Jersey Unreported Judgments

[2009]JRC022

royal court

(Samedi Division)

10^th February 2009

Advocate N. S. H. Benest for the Plaintiff.

Advocates R. A. Falle and S. J. Young for the Defendants.

judgment

the COMMISSIONER:

1.        This Judgment relates to two applications made in the absence of the Jurats at the commencement of the substantive action which was the subject of the Court's Judgment of 13^th January ([2009] JRC 009).  The background to the matter is set out in that Judgment and I will not repeat it here. 

2.        The first application is by the defendants to exclude the evidence of Mr Bougeard as contained in his Affidavit dated 30^th January, 2009 and who the plaintiff wishes to call as an expert.  This case has been dealt with as a cause de brievite under directions agreed by the parties and issued by the Court.  The urgency arises out of the building works currently being undertaken at the site of the cottage which the plaintiff submits is in breach of a restrictive covenant in its favour. 

3.        The defendants only recently received a copy of the letter of instruction to Mr Bougeard which is dated 28^th January, 2009, but their objection relates not to timing but to the admissibility generally of his evidence. The case involves the interpretation of the restrictive covenant created in 1993 and Miss Benest submits that the expert evidence of an experienced conveyancer is required for the following main reasons which I briefly summarise; firstly to explain the way conveyances in Jersey are put together; secondly to explain that the expression in the restrictive covenant "sur ladite terre que se réserve ladite Société Venderesse" is a shorthand for all that land retained by the vendor company and thirdly to explain that in relation to the words "au Sud du ladite propriété présentement vendue", conveyances were not in the practice in 1993 of taking precise map readings and fixing cardinal points unless it was absolutely necessary to do so.  Mr Bougeard's Affidavit deals with these limited points which may not be in contention but goes on to express his opinions and views on the true interpretation of the restrictive covenant in this case and indeed on all of the issues which the Court will potentially have to determine. 

4.        Miss Benest points out that the ultimate issue rule had been discredited and abolished in England and reminded me of the criticism voiced by the Court of Appeal in Colesburg Hotel (1972) Limited-v-Alton Hotel Limited [2003] JLR 47 at paragraph 28, that no evidence had been called in that case of conveyancing practice in Jersey to help resolve the meaning of the phrase "à tous usages".  Whilst I can see that expert evidence of conveyancing practice may be necessary when considering Jersey conveyances, in this case it seems to me that such practice is not in issue.  There are no issues as to the meaning of technical terms used by conveyancers in 1993.  The issue is the interpretation of the restrictive covenant in the context of the conveyance as a whole and the surrounding matrix of facts.

5.        I make no criticism at all of Mr Bougeard who is indeed a very experienced conveyancer expressing his views, but they are his views and in matters of Jersey Law, the views of other Jersey lawyers or conveyancers are inadmissible.  Such views are properly the subject of the submissions of the lawyers representing the parties.  I therefore exclude the evidence of Mr Bougeard but I reserve the position to this extent, that if during the hearing it transpires that conveyancing practice in 1993 comes into issue and expert evidence would assist the Court, then leave may be given for expert evidence to be adduced by both sides to that limited extent.

6.        The second application, again by the defendants, is to admit certain documents from the file of Olsen, Backhurst and Crane who acted for the two parties to the contract in 1993 in which the restrictive covenant was created.  That file had been obtained by the plaintiff and discovered to the defendants.  Mr Young accepted that the documents in this file fall within the category of documents which are not ordinarily admissible, as made clear in Re Internine Trust [2005] JLR 236 at paragraph 62(iv):-

"evidence of subjective intention, drafts and negotiations and other matters extrinsic to the document in question is inadmissible, as is evidence of events subsequent to the making of the instrument (evidence of this kind being relevant where an estoppel is said to arise but not in this jurisdiction, unlike some others, as an aid to construing the original meaning of the document)".

However he submitted that the Court could have regard to such evidence in order to resolve uncertainty or ambiguity.  He referred me to the following extract from Halsbury's Laws of England (2002) at paragraph 929, in relation to boundaries:-

"Admissibility of extrinsic evidence.

 Extrinsic evidence is not admissible to contradict, vary or add to the terms of a deed, but only to put before the Court the same knowledge of the subject matter of the deed as was in the possession of the parties to it at the time of its execution.  It may also be admitted where the description of the boundaries of a property is too general, contradictory, uncertain or ambiguous and the ambiguity is latent.  Thus where the parcels are approximate and if plans are referred to for identification only, the Court can look at and accept the boundary where it has been physically marked on the ground and agreed by the parties.  Where a transfer read as a whole cannot be reconciled with a line of small scale plan the Court may admit in evidence auctioned particulars which clarify where the boundaries were meant to be drawn and where a plan attached to a transfer is entirely unclear the Court may look to all the relevant documentation including replies to preliminary enquiries.  Extrinsic evidence has also been admitted in the case of a demise of land by admeasurements, with the houses now erected or being erected thereon to show that the foundations of the houses were actually laid at the date of demise and extended beyond the limits of the boundaries shown in the plan, with the result that the admeasurements and plan were rejected as falsa demonstratio."

7.        Mr Young also relied on the case of Scarf-v-Adamson [1981] 1 All ER and the following passage of the Judgment of Lord Justice Cunning-Bridge at page 847:-

"Though I have up to now given an outline to the facts which give rise to the dispute I wish to make it plain that the question raised in these proceedings is only the proper construction to the plaintiffs transfer deed and the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous.  Counsel for the plaintiff submits that this deed is uncertain, contradictory and ambiguous.  Counsel in the court below invited the Judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made and the true effect of the plan to which they referred has shown a loan transferred.  The Judge admitted extrinsic evidence de bene esse but he decided that there was no such uncertainty or ambiguity as to make it right to admit the evidence as a aid to construction."

I was not referred to any local authority.

8.        Miss Benest, while not going so far as to say that the Court can never admit extrinsic evidence to resolve uncertainty or ambiguity in a Jersey conveyance, was deeply concerned at the Court doing so.  She pointed out that the Court was not construing an agreement between these parties but to an agreement between their predecessors in title on whom successors and third parties generally would rely.  I was referred to the caution expressed by the Court of Appeal in Haas-v-Duquemin [2002] JLR 27:-

"While I recognize that Pothier's rules on the construction of contracts may be useful in some circumstances as an assistance in the interpretation of deeds which confer real rights of property (see Le Pennec v. Romeril (3)), I think that care is required in their application. Pothier, in setting out those rules, was addressing the law of obligations where the intentions of the contracting parties are the prime consideration. In the law of property, however, a deed sets out real rights which affect others than the initial parties to the deed, and there are special rules, such as the presumption for freedom in relation to servitudes, which I will mention shortly".

She submitted that Halsbury and Scarf were unhelpful because UK conveyancing practice was different, and the facts in Scarf were distinguishable.  In that case the dispute was between the original parties to the conveyance, both of whom suffered from an unclear boundry.  She warned me against setting a dangerous precedent that will lead, potentially, to uncertainty in conveyancing and reliance that can be placed by third parties on contracts passed before the Royal Court.  Finally she submitted that the documents were highly prejudicial but of limited probative value. 

9.        I accept that I must indeed be very cautious but I have no doubt that where the terms of the conveyance are uncertain or ambiguous, and that uncertainty or ambiguity cannot be resolved from the terms of the conveyance itself, then the Court must be able to admit extrinsic evidence, if it is available, and if such evidence would assist in resolving fairly such uncertainty or ambiguity.  In this case, if the plaintiff does not succeed in its primary argument that the cottage is covered by the restrictive covenant, the Court will then have to resolve the issue raised by the defendants as to the precise delineation of the restrictive covenant, namely the issues referred to in paragraph 19 and 22 of the Court's Judgment of 13^th January, 2009.  The restrictive covenant would appear to be uncertain or ambiguous in this respect and there is little else in the conveyance as a whole to assist.  In my view the file of the legal firm that acted for both sides in the conveyance may assist the Court in resolving fairly such uncertainty or ambiguity. 

10.      Following Scarf I will therefore admit the documents drawn from the file of Olsen, Backhurst and Dorey, de bene esse, that is to say for the same to be referred to if necessary to assist the Court in resolving uncertainty or ambiguity in the construction of the restrictive covenant.

Authorities

La Petite Croatie-v-Ledo [2009] JRC 009.

Colesburg Hotel [1972] Limited-v-Alton Hotel Limited [2003] JLR 47.

Re Internine Trust [2005] JLR 236.

Scarf-v-Adamson [1981] 1 All ER.

Halsbury's Laws of England (2002).

Haas-v-Duquemin [2002] JLR 27.