under no inhibition from arguing weak points and would have no incentive to compromise.  This would give him an unfair advantage over the defendant.  Secondly, by way of comparison a tuteur who brought proceedings on behalf of an infant was subject to a number of constraints.  He was obliged to consult with his electors.  He had an obligation at customary law to act as a bon père de famille and, if he failed to do so, would be personally liable for the costs.  There was an accountability which would be absent for a guardian ad litem who had no personal liability.

 

10.In our judgment, these submissions raise a number of difficulties.  To begin with, Rule 4/3(1) empowers the Court to appoint a guardian ad litem so that an infant "may commence, prosecute, defend, intervene in, or make any application in any action before the Court ...".  No distinction is drawn by the rule between prosecuting and defending an action.  It is difficult to see on what basis we should reach the conclusion that, in the matter of costs, the appointment of a guardian ad litem is on a different footing depending on whether the infant is the plaintiff or the defendant.  It is true that in England there appears to be such a distinction.  But that distinction is one, as we understand the position, which has evolved over a period of time and does not owe its existence to an equivalent rule upon which Rule 4/3 could be said to be based. 

 

11.Furthermore, it would be curious, as we indicated in our earlier judgment, if different rules applied to a guardian ad litem appointed by the Court under Rule 4/3 and to a tuteur.  The latter is admittedly appointed to fulfil a wider rôle in administering the property of an infant.  But in the context of legal proceedings, both are entitled to prosecute or to defend the interests of a minor.  If a guardian ad litem were personally liable for the costs of unsuccessful litigation , whereas a tuteur were liable only if he had misconducted himself, there seems little doubt which route those protecting the interests of infants would be advised to take.  The likelihood is that a guardian ad litem would rarely, if ever, be appointed to prosecute litigation and that a tutelle would be established instead.  But, as counsel for the third and fourth defendants conceded, a tutelle is a cumbersome and inappropriate procedure for protecting the interests of a non resident minor in relation to litigation.  To interpret Rule 4/3 in such a way as to encourage tutelles to be formed in every case where action was required to be taken to protect the interests of a minor would seem to be an unfortunate construction and furthermore one probably not intended by the Superior Number when the rule was made. 

 

12.We do not ignore Mr. Thompson's argument about the desirability of checks and balances to prevent one party to litigation from having an unfair advantage over another.  But the Court has a very wide power in relation to the costs of litigation.  Article 2(1) of the Civil Proceedings (Jersey) Law 1956 provides that the costs of all proceedings "shall be in the discretion of the Court, and the Court shall have full power to determine by whom an to what extent the costs are paid."  In Drake v. Gouveia (1^st December, 2000) Jersey Unreported, which was decided after judgment in this case had been reserved, it was held that the words "by whom" in Article 2(1) were wide enough to embrace any non-party whom the Court, in the exercise of its discretion considered ought justly to be ordered to pay the costs.  We think that this power is sufficiently wide to enable the Court, if it considered that a guardian ad litem had unfairly abused his position, to order him personally to pay the costs resulting from such abuse. 

 

13.What then are the obligations of a tuteur?  According to Le Geyt in Privilèges, Loix et Coustumes de l'Isle de Jersey, published in 1953, page 83, Article 8:-

 

"Le tuteur pour son mineur, le père admis pour son enfant, & le procureur pour celuy qui l'establit, sont condamnez aux fraix & despens en leur propre nom s'il paroist qu'ils agisssent de mauvaise foy"

 

14.In the Code of 1771 (Tuteurs: p.321) we find the following passage -

 

"Ils (les tuteurs) prendront soin des personnes des mineurs, de pourvoir à leur éducation et à leur conduite, et d'y employer les dépenses nécessaires et honnêtes, selon que le demande leur condition et leurs biens.

 

Ils seront obligés de prendre le même soin des biens et des affaires des mineurs qu'un bon père de famille prend des siennes, à peine de répondre du dol et des fautes contraires à ce soin".

 

15.We conclude that a guardian ad litem appointed for any of the purposes of Rule 4/3 of the Royal Court Rules 1992 should be held to be under the same obligation as a tuteur at customary law to act as a bon père de famille in relation to the interests of the minor.  Without derogating from the Court's powers under Article 2(1) of the Civil Proceedings (Jersey) Law 1956, he should generally not be personally liable for the costs which the minor might be ordered to pay unless he has been guilty of bad faith or gross misconduct of some kind.  We accordingly make a declaration to that effect.

AUTHORITIES.

 

Royal Court (Jersey) Law, 1948; Article 13.

 

Royal Court Rules 1992: Rule 4/3.

 

Royal Court (General)(Jersey) Rules 1963;

 

Royal Court Civil Rules 1989 of Guernsey: Rule 29.

 

Drake v. Gouveia (1^st December, 2000) Jersey Unreported.

 

Le Geyt: Privilèges, Loix et Coustumes de l'Isle de Jersey, (1953): p.83: Article 8.

 

Code of 1771: p.321: Tuteurs.

 

R.S.C. (1990 Ed'n): O.80, r.2.

 

Le Gros: Droit Coûtumier de Jersey (1943): p.175: Du Mineur.

 

Report of the Commissioners into the Civil etc Laws of the Island (1861): pp.xxix-xxii.

 

4 Halsbury Vol.5: paras. 1358-74.

 

Representation of AB re CD (5^th July, 1995) Jersey Unreported.

 

Rhodes-v-Swithenbank (1889) 22 QBD 577

 

Murphy and Anor-v-Young & Co.'s Brewery (1997) 2 AllER 873.

 

Rutter-v-Rutter (1921) Probate Division 136.