Jersey Unreported Judgments

[2006]JRC170

royal court

(Samedi Division)

28^th November 2006 

Advocate S. J. Young for the Plaintiff.

Advocate T. V. R. Hanson for the Defendant.

Advocate M. J. Thompson for the Intervenors.

The Party Cited was not present or acted for.

judgment

the COMMISSIONER:

1.        The present proceedings date back to the 31^st January 1986, and have been subject to a long history of delays.  In addition there have been other proceedings, but the Court is not concerned with these.

2.        In 2005, the Master struck out the proceedings, but these were restored by Order of the Royal Court dated 7^th April, 2005. 

3.        It will be seen that there were allegations that the 1976 will, produced by Mukta, was a forgery; and it was clear that the issue was soon to be decided by the Kenyan Courts.  In these circumstances, see for example paragraphs 32-34 inclusive of the 7^th April 2005 Order, the action was permitted to remain on the list, pending a decision in Kenya.

4.        The Court in Kenya has now heard the action and has ruled that the 1976 will was validly executed and has ruled the grant of probate of the will of the deceased made on the 4^th May 1976 should be issued to the Petitioner.

5.        The Executor is now in the process of seeking to have the grant resealed in Jersey.

6.        In these circumstances, as foreseen in the Judgment of April 2005 (see paragraph 32), the instant proceedings must fall away.

7.        In achieving this end, a series of consequential orders requires to be made.

8.        First, the Plaintiff requests the withdrawal of the action, a course with which the other parties agree, though there is a dispute as to the terms, both as to costs and as to whether an order should be made inhibiting  the bringing of a subsequent action (see rule 6/31).

9.        Second, it is necessary to deal with the now obsolete Grant of Letters of Administration.

10.      Third it is agreed by the parties that there should be a stay pending the resealing of the Grant of Probate in Jersey.

11.      So far as costs are concerned, the Court has had regard to the manner in which the litigation has been conducted and its result.

12.      There was no explanation from Compendium as to why, without apparent enquiry, and when they were already Trustees for part of the family assets, they agreed to act as Mukta's Special and General Attorney.

13.      So far as Mukta is concerned it is not clear why she sought a Grant of Letters of Administration initially in Jersey, nor why it took so long to commence proceedings in Kenya for a Grant of Probate after the 1976 will was found.

14.      So far as the Plaintiff is concerned, the 1974 will is overborne by the 1976 will and as very properly accepted by his Counsel he is no left with now locus standi in this action: nor has he explained why Compendium was sued as a principal and not as a party cited.

15.      In making these comments the Court wishes to make it clear that it does not seek to criticise any of the Counsel presently involved. 

16.      Advocate Young, for the Plaintiff, submitted that, in the circumstances, the correct order was that each party should bear their own costs as it was appropriate to have an injunction imposed until the Kenyan Judgment was rendered.

17.      Counsel for Compendium and Mukta claim that these are in effect adversarial proceedings which the Plaintiff has lost.

18.      The Court has come to the view that it must deal with the litigation as it now stands.  It has come to the view that these are in effect adversarial proceedings and the Plaintiff having commenced them is indeed without any locus standi and has in effect therefore lost, and ought therefore to pay the costs of the other parties.

19.      Compendium, very fairly asks for taxed costs as does Mukta and these are awarded to them so that the Plaintiff must pay these to them on the standard basis from the inception of the proceedings to date including those of today. 

20.      This leaves the question as to whether the Court should make an order as to the bringing of a subsequent action.  In the view of the Court it should so order, and the order is that no subsequent action should be brought by the Plaintiff against the other parties without the leave of the Court and in any case until the costs of the present action have been met.

21.      There will, as agreed, be a stay in the withdrawal of the action until the Kenyan Grant is resealed in Jersey.

22.      This leaves only the position regarding the Grant of Letters of Administration.  These are to be revoked and the letters themselves are to be returned to the Greffe if they are not already held there.

23.      To recapitulate therefore:

(i)        The action is to be withdrawn on terms as to costs and any subsequent action as set out above.

(ii)       The Grant of Letters of Administration is to be revoked as set out above.

(iii)      There will be a stay, as set out above, until the Grant is resealed.

24.      The Court will now leave it to Counsel to draft the appropriate Act in accordance with these directions.  If there is a dispute these proceedings are reserved to myself.

Authorities

Gheewala v Compendium [2005] JRC 039.