Jersey Unreported Judgments

[2003]JRC009A

royal court

(Samedi Division)

16^th January 2003

Application for directions by the Applicants.

Mr P.C. Sinel, director, for the Applicants.

Advocate A.D. Hoy for the second Respondent.

judgment

the DEPUTY bailiff:

1.        At a hearing on 16^th January, 2003, the Court made certain orders.  These are the reasons for those orders.

THE BACKGROUND

2.        The application followed on from the judgment of the Court, given on 13^th December, 2002, in respect of an application for directions by Sinel Trust Limited and three Sinel nominee companies ("the applicants").  The Sinel nominees are the registered shareholders of a Jersey company called Rothfield Investments Limited.  Initially they held the shares on trust jointly for Mr Bamford and Mrs Ellis but, since Mr Bamford's death, they have held the shares as nominee for Mrs Ellis alone.  Mrs Ellis has directed the Sinel nominees to transfer the shares to her. 

3.        The application sought directions as to whether the applicants should comply with Mrs Ellis' instructions in view of certain legal proceedings in Switzerland (where Mr Bamford died domiciled) in connection with his estate.  One of the issues for consideration by this Court was whether the sons and widow ("the Bamfords") of Mr Bamford should be convened to the application for directions notwithstanding the general duty of confidentiality owed by the Sinel nominees to their sole beneficiary Mrs Ellis.  For the reasons set out in the judgment the Court held that they should not be convened to the application and that the applicants should proceed to transfer the shares in Rothfield to Mrs Ellis as instructed by her.

4.        Following delivery of the judgment the Court indicated that a redacted copy of the Act of the Court should be sent to the Bamfords.  The reason for this was that it was thought that it might assist the applicants in connection with the fact that they (or some of them) had been joined in the Swiss proceedings.  If the applicants were able to say that they no longer held the shares in Rothfield and had transferred these to Mrs Ellis under the direction of the Royal Court, this might well enable them to be discharged from the Swiss proceedings on the basis that they no longer held the shares.  The Court expressed the view that the parties should endeavour to agree the terms of a redacted Act suitable for sending to the Bamfords.  The details of the redacted Act were not considered by the Court.  Clearly if the matter were to prove incapable of resolution between the parties, the Court would have had to resolve the terms of the redacted Act. 

5.        On 13^th December, following delivery of the judgment, the applicants applied for and were granted leave to appeal against the order that they should transfer the shares.  The Court also ordered a stay of execution of the order for transfer pending appeal.  Mr Hoy did not apply to stay the order that a redacted Act should be sent to the Bamfords.

6.        Following the hearing, the Deputy Judicial Greffier prepared a draft Act and a draft redacted Act and sent these to the parties for their consideration.  The draft redacted Act was in the following terms:-

"Upon hearing the applicants and the second, fifth and sixth respondents through the intermediary of their advocates, the Court inter alia:-

(1)       ordered the applicants to act upon the directions of the second respondent and to transfer the title in the shares of the first respondent to the second respondent or to such person as the second respondent might direct;

(2)       authorised the applicants to send a copy of this Act to the lawyers acting for Mrs Marjorie Bamford, Sir Anthony Bamford and Mr Mark Bamford, petitioners in proceedings before the Justice of the Peace in Montreux, Switzerland, regarding the last will and testament of Joseph Cyril Bamford for use in such proceedings; and

(3)       granted the applicants and the fifth and sixth respondents leave to appeal against the order made in paragraph (1) above in each case, on condition that the relevant appellants' case is filed by close of business on the 31^st January 2003."

7.        On 3^rd January 2003, by letter to the Deputy Judicial Greffier (copied to Mr Sinel) Mr Hoy objected to the inclusion of paragraph (3) in the redacted Act.  Although raising a question as to whether it was right to send any redacted Act, he did not object to a redacted Act containing only paragraphs (1) and (2) being sent.  However no redacted Act has in fact been prepared and executed.

8.        Subsequently Mr Hoy had further thoughts and concluded that no redacted Act of any nature should be sent to the Bamfords until the appeal had been disposed of.  This was on the basis that the Court had ruled that the transfer should proceed without the Bamfords being convened.  Because of the stay, the Bamfords would in fact be notified of the matter prior to the order directing transfer of the shares taking effect and this might therefore render nugatory the intention behind the Court's order, which was that the transfer should precede notification of the Bamfords.  He therefore faxed a letter to me on 14^th January outlining his reasoning and seeking a stay of that part of the Court order which directed the sending of a redacted Act.  He applied for a hearing.  Mr Sinel accepted before me that that letter was copied to him by fax on 14^th January. 

9.        On 15^th January Mr Sinel sent a fax to my chambers stating that the parties had not yet been able to settle the terms of the redacted Act and asking for an urgent hearing to consider the matter in the light of the fact that he was leaving the island on the morning of Friday 17^th January.  Accordingly an urgent hearing was fixed for 9.30 a.m. on Thursday 16^th January.

THE HEARING

10.      At the hearing Mr Hoy developed his submissions along the general lines of the contents of his letter of 14^th January.  Mr Sinel then responded.   During the course of that response he mentioned for the first time - and much to everyone's surprise - that he had in fact already written to the Bamfords' lawyers informing them that he had been directed by the Court to transfer the shares in Rothfield to Mrs Ellis.  When asked why he had done this before the terms of the redacted Act had been agreed and drawn up, he stated that he had assumed that there was no difficulty in what he had done because the letter of 3^rd January from Advocate Hoy had only criticised the inclusion of paragraph (3) of the draft.  Mr Hoy had not objected to paragraphs (1) and (2) of the draft and that was what he, Mr Sinel, had communicated to the Bamfords. 

11.      The Court then asked to see a copy of this letter.  Most surprisingly Mr Sinel did not have a copy with him and it was necessary for a copy to be faxed to the Court from his office.  On examination it transpired that the letter had been sent on 15^th January i.e. after Mr Sinel had received Advocate Hoy's letter of 14^th January stating that he wished there to be a stay on the sending of any redacted Act to the Bamfords and on the same day as he had written to the Court to say that the parties could not agree upon the terms of the redacted Act.  Furthermore the letter went beyond paragraphs (1) and (2) of the draft redacted Act by stating that the transfers had not yet been executed and that the applicants were considering an appeal.

12.      When pressed strongly by the Court as to why he had sent the letter of 15^th January to the Bamfords despite having been put on notice that Mr Hoy was applying for a stay on the sending of any form of redacted Act, Mr Sinel was reduced to saying that he had not understood Mr Hoy's letter of 14^th January "in that way".  Despite its best efforts, the Court was completely unable to follow this line of reasoning. 

13.      The effect of Mr Sinel having sent his letter is that Mr Hoy's application has been rendered nugatory.  There is clearly no point in staying the order concerning the sending of a redacted Act when the Bamfords have already been informed of more than is to be contained in the redacted Act.  The Court therefore had no alternative but to reject Mr Hoy's application for a stay.  In the absence of agreement between the parties I ruled that the redacted Act should contain only paragraphs (1) and (2) of the draft, not paragraph (3). 

14.      However the Court cannot let what has happened pass without offering some observations upon Mr Sinel's conduct:-

(i)        I accept that there was no stay pending appeal of the order that a redacted Act be sent to the Bamfords.  Accordingly, Mr Sinel was entitled to send a redacted Act once its terms had been agreed between the parties and the Act executed by the Greffe.  However the whole point of the case was whether the Bamfords should be convened to the hearing and whether they should be told of the proposed transfer of shares.  The judgment held against the applicants in this respect.  Furthermore, it was clear that, by ordering that only a redacted Act should be sent to the Bamfords, the Court intended that only limited information should be given to them.  Until the terms of the redacted Act were agreed or fixed by the Court, Mr Sinel could not be aware of exactly what information the Court had authorised to be supplied to the Bamfords.  It was therefore in any event quite wrong of him to write to the Bamfords informing them of the outcome of the case prior to the terms of the redacted Act being agreed.  There was an inherent risk that, in doing so, he would go beyond what was ultimately authorised to be released; and that in fact is what has happened. 

(ii)       But the matter does not end there.  On 14^th January Mr Sinel was put on notice that Mr Hoy wished to stay the sending of any information whatsoever to the Bamfords.  Mr Hoy's letter said explicitly that Mrs Ellis was formally applying for an order staying that part of the order of the Court authorising the sending of the redacted Act of Court to the Bamfords pending resolution of the appeal.  Mr Hoy asked for a hearing.  Despite this, Mr Sinel then writes to the Bamfords (without telling Mr Hoy) informing them of the outcome of the hearing on 13^th December.  The effect was to thwart Mr Hoy's application to stay the matter and to prevent the Court from adjudicating upon the merits of Mr Hoy's application.

15.      The Court has no hesitation in condemning Mr Sinel's conduct.  Even accepting Mr Sinel's assertion that he did not send the letter in order deliberately to thwart Mr Hoy's application, but simply did not fully appreciate the terms and implications of Mr Hoy's letter of 14^th January, such a failure of appreciation displays a casual and unacceptable approach which falls far below the standard which the Court is entitled to expect of its officers. 

16.      I appreciate that, on this particular occasion, Mr Sinel was appearing as a director of his trust company rather than as an advocate, but in my judgment nothing turns on that.  The fact is that he remains an advocate of the Royal Court.  Even when the serious nature of what he had done was put to Mr Sinel by the Court, no apology or admission of error was forthcoming. 

17.      The costs of this hearing were incurred entirely because Mr Sinel, having written - quite wrongly as we have held - to the Bamfords, then did not see fit to inform anyone of what he had done until the time came for him to respond to Mr Hoy's application.  The entire costs of the hearing were thrown away as the result of this failure and the Court therefore ordered Mr Sinel to pay the costs of and incidental to the hearing personally on an indemnity basis.

18.      This judgment will remain private for the moment because of the pending appeal.  However,  once there is no need for it to be kept private, it should be released because it raises points of general importance on the professional conduct which the Court is entitled to expect of its advocates.  I will of course be willing to hear submissions on the timing of any such release.

No Authorities