Jersey Unreported Judgments

[2008]JCA040

COURT OF APPEAL

12^th March 2008

Before     :

D. A. J. Vaughan, Esq., C.B.E., Q.C., President; M. S. Jones, Esq., Q.C.; and J. W. McNeill, Esq., Q.C.

Terence Allen Picot

-v-

Her Majesty's Attorney General

On appeal from the judgment delivered on 11^th January, 2008 by the Bailiff of Jersey sitting as a single judge of the Court of Appeal, following a hearing held on 13^th December, 2007.

Mr T. Picot representing himself.

C. M. M. Yates, Crown Advocate representing HM Attorney General.

JUDGMENT

JONES JA:

Introduction

1.        This is the Judgment of the Court.

2.        The question for determination in this appeal is whether a person summoned before the Royal Court to assist it in determining an application by the Attorney General for the appointment of a curator, under the provisions of the Mental Health (Jersey) Law 1969 ("the 1969 Law"), has standing to appeal the Court's decision.

Background

3.        On 27^th July, 2007, the Attorney General applied to the Royal Court under the provisions of Article 43(5) of the 1969 Law, for the appointment of a curator to manage and administer the property and affairs of Mrs Iris Daphne Picot ("the interdict").  It was not ultimately disputed that she was incapable of managing her own affairs, nor that a curator should be appointed.  The Attorney General's representation informed the Court, however, that there was disagreement among the interdict's six children on the question of who should be appointed.  Consequently, the Royal Court adjourned the application to 24^th August, 2007, and ordered that the interdict's children should attend on that date.

4.        Four of the children wrote to the Court before the appointed date. Two of those, MahaChohan (otherwise Sandra Picot) and Susan Taylor, née Picot, attended at the hearing, and addressed the Court, as did Mr Terence Picot ("Mr Picot"), the interdict, the Solicitor General and Mr Nigel Le Gresley, whom the Attorney General had nominated for appointment as curator.

5.        Where there is a disagreement of the type which arose in this case, it is the Royal Court's policy to consider appointing an independent person. As a general approach, that seems to us to be sensible.  Having considered the various representations, the Court appointed Mr Le Gresley.

6.        Mr Picot sought to challenge the Royal Court's decision. In order to do that, it became necessary for him to apply for an extension of time within which to appeal, and that application came before the Bailiff, sitting as a single judge of the Court of Appeal, on 13^th December, 2007.  As a preliminary point, the Solicitor General argued that Mr Picot had no right of appeal against the Royal Court's decision.  In his Judgment, dated 11^th January, 2008, the Bailiff held that Mr Picot has no right of appeal from the Royal Court's determination, on the view that he was not a party to the proceedings.  It is against that decision that this appeal is taken.

7.        In the course of his oral submissions to us, Mr Picot explained that his mother had wanted him to be appointed curator.  He respected that wish, and sought to persuade the Royal Court that he should be appointed.  He felt as if he was a party, and he believes that he should be regarded as a party.  We do not doubt the sincerity of Mr Picot's beliefs, but we must determine the issue before us objectively, as a matter of law.

8.        Mr Picot has tabled five Grounds of Appeal. In essence, they are:-

(i)        That all who have a pecuniary interest in matters to be decided by the Royal Court are parties to such proceedings;

(ii)       That there is a serious conflict between the single judge's observation, at paragraph 7 of his Judgment, that "in contested matters of this kind a transcript should be available to the Court of Appeal", and his conclusion that participants thereto have no party status and therefore no right of appeal;

(iii)      That the implication of the decision of the single judge is that family members who appear in matters of this kind are denied the right to justice;

(iv)      That the single judge failed to have regard to the fact that neither of the written objections before the Royal Court challenged Mr Picot's probity or ability to perform the duties of a curator; and, quoting from the Notice of Appeal,

(v)       "That the proper administration of justice required that the Bailiff exercise his (discretion) to uphold the appellant's right of appeal or in the alternative order a judicial review."

The Statutory Scheme

9.        We begin consideration of the issue in this appeal by looking at the terms of the 1969 Law. Article 43 (2) provides - "the law, whether customary or enacted, relating to curatelles shall cease to have effect, except in so far as expressly provided by this Law."  It is clear, therefore, that we should not look outside the terms of the legislation in determining the question before us.

10.      It is also clear that the sole function of a curator appointed under the provisions of Article 43 is to "manage and administer the property and affairs of the interdict".  As is pointed out by the Attorney General in his written contentions, Article 43(7) of the 1969 Law provides that, after the curator is appointed by the Court, but before he or she may enter on his or her functions, he or she must swear to "conserve and, so far as in (the curator) lies, increase (the interdict's) property as if it were (the curator's) own".  (Schedule 2).

11.      The curator's very limited function can be contrasted with the wider range of functions that the legislation invests in the "nearest relative" of a person suffering or appearing to be suffering from mental disorder or from addiction ("a patient").  (Article 29(3) of the 1969 Law specifies those relatives of a patient who fall within the category of "nearest relative".)  The nearest relative may apply to the Minister for the admission of a patient to hospital.  (Article 8(1)(b)) An application by a Connétable or an officer (i.e. a person authorized by the Minister for Health and Social Services) for admission of a patient may, generally, not be made except after consultation with the person appearing to be the nearest relative.  (Article (8)(2)) A guardianship application shall not be made by a Constable or an officer if the nearest relative of the patient has notified the Constable or the officer, as the case may be, that he or she objects to the application.  (Article 14(6)) Where the Minister, medical practitioners and others exercise certain powers under the 1969 Law, they must notify the nearest relative.  (See, e.g., Article 15) In certain circumstances, the nearest relative may make an order discharging the patient from detention or guardianship. (Article 27)

12.      Article 32 of the 1969 Law empowers the Court to direct that the functions of the nearest relative are to be exercisable by an "acting nearest relative".  The proposed acting nearest relative may be someone who is not, in fact, related to the patient.  Further, an application for the appointment of an acting nearest relative may be made by (i) any relative of the patient, (ii) any other person with whom the patient is residing (or was last residing before he or she was admitted to hospital), (iii) a person authorized by the Minister, or (iv) the patient.  While an order appointing the acting nearest relative is in force, the nearest relative is relieved of his or her rights and obligations under the 1969 Law, and such rights and obligations become those of the acting nearest relative.

13.      Having regard to the provisions of Article 32, it might be expected that both the nearest relative and the proposed acting nearest relative would be given a right to appear and to be heard when an application for the appointment of an acting nearest relative is made, and that is the case.  The Mental Health Rules 1971 made under the provisions of Article 51 of the 1969 Law ("the 1971 Rules") expressly require:-

(i)        that an application for an order under Article 32 is to be made by summons;

(ii)       that, except in certain prescribed circumstances, the nearest relative and the proposed acting nearest relative are to be respondents to the application; and

(iii)      that a copy of the summons is to be served on them a certain number of days before the hearing of the application.

(See Rules 2 and 4)

14.      By contrast, an application for the appointment of a curator is made by a representation.  (Royal Court Rules 2004, Rule 6/2(1)) The requirements of the 1971 Rules in relation to such an application are:-

(i)        that notice of the application must be served on the proposed interdict, unless that person is incapable of understanding the notice or service of the notice would be injurious to his or her health; and

(ii)       where no notice has been served on the proposed interdict, the Court may at any stage of the proceedings direct that notice of the application be given to the proposed interdict.

(See Rule 6)

15.      The notice that is to be served on a proposed interdict expressly states that he or she may object to the application, be represented at the hearing and, in any case, attend the hearing. (1971 Rules, Rule 6 and Form 4)  The last of these provisions is necessary, because Article 43(14) of the 1969 Law provides that the Court shall sit in chambers.

16.      There is no provision requiring any person other than the proposed interdict to be given notice of the application.

17.      Where an application is made under Article 43(10) for the reinstatement of the interdict, the 1971 Rules provide that it is to be in writing and made ex parte.  (Rule 7) Before the hearing of the application, however, the applicant must give notice to the Attorney General, the curator, and any other person whom the Court may direct.  At the hearing of the application, a person on whom such notice has been served may intervene and be heard, and such an intervener may lead evidence. (Rule 7(3))

18.      At the hearing before the Royal Court on 24^th August, 2007, the Attorney General, as the applicant, was a party to the proceedings.  So, too was the interdict, who appeared as of right in terms of the statutory notice that had been served on her.  Mr Picot and his siblings, however, were convened in terms of Article 43(6) which provides as follows:-

"Where an application is made to the Court under the provisions of paragraph (5), the Court shall fix a day for the hearing of the application and, for the purpose of assisting the Court in deciding on the application, the Attorney General may summon, and the Court itself may direct that there shall be summoned, before the Court such persons as the Attorney General or the Court, as the case may be, consider best fitted to assist the Court and, at the hearing, the Court may direct that any person so summoned shall be heard on oath, and the powers of the Court under this Article may be exercised notwithstanding that the person to whom the application relates is not present or represented at the hearing:"

Discussion

19.      Having regard to the provisions of the statutory scheme, we have no difficulty in holding that the parties to the application in this case were the Attorney General and the interdict.  Mr Picot had no statutory right to appear before the Royal Court, or to be heard, or even to attend.  He was summoned as a witness, for the assistance of the Court.  Notwithstanding Mr Picot's belief to the contrary, we have no doubt that he cannot properly be regarded, in law, as a party to the application.  With these considerations in mind, we turn to the Grounds of Appeal.

1 - That all who have a pecuniary interest in matters to be decided by the Royal Court are parties to such proceedings

20.      The parties to interdiction proceedings are prescribed by law.  They are the Attorney General and the interdict.  (Paragraph 19) In any event, even as a general approach, Mr Picot's proposition is too widely stated.  There are many cases in which persons other than the litigants may have a pecuniary interest in the outcome, in the sense intended by Mr Picot.  Family members of anyone suing for payment of damages or of a debt are an example.  Such family members are not parties to the litigation, not do they have any right to be joined as parties.

21.      As Lord Diplock put it in Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 A.C. 180, at page 190:-

"Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons as well as the parties themselves rights to be heard by the decision-making tribunal before the decision is reached."

2 - That there is a serious conflict between the single judge's observation, at paragraph 7 of his Judgment, that "in contested matters of this kind a transcript should be available to the Court of Appeal", and his conclusion that participants thereto have no party status and therefore no right of appeal

22.      It is not correct to say that the single judge concluded that those who participate in interdiction proceedings have no party status and therefore no right of appeal.  He did not doubt that the interdict has a right of appeal.  What he held was that parties summoned to assist the Court as witnesses have no right of appeal.  (Judgment, paragraph 8) We agree with the single judge that, in the event that the interdict or the Attorney General appeals the Royal Court's decision, it is desirable that there should be a transcript available to the Court of Appeal.

3 - That the implication of the decision of the single judge is that family members who appear in matters of this kind are denied the right to justice

23.      In his written submissions in support of this Ground, Mr Picot complains that "the Solicitor General refused to copy her bundle to the appellant prior to the hearing as evidenced in letters thereby denying the appellant the right of reply prior to the hearing."  Further, of the hearing itself, he complains that the Royal Court "elected not to release the objector evidence to the witnesses at the hearing though it was considered by them when arriving at their finding ...."

24.      There are other criticisms but we need not rehearse them, because they all go to what appears to us to amount to a complaint that the proceedings were not fairly conducted and, in particular, that there was a failure to apply the rules of natural justice.  This point is dealt with by the dictum of Lord Diplock, quoted at paragraph 21 above, which we respectfully adopt.  (We should add, although it has no bearing on our view of this Ground of Appeal, that the Attorney General does not accept that Mr Picot's criticisms are legitimate.)

4 - That the single judge failed to have regard to the fact that neither of the written objections before the Royal Court challenged Mr Picot's probity or ability to perform the duties of a curator

25.      This Ground appears to us to go to the merits of the Royal Court's decision.  Since the question that we have to determine is whether or not Mr Picot has a right to challenge that decision, Ground 4 takes him nowhere in this appeal.

5 - That the proper administration of justice required that the Bailiff exercise his (discretion) to uphold the appellant's right of appeal or in the alternative order a judicial review.

26.      Only the parties to interdiction proceedings have a right of appeal.  Mr Picot does not contend otherwise.  We have held that the parties to the interdiction proceedings are prescribed by law (paragraph 19).  Consequently, the single judge had no discretion to hold that Mr Picot has a right of appeal.

27.      Further, Mr Picot made no application to the single judge to order a judicial review.  If there had been such an application, the single judge would have had no power to grant it.  For these reasons, we reject this Ground of Appeal also.

Decision

28.      For all of the reasons given in this Judgment, Mr Picot's application for an extension of time within which to appeal the Royal Court's decision is refused.

VAUGHAN JA: I agree.

 

MCNEILL JA: I also agree.

Authorities

Mental Health (Jersey) Law 1969.

Picot v HM Attorney General [2008] JCA 006A.

Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 A.C. 180.