Jersey Unreported Judgments

[2006]JRC142

royal court

(Samedi Division)

11^th October 2006 

Advocate N. M. Santos-Costa for the Plaintiff.

Advocate L. K. A. Richardson for the Defendant.

judgment

the bailiff:

1.        Time is short and the Court will give relatively short reasons for the conclusions at which it has arrived.

2.        Mr Santos-Costa for the Plaintiff has told the Court that there are effectively three issues for consideration. The first is whether the defendant is guilty of a contempt of Court by failing to file an affidavit within the proper time and, if there has been such a contempt, whether that contempt has been purged by the late filing of the affidavit. The second and third issues concern the costs of the application by the Plaintiff alleging that the Defendant has been in contempt and the costs of the action itself brought by Order of Justice.

3.        We think it may be helpful first of all to sketch in the facts surrounding this dispute. The Defendant worked for the Plaintiff for about 15 months from the end of 2004 to early 2006. She was employed as a personal assistant on the basis that she would be paid an hourly rate and that some of the work would be performed in the Plaintiff's office, but some of it (and perhaps most of it) would be performed by the Defendant at her home. Matters appeared to have worked satisfactorily until the end of 2005 when, according to the Defendant, she found that she was unwell and, in March 2006, was diagnosed with a thyroid problem together with high blood pressure and high cholesterol.

4.        At the beginning of May 2006 the Defendant was in a meeting with the Plaintiff at his office when she learned that her father had been taken seriously ill in Australia. She left the Island within 48 hours to go to Australia and did not return until the end of that month. On her return to Jersey it appears that she was suffering from stress and she was signed off work initially for one month and then for a second month.

5.        The contractual relationship between the Plaintiff and the Defendant was never properly brought to an end. It appears from such evidence that we have and from the submissions that have been made to us, that the contractual relationship was mutually regarded as being at an end. According to the Plaintiff a number of requests were made by him for his personal files and other property to be returned by the Defendant, and he alleges that these requests were not complied with.

6.        Towards the end of June 2006, at a time when the Defendant was still at least notionally on sick leave, she received a visit from two policemen following a complaint made by the Plaintiff that the Plaintiff's files and other property had been taken by the Defendant. The Defendant was asked to go to the police station where she was questioned and eventually released.

7.        On or about 13^th July, 2006, there was an exchange of items through a private taxi driver used by the Plaintiff. A printer and some personal effects which had been left at the Plaintiff's office were delivered by the driver to the Defendant, and the Defendant in her turn delivered to the driver some files which were returned to the Plaintiff.

8.        On 14^th July, 2006, the Order of Justice was issued alleging that the Defendant had taken, and remained in possession of, items of the Plaintiff's property and had declined to return them.

9.        Some elements of the allegations contained in the Order of Justice are surprising. For example, there is an allegation that the Defendant has not accounted for a valuable painting which, according to a schedule placed before the Court at the hearing this afternoon, is missing. It appears, however, that this is a painting which the Defendant ordered on the Plaintiff's behalf, but which has not been delivered. Importantly, the Plaintiff appears not to have paid for the painting in that his credit card account has not been debited with the relevant cost. It is not clear to us why the Plaintiff alleges that the Defendant is responsible for the fact that the painting is either missing or has not been delivered.

10.      Be all that as it may, the Order of Justice came before the Court and was adjourned on a number of occasions. On one of the occasions when the matter came before the Court the Defendant offered to allow the Plaintiff to inspect her property to see whether any of the items which he alleged that she possessed could be found. That offer was accepted and the Plaintiff and a legal assistant attended at the Defendant's property on the morning of 15^th September, 2006, there to conduct what counsel for the Plaintiff described as "a cursory search". Nonetheless, one item was discovered which the Defendant agreed did belong to the Plaintiff and which she said she had overlooked.

11.      The Order of Justice came back before this Court on the afternoon of 15^th September, 2006. The action was adjourned for one week and the Defendant was ordered to file an affidavit setting out her position on the allegation that she was in possession of further materials belonging to the Defendant. The Court also ordered, although the Act is incorrectly drafted, that the Plaintiff should have a further opportunity to inspect the Defendant's storage boxes. Importantly, the Act of Court did not record that the filing of the affidavit was to be done by any particular date. The Act of Court was made available to the parties within the following five days. Counsel for the Plaintiff suggested that the Court had intended that the affidavit should be filed by Friday, 22^nd September, 2006, but there is no evidence of such an order. On the contrary, the Act of Court, as we have mentioned, contains no reference to a specific date.

12.      We remind ourselves that a person alleging that a contempt of Court has been committed by failing to comply with an order of the Court has the burden of proving that allegation. It is a serious allegation amounting to the commission of a criminal offence and it must be proved beyond reasonable doubt.

13.      We think it is unfortunate that the Defendant did not file her affidavit sooner. She filed it two days ago on 9^th October, 2006. Her explanation is that she was not aware that she was under an obligation to file the affidavit speedily. Indeed, following the order of 15^th September she had allowed access to her property by Mr Nigel Le Gresley, a solicitor of this Court, (who was at that time advising her) on 26^th September, 2006. Mr Le Gresley, together with a secretary employed in his office, conducted a search of the Defendant's property lasting some one to two hours and found nothing that was listed in the schedule to the Order of Justice. The affidavit eventually filed by the Defendant appends a letter from Mr Le Gresley to Advocate Livingstone of Crill Canavan in the following terms: -

"I understand that Ms Dargie has been appointed to Advocate Louise Richardson under the legal aid scheme as it is being suggested that  she may be in contempt of Court by virtue of the fact that prior to yesterday no affidavit had been filed detailing the efforts she had made to search for Mr McPhail's documents.

I attended at Ms Dargie's home at 3 o'clock in the afternoon of 26^th September with my secretary. We searched every room, including boxes in the rooms, and I was unable to find any relevant documentation at all.

Upon returning to the office I telephoned Advocate Santos-Costa and we discussed the possibility of some contribution towards Mr McPhail's legal fees. At that time I was under the impression that, as a realistic effort had been made, no further application would be made to the Royal Court and, accordingly, I was most surprised to hear of the application to have Ms Dargie declared in contempt."

14.      In the light of that reaction from an officer of this Court, it is perhaps unsurprising that the Defendant did not feel that she was under any imperative to file the affidavit as a matter of urgency or before any particular date. Having regard to the burden of proof which is upon the Plaintiff, we have no hesitation in finding that the Defendant is not in contempt of the Order of the Court of 15^th September, 2006.

15.       I turn now to the question of costs, and I will not add to the length of these reasons by elaborating to any great extent.

16.      It seems to me that the application to have the Defendant declared in contempt of the Court's Order of 15^th September, 2006, was a disproportionate and, indeed, intimidatory response to the situation. The Defendant had planned to travel to the United Kingdom today and then onwards to Australia in two days' time. She has responded to the application relating to the allegation of contempt, not by fleeing the jurisdiction, but by cancelling her travel arrangements at some cost to herself and attending Court this afternoon. Her counsel has told us of the distress which she has suffered in having to meet this serious allegation. The representation alleging a contempt of Court ought not, in my judgment, to have been brought. I regard it as tantamount to an abuse of process. I accordingly order the Plaintiff to pay the Defendant's costs arising from the alleged contempt application on an indemnity basis.

17.      I turn now to the costs relating to the action itself brought by Order of Justice.

18.      It is true that the Defendant was found to be in possession of some of the Plaintiff's property after a number of requests had been made of her to return that property to the Plaintiff. Viewed in the round, however, the property which has been recovered from the Defendant's house in relation to the property which she is alleged to have taken and not returned is relatively small. The evidence before the Court is not entirely satisfactory and is, to an extent, one-sided. I have an affidavit from the Defendant, but I have no sworn evidence on behalf of the Plaintiff.

19.      I have, however, to approach the matter on the basis of the evidence that is before the Court. There is no evidence that the other property which has apparently been missing from the Plaintiff's office or home has not been mislaid or misplaced by other staff and not by the Defendant. For her part, the Defendant denies that she has taken, or remains in possession, of any of the Plaintiff's property. It seems to me that, in relation to the issuance of the Order of Justice and the costs incurred in relation thereto, the justice of the matter requires that I should leave the costs to fall where they lie and that I should make no order for costs. That is the order that I make.

20.      The Order of Justice and the application for the committal for contempt must be dismissed.

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