Jersey Unreported Judgments

[2011]JRC027

royal court

(Samedi Division)

27^th January 2011

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Nicolle.

 

Advocate P. C. Sinel for the Plaintiff.

Advocate M. T. Jowitt for the Defendant.

judgment

the deputy bailiff:

Introduction

1.        The plaintiff claims against the defendant the sum of £46,000 under a personal portfolio insurance contract.  Cover provided by this policy extended to the house in which the plaintiff and his wife live, its contents, and, for the purposes of this case, certain specified items of personal possessions which are listed on a schedule to that policy.  On 14^th July, 2008, the defendant issued cover to the plaintiff in respect of two additional items of personal possessions which were duly specified - the first an 11 carat necklace with heart shaped diamonds, insured for the sum of £15,000 and the second, which is the subject of this action, an 18 carat rose gold and baguette diamond bezel Hublot "Big Bang" watch, insured for £46,000.  The premium was duly paid.  At some point, probably in July 2008, a valuation of a Hublot Big Bang watch in the sum of £46,000, the sum assured, issued by a firm called Gilt Edged Jewellery, trading from 11 Greville Street, Hatton Garden, was provided to the defendant by the plaintiff.  Until a date between 18^th and 23^rd July, 2008, the policy in question was a standard household policy, and at some point between those dates it was converted to a personal portfolio policy.  There are some differences in the cover which is offered as between the two policies, but none of those is material for the purposes of this case. 

2.        In his amended particulars of claim, the plaintiff claims to have been the owner of the Hublot Big Bang watch at all material times, which he asserts he acquired between April 2008 and 2^nd May, 2008 by way of private sale and exchange through an intermediary, one Mr Duncan Hickman, who died on 2^nd May of that year.  He asserts that on 4^th November, 2008, he lost the watch, and a claim form was submitted to the defendant on 5^th or 6^th November.  In its re-amended answer, the defendant puts the plaintiff to strict proof that he was the owner at any time of the said watch, and indeed of the contention that the watch was a genuine Hublot Big Bang watch.  The defendant asserts that the valuation which was produced to it was false and misleading in a material particular which induced the defendant to agree to insure the watch.  The defendant also contends that, in breach of contract, the plaintiff has failed to provide the defendant with information as to the vendor of the watch, thus preventing the defendant from investigating and establishing the genuineness of the claim, and in the alternative has asserted that the plaintiff's claim is fraudulent and that as a consequence the defendant is entitled to avoid it. 

3.        Evidence was heard over three days.  It comprises both Affidavit evidence which has been adduced pursuant to directions orders issued with the consent of the parties, and further evidence given by some of the deponents both in chief and by way of cross examination at the hearing; substantial documentary evidence, namely the insurance contract, the valuation, some photographs of the plaintiff and very extensive correspondence both before and after the litigation commenced.  Given the relatively small claim - though obviously still a claim of significance to the parties - it is regrettable that the costs of the litigation must have been substantially increased by the production of voluminous authorities to which no reference was made in Court as well as material which was at best peripheral to the subject matter of the claim.  The Court was shown at trial a Hublot box which, the plaintiff asserted, was provided to him at or near the time the Big Bang watch was sold to him.  

The Insurance Contract

4.        The policy was issued to Mr Mark C Sutton of Ardmore, Les Ruisseaux, St Brelade, Jersey.  His occupation was described as an accounts preparer.  The plaintiff's second name is in fact Arnold.  Furthermore it is his wife and not he who is the accounts preparer.  In the circumstances there are two obvious errors on the face of the policy schedule, but both sides agreed that the policy was to be treated as issued to the plaintiff, and nothing therefore turns on these errors. 

5.        As to the personal possessions schedule, which describes those items which are insured anywhere in the world and not just in the buildings which are the subject of the buildings cover, the 11 carat necklace with heart shaped diamonds is an item noted as being "subject to valuation".  It is the only specified item in the schedule of personal possessions which is so described.  It was said to us by Ms Fiona Campbell, an employee of the defendant, that normal procedure on a client seeking to obtain cover for an additional specified item valued in excess of £5,000 would be to hold the item covered until such time as presented with a valuation.  The requirement for a valuation would be notified to the broker and it would be expected that the valuation be received within 45 days if cover were to be continued.  Clearly no such qualification existed in relation to the watch which is the subject of the claim, and indeed the defendant accepts that it received the valuation which will be described in more detail later in this judgment. 

6.        The contract provides that the proposal and declaration made by the insured are incorporated in and form part of the contract.  The insured is required to inform the insurer of any change in that information as soon as possible, since failure to so do could invalidate the policy.  We have not been shown any written proposal or declaration made by the insured in this case either in relation to the watch in question or generally.  The plaintiff's evidence is that he attended at the defendant insurer's offices where he asked a staff member to add the Hublot watch to his policy.  The member of staff was shown, and took a copy of, the valuation, and, says the plaintiff, confirmed it was satisfactory.  He says he showed the staff member the watch in question.  Miss Lauren Millen worked for the defendant at the relevant time.  She recalled the plaintiff adding the watch to this policy.  She does not recall when the plaintiff produced the valuation, but she told us that she would have realised it was inadequate, as it did not name the owner or adequately describe the item.  She thought she would have remembered if she had been shown the watch, because it sounded a "girly" item.  Miss Fiona Campbell also worked for the defendant and she too had some dealings with the plaintiff around this time.  She did not remember seeing the valuation, which she said was unacceptable or the watch.  She thinks she would definitely have remembered the watch had she seen it.  At all events, although there is some dispute as to how the watch came to be insured, it was as a result of the plaintiff's attendance that the Hublot watch was added to the policy schedule.  On 14^th July, 2008, the watch and a diamond necklace were added by Ms Millen to the insurance schedule and the plaintiff was charged an additional premium of £342.93. 

7.        At page 5 of the policy there are two definitions which are of interest:-

"Contents

Household goods, furnishings, fine art and antiques, garden furniture, precious metals, personal possessions, food and drink, and other items in the home which belong to you or any member of your household, or people who are your guests at the home or for which you are responsible".  (Emphasis added).

"Damage

Physical Loss or Destruction of or Damage to the Property Insured".

8.        Section 3 of the policy under the heading of "Personal Possessions" makes it plain that what is covered is damage anywhere in the world caused to "... (b) other personal possessions specified in the schedule up to the sum insured shown".  The cover is limited by any excess shown in the schedule (in this case none) and the general exclusions of the policy. 

9.        At page 31, the policy indicates that the maximum amount payable in respect of any incident for specified personal possessions is the sum insured (less any excess). 

10.      It was contended by Advocate Sinel that there was no onus on the plaintiff to prove that he had been the owner of a Hublot watch, and that all he needed to prove was that he had an insurance contract for a Hublot watch and that he had lost the watch which was insured.  As part of his case, he asserted that as the plaintiff had delivered a valuation in respect of a Hublot watch to the defendant, and that valuation had been accepted without question, it was too late, after the watch had been lost and a claim was made, for the defendant to raise any issues in relation to the ownership of the watch, whether it was genuine and accordingly what its value was. 

11.      We will return to the question of estoppel, but we say immediately that in relation to the contract which existed between the parties and the pleadings which have been filed, we do not think that that approach is correct.  The extracts from the policy which we have quoted above show that the insurer expected to cover the plaintiff in respect of the property which belonged to him or for which he was responsible.  It would be surprising as a matter of common sense if it were otherwise, because, absent any duty owed by the insured to the owner, the insured would have suffered no loss if property which does not belong to him goes missing or is otherwise the subject of an insured event.  But in any event it is there in the express terms of the policy. 

12.      We also think that, as a matter of construction of this contract, it was necessary for the plaintiff to prove that the subject of the claim was a Hublot Big Bang watch.  This flows from the language of Section 3 of the policy which describes the cover in respect of personal possessions to extend to a figure which is "up to the sum insured shown".  It is implicit in that language that the sum insured is the maximum cover, and that is made explicit at page 31 of the policy where it is said that the maximum amount payable is the sum insured.  It follows, in our view, that in order to establish a claim under the policy, the claimant must show that the object which has been the subject of an insured event has the value claimed, and in those circumstances, in ordinary circumstances the onus would lie upon the plaintiff in a case such as the present one to show that he was the owner of a genuine Hublot Big Bang watch.  

13.      Furthermore, it is clear from the pleadings themselves that the plaintiff has taken it upon himself to prove that he was the owner of the watch.  His claim to be the owner is there in paragraph 1 of the amended particulars of claim, and the defendant has joined issue with that assertion.  We think therefore that it is right that the plaintiff was required to prove that he had good title to the watch, and that it was a genuine Hublot Big Bang watch. 

14.      It is often said - and indeed said by this defendant - that insurance contracts are uberrimae fides - of the utmost good faith.  The adoption of uberrima fides imposes a very high duty on a person and renders him liable for any concealment or deception however slight.  Any material misrepresentation made by the insured to the insurer at the time of entering into the contract will entitle the insurer to avoid liability under the contract. 

15.      Whatever may be the position elsewhere, it appears to us that if an insurer in relation to a contract which is governed by Jersey law, as this one is, wishes to assert that the principle of uberrima fides applies, there must be either some specific language in the contract which shows that this is what the parties agreed or some other feature from which that agreement can be necessarily inferred.  Such a feature may arise out of established market practice and understanding generally or though not expressed in the contract, by examination of all the circumstances.  See for example Domat L (1745 edition) Les Loix Civiles Liv I Titre I Section IX:-

"Si l'intention commune des parties ne se découvre pas par l'expression, et qu'on puisse l'interpréter par quelque usage des lieux, ou des personnes qui ont fait la convention, ou per d'autres voyes, il faut s'en tenir à ce qui sera de plys vrai semblable, selon ces vues."

We hold that as a matter of principle, all insurance contracts governed by Jersey law are subject to uberrima fides because this is the established market understanding of such contracts and because, as a practical matter, insurance contracts, of all contracts, require that the parties act with good faith towards each other. 

16.      It may well be that an obligation of good faith on both sides is a common understanding in all contracts governed by Jersey law, though we do not decide that in this case as it is unnecessary to do so and we have not had full argument on the point.  There are certainly references to the requirement for good faith in Domat op cit at Sections XII and XIII and at page 350 of Le Gros, Traité du Droit Coutumier (1943) when considering "De la clameur révocatoire ou deception d'outre moitié du juste prix" there appears this passage:-

"C'est un principe en quelque sorte sacré que la convention fait la loi des parties, mais la bonne foi est une condition essentielle et sine qùa non de la convention.

La raison en est évidente: c'est un principe commun à tous les contrats que les contractants se doivent franchise, sincérité sans voile ..."

17.      Although it may be that the extract deals only with the issue of good faith in relation to the claim for deception d'outre moitié, the judgment of the majority of the Privy Council in Snell-v-Beadle [2001] JLR 118 at paragraphs 42 - 46 in particular may lend some support to the view that the requirement for good faith in the negotiation or performance of a contract under Jersey law may be of wider application than simply such claims.  Increasingly, European legislation contains provisions based on the concept of good faith and it is interesting to note that Article 5 of the Supply of Goods and Services (Jersey) Law 2009 introduces a definition of good faith for the purposes of that legislation. 

18.      On the other hand, it is clear that the English law does not recognise the principle of good faith as having any general application, not least perhaps because English judges have been anxious to avoid creating uncertainty.  In Interfoto Pichers Library Ltd-v-Stiletto Visual Programmes Ltd [1998] 1 QB 433 at p 449 Bingham LJ, as he then was, put it this way:-

"In many civil law systems, and perhaps in most legal systems outside the common law world, the law of obligations recognises and enforces an overriding principle that in making and carrying out contracts parties should act in good faith.  This does not simply mean that they should not deceive each other, a principle which any legal system must recognise; its effect is perhaps most aptly conveyed by such metaphorical colloquialisms as "playing fair", "coming clean" or "putting one's cards face upwards on the table."  It is in essence a principle of fair open dealing... English law has, characteristically, committed itself to no such overriding principle but has developed piecemeal solutions in response to demonstrated problems of unfairness."

19.      Into this mixture would need to be introduced consideration of the doctrine of réticence dolosive, and its impact upon the issue.  At all events, this issue of any general obligation of good faith is reserved to another day when the facts of the case call for the law on this point to be decided. 

20.      In addition to the general statement of principle in paragraph 15 above, in the case of this particular contract, there are, it seems to us, three provisions which contain express requirements of good faith:-

(i)     At page 3 there is the provision that reads:-

"The proposal and declaration made by you are incorporated in and form part of the contract.  You must tell us of any change in this information as soon as possible since failure to do so could invalidate your policy.  You must not wait until the next renewal date."

(ii)    At page 59 at paragraph 3 there appears this passage:-

"For damage claims you must give us any documents, information and evidence we need at your expense.  You must also tell the Police immediately if the claim is being made as a result of accidental loss, damage by malicious persons, theft or any attempted theft." 

(iii)   At paragraph 9 on page 59 there appears this language:-

"You must notify us as soon as is reasonably possible of any change in the information given to us which may affect this insurance.  Failure to do so may invalidate your insurance or may result in cover not operating fully".

21.      Advocate Jowitt contended that at least some of these provisions amounted to requirements for the utmost good faith on the part of the insured, and he went on to assert that in some respects this had been missing.  We accept the contention that this language points to a common understanding in this contract that the utmost good faith is required on a continuing basis for the duration of the contract, but we would decide the point more generally as set out in paragraph 15 above. 

22.      In his closing submissions, Advocate Jowitt contended that the Plaintiff had to prove:-

(i)     That the watch insured was a genuine Hublot Big Bang watch;

(ii)    That he acquired lawful title to it;

(iii)   That it had a genuine value at £46,000;

(iv)   That it had been genuinely lost. 

23.      We accept that not only are these issues raised on the pleadings but also that this is the right approach and we have reviewed the evidence against those questions.  In the course of doing so, we have also considered the argument around estoppel by convention which Advocate Sinel contended applied in relation to the valuation.  However, before turning to the facts, we wish to say something both about the allegations of fraud that have been made, and as to the legal framework against which the facts have been assessed. 

24.      Rule 6/8(5) of the Royal Court Rules 2004 provides:-

"(5)     A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality -

(a)       which that party alleges makes any claim or defence of the opposite party not maintainable;

(b)       which, if not specifically pleaded, might take the opposite party by surprise; or

(c)       which raises issues of fact not arising out of the preceding pleading."

The requirement to plead fraud specifically, if that is what is alleged, is well established.  Our rule is in similar terms to what was Order 18 Rule 8 of the Rules of the Supreme Court. 

25.      In this case the defendant re-amended its answer which was served on 17 June, 2010, so as to assert that the defendant was entitled to avoid the contract on the grounds that the plaintiff's claim was fraudulent.  The particulars of fraud given from which the defendant alleges fraud may be inferred are lengthy but on analysis they break down into three broad categories:-

(i)     allegations which go to whether the plaintiff ever acquired good title to the watch;

(ii)    allegations which go to whether or not the watch was a genuine Big Bang Hublot watch by attacking the validity of the valuation and by criticising the plaintiff's conduct in relation to his ownership of the watch;

(iii)   allegations which go to the genuineness of the claim that the watch had been lost. 

26.      We divide the claims of fraud in this way because different legal principles apply to the different categories, were any such fraud to be established.  The first two categories go in large measure to whether the contract should be set aside for dol, for the alleged fraud here would amount to a vice du consentment that would enable the defendant to avoid the contract.  The third category of fraud, if true, might lead the insurer to withdraw from further contractual relations and would entitle the insurer not to pay up under the contract - but the contract itself would remain valid and, subject to withdrawal, in force.  

The allegations of fraud were hotly denied by the Plaintiff and his witnesses. 

The Legal Framework

27.      By reason of the analysis of the contract which is set out in paragraphs 4 to 15 above, we are satisfied that the four matters, which the defendant contended the plaintiff had to prove, all necessarily fall to be proved by him in order to succeed in his claim under the insurance policy.  It follows that we have accepted that the burden of proof in these respects lies with the plaintiff, and as Advocate Sinel contended to the contrary, that is a matter that is now briefly addressed. 

28.      The plaintiff relied on the English case of Bond Air Services Limited-v-Hill [1955] 2 AER 476.  That case concerned a claim under and insurance policy in respect of an aeroplane which had crashed.  The owners sought an indemnity from the Lloyds underwriter who had subscribed the policy in respect of various risks.  One of the conditions of the policy was that the insured and all persons in his employment should observe the statutory orders regulations and directions relating to air navigation for the time being in force, and by a sweep up condition, it was agreed that the observance and performance by the insured of the conditions of the policy were of the essence of the contract and were conditions precedent to the insured's right to recover under that policy. 

29.      One issue for the Court in that case was where the burden of proof lay in relation to whether the aircraft was at all material times being flown in compliance with the relevant Air Navigation Order, by a qualified pilot, and whether it was maintained in a fit condition for use.  In fact the respondent insurer asserted a positive case, namely that the aircraft was loaded in excess of the weights permitted in the certificate of airworthiness thus invalidating the certificate and offending against the relevant Air Navigation Order and that the aircraft was not maintained in a fit condition for immediate use. 

30.      The Court found that the burden of proof lay on the respondent insurer to establish these matters notwithstanding the condition in the policy. 

31.      In our view this case is of limited assistance.  Ultimately, the question of where the burden of proof lies generally depends on who makes the assertions in Court which need to be established for the purposes of adjudicating upon the claim or the defence.  In this case, the plaintiff claims pursuant to an insurance contract that he has suffered the loss of a particular watch which belonged to him and carried a particular value.  In order to get home on his claim under that policy, these are the matters he must prove.  If it were the case that the insurer were denying liability on the basis that there was some breach of condition or warranty by the insured, it would then be for the insurer to establish that that breach of condition or warranty had occurred, and the burden in that respect would be on the insurer.  Having regard to the analysis of the contract which is set out above, we consider that the burden of proving the four matters which are set out in paragraph 18 of this judgment lies upon the plaintiff. 

32.      We now turn to the issue of estoppel.  The first assertion was that the matter was governed by the doctrine of issue estoppel, but the plaintiff wisely changed tack in the course of argument.  He then asserted that the matter was governed by the doctrine of estoppel by convention.  This is an English doctrine which according to the editors of Snell's Principles of Equity 31^st Edition at paragraph 10 - 06 is traditionally treated as common law estoppel.  It is a doctrine that applies to a mutual assumption of fact made by both parties to a contract, but not recorded or recited in the contract itself.  The broad statement of principle is that, in those circumstances, a party is estopped from denying that mutual assumption of fact where it would be inequitable to permit him to do so and assert the contrary.  The editors of Snell say that it is not necessary to show that either party believed the assumed state of facts to be true if they treated them as true, and acted on that assumption, but it is necessary to show that the party relying upon the shared convention was induced to do so.  In the case of estoppel by convention under English law, a party is estopped from departing from a statement or proposition arrived at by mutual agreement or assent rather than by unilateral representation.  The plaintiff in particular relied upon Amalgamated Investment and Property Co Limited (in liquidation)-v-Texas Commerce International Bank Limited [1981] 3 AER 577.  At page 584 (h), Lord Denning M R put the matter in this way:-

"When the parties to a transaction proceed on the basis of an underlying assumption (either of fact or of law, and whether due to misrepresentation or mistake, makes no difference), on which they have concluded the dealings between them, neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so.  If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands."

33.      The difficulty with applying this principle of estoppel by convention is that it derives from a law of contract which is not our own.  It may well have been necessary to develop the doctrine of common law estoppel, or estoppel by convention, having regard to gaps which were identified in the English Law of Contract.  One needs to be satisfied that the same gaps exist in the Jersey Law of Contract before one could justify the introduction of similar principles into our law. 

34.      It is clear from case law that the Royal Court does apply the doctrine of promissory or equitable estoppel.  It may be that the doctrine of estoppel by convention also forms part of our law, although the Court doubts whether that is so in its entirety as applied by the courts in England and Wales.  This is because the mutual understanding as to the basis upon which the contract is to be performed, which is a sine qua non for the purposes of the doctrine of estoppel by convention is already drawn into the contract by the application of the principles relating to the requirements for the creation of a valid contract - the mutual understanding goes to the true consent of the parties undertaking the obligations, as an expression of their will or volonté to make the transaction; and if in any particular case it can be shown that the assumption upon which the parties proceeded simply cannot be made to hold good against them, then the remedy will probably lie in a claim that the contract should be set aside for erreur. 

35.      Be all that as it may, in this particular case, the plaintiff claims that the defendant accepted the valuation which he gave to them, and it is now too late for it to claim otherwise.  The plaintiff, so it seems to us, must therefore be asserting that there was a common understanding that the valuation met the requirements of the defendant under the contract. 

36.      In our judgment, the plaintiff falls a long way short of establishing that common understanding.  The defendant's employees all stated that any particular item having a value of anything in excess of £5,000 would need to have a valuation produced to support the keeping of the item on cover.  Miss Campbell said that the valuation was defective because it was not addressed to anyone, there was no reference to the serial or model number, essential with a high end value watch, and furthermore that the valuation would definitely not have been accepted if the item was not with the jeweller at the date of the valuation.  To conclude that the defendant is unable to resist the plaintiff's claim upon the basis of this valuation would be unconscionable.  In effect it would mean that if an insurer accepts a valuation, or simply does not question a valuation which is provided, and which contains inaccurate information which the insurer could not have known at the time, the insurer is barred forever from contending that the valuation is false or inaccurate, or for some other reason cannot be relied upon. 

37.      We do not say that there are no circumstances where an estoppel, probably an equitable estoppel, would not arise.  If an insurer could be shown to have made a positive representation that a valuation had been accepted as truthful and accurate, and if the insured party can be shown to have relied upon that representation, then the ordinary principles of equitable or promissory estoppel might well apply.  We do not think that they apply here because we do not consider that any such representation was made by the defendant.  All that happened was that at some point, it is slightly unclear when, the plaintiff arranged that this valuation, which is on the face of it obviously defective in some respects but also defective, though not obviously, in others, to be sent to the defendant.  The defendant clearly accepted the valuation, in the sense that it received it and acted upon it, because his Insurance schedule had no endorsement that the insurance of the watch was subject to valuation.  However, there is no indication of any representation having been made by the defendant in this respect.  In the circumstances we do not think it is at all inequitable to permit the defendant to contest the accuracy of the valuation.  The plaintiff seeks to rely upon it and must deal with all the difficult questions which arise in connection with it. 

38.      We have indicated already that our analysis of the insurance contract is that the plaintiff is required, in order to establish his right to indemnity, to prove the matters set out at paragraph 22.  Even if that construction of the contract were to be incorrect, which we do not consider it is, the questions as to whether or not the plaintiff had good title to the watch and whether or not the watch insured was a genuine Hublot Big Bang watch are critical matters for the existence of the contract of insurance in relation to this particular merchandise, and it is appropriate to review the law in this respect, upon the assumption that our construction of the contract is incorrect. 

39.      It may be that the difference between the plaintiff's position and the defendant's position in relation to the contract is this.  In effect, the plaintiff's claim is that he wanted to insure this watch, which is a Hublot Big Bang watch.  The defendant's position is that the insurer agreed to insure a Hublot Big Bang watch.  To determine what they did agree is a matter of analysis of the contract, which is set out above and in the Court's view the defendant's approach is correct, namely that the contract was for the insurance of a Hublot Big Bang watch, because that is what the contract said.  If the Court had decided that the insurance contract was what the plaintiff claimed, namely a contract to insure his watch, which he said was a Hublot Big Bang watch, then it would be open to the defendant to say that there was no true consent or volonté to the formation of the contract.  The parties had made a mistake as to the subject of the agreement between them, an erreur sur l'objet.  As a result of this, the defendant would have been able to claim that the contract was void ab initio, one consequence of which of course would have been that the defendant was required to repay the plaintiff the insurance premium which had been paid. 

40.      It is interesting to note that the defendant has approached the matter rather differently by saying that the plaintiff had induced the contract by an innocent, alternatively fraudulent, set of misrepresentations implicit in the delivery of the valuation:-

(i)     that he was the genuine owner of the watch;

(ii)    that it was a genuine Hublot Big Bang watch. 

41.      As a matter of modern English contract law, both misrepresentations, whether innocent or fraudulent, if established could lead to the setting aside of the contract.  Indeed if one looks at many of the cases which have been heard in the Royal Court since Scarfe-v-Walton [1964] JJ 387, the plaintiff's claim has frequently been based upon alleged misrepresentations upon which the Royal Court from time to time has had to make factual findings.  In most cases, the Royal Court has not been persuaded on the facts that there were misrepresentations but it is true that the Court has proceeded on the assumption that some relief might have been available if there had been.  A good example of this is the case of Kwanza Hotels Limited-v-Sogeo Co Limited [1983] JJ 105, where, at first instance in the Royal Court, the plaintiff's claim for damages had been based upon the assertion that when the defendant company placed the property on the market for sale, the owner made a series of statements which were misrepresentations.  Accordingly the plaintiff claimed that the property and business which it actually purchased from the defendant was materially different from that which it believed it was buying, and was induced to buy, and that the defendant was in breach of contract by virtue of the said express or implied misrepresentations. 

42.      The agreed questions which were formulated for the Court to answer started from a premise which, one might think, was therefore alien to the Jersey law of contract described by Poingdestre and Le Geyt.  The first question the Court was asked was this:-

"Did the description of the chalet by or on behalf of the defendant company as "owner's accommodation" amount in law to a representation, express or implied -

(a) that the chalet had been legitimately constructed with all the necessary consents;

(b) that the chalet was constructed in accordance with the necessary building by-laws; and

(c) that the chalet was fit for use as human habitation".  (emphasis added) 

43.      One is tempted to ask what the purpose of the first question was.  This was a claim in contract, as far as one could tell.  One would certainly have anticipated that to the extent it was not a claim in contract, the contract would have set the obligations which the parties owed to each other, if only on the basis that la convention fait la loi des parties.  So the second question (was there implied in the contract of sale terms which amounted to the alleged representations set out above) was an entirely appropriate question to put to the Court in relation to the contract which the parties had made. 

44.      We do not pretend that all the different decisions of the Royal Court on matters of contract between Scarfe-v-Walton and today can be explained upon the basis that whenever the parties brought a claim in misrepresentation, the Court in fact adjudicated the matter on the basis of erreur, although we consider that that explanation is available for many of those cases.  Taking the case of Scarfe-v-Walton as an example, the plaintiff's claim was that a sale of shares should be set aside on the ground of error as to the extent of land owned by the company.  In particular the allegation was that there was an error induced by misrepresentation.  The Court noted that counsel had relied almost exclusively on precedents from the law of England, but nonetheless stated what the Court believed the law of Jersey to be and referred to extracts from Terrien, from Poingdestre and from Domat.  The Court also then looked at the case of Langlois-v-Jersey Contractors Limited [1958] 251 Ex 279 where an agreement for the acquisition of a plot of land as shown on a plan was set aside before contract was passed when it was discovered that some of the land in question in fact belonged to a third party.  This seems to us on analysis to be either an example of an erreur sur la substance, namely a mistake as to the subject matter of the agreement or a case of dol.  One assumes that there was some form of misrepresentation, innocent or fraudulent, as to the land which the putative vendor owned, but it seems to us that the ordinary doctrines of erreur or dol would have been the basis upon which the contract was set aside, not any alleged misrepresentation.  It is perhaps surprising that the discussion of principle in Scarfe-v-Walton is then followed by a passage which has been often quoted in Jersey cases since 1964:-

"It has been the practice of the Court for many years, in extension of the principles enunciated by Terrien and Poingdestre, to have regard also to the Law of England in cases where no clear precedent is to be drawn from the Law of Jersey, and it can be said that the principles enunciated by Domat, which cover not only error induced by misrepresentation but also error not so induced, have much in common with the law of England relating to misrepresentation and mistake.  The allegation in this action is error induced by misrepresentation and in arriving at our judgment, we have had regard both to the Civil Law and to Law of England".  (Emphasis added). 

45.      This eliding of mistake, misrepresentation and the principles of erreur has been not only oft repeated, but oft accompanied by statements that unfortunately the Court has been faced with citations of English authority by counsel, when a surer guide is the Law as enunciated by Poingdestre or Pothier or indeed even the Civil Law enunciated by Domat.  Of course, we accept that the paucity of contract cases coming before the Royal Court means that there will be fewer precedents available to the Court than would be perhaps desirable; but it appears to us that the Court should be cautious to declare the Law of Jersey by abstracting principles from the Law of England which have been drawn fundamentally from a different approach to the law of contract.  It may seem that in some of the cases which have come before the Court and are referred to in the admirable consultation paper entitled The Jersey Law of Contract issued in October 2002 by the Jersey Law Commission, the Court has been persuaded to do just that.  As was said by Advocate Kelleher in his article in 1999 3 Jersey Law Review 1:-

"It is clear ... that in the area of Contract as in many other areas of Jersey Law, the Royal Court has simply "cherry picked" elements from both the English and the French legal systems without laying down any consistent guidelines with regard to the sources of law to which the Courts will have regard.  Although this approach may have advantages in terms of flexibility, it has resulted in a degree of uncertainty and confusion which cannot but prejudice the interests of litigants before the Jersey Courts and which reflects poorly upon our legal system as a whole". 

46.      We must remind ourselves, however, that we are not concerned with English law or French law but what is the law of Jersey.  This we must identify from precedents where they exist and from customary law.  In our view, cases in Contract which have been brought before the Royal Court upon the basis of misrepresentation, where the claim is that an innocent misrepresentation did not become part of the contract terms but did induce the making of a contract which would otherwise not have been made, can sometimes be properly understood by reference to the Law on Erreur, the most recent exposition of which is to be found in the decision of the Court of Appeal in Marett-v-O'Brien [2008] JLR 384.  It has to be recognised that whatever might have been the position in England or in France, the decisions of the Royal Court in reported contract cases since 1950 show that the Court has been prepared to investigate whether there has been an innocent misrepresentation which did not become incorporated in the contract terms as a warranty or condition but did induce the making of the contract.  This must have been taken to have been upon the basis of a vice du consentement which goes to the issue as to whether there was any true common will or volonté to agree the terms of the contract (in this connection see also the judgment of the Royal Court in Incat Equatorial Guinea Limited and others-v-Luba Freeport Limited [2010] JRC 083A).  A fraudulent misrepresentation clearly allows the contract to be avoided.  But we go further and hold that Jersey's contract cases show that, depending on the facts, including, in particular, the materiality of the alleged misrepresentation to the contract and its actual impact on the party to whom it was made, an innocent misrepresentation which induces a contract can be another form of vice du consentement just as erreur or dol. 

47.      None of this is to say that the Jersey Law of Contract belongs in some bygone era.  Taking, for example, the decision of the Royal Court in Toothill-v-HSBC Bank [2008] JLR 77, the Court there decided that the Law of undue influence in Jersey is similar to that of English Law and that the principles underlying the decisions in Barclays Bank Plc-v-O'Brien [1994] 1AC 180 and Royal Bank of Scotland Plc-v-Etridge (No. 2) [2002] 2AC 773 were entirely consistent with principles of Jersey Law.  The case of Toothill concerned the question as to whether or not a wife was able to escape the consequences of loan documentation which she had executed in favour of the plaintiff bank jointly with her husband.  Had undue influence been established within the framework of the O'Brien and Etridge decisions, those would in our judgment have amounted to a vice du consentement which would have enabled the wife to avoid the consequences of the loan contract.  The other part of that decision turned on the materiality or otherwise of the failure of the Bank to advise the wife that the Bank's own internal rules had not been complied with.  This failure was found not to be material and this issue of the misrepresentation therefore did not need to be tackled. 

48.      We have therefore approached the facts of the present case on the premise that the four questions set out in paragraph 22 above require an answer because under his contract as we understand it, the plaintiff has to establish they can be answered affirmatively.  In addition, even if we are wrong on that, the first two questions at least require to be answered as central to the issue of whether there was a valid insurance contract between the plaintiff and the defendant in relation to the Hublot Big Bang watch, and whether it should be set aside on the basis of the plaintiff's alleged failure to inform the defendant about the valuation and the circumstances in which the watch was acquired, and in particular the silence on the plaintiff's part to inform the defendant:-

(i)           of the questionable circumstances in which the watch was alleged to be acquired;

(ii)          of the questionable circumstances in which the plaintiff came to be in possession of the valuation;

(iii)         of the fact that by the date of this valuation, the valuer had not had the watch in its custody for at least 8 weeks. 

These alleged failures require to be considered whether they were innocent or fraudulent.   In our judgment, given our view of the evidence as appears below, the failure on the plaintiff's part to inform the defendant about those matters did amount to a réticence dolosive which enable the defendant to reject the addition of the watch to the insurance policy and thus the claim under that policy.  Had the plaintiff not produced a valuation, the insurance of the watch would not have been continued.  The position would have been the same had he been forthcoming on this critical information as set out above.  To this extent only, the Court finds the defendant's allegations of fraud proved.  We have considered the Court's hesitation in Toothill as to whether the doctrine of réticence dolosive is part of the law of Jersey.  In our view the doctrine is useful in a case such as the present because it forms part of that package of principles which go to identify whether the parties to a contract of insurance, being a contract uberrimae fides, have that common will or volonté to make it, and thus provide a proper basis for an assertion that la convention fait la loi des parties.  Not all silences will have the effect of providing grounds for a claim in nullity.  The party making that claim has to relate the alleged réticence dolosive to a material particular of the contract and its actual impact upon his will or volonté to make the contract in order to discharge the burden of showing that the claimed ground of nullity has been established. 

The Witnesses

49.      The plaintiff's witnesses, apart from himself, were Doctor Audrey Giles, a forensic expert who gave evidence in relation to some hand written notes made by Mr Headington, the defendant's loss adjuster; Connétable Vibert who gave evidence as to the good character of the plaintiff, which evidence was contended by Advocate Jowitt to be inadmissible; Mr Geoffrey Habin; Mrs Sutton, the plaintiff's wife; Mr Cullen; and Mr Kohanzad, who gave valuation evidence.  The witnesses, who gave oral evidence for the defendant were Miss Millen, who put the watch in question on cover in July 2008, Miss Campbell who signed off on that insurance cover; Mr Egerton Vernon, a lawyer working for the advocates instructed by the insurers, and who gave evidence in relation to Mr Headington's notes; Mr Headington, the loss adjuster already mentioned; Mr Paul Hamilton, an investigator with a firm called Messrs Crawfords in England; Mr Gerald Toudic, an insurance broker; Miss Felicity Ward, an employee of the insurers; and Mr Richard Honeycombe, another insurance broker in Jersey concerned with this matter and who has acted for the plaintiff.  The Court has had the advantage of looking at the demeanour of all these witnesses in the witness box and hearing their evidence as it was given.  It was apparent that in some respects, the recollections of the same events differed.  Where such conflicts exist, and save as may be expressly set out, the Court has preferred the evidence of the defendant's witnesses. 

50.      One area where we would like to make it plain we have not followed this preference concerns evidence given by Mr Headington, the loss adjuster appointed by the defendant.  We had before us what purported to be notes made by Mr Headington of a meeting held with the plaintiff on 27^th November, 2008.  These notes comprised a copy of page 1 and original notes of pages 2-5.  The evidence of Dr. Giles, which we accept, makes it plain that the copy page 1 was not the same page 1 as was originally written, because one could see from impressions taken from page 2 that there was different language from what might be thought to be the original page 1 than is apparent from the copy.  Her findings amounted to very strong positive evidence that page 1 of the notes had been rewritten although it was not possible to determine when this occurred.  Mr Headington himself gave a number of different explanations in connection with these notes.  Originally he said that he believed page 1 was a copy of the original.  In his third Affidavit, he gave an explanation for why the first page of the notes might have been rewritten.  When he came to give evidence before us, he said that he thought that the copy of the first page of his notes was indeed accurate, but that he had rewritten pages 2 to 5.  That explanation is simply not consistent with the findings of Dr. Giles. 

51.      Mr Headington lives in Guernsey.  He came to Jersey to give evidence in this case but surprisingly he did not bring his file with him so that he could refer to it when cross examined.  His evidence was hesitant and confused and we do not feel able to rely upon it.  The only part of Mr Headington's evidence which we take into account are the letters and emails which he sent at different times and which we think probably do reflect the information which he thought was available to him at the time he sent them.  

The Acquisition of the Watch

52.      The plaintiff's evidence in relation to the acquisition of the watch was that in late April or early May 2008 he met Mr Duncan Hickman in Jackson's Garage.  Mr Hickman was not a friend of the plaintiff but a mere acquaintance.  The plaintiff had been introduced to Mr Hickman at Jackson's Garage on a Sunday morning, probably introduced by a member of staff.  At the meeting in April/early May (and we think it must have been April given the rest of the plaintiff's evidence, because Mr Hickman unfortunately died on 2^nd May) Mr Hickman told the plaintiff that a friend of his wanted to sell a Hublot Big Bang watch.  The friend allegedly wished to keep the details of the sale private as he did not want people to know that he needed to raise the cash.  The plaintiff expressed interest in purchasing the watch, partly by way of cash and partly by way of exchange of other watches.  There was subsequently a telephone conversation when Mr Hickman must have confirmed that in principle an agreement of that kind would be acceptable, because, according to the plaintiff, he met Mr Hickman again in the car park at Jackson's Garage where the plaintiff was given the watch and told by Mr Hickman to keep it for a week or so, in order that he could have a proper look at it and decide if he liked it enough to take it.  This is set out at paragraph 8 of the plaintiff's affidavit.  A week or so later, the plaintiff advised Mr Hickman that he wanted to keep the Hublot and a deal was struck whereby the plaintiff would pay £11,000 in cash and exchange 9 watches of different values, in return being able to keep the Hublot Big Bang watch.  In cross examination, the plaintiff confirmed that the deal was completed at a further meeting in the car park at Jackson's Garage.  Neither party gave any receipt to the other, Mr Hickman receiving the 8 or 9 watches (the exact number is unclear) and £11,000 in cash handed over in an envelope, and the plaintiff retaining the watch which Mr Hickman had given him a week earlier. 

53.      As part of the deal, Mr Hickman was to deliver the original watch box, which, the plaintiff asserts, he did deliver two days later and was also to provide a valuation.  In fact the valuation was not received by the plaintiff until some time after 28^th June, 2008.  It was dated 28^th June, and issued by a firm called Gilt Edged Jewellery, of Greville Street, Hatton Garden, London.  The valuation was not addressed to anyone.  The plaintiff's evidence is that he assumed that the person on whose behalf Mr Hickman had sold the watch had arranged for the plaintiff to receive the valuation.  At all events, it came in the post to his home address without any letter, compliment slip or other indication from whence it had been sent.  It just arrived.  

54.      It is clear that in the absence of any receipt on either side for the watches that were exchanged, or for the sum paid in cash, and in the absence of any telegraphic transfers or bank statements, cheques or cheque stubs, or indeed any other evidence than that of the plaintiff himself, there is no independent evidence that the plaintiff paid anything at all for the watch alleged to be a Hublot Big Bang watch.  The plaintiff indeed accepted in cross examination that he could not prove he was the owner of the watch.  At the time, he did not question Mr Hickman because he believed him to be the cream of business society in Jersey, and he certainly showed the trappings of great wealth. 

55.      The plaintiff's evidence was much criticised by Advocate Jowitt, who described the transaction as allegedly taken place in clandestine meetings in Jackson's car park where the plaintiff did not know the identity of the seller, did not know the serial number of the watch, and apparently relied on a mysterious valuation which arrived two months after the event from a non Hublot dealer.  We add that the lack of independent corroboration of the plaintiff's assertions as to how he acquired the watch is perhaps all the more important given the surprising assertions that the plaintiff was apparently given the watch by a mere acquaintance to hold for a week to see if he liked it, and in circumstances where the price for the watch was agreed over the telephone as the sum of £11,000 in cash and some watches which the vendor had not seen.  We also add that it is in our view the case that the plaintiff has given conflicting accounts of how he came by the watch.  He told Mr Honeycombe on 17^th November, 2008, that he had bought the watch via Mr Hickman from a local advocate, but he was not prepared to name them as he did not want to "drop them in it" (sic).  Furthermore, despite the unreliability of Mr Headington's evidence before us and whatever is the truth around what the plaintiff said to Mr Headington on 27^th November, the correspondence from Mr Headington of 27^th January, 2009, shows his understanding at that time to have been similar to that of Mr Honeycombe; and Mr Headington's letter of 2^nd March, 2009, coupled with the email of 17^th March, 2009, also points to there being some dissembling on the plaintiff's part.  The Court also had evidence from Mr Honeycombe that on more than one occasion after 19^th November, 2008, the plaintiff had told him that he had neither the box nor the paperwork in relation to the watch. 

56.      In all the circumstances, the Court is not satisfied that the plaintiff acquired good title to the watch in question.  We also note that the circumstances around the acquisition of the watch go not only to the question as to whether there is a good provenance to it, but also to the question as to whether it was a genuine Hublot watch, the issue to which we next turn. 

Was it Genuine?

57.      The evidence that the watch was a genuine Hublot Big Bang watch amounted to the evidence of the plaintiff, who said that he was experienced as a watch collector, and that he just knew that it was real and genuine.  He had no fake watches in his possession.  He appreciated that fake watches did exist, and that copies might be made of very valuable watches, but he was entirely sure that this was not a fake.  As against that, we heard from Mr Honeycombe that the plaintiff asserted to him that "Hublots never have serial numbers", a statement which is clearly incorrect. 

58.      The plaintiff also produced photographs which show him to have been wearing a large and solid looking watch on board the Queen Mary II, when he went on holiday in July/August 2008, but these do not assist us in demonstrating whether the watch he was wearing was in fact a Hublot Big Bang watch.  The plaintiff also told us that while he was in New York, he and his wife stayed at the Waldorf Astoria Hotel and within that hotel there was a fine jewellery store, called Cellini, in which, during one of the days of their holiday, he happened to meet the North American representative of Hublot, because Celllini is a registered Hublot dealer.  The plaintiff told us that he showed the representative his Hublot and they had a discussion around watches generally.  The representative took a number of fine watches from the displays to show the plaintiff.  The plaintiff considered that the Hublot representative would have told him if there had been any doubts raised when he saw the plaintiff's watch.  We heard evidence from Mr Habin that the plaintiff is a collector of watches and that he had had a look at the watch whilst it was on the plaintiff's wrist.  Although he did not know how to identify a fake Hublot, he had no doubt that the plaintiff's watch was genuine, but in cross examination he agreed that his assessment that it was a genuine Hublot watch depended upon his view that the plaintiff knew what he was doing insofar as watches were concerned.  We also heard from Mr Mark Cullen, who is also an amateur collector of watches and who himself had purchased a Hublot Big Bang watch some two years ago.  He tried on the plaintiff's watch when they had breakfast one day at the Aero Club and he gave evidence that the plaintiff's watch was much heavier than his own.  He thought it was "a bit flash and very bling".  He said in his Affidavit in Chief that he knew immediately that the value was around £40,000.  In cross examination he agreed that he had not seen many replica watches.  He said that there were numbers on the back of the plaintiff's watch, but whether these were serial numbers he did not know.  Mrs Caroline Sutton, the wife of the plaintiff, confirmed that her husband told her he was doing a deal for a Hublot Big Bang watch, and that he completed that deal because the first time she remembered seeing him wearing the watch was before his sister's 60^th birthday party in May 2008.  She thought that it was very large and heavy but that it looked good.  She confirmed that they had together attended Cellini's in New York but she had not heard the conversation with the representative of Hublot. 

59.      Finally, the plaintiff relied upon the evidence of Mr Kohanzad who had been responsible for the valuation dated 28^th June, 2008.  Mr Kohanzad had worked for his father in the firm Gilt Edged Jewellers.  He had helped his father out when he had been aged 14 to 16 years old, and subsequently had worked for his father for four years with a one year break in the middle before leaving that employment in April 2009.  He said he had owned a Hublot Big Bang watch himself.  He helped his brother buying and selling watches on his website and also dealt for himself from time to time, purchasing watches on the Portobello Road Market.  He told us that he was well able to spot fakes from experience.  He had been caught out once when he was aged 17.  He had an appreciation of well crafted watches and he could spot a fake a mile off. 

60.      While he was working for Gilt Edged Jewellers, he had valued approximately 300 watches, amongst them eight to 10 Hublots.  The price for a valuation was either 1% or £25, depending on the deal struck with the customer, but valuations were free if he had sold the watch to the customer. 

61.      He said that he would normally put on the valuation for the insurance company details of the serial number of a watch.  He did not know why it had not been placed on this particular valuation.  The valuation had been signed by his father.  Although he personally had a great deal of experience, his father had not allowed him to sign the valuations.  He said that he had never previously seen a baguette bezel strap, and so he remembered the watch in question.  It was a genuine watch.  He was 100% sure of that.  He disputed the evidence of Mr Hamilton insofar as it concerned him.  When he was asked as to why the valuation was dated 28^th June, he explained that he would normally write down information on a post-it sticker or on the whiteboard maintained at the shop in Hatton Garden.  He would certainly not issue a valuation on something he had not seen.  The shop was busy and sometimes chaotic and the production of insurance valuations often went to the bottom of the pile.  He would concentrate on things he would make money on, and the valuations would be written up at a later date.  He agreed that he would normally write down the customer's name and address on the valuation.  He could not remember who asked for the valuation on this occasion, or to whom the valuation was sent.  As to the differences between the valuation which appeared in his handwriting and the typewritten valuation which his father had signed, he could not explain them.  He thought that the typed up valuation must have been completed by one of his colleagues.  He took no issue with the evidence of the Hublot representative who described where serial numbers were to be found. 

62.      The defendant's stance as to whether the watch was genuine lay in the assertion that the burden lay on the plaintiff to prove that it was, and in the production of some evidence, apart from that adduced in cross examination, that challenged the valuation the plaintiff relied upon.  Mr Paul Hamilton gave evidence that he had been to the premises in Hatton Gardens where he had met Mr Kohanzad senior, who telephoned his son Johnathan, (who gave evidence), in Mr Hamilton's presence.  They were adamant that a valuation would not be provided unless the item was brought in for physical examination, but they were not able to provide information as to how they would have known they were valuing a genuine Hublot Big Bang watch.  They suggested various places, all incorrect, as to where the serial number would be on such a watch.  They agreed it was their normal practice to record serial numbers.  According to Mr Hamilton, business in the shop was brisk and transactions went through fairly quickly.  A number of customers wanted immediate prices on selling items to the shop and Mr Hamilton saw at least one Rolex watch change hands in this way.  He did not have a favourable impression of the business conducted. 

63.      Having had the opportunity to study the plaintiff giving evidence, the Court has reached the view that he has not discharged the burden of proving that the watch in question was a genuine Hublot Big Bang watch.  This conclusion is not reached only from a consideration of the circumstances in which the watch was acquired although that is part of it. 

64.      We do not consider the evidence of Mr Cullen to support reliably that this was a genuine Big Bang watch.  We do not feel able to rely on Mr Kohanzad's evidence.  The idea that a watch can be inspected in a busy shop for valuation, a note made on a Post-It sticker or a Whiteboard and remain accessible for some two months between at the latest the last week in April and 28^th June and nonetheless provide adequate information for a credible valuation is difficult enough to accept; but when one adds to that difficulty the absence of any reference to a serial number, the apparent lack of understanding as to where the serial number might be found and the absence of any information as to who the customer seeking the valuation was or indeed how it was that the valuation came to be posted to the plaintiff, it appears to this Court that there was an insurmountable mountain to climb and nothing in Mr Kohanzad's evidence persuaded us otherwise.  

65.      In effect, as Mr Jowitt said, there was only the plaintiff's word for it that this was a genuine Hublot Big Bang watch and regrettably the Court does not consider that to be sufficient in the light of the inconsistencies in his statements which have been mentioned already. 

Genuine Value of £46,000

66.      This question is easily answered.  As the plaintiff has not discharged the burden of proving the watch is a genuine Hublot Big Bang watch, he has not satisfied us that the watch which is the subject of the claim has a value of £46,000. 

That it has been genuinely lost

67.      The defendant's submissions on this issue can be reduced to three points:-

(i)     The plaintiff was not a credible witness and he was the only witness giving evidence that the watch was lost;

(ii)    His conduct immediately after the watch was allegedly lost was suspicious;

(iii)   The plaintiff's practical demonstration in the witness box as to how he might have lost the watch whilst throwing a stick for his dog demonstrated that a watch could not be genuinely lost as he claimed because either it would not have fallen off his wrist at all or the weight of the watch falling off him would have been immediately noticed. 

68.      The Court has considered these points carefully in its assessment of the evidence including that of the plaintiff.  The only evidence that the watch was lost is that of the plaintiff and he has given inconsistent explanations as to how it was lost.  He told Ms Felicity Ward, who worked for the defendant, that his next door neighbour, a lawyer, was with him when the watch was lost.  He told Mr Honeycombe that he assumed he had lost it on the beach when walking the dog.  He said the same thing to Mr Headington, and in neither case suggested anyone was with him. 

69.      The Court does not find the evidence of the plaintiff in a number of respects to be reliable.  We do not have to decide whether the watch was genuinely lost because of our other findings of fact.  But, if we had had to do so, the Court would have reached a conclusion, on the balance of probabilities, that the plaintiff did lose a watch on the morning of 4^th November, 2008. 

70.      The Court adds however that other than as set out in paragraph 48 above it does not find the allegations of fraud made against the plaintiff to be established.  The view we have reached on the reliability of his evidence does not mean that we regard him as deliberately untruthful. 

Conclusion

71.      For the reasons given, the plaintiff's claim fails and it is accordingly dismissed. 

Authorities

Domat L (1745 edition) Les Loix Civiles Liv I Titre I Section IX.

Le Gros, Traité du Droit Coutumier (1943).

Snell-v-Beadle [2001] JLR 118.

Supply of Goods and Services (Jersey) Law 2009.

Interfoto Pichers Library Ltd-v-Stiletto Visual Programmes Ltd [1998] 1 QB 433.

Royal Court Rules 2004.

Rules of the Supreme Court.

Bond Air Services Limited-v-Hill [1955] 2 AER 476.

Snell's Principles of Equity 31st Edition.

Amalgamated Investment and Property Co Limited (in liquidation)-v-Texas Commerce International Bank Limited [1981] 3 AER 577.

Scarfe-v-Walton [1964] JJ 387.

Kwanza Hotels Limited-v-Sogeo Co Limited [1983] JJ 105.

Poingdestre and Le Geyt.

Langlois-v-Jersey Contractors Limited [1958] 251 Ex 279.

Marett-v-O'Brien [2008] JLR 384.

Incat Equatorial Guinea Limited and others-v-Luba Freeport Limited [2010] JRC 083A.

Toothill-v-HSBC Bank [2008] JLR 77.

Barclays Bank Plc-v-O'Brien [1994] 1 AC 180.

Royal Bank of Scotland Plc-v-Etridge (No. 2) [2002] 2 AC 773.