Jersey Unreported Judgments

[2006]JRC158A

royal court

(Samedi Division)

8^th November 2006

Julie de Beurges Rosenthal on her own behalf.

Advocate P. M. Livingstone for the Plaintiff.

judgment

the deputy bailiff:

1.        The hearing this afternoon concerns an application by Miss Rosenthal to set aside judgment in default obtained against her on 16^th June 2006.  For convenience we shall refer to her as the 'defendant' and to Merritts Properties Limited as the 'plaintiff'.

2.        The background is this; on 16^th March 2001 the plaintiff bought a property in Croydon.  The 9^th floor was let under an existing lease to a company called Interface Management International (U.K.) Limited, which we shall call 'Interface'.  That lease was guaranteed by the defendant. 

3.        On 6^th October 2004, a new lease in respect of the 9^th floor was entered into between the plaintiff and Interface and it was again guaranteed by the defendant.

4.        According to Mr Stuart Charlton, the property manager of the plaintiff, there appears to have been a long history of non-payment of rent by Interface.  At a court hearing on 10^th February 2005, the defendant paid a personal cheque in the sum of £24,926.80 in respect of outstanding rental, and as a result the court granted Interface relief from forfeiture so that the lease continued.

5.        Interface again appears to have failed to pay its rent and on 9^th February 2006 the plaintiff obtained judgment against the defendant as guarantor in Croydon County Court for the sum of £27,949.31. 

6.        Crill Canavan were instructed shortly after that by the plaintiff to obtain judgment against the defendant in Jersey in respect of the amount found due by the Croydon County Court.  They issued a summons which we shall call the first summons.  It was sent to the defendant at her correct address in Jersey namely La Ville au Bas, La Rue de la Ville au Bas, St Ouen, Jersey JE3 2GS.  It was tabled on Friday 17^th March.  The defendant appeared in person on that occasion and placed the matter on the pending list, saying that the amount in the summons had in fact been paid. 

7.        It appears, according to the bank statement of the plaintiff exhibited to Mr Charlton's affidavit, that the sum in question was paid into the plaintiff's account on 21^st March i.e. some four days after the hearing.  Furthermore the sum paid in was £27,936.31, that is £13.00 short and also it did not include the legal costs of Crill Canavan which were claimed.  Accordingly, in circumstances that we shall refer to in a moment, particulars of claim for the outstanding £13.00 and the legal costs have been filed in those proceedings, which we shall refer to as the 'first proceedings'. 

8.        Meanwhile the plaintiff considered that further sums had become due in respect of the premises.  That sum was said to be £25,200.78.  Crill Canavan issued a summons, which we shall call the 'second summons', in the sum of £25,278.  That was clearly a typographical error as the plaintiff accepts that the correct amount is £25,200.78.

9.        The defendant alleges that she never received this second summons.  She has produced an envelope in which she says the second summons was contained.  She points out that the post mark on the envelope is 9^th June 2006, and that the address on the envelope is incorrect.  It refers to La Ville au Bois, La Rue de la Ville au Bois, St. Ouen, Jersey, JE2 2GS.  So it is incorrect in two respects.  First it refers to Bois on two occasions rather than Bas, and secondly there is an error in the post code in referring to JE2 rather than JE3.  She says that she only eventually received this second summons some 14 days after it was heard before this Court.

10.      The return date for the second summons was 16^th June and in the absence of the defendant judgment in default was given against her for the sum contained in the summons namely the erroneous sum of £25,278. 

11.      She says that the first she knew of this was on 20^th June when a friend drew to her attention the fact that there was a report of the judgment in the previous night's Jersey Evening Post.  She immediately wrote to Crill Canavan saying that she had not received it and that she disputed the claim.  We have seen that letter, it is dated 20^th June.

12.      So what do Crill Canavan say in response to this?  Mr Carl Ashcroft has sworn an affidavit as has his secretary, Catharine Johnson.  He has exhibited a copy of the second summons and the billet in relation to that second summons.  The second summons is dated 5^th June and is signed by Advocate Livingstone.  The billet is the same date.  The summons contains the correct address of the defendant at its head.  The details are the same as those shown as the Defendant's address on the first summons. 

13.      Miss Johnson says that, to save retyping the address on the envelope, it is her practice to cut and paste the address on the summons on to the envelope.  That phrase of course is a throw back to the old days of manual typing but it now means that the address shown on the summons is automatically reproduced on the envelope.  She says, therefore, that the envelope would have contained the same address as is shown on the summons.  She also confirmed that the summons would have been sent out on the day it was signed, namely 5^th June.

14.      So what about the envelope on which the wrong address was put?  According to Mr Ashcroft this must have been the particulars of claim in respect of the first summons.  He has exhibited a letter dated 9^th June to the defendant which purports to enclose a copy of the particulars of claim.  The address shown at the top of that letter is wrong in exactly the same way as the address on the envelope exhibited by the defendant is wrong.  In other words Bois appears instead of Bas on two occasions and the post code refers to JE2 instead of JE3.  He believes that, judging by the date namely 9^th October and the fact that the address on the letter is wrong in exactly the same manner as the address on the envelope referred to by the defendant, it is the envelope which contained the particulars of claim which was wrongly addressed and which has been produced by the defendant.  He asserts that the second summons was sent to the correct address and was therefore correctly served.

15.      We find on balance that the envelope which has been exhibited and which has the wrong address on it contained the particulars of claim and not the summons.  We say so for three reasons.  First, the letter enclosing the particulars of claim is dated 9^th June as is a corresponding letter to the Master enclosing the particulars of claim.  The post date on the envelope in question is also 9^th June.  Secondly, and most significantly, the letter enclosing the particulars of claim to the defendant has the same erroneous address as is on the envelope in question.  There is an exact match in respect of how the address is in error.  Thirdly, the address on the second summons, on the other hand, is correct and we accept that the probability is that the typist would have used that in order to produce the address on the envelope, which would therefore be the correct address.  So for these reasons we find that the envelope which has been exhibited contained the particulars of claim not the summons and we find that the second summons was sent to the correct address.  The plaintiff did therefore comply with the Rules of Court for ordinary service.  However, we also find on balance that the defendant did not receive this second summons before judgment.  We note her letter of the 20^th June in which, immediately she learns of the judgment, she writes to Crill Canavan to protest that she has not received it and says that she wishes to defend. 

16.      In the circumstances we have a discretion.  The manner in which the discretion should be exercised is set out in Strata Surveys Limited -v- Flaherty and Company Limited [1994] JLR 69.  That case makes it clear that we should consider all the circumstances including in particular any possible defences, because a judgment, even if incorrectly obtained, should not be set aside if there is no arguable defence. 

17.      As we have said we are satisfied that Crill Canavan had been using inconsistent addresses here but we are also satisfied that they used the correct address for the summons but that the defendant did not receive it.

18.      So we turn to the possible defences.  The defendant has raised only three.  First, she says that the plaintiff has to give notice to Interface of its claim for rent before it can go against her.  She says this is a matter of English law and refers to a letter from Interface.  However, we have been referred to clause 2.4 of the lease which says specifically as follows:

"The landlord shall not be obliged to make any demand on the tenant before enforcing its rights against the surety hereunder".

19.      In our judgment that is a contract, which would have effect, and therefore we do not think there is any merit in the first defence raised by the defendant.

20.      Secondly, she argues that these proceedings should be brought against her in England and not in Jersey.  It relates to English property and the tenant is an English company.  We do not agree.  The defendant resides here, not in England, and, as the plaintiff has already discovered, a County Court judgment cannot be enforced in Jersey under the Judgments Reciprocal Enforcement (Jersey) Law 1960.  It follows that, even if the plaintiff obtains judgment against the defendant in England, it will have to sue her again over here if it wishes to enforce against any assets over here.  The claim is a straightforward factual assertion on the amount of rent etc which is owed.  In our judgment the plaintiff is perfectly entitled to sue in the jurisdiction where she is resident.  Thirdly, she said she does not accept the figures in the summons are correct.  Here having considered the matter carefully we have been persuaded that there is sufficient doubt that she should have the right to put her case to a court and to put the plaintiff to proof of the sum claimed. 

21.      We so find in particular for two reasons.  First she has referred us to the initial County Court judgment.  That allowed costs of only £2,190, yet it is clear that the full amount of legal fees in respect of that matter, namely £4,502.35 have been included in order to calculate the sum claimed in this case.  We are not clear that the plaintiff is entitled to do that if the County Court has limited recoverable costs to a lesser sum.  Secondly, it appears from the schedule, which was sent to the defendant prior to the issuing of the second summons, that the sum claimed, namely £25,200.78 is made up partly by outstanding rent, partly by outstanding service charge, but largely by legal fees which the plaintiff has incurred and also interest going back to June 2004.

22.      We are not sufficiently satisfied by the evidence before us that the plaintiff is entitled to claim these sums that we should prevent the defendant from defending.  The fact is that the plaintiff already has two judgments in respect of these earlier periods.  Is it in fact permissible for it now to claim interest on sums which must have been the subject of those earlier claims and for legal fees in respect of those earlier claims?  Mr Livingstone says that this is all simply a matter of presentation.  What is at stake is the amount outstanding and it is a matter of chance as to how the plaintiff has allocated payments previously received.  It might have allocated them to the legal fees in which case there would be greater amount due by way of rental. 

23.      We have to say we find that an unsatisfactory way of proceeding.  The fact is that, when it instituted its two sets of proceedings in the County Court, the plaintiff must have had to itemise and articulate what it was claiming; £x in respect of outstanding rent for such and such a period, £y for interest in respect of such and such a period, £z for legal fees and so on.

24.      It seems to us that, when moneys are received, they have to be allocated to whatever it was that the plaintiff sued for in respect of for that money.  In all the circumstances we feel insufficiently confident that the defendant has no defence, that we should prevent her from defending.  If, having got its tackle in order and looked up these various matters, the plaintiff considers that there is no defence it is of course always open to it to bring an application for summary judgment.  So in the circumstances we set the judgment aside.

25.      Costs against the plaintiff on the standard basis of today's hearing.

Authorities

Strata Surveys Limited -v- Flaherty [1994] JLR 69.

Judgments Reciprocal Enforcement (Jersey) Law 1960.