Jersey Unreported Judgments

[2005]JCA157

COURT OF APPEAL

9 November 2005

Application by the Plaintiff/APPELLANT for leave to appeal from the Judgment of the Royal Court of 29 November, 2004, whereby the Royal Court:  (1) noted that the Plaintiff/APPELLANT had withdrawn the action as against the First Defendant; (2) refused the Plaintiff/APPELLANT's application for leave to amend his Order of Justice and accordingly struck out his amended Order of Justice; and (3) ordered the Plaintiff/APPELLANT to pay the Defendant/RESPONDENT's costs of the action on the standard basis.

Leave to appeal was refused by the Royal Court on 29 November 2004.

Leave to appeal adjourned to the plenary court by the Bailiff on 13 July 2005.

Advocate R. Michel for the Plaintiff/APPELLANT

Advocate S. Franckel for the Defendants/RESPONDENT

jUDGMENT

VAUGHAN JA:

1.        This is an application for leave to appeal made by Harry Royston Cole, the Plaintiff, against the judgment of the Royal Court (Commissioner Hamon and Jurats Bullen and Morgan) of 29 November 2004 whereby it effectively struck out Mr Cole's Order of Justice, which he had sought to amend consequent upon a judgment of the Court of Appeal (Southwell, Smith and Sir Charles Mantell JJA) unreported 14 May 2004.  The Royal Court applied the appropriate test that an amendment should not be allowed if it could be struck out.

2.        On 29 November 2004 the Royal Court refused Mr Cole (who at that stage was appearing in person) leave to appeal, informing him that he could renew his application for leave to appeal to the Bailiff.  In fact he did not make his application to the Bailiff, sitting as a Single Judge to the Court of Appeal, until 10 February 2005, that is to say nearly 2 weeks after the expiry of the time limit for making such an application.  That application was heard by the Bailiff, sitting as a Single Judge, on 13 July 2005 whereby he adjourned the application for determination by the Plenary Court, having noted Mr Cole's undertaking to obtain legal representation in connection with this application.  Given the facts that (in particular) this case raises important legal issues, that Mr Cole was at that time appearing in person, and that he had made it clear to all on delivery of the judgment that he intended to appeal, I consider it is appropriate for this Court to extend time so as to allow this application.  Moreover it is significant that the Bailiff, did not appear to regard time as being an impediment to his application.  He is now represented by Advocate Michel for the purpose of this application only, to whom this Court is very grateful for his assistance.

3.        The background to Mr Cole's claim has been set out in considerable detail in the judgment of the Royal Court of 4 September 2003 (reported at [2003] JLR 460), in the judgment delivered on the subsequent appeal to the Court of Appeal referred to above, and the judgment of the Royal Court of 29 November 2004, from which Mr Cole now seeks leave to appeal.  It is accordingly not necessary to set out in any detail that background.  In addition, as this case has so far proceeded on the basis of applications to strike out, the factual background, in so far as it might be disputed, has not been fully investigated, and accordingly it would be inappropriate for this Court to say more on factual or legal issues than is necessary for its decision.

4.        In brief, Mr Cole answered an advertisement by the Jersey Post for a position as a temporary employee over the Christmas period in 2001, and completed an application form.  In that form, in answer to a specific question whether he had ever been convicted of any offence, he answered in the negative.  He also signed a declaration that he had answered the questions truthfully and understood that his answers might be checked and that, if found to be false, that might make him ineligible for recruitment.  He was provisionally offered a position, but he was expressly told that it would be subject to satisfactory police checks.  This case proceeds at the present stage on the basis that he never expressly consented to any information being disclosed by the police.  In fact he had a conviction many years before in England, but Mr Cole says that he did not disclose this fact because he thought that that conviction would be regarded as "spent" under the Rehabilitation of Offenders Act 1974 of the United Kingdom.  Unknown to Mr Cole, there was at that time no such equivalent law in Jersey (although there now is, but with some differences).  As a result of being informed of that conviction, Jersey Post withdrew its provisional offer of temporary employment.

5.        Mr Cole originally brought his claim not only against the Jersey Police but also against the Jersey Post, alleging as against the Jersey Police a breach of the Data Protection (Jersey) Law 1987, against both Defendants breaches of the European Convention on Human Rights (ECHR) or the Human Rights (Jersey) Law 2000 and also claims negligence against both Defendants.  As a result of the judgment of the Royal Court of 23 September 2003, and the judgment of the Court of Appeal of 14 May 2004, all those claims were struck out.  However the Court of Appeal in that judgment did rule that Mr Cole should amend his Order of Justice by deleting those causes of action and the facts referable solely to those causes of action, but permitted him to formulate a draft amended Order of Justice setting out only the facts and matters on which he sought to rely in support of a cause of action for breach of confidence or misuse of private information and that he could apply to the Royal Court for leave to amend his Order of Justice accordingly.  The basis for allowing Mr Cole to seek leave from the Royal Court to amend to raise such a cause of action was set out in the Judgment of the Court of Appeal in paragraphs 29-30.

6.        In essence the Court of Appeal relied on the then recent developments in English law, in particular the judgment of the House of Lords in Campbell v MGN Ltd [2004] UKHL 22, and explained that if Mr Cole were able to formulate a sustainable claim for breach of confidence he would be able to rely on the ECHR as part of his claim, even though they are not yet made directly a part of Jersey law.  The Court of Appeal explained that it would be for Mr Cole to seek to persuade the Royal Court that, in the circumstances to be pleaded by him, such a claim was reasonably arguable, so that he should be allowed to amend and pursue such a claim to trial.  Since the decision of the Court of Appeal there has been a further significant case on confidential information in England and Wales namely Douglas v Hello! Ltd [2005] ECWA Civ. 595.

7.        Following that judgment, Mr Cole, still acting in person, put forward a draft amended Order of Justice dated 1 June 2004, and a further draft amended Order of Justice dated 15 October 2004.  At this stage the only Defendant was to be Jersey Police.  In that further Draft amended Order of Justice, Mr Cole still included various claims which were not admissible following the judgment of the Royal Court and the Court of Appeal, namely the alleged breach of the Data Protection (Jersey) Law 1987, or the equivalent UK law, a claim based on ultra vires acts, and breach of statutory duty and claims based on negligence.  They are contained in paragraphs 10, 11, 13, and 14 of the draft amended Order of Justice, and are, as the Royal Court correctly found in its judgment of 29 November 2004, clearly inadmissible and should have been deleted.  Equally in so far as paragraph 12 seeks to rely upon "violation of his fundamental rights contained in Articles 8 and 10 of the Human Rights Act 1998" then this should also be deleted as clearly it is inadmissible and that is not disputed before us. 

8.        The Plaintiff claims that in so far as paragraph 12 of the draft amended Order of Justice states "that the Plaintiff contends that the disclosure of confidential information was a breach of confidence", this falls within the terms of the Court of Appeal's order referred to above.  In this respect it is necessary to examine in some detail the judgment of the Royal Court dated 28 November 2004 to consider Mr Cole's application for leave to appeal, for it was that claim which was effectively struck out by the Royal Court in the aforesaid judgment of 28 November 2004.   The Royal Court considered the claim for breach of confidence and stated that "having thought about this for a considerable time, this Court can see no possibility of success or, perhaps better put, the case is so tenuous as not to warrant further argument" (paragraph 14).  The reasons for coming to this conclusion appear to rely on the following propositions:

(i)        "Mr Cole must know there is no tort of public misuse of confidential information in Jersey and of course we follow the guidance of the English court.  Advocate Franckel [for the Jersey Police] told us that Mr Cole thought that the Rehabilitation of Offenders Act in England applied to Jersey.  As we all now know it clearly does not."   (paragraph 10);

(ii)       "On the evidence there was a police check to be carried out.  It was not expressly agreed but it was clearly implicitly agreed ... " (paragraph 11);

(iii)      "The police, having obtained the information, clearly had a public interest to protect and were bound to disclose the information ...   The sworn affidavit of Allyson Edwards of the Criminal Justice Unit - she was the manager - was before the Court of Appeal and the Court below and that affidavit had been fully explained and examined in both those courts."  (paragraph 12);

(iv)      "Mr Cole's sole argument appears to us to be the fact that the Jersey Police did not have authority to obtain information because he gave no express consent" (paragraph 13).  We are not quite sure of reference to "obtain" in this context, presumably it was a mistake, for the reference to express consent is to the reference to the disclosure by the Jersey Police not to obtaining the information by the Jersey Police.

9.        Before explaining and examining these propositions, it is appropriate to remind myself of the considerations laid down for the granting of leave to appeal.  The conditions are sufficiently set out in the Glazebrook v Housing Committee (JCA 13 November 2004) that is to say:

(i)        is there is a clear case of something having gone wrong? or

(ii)       is there a question of general principle, to be decided for the first time? or

(iii)      is there a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage? 

10.      Obviously given the circumstances of this case, and given that this is an application for leave to appeal from a decision effectively striking out a claim, these statements should be applied with some discretion, for it is not the decision of this Court which would establish a general principle or a statement which would be to the public advantage but it would, if we granted leave to appeal and allowed the appeal, be the subsequent decision of the Royal Court (and of this Court if there were to be a subsequent appeal) which could satisfy these conditions.

11.      I have no doubt that this Court should grant leave to appeal.  I consider that this is so because there is a clear case of something having gone wrong, and because this is a case where there is a matter of general principle and of general importance which needs to be decided for the first time (by the Royal Court).  In so concluding I rely in particular on the following matters:

(i)        I do not agree that it is possible to state (as is done in paragraph 10 of the Judgment of the Royal Court), that, without further argument, there is a "no tort of public misuse of confidential information in Jersey" or that it is only "the guidance of the English Courts" which would provide a full answer.  I do not read the decision of the Court of Appeal of 14 May 2004 in this case as conclusively deciding that there is such a claim in Jersey law or deciding its ambit (in particular the requirement of consent) or the extent of any possible defence that there might be.  Invariably all courts are reluctant to decide such important points of law in a factual vacuum or where the facts are as yet unresolved.  This is all the more important in a developing field of law such as this.  Such important points of law cannot be decided, save in the clearest case, in interlocutory decisions or by concession.

(ii)       I do not consider that it is clear beyond argument that Mr Cole is wrong when he claims that express consent is required for such disclosure.  Even if he had not obtained the temporary position in the absence of express consent, his feelings could no less be affected if the convictions have been wrongly disclosed in Jersey.

(iii)      The statement that the Police "having obtained the information, clearly had a public interest to protect and were bound to disclose the information" (see paragraph 12 of the Judgment of the Royal Court) appears to me to be an over-simplification of the important issue of public interest.  What is the public interest and how it is to be exercised in the circumstances of this case will depend upon the consideration of the English cases such as R v Chief Constable of the North Wales Police ex parte AB [1998] 3 All England Reports 310 and A v B [2002] 2 All England Reports 545, and no doubt other relevant cases from other jurisdictions, and upon consideration of the evidence set out in the Affidavits of Allyson Edwards and Teresa Lamy (which have not been examined in detail and upon which there has been no cross examination), and examination of matters such as the Home Office Circular 45/1986 dated 17 July 1986 and similar documents whether applicable in England and Wales or Jersey and also the general policy in Jersey with regard to spent convictions (as included in the law which has now been enacted).

12.      It was contended by Advocate Franckel on behalf of the Jersey Police that we should also give consideration for principles set out in Abdel Rahman v the Chase Bank (C.I.) Trust Company Ltd (CA 1984 JJ 127) which are applicable to appeals in cases where the lower court has exercised a discretion.  However I do not consider this case involved the Royal Court in exercising a discretion.  It simply decided that as a matter of fact and law the draft Order of Justice should effectively be struck out and did not do so for reasons which involved an exercise of discretion.  Even if it were a matter of discretion, I have no doubt the most important, if not all, of the necessary criteria were satisfied for, as I have already shown, I consider the Court has mis-directed itself as to the law, and also taken into account matters it ought not to have done, arrived at its decision effectively to strike out in circumstances which I regard as being "clearly wrong" and has  reached a decision to strike out a case which I consider resulted in or could have resulted in injustice to Mr Cole. 

13.      For the reasons which I have already set out I do not consider that the decision of the Royal Court effectively to strike out the Order of Justice can be justified.

14.      Turning now to the issue of damage, Mr Cole's Order of Justice refers to damage to his reputation and loss of potential earnings (para 15) and in the Prayer refers only to his loss of earnings (which he puts at £1,800).  It is accordingly less than surprising than the Royal Court considered the application on that basis (see paragraph ... of the Judgment).  However we consider that the proper basis for such a claim is not for loss of reputation but for injury to feelings.  That this is the proper basis for damages in such a case can be seen from Macgregor on Damages (17th edition) paragraphs 40.25 and 40.25A.  What are the damages will be a matter for the Royal Court having heard all the evidence.  Although up to now the general damages for such injury have not been particularly high, they certainly cannot be categorised as minimal or trivial.  In this context we consider that paragraph 15 of the Order of Justice should be amended to read "As a result of the alleged breach the Plaintiff has suffered damage to his feelings and loss of potential earnings" and the Prayer amended to divide up general and special damages.  It is accepted by Advocate Michel on behalf of Mr Cole that this should be done.

15.      Accordingly in all the circumstances I consider that:

(i)        Time should be extended to allow his application for leave to appeal to be made;

(ii)       Leave to appeal to be granted;

(iii)      The appeal should be allowed in so far as indicated so that the Order of Justice is not struck out, save as to paragraphs 10, 11, 13 and 14 of the Order of Justice and subject to leave being granted by this Court to make the appropriate amendments to paragraphs 12 and 15 and the Prayer as indicated above.

16.      As I have already stated, when the matter originally came before the Bailiff on 13 July 2005 Mr Cole gave an undertaking to obtain legal representation in connection with this application for leave to appeal.  Mr Michel has represented Mr Cole before us and clearly his representation has been of the greatest assistance to this Court.  I do not feel that we are entitled to insist upon his being legally represented at the trial of this matter, but the Court would urge upon Mr Cole to consider this not only for his own benefit, but for the benefit of the Royal Court.

Authorities

Campbell v MGN Ltd [2004] UKHL 22

R v Chief Constable of the North Wales Police ex parte AB [1998] 3 All England reports 310

Douglas v Hello! Ltd [2005] ECWA Civ. 595

Glazebrook v Housing Committee (13^th November 2002) Jersey Unreported; (2002/217)

A v B [2002] 2 All England Reports 545

Abdel Rahman v the Chase Bank (C.I.) Trust Company Ltd (CA 1984 JJ 127)