Jersey Unreported Judgments

[2006]JRC157A

royal court

(Samedi Division)

7^th November 2006 

IN THE MATTER OF A SUMMONS BROUGHT BY THE DEFENDANTS

Anthony John Snell in person (assisted by A Picot).

Advocate D. F. Le Quesne for the Defendants.

judgment

the deputy bailiff:

1.        This is a summons by the defendants in connection with an injunction restraining their assets.  This matter started with an order of justice in May 2003 at which time £3,000,000 was restrained.  That was gradually reduced; the injunction was also time limited.  On 12^th June, 2003 the Court made an order reducing the amount to £2,600,000 and limiting the date of the injunction to 31^st December, 2003.  On 2^nd February, 2004, the amount was reduced to £1,600,000 and by agreement by an order of 25^th August, 2004, the injunction was extended to the 31^st January, 2005.  However, no further extension has ever been granted.  It is quite clear that there probably was an intention to do so and Mr Snell has referred us to a letter from his then lawyers indicating that they had that in mind.  But the fact remains that this was never done.  So we find that the injunction did in fact lapse on the 31^st January, 2005.

2.        However the defendants have always accepted that security should be given for this claim and they do in fact retain assets.  These have been summarised as follows: there was at the time of the affidavit of Mr Beadle £204,000 in Viberts' client account, although that may have increased with interest; there is also £300,000 which had been paid to Court, which may have also increased with interest; there is then real property which is listed in the affidavit, namely; La Fosse; Portelet Surprise; Belle Plage; Cowley Farm and Mimosa.  These are valued for insurance purposes at a total of £1,735,000.  If that is added to the £504,000 paid into Court and Viberts' client account, it comes to a total of £2,239,000.

3.        The matter has come before the Royal Court and judgement was issued on 23^rd March, 2006, giving judgement in favour of the plaintiff in the sum of £326,615 with interest from February, 2006 and therefore that sum has gone up with interest.  The plaintiff is now appealing.  The defendants have not appealed, but the plaintiff is appealing against the quantum.  He seeks an award of £1,600,000 or just over together with costs and interest.  If he is wholly successful before the Court of Appeal, he says he will recover £2,032,685.  That appeal is due to be heard next week.

4.        In the light of the imminence of the appeal Mr Le Quesne has very properly accepted on behalf of his clients that security should continue to be given and he has offered an undertaking that they will retain the five pieces of real property, to which I have referred, plus the £300,000 paid into Court, but they would like to be able to deal with the £204,000 or whatever, which is held in the Viberts' client account, in order to meet the legal fees and other ordinary expenses for the two brothers.

5.        Mr Snell accepts that some money should be released, but he is concerned that the five properties plus the £300,000 may not be enough.  He points out that there will be selling costs in relation to the properties and that, if they have to be sold following a judgement, there might be an element of forced sale and the prices might be lower.  As against that though, we find that these are insurance values and do not take account of the site value, and although we do not have a valuation before us, we think it probable that the actual market values are greater where there is an appropriate site which would have a value.  All in all, we think that we have to hold a balance between trying to ensure that if Mr Snell is successful in his appeal he recovers any monies awarded, but as against that not to restrain more than is necessary for that purpose.

6.        We think that that balance can be achieved by allowing the removal of the monies in the Viberts' client account.  According to our calculations that will still leave, even assuming that the valuations are as set out in the affidavit, a total of £2,035,000, which is fractionally more than the maximum claim to which the plaintiff says he is entitled.  As I say, we have to hold this balance and we feel that this is a fair balance.  Therefore we find that the injunction has lapsed, but we accept the undertaking given by the defendants, that they will not dispose of the five properties listed in the affidavit or the money paid into Court and of course any breach of that undertaking would be a contempt of Court and punishable accordingly.

7.        The undertaking is given in the terms of paragraph 3 of the summons, namely:

"that it shall lapse and be of no further effect twenty-eight days after the earlier of:

a)                    payment by the applicant of all damages due to the plaintiff by virtue of the judgment of the Court of Appeal; or

b)                    the abandonment, strike out or lapse of the plaintiff's appeal."

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