Jersey Unreported Judgments

[2011]JRC044A

royal court

(Samedi Division)

24^th February 2011

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

 

IN THE MATTER OF THE TUTELLES OF THE AMY CHILDREN

IN THE MATTER OF APPLICATIONS BY ANASTASIA REBECCA AMY AND MARIANNA ISADORA AMY FOR SUMMARY JUDGMENT

AND IN THE MATTER OF AN APLICATION BY ANGELA CLAUDETTE AMY, NEE HORMAN, FOR THE LIFTING OF A CAVEAT.

Advocate D. A. Corbel for Anastasia Rebecca Amy.

Advocate C. M. Fogarty for Marianna Isadora Amy.

Advocate P. C. Sinel for Angela Claudette Amy née Horman.

judgment

the commissioner:

Introduction

1.        The Court has been sitting to hear applications for summary judgment by Marianna Isadora Amy ("Marianna") and Anastasia Rebecca Amy ("Anastasia"), and an application by Angela Claudette Amy née Horman ("Mrs Amy") for the lifting of a caveat granted by Birt, Bailiff, on 7^th October, 2010, at the instance of Marianna.  It was agreed by counsel that the issues raised were matters of law, and I have accordingly sat without Jurats. 

2.        The applications for summary judgment relate to separate sets of proceedings.  Anastasia began proceedings by Order of Justice against Mrs Amy and Charles David Barnett ("Mr Barnett") on 22^nd October, 2010.  Marianna began proceedings against the same defendants by Order of Justice on 3^rd November, 2010.  The applications raise issues which are, for all practical purposes, common to both sets of proceedings and it is therefore convenient to deal with them together.  I propose to deal first with the summary judgment applications and then with the application to lift the caveat.  

3.        This is an unhappy dispute, given that it involves a mother and her partner on the one hand, and two of her children on the other.  Mr Sinel, who appeared for Mrs Amy and Mr Barnett, urged me to the view that the mother was a victim of circumstances beyond her control who had done her best for her children, who were being greedy.  That view was not accepted either by counsel for Anastasia or by counsel for Marianna.  Both contended that the mother had failed in her duty to administer the tutelles for the benefit of the children.  I have not heard evidence, and it is not for me, in the context of the applications that I have heard, to form any conclusions on the factual disputes.  However, to the extent that the background is a matter of record, it is helpful to set out some of the history because it is germane to the applications before me. 

History of tutelles

4.        Edward Philip Amy ("Mr Amy"), the late husband of Mrs Amy and the father of Anastasia, Marianna and Philip Horman Amy ("Philip"), died on 13^th April, 2000.  A draft statement of settlement of the movable estate was placed before me from which it would appear that the liabilities exceeded the movable assets.  Mr Amy also possessed substantial immovable property, however, including Hastingue Farm, St Ouen, with adjacent land and outbuildings.  Mr Amy's Will of immovable property dated 30^th November, 1999, ("the 1999 Will") was duly registered on 16^th August, 2000, at the instance of Mrs Amy, Anastasia, Marianna, and Philip.  By that Will, Mr Amy devised the life enjoyment of the main house at Hastingue Farm (to which I will hereinafter refer as "the matrimonial home") to Mrs Amy, together with the right to use the gardens in front of the matrimonial home and the grounds known as La Cache to the east.  After Mrs Amy's death, the life enjoyment of the matrimonial home was devised to Anastasia, Marianna and Philip jointly and for the survivor or survivors of them.  The reversionary ownership was devised to Philip.  As to the residue of the immovable property, the life enjoyment was devised to Anastasia, Marianna, and Philip jointly and for the survivor or survivors of them; the reversionary ownership was again devised to Philip. 

5.        The 1999 Will revoked an earlier Will of immovable property which was dated 5^th November, 1996.  By that Will the entire immovable estate was devised to Mrs Amy for herself and her heirs in perpetuity.  Counsel for Mrs Amy told me that the earlier Will in favour of his client had been revoked because Mr Amy held her responsible for his eviction from the matrimonial home shortly before his death.  That eviction had been the result of allegations of maltreatment involving the children.  Those allegations had not been resolved by the time of Mr Amy's death. 

6.        On 30^th June, 2000, tutelles were formed to administer the property of the three children, Anastasia, Marianna and Philip.  Mrs Amy was named as tutrice, and Mr Barry Horman, Mrs Alice Huelin, Mrs Jacqui Callaghan, Mr Christopher Reynolds, Mr David Bisson and Advocate John Kelleher were appointed as electors.  Mr Bisson was the family accountant and Advocate Kelleher was the family lawyer.  The remaining electors were members of the family or friends of Mrs Amy.  It is clear that from the outset there were tensions between Advocate Kelleher and Mrs Amy.  Mrs Amy thought that Advocate Kelleher's firm was charging too much for its services, but it may be that she also thought that Advocate Kelleher was too closely associated with her deceased husband.  Mrs Amy also expressed concern about the cost of Mr Bisson's involvement, and he appears to have withdrawn from the tutelles in about June 2001, although he was not formally discharged until March 2008. 

7.        In 2002 or 2003 Mr Barnett was appointed as secretary to the tutelles.  I deal with Mr Barnett's relationship to the tutelles in more detail below.  In 2004 there was discussion about a proposal by Advocate Kelleher that Mrs Amy should be removed as tutrice.  On 14^th January, 2005, a letter, apparently written by Mr Horman, Mrs Callaghan and Reynolds to Mrs Amy, but unsigned, complained "You do not appear to have accepted your late husband's will.  We believe that you challenged the will but that the will was upheld".  [I interpose that there is no evidence of any such challenge].  "Your apparent non-acceptance of the conditions of the will appears to have clouded your judgement in the duties of tutrice."  In 2007, matters came to a head.  Not only Advocate Kelleher, but also Mr Horman, Mrs Callaghan and Mr Reynolds had expressed concerns at the way in which the tutelles were being administered.  Advocate Kelleher brought a representation to the Royal Court seeking, inter alia, accounts for the years 2005, 2006, and 2007, and details about certain payments made out of the tutelles' accounts.  Those proceedings were compromised.  By Act of the Court of 14^th March, 2008, Advocate Kelleher, Mr Horman, Mrs Callaghan and Mr Reynolds retired as electors of the tutelles of Marianna and Philip, Anastasia having attained the age of majority on 19^th December, 2007, and were replaced by Mr Barnett, Mrs C S Leach, Mr G N Roberts, Mrs J Roberts and Anastasia.  No findings were made in relation to the complaints of the Representor, Advocate Kelleher. 

8.        On 31^st May, 2009, Marianna attained her majority.  Ordinarily, and pursuant to the Loi (1862) sur les tuteurs, Marianna could have expected from her mother, the tutrice, an indication that within three months she would receive an accurate statement of accounts and a payment of the balance due to her (see Article 6 of the 1862 Law).  Instead, Marianna received a letter dated 30^th May, 2009, from Mr Barnett, her mother's partner, which his counsel conceded was not a nice letter.  In its judgment of 1^st April, 2010, this Court characterised it as a cruel and misleading letter.  It suggested that nothing was due to her and it threatened dire consequences if Marianna should dare to challenge these assertions.  Marianna sought legal advice and did challenge the assertion that, nine years after her father's death, nothing was due to her from her tutelle. 

Procedural history

9.        On 24^th November, 2009, Marianna brought a representation to the Court complaining that she had not been provided with any tutelle accounts despite several written requests to the tutrice.  She sought an order that tutelle accounts from 30^th June, 2000, to the present time should be provided and such further orders as the Court might deem appropriate.  Mrs Amy was convened.  On 21^st December, 2009, the Court adjourned the matter to a directions hearing, but also ordered that the papers be referred to the Attorney General, so that consideration could be given to an application to appoint some other person as tutrice of Philip's tutelle in place of Mrs Amy. 

10.      On 16^th February, 2010, counsel for Marianna issued a summons in the context of her representation, seeking an order that Mrs Amy should file an answer within 21 days, the appointment of accountants to prepare accounts in the tutelles of Marianna, Anastasia and Philip and other relief. 

11.      On 12^th March, 2010, the Solicitor General issued a representation applying to remove Mrs Amy as tutrice of Philip's tutelle on the grounds:-

(i)        that she had failed to provide proper accounts,

(ii)       that she did not accept that the child's rights were those defined in Mr Amy's Will, and

(iii)      that the tutrice had not preserved assets for the benefit of the child in accordance with the oath she had taken. 

12.      On 18^th March, 2010, the Court sat to consider both the representation of Marianna and the representation of the Solicitor General.  In relation to the later, the Court ordered on that day that:-

(i)        Philip's tutelle be dissolved;

(ii)       Mrs Amy should be removed as tutrice of Philip;

(iii)      the Viscount should be appointed as administrator of the property of Philip until he attained his majority; and

(iv)      Mrs Amy and Mr Barnett should forthwith deliver to the Viscount all books and papers relating to the tutelle together with the cheque book, bank statements and other financial papers. 

Written reasons were to be given at a later date.  Those reasons were contained in a judgment delivered on 1^st April, 2010 ([2010] JRC 067).  The Court authorised the Viscount to appoint an appropriate professional of his choice to examine the administration of the tutelles over the past ten years, and to ensure that proper accounts were prepared with effect from 30^th June, 2000.  The Court was also informed on that day that Mr Barnett had failed to deliver the books and papers relating to the tutelles to the Viscount, notwithstanding the clear order made on 18^th March.  Mr Barnett was ordered, on pain of contempt, to deliver up to the Viscount forthwith all such books and papers.  Following the hearing, the Viscount's officer proceeded with Mr Barnett to the offices of Jackson Fox (whom Mr Barnett had instructed to convert certain spread sheets into proper accounts) and then to Hastingue Farm.  There the Viscount's officer recovered a number of papers, including loose leaf invoices, bank statements and cheque books, together with a number of CDs which were created in consultation with Mr Barnett to assemble electronic information relevant to the administration of the tutelles. 

13.      On 16^th April, 2010, the Viscount appointed the firm of Grant Thornton to carry out a forensic accounting exercise in accordance with the guidelines contained in the Court's judgment of 1^st April, 2010.  Grant Thornton's report ("the GT report") was dated 2^nd July, 2010, and issued to the parties some days later.  On 21^st July, 2010, errata sheets were provided to the parties to correct certain typographical errors in the original report. 

14.      In the meantime, on 30^th March, 2010, a summons was issued by Advocate Thacker, then acting for Mrs Amy, by way of clameur de douaire seeking from Anastasia, Marianna and Philip as heirs and legatees to the immovable estate of Mr Amy, her just entitlement under the customary law to dower.  That action was called on 9^th April, 2010, and on 30^th April, 2010, was adjourned sine die.  The action appears to have progressed no further since then. 

15.      On 22^nd October, 2010, Anastasia issued an Order of Justice against Mrs Amy and Mr Barnett making a number of allegations of maladministration of her tutelle and breach of fiduciary duty arising from the GT report.  Anastasia claimed the sum of £94,319 a figure specified in the GT report, and other sums by way of damages.  That figure of £94,319 forms the basis of her claim for summary judgment. 

16.      On 3^rd November, 2010, Marianna issued an Order of Justice against Mrs Amy and Mr Barnett founding a claim for £103,074 upon the GT report and an additional sum of £105,029.99 arising from other allegations of maladministration of her tutelle.  Again the figure of £103,074 forms the basis of her claim for summary judgment. 

17.      On 10^th November, 2010, the Viscount lodged his report as administrator of the affairs of Philip.  He reported that he had been unable to make any substantive progress on claims which Philip might have against Mrs Amy and Mr Barnett for maladministration of his tutelle.  The Viscount had, however, been able to put in place an arrangement whereby Messrs Bull & Co administered the lettable units of accommodation at Hastingue Farm.  The Viscount pointed out that it was unclear whether the Dower Cottage was occupied and producing income, and indeed whether the cottage formed part of the matrimonial home that was subject to the usufruct of Mrs Amy.  Two of the four units of accommodation under the administration of Bull & Co receive their water supply from the matrimonial home.  At the end of September 2010 that water supply was disconnected by Mrs Amy and Mr Barnett and arrangements had to be put in place by Bull & Co to restore the supply to the occupants.  The Viscount reported that he held some £31,000 of accumulated income since his appointment in March 2010.  The Viscount also reported that he had incurred costs of some £50,000 since his appointment, including £29,870 for the GT report.  At that stage his costs had been met from public funds. 

18.      On 15^th November, 2010, Anastasia issued a summons seeking the discharge of the Viscount as administrator of Philip's property on 4^th December, 2010, (when Philip attained his majority) and other relief including the consolidation of the dower proceedings issued by Mrs Amy on 31^st March, 2010, with the other proceedings issued by way of Order of Justice by Marianna and Anastasia. 

19.      On 18^th November, 2010, the Court sat to consider an application by the Viscount to be discharged from his duties as administrator of the property and affairs of Philip on 4^th December, 2010.  The Court directed that the Viscount should be discharged with effect from that date and made certain orders in relation to the accumulated funds.  Submissions in relation to the costs of the Viscount were made, but not completed, and that matter remains unresolved. 

20.      By letter of 1^st December, 2010, counsel for Marianna indicated that she wished to apply for summary judgment, sending a summons and supporting affidavit to the Bailiff's Chambers, with copies to the other parties.  By letter of 7^th December, 2010, counsel for Anastasia gave the same indication sending a summons and supporting affidavit to the Bailiff's Chambers.  On 14^th December, counsel for Mrs Amy and Mr Barnett wrote to the Bailiff's Judicial Secretary enclosing a summons seeking the lifting of the caveat obtained by Marianna from the Bailiff.  On 15^th December, the summonses were countersigned by the Bailiff's Judicial Secretary and served.  I laid down a timetable, and the summonses were heard on 22^nd December, 2010. 

The judgment of 1^st April 2010

21.      It is necessary to relate a little more of the conclusions reached by the Court in its judgment of 1^st April, 2010, in particular because oral evidence was heard from a family friend, Mrs Leach, and Mr Barnett, and members of the Court were able to reach preliminary views as to the merits of the underlying dispute.  The Court reached, however, only one conclusion.  That conclusion was expressed in paragraph 9 of the judgment in the following terms:-

"Our conclusion is that Mrs Amy has not complied with the accounting obligations of a tutrice under the Law.  Article 3 of the 1862 Law provides that the tutrice shall, within three weeks of her appointment, prepare a statement of the immovable property belonging to the infants.  That has not been done.  It is a significant failure because such a statement would have clarified exactly what Mrs Amy considered to be the interests of her three children.  The statement should have formed the basis of the accounts to be prepared on an annual basis thereafter.  It should have been signed by the tutrice and each of the electors.  None of that was done.  Article 4 requires the tutrice to prepare annual accounts to be approved by the electors.  No such accounts have been placed before us." 

22.      The second and third grounds put forward by the Solicitor General for the removal of Mrs Amy from the office of tutrice were (a) that she did not accept that the rights of Philip were defined in the 1999 Will and (b) that she had not preserved and was not minded to preserve Philip's assets for his benefit in accordance with the oath she had taken.  As to those grounds for removal, the Court stated at paragraph 11:-

"In relation to the second and third grounds advanced by the Solicitor General for the removal of Mrs Amy as tutrice, we decline at this stage to make any adverse finding.   We feel considerable unease, and suspect that things may have gone badly wrong.  However, Article 5 of the 1862 Law contains penal provisions, as well as conferring the power to order damages and interest to be paid, and we think that we should defer pronouncing any adverse finding until the accounting exercise to which we shall refer below has been completed."

23.      As to the accounting exercise, the Court stated at paragraphs 15 - 17:-

"The Court was surprised to learn from Miss Fogarty that Marianna had been placed in foster care at the age of twelve, and subsequently moved to La Preference Children's Home until April 2008.  After a short period living with a boyfriend, she moved in July 2008 to live with a family friend, Mrs Caroline Leach, who is one of the electors of the tutelle.  We were surprised at this information, because nothing in the spreadsheets presented to us had indicated that the tutelle was not supporting Marianna financially.  In fact, it appears that, apart from birthday and Christmas gifts of £100 and occasional small payments from the tutelle account, Marianna has been supported for the last six years at public expense.  Since August 2008, she has been receiving State benefits in order to survive.  Counsel asked that an immediate payment of £10,000 be made to her from the tutelle account in order to enable her to cover her living expenses and also to assist her brother Philip.  Miss Fogarty told us, and counsel for Mrs Amy had also not disclosed this, that Philip had left home on 6^th July, 2009, and was also living with Mrs Leach.  Again, Philip was being supported at public expense, notwithstanding his considerable inheritance.  Counsel suggested that the eldest sibling, Anastasia, had been brainwashed into submission by Mrs Amy and Mr Barnett. 

We heard evidence from Mrs Leach and from Mr Barnett.  It is unnecessary for the purposes of this judgment to detail that evidence, but none of it detracted from what we had been told by Miss Fogarty on the instructions of her client.  Marianna now seeks to take her A levels at Hautlieu, and subsequently to go to college for tertiary education.  She needs funding from her inheritance to enable her to achieve those ambitions. 

We have no doubt that the books and accounts of the tutelle need to be closely and professionally examined.  Mr Barnett suggested through counsel for Mrs Amy that the local firm of Jackson Fox should be instructed; Mr Barnett had negotiated a fee of £2,500 to convert the spreadsheets into proper accounts.  It subsequently emerged that Mr Barnett had not waited for the Court to agree this proposal, but had delivered all the books to that firm of accountants.  The proposal was strongly opposed by the Solicitor General and by Miss Fogarty.  They contended that what was needed was a forensic examination by an accountant trained in those skills.  We agree, and we accordingly authorise the Viscount (in that the conduct of the tutelles from the outset affects Philip as well) to appoint an appropriate professional of his choice, having consulted naturally with counsel for Marianna.  The forensic accountant should examine the administration of the tutelles over the past ten years and ensure that proper accounts are prepared.  He should not, at this stage and without further authority, engage in any tracing exercise."  

The GT report

24.      As stated at paragraph 13 above, the Viscount appointed Grant Thornton ("GT") to carry out this forensic examination.  There has been no suggestion that GT is other than a professional and competent firm with expertise in forensic investigation.  The GT team was headed by Mr Jamie Toynton, a director of the company and a licensed insolvency practitioner.  The Jersey office can call upon the resources and expertise of Grant Thornton (UK) LLP.  The Channel Islands practice has a staffing strength of some sixty professionals.  Counsel for Mrs Amy and Mr Barnett suggested that the conclusions of the GT report could not be relied upon for the purposes of the applications of Anastasia and Marianna, but he did not impugn the expertise of the organisation itself.  I am entirely satisfied that GT is a highly competent and professional firm. 

25.      Mr Sinel submitted that the GT report had no status in law, that its conclusions and methodology were disputed, and that it had never been tested as a piece of evidence.  As to the status of the GT report, it seems to me that it is not open to Mrs Amy or Mr Barnett to brush it aside in this way.  The report was commissioned because Mrs Amy had failed in her most basic obligation as a tutrice, namely to keep proper accounts of her children's financial affairs.  Had Mrs Amy fulfilled her duties in that respect, there would have been no need for an intervention by a firm of forensic accountants.  As to the methodology of GT, it is worth recalling that GT was not appointed directly by any of the children, but by the Viscount, who is the Chief Executive Officer of this Court.  There is no evidence that GT approached that task other than in a wholly impartial and dispassionate way.  The GT report was forwarded to Mrs Amy and Mr Barnett, as well as to their legal advisers, on 5^th July, 2010.  No complaint was made as to the methodology until Mr Sinel's skeleton argument was filed shortly before the hearing in December.  In fact, no substantive complaint about the methodology has been articulated; it is the conclusions about which complaint is really made.  It is true that the author of the report has not been cross examined about it.  But it was open to Mrs Amy and Mr Barnett to seek to do so in the context of the applications for summary judgment. 

26.      Mrs Amy and Mr Barnett had every opportunity to ensure that all relevant information was placed at the disposal of GT.  A number of conversations took place between Mr Barnett and Ms Nicola Canavan of GT.  In addition to those communications, a meeting took place on 23^rd May, 2010, at the request of Mr Barnett at which the general remit of GT was explained.  At that meeting Mr Barnett gave an overview as to how he had managed the accounting of the tutelles.  On 16^th June, 2010, a further meeting took place which was attended by Mr Toynton, Ms Canavan, Mrs Amy and Mr Barnett.  A long list of detailed questions about the expenditure incurred and the general operation of the tutelles was put to Mrs Amy and Mr Barnett.  There was further e-mail correspondence between Mr Barnett and GT during June.  There was ample opportunity for Mrs Amy and Mr Barnett to supply documentation or information to GT to assist in the preparation of accurate accounts relating to the tutelles.  I observe in passing that at the hearing on 18^th November, 2010, Mr Sinel produced a bundle of financial information which he asserted had been supplied by Mrs Amy and Mr Barnett to GT.  After the hearing the Viscount's legal advisers sent a copy of the bundle to GT with a request for confirmation that GT had in fact received all that information.  By letter of 10^th December, 2010, GT confirmed that the bundle had been reviewed and that they had received all the information "with the exception of the annual analyses giving the breakdown of expenditure per pupille".  They were not part of the paper files received by GT nor on any of the computer discs received from Mr Barnett.  The inference to be drawn is that Mr Barnett constructed these analyses from computer files in his possession but did not pass them on to GT.  Nothing turns, in my view, on these analyses. 

27.      Mr Sinel drew attention to the qualifications contained in the GT report itself, and it is important to consider them carefully.  I do so in more detail in the context of the applications made by counsel for Anastasia and Marianna.  

The position of Mr Barnett

28.      Mr Barnett is the partner of Mrs Amy.  According to his affidavit evidence of 17^th December, 2010, he moved to the matrimonial home on or about 22^nd May, 2001, in order to assist Mrs Amy with the management of the farm.  Initially, it was on a voluntary basis but at the end of 2002, he closed his telecommunications shop in St Brelade and became the secretary of the farm on a full-time basis.  His duties apparently included maintaining and cleaning the rental units, arranging tenancies, and preparing income and expenditure accounts for the tutelles.  In the light of his close relationship with Mrs Amy and the children, he received a small remuneration of £10,000 per annum which was less, he asserted, than a professional property management firm would have charged.  The remuneration of £10,000 was charged to the tutelles, and had been approved, he said, by Advocate Kelleher and Mr Bisson.  Later, it had been approved by all the electors of the reconstituted tutelles in 2008. 

29.      There is some ambiguity about the precise legal relationship between Mr Barnett and the tutelles.  His affidavit of 17^th December, 2010, implies that there was some form of contractual arrangement between him and Mrs Amy as tutrice for which he was entitled to his salary of £10,000 per annum.  A letter from Mrs Amy to the Judicial Greffier of 27^th December, 2007, denied that there was a contract, but that was probably a misunderstanding of the legal position.  The letter stated:-

"There is no contractual agreement in place.  Mr Charles Barnett is self-employed and the tutelle account has never paid any Social Security Contributions to him. 

Mr Charles Barnett is paid a modest salary from the Tutelle account for helping me to carry out the work involved in running the part of the Estate that produces the income.  In the absence of my Husband, I realised that I could not possibly do it on my own, together with running the main house and gardens and bringing up the Children.  The amount of work required to be done here would have meant employing several different firms at a collectively large expense.  I was pleased therefore when Charles offered to manage certain parts of the Estate.  Obviously, he has to be paid in order to live.  Since it requires that at least one of us be "on duty" all the time, Charles relinquished his shop and his flat so that he could do this. 

This arrangement and the salary paid to him were approved by the Electeurs at the last meeting in 2003.  The Representor was not present at that meeting since part of the agenda consisted of discussing his removal as an Electeur.  However, seemingly he agreed to the arrangement, since he raised no objection to it after he was sent a copy of the accounts up to 2004. 

Mr Charles Barnett effectively carries out work in several areas and though we share the work generally, I have never charged the Tutelle for my expenses. 

The Pupilles are also pleased to have a male figure in their presence, since a void has been created by the loss of their Father.  My eldest Daughter Anastasia, (no longer a Pupille) also supports this arrangement. 

The use of the title "Secretary" in the accounts may be misleading.  The word is used for simplicity.  A meaningful interpretation of the responsibilities that Mr Charles Barnett discharges are shown in appendix 1."

30.      Mrs Amy's letter and Mr Barnett's affidavit make it clear that Mr Barnett performed certain duties for the tutelles for which he received remuneration of £10,000 per annum.  It is also clear that those duties amounted to no more (and no less) than the duties which the tutrice undertook to perform in relation to each tutelle when she took her oath on 30^th June, 2000.  As was made clear in the Court's judgment of 1^st April, 2010, at paragraph 20:-

"It is open to the tuteur at customary law to charge, apart from any legitimate disbursements, a fee of up to 5% of the child's gross income, with the approval of the electors, as recompense for the duties involved in managing the estate.  That principle was confirmed in Tostevin-v-Piquet (1904) 11 CR 431 ...". 

It is not clear whether the arrangement with Mr Barnett was ever formally approved by the electors.  However, it was not open to the electors, or to the tutrice, to approve a delegation of the functions of the tutrice to her partner Mr Barnett for a fee exceeding 5% of the gross income of the children.  Counsel for Mrs Amy placed before me documentation in the form of estimates from other land agents suggesting that the management of the children's property would have cost more in fees if contracted out to a third party.  The legitimacy of any such disbursement would have been a matter for the tutrice and the electors had such an appointment been made.  But the delegation of functions to Mr Barnett was no arms length transaction.  He is the partner of Mrs Amy.  He could not be put in any better position than Mrs Amy so far as the charging of fees as recompense for administering the children's estate was concerned.  Yet so far as the payment of a salary which exceeded the permissible 5% was concerned, that is a matter between the tutrice and Mr Barnett.  The responsibility for administering the tutelles remained with the tutrice.  If she exceeded her powers by engaging Mr Barnett at a salary greater than 5% of the children's gross income, as she did, that was a breach of duty for which Mrs Amy, and not Mr Barnett, is liable to the children.  Mr Sinel submitted that there was no right of action against Mr Barnett.  I am inclined to agree, but it is certainly the case that an application for summary judgment against Mr Barnett cannot succeed. 

The legal test

31.      I turn to the legal test which must be applied in considering the applications for summary judgment against Mrs Amy.  Rule 7(1) of the Royal Court Rules 2004 provides, so far as material:-

"..when an action has been placed on the pending list, the plaintiff may, on the ground that the defendant has no defence to his or her claim, or to a particular part of that claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against the defendant."

32.      In Toothill-v-HSBC Bank [2008] JLR 77, Birt, Deputy Bailiff, stated:-

"29.    The test for considering whether to grant summary judgment is well established (see, for example, the judgment of Bailhache, Bailiff in Tomes-v-Coke-Wallis (7) ([2002] JRC 131A, at para. 8)).  In his judgment, the Master quoted at length from paras. 14/4/3 - 14/4/5, at 172-173 of 1 Supreme Court Practice 1999 and we agree that those passages correctly describe the relevant principles.  In short, the court must consider whether the defendant has shown an arguable defence, i.e. whether there is a triable issue.  If so, leave to defend should be given.  We would, however, refer specifically to the passage at para. 14/4/5, at 173 which states:-

'The defendant's affidavit must 'condescend upon particulars,' and should, as far as possible, deal specifically with the plaintiff's claim and affidavit, and state clearly what the defence is, and what facts are relied on to support it."

As is stated later in the same passage:-'Indeed, in all cases, sufficient facts and particulars must be given to show that there is a triable issue.'"

33.      The note of a judgment of Le Marquand, Judicial Greffier, in Kemp and Others-v-Meditco Limited [1995] JLR N 5A is also helpful:-

"Between the categories of cases in which summary judgment is appropriate (in which the defence has no merit) and those in which unconditional leave to defend should be ordered (in which the defence must be more than "shadowy" but may be less than probable) lies the category of cases in which leave to defend may be ordered conditional upon payment into court by the defendant of the sum claimed by the plaintiff.  In such cases there may be real doubt as to the defendant's good faith; the defence may be "shadowy", it may have little or no substance or fall just short of meriting summary judgment (1 The Supreme Court Practice 1995, para. 14/3-4/15, at 161-162, considered; Van Lynn Devs. Ltd-V-Pelias Constr. Co. Ltd, [1969] 1 Q.B. 607, considered."

The applications for summary judgment

34.      The applications are based upon the conclusions of the GT report.  The report assesses the amount due to Marianna as being £103,074, and the amount due to Anastasia as being £94,319.  These amounts have been calculated by examining the paper and computer records supplied by Mrs Amy and Mr Barnett as well as documentation recovered from the bank, the parochial authority and the tax office.  GT followed the guidance laid out in the Court's judgment of 1^st April, 2010, against which there had been no appeal.  The gross receipts by way of rental received from the tenants were totalled and deductions were made in relation to expenses properly incurred by the tutrice.  Those expenses were allocated as appropriate to the individual accounts of each tutelle, or divided between two or more of the children.  Allowance was made for the administration fee of 5% of gross income to which the tutrice was entitled on the assumption that that fee had been approved by the electors.  Examination of the accounts from year to year shows that a number of assumptions were made by GT that were favourable to Mrs Amy.  First, as is explained in paragraph 4 of the GT report, around 35% of expenditure transactions have no receipt or underlying supporting documentation.  The transactions have been identified from the narrative contained in the cheque book stubs, but the detail is absent.  Nonetheless, all this expenditure has been charged to the tutelles.  Secondly, there is a dispute as to the extent of the life interest devised to Mrs Amy, namely as to whether it extends to the dower wing.  There is also a dispute as to whether the dower wing has been let and, if so, the amount of rent received by Mrs Amy for it.  The assumption has been made that the tutelles are not entitled to any revenue which may have been derived from the dower house.  Thirdly, there is a conflict, as pointed out by GT, between the terms of the 1999 Will which provided that Mrs Amy should keep the matrimonial home in a good state of repair and decoration (including 'grosses reparations') and Mrs Amy's lawful entitlement to apply the income of the child for his or her benefit.  Expenses incurred in installing a central heating system, in renovating bedrooms for the use of the children, and in installing a Jacuzzi in the children's bathroom are examples of expenditure where one would have expected discussion between the tutrice and the electors as to what was fair and appropriate.  There is no evidence of any such discussions taking place.  Such expenditure has been assumed to be for the children's benefit and charged to the tutelles. 

35.      Counsel for Mrs Amy pointed out quite rightly that GT had qualified its report in some respects.  The accounts had not been audited.  This is true, but it seems unlikely that any auditor would be prepared to audit the tutelles accounts without heavy qualification, in that so much of the information came from Mrs Amy and Mr Barnett, without corroborative evidence.  Yet the other side of that coin is that the GT report can hardly be said to be contrary to the interests of Mrs Amy when so much of it is reliant upon documentation and information coming from her and Mr Barnett. 

36.      Counsel also drew attention to paragraph 5.1 of the GT report which stated:-

"5.1     Paragraph 19 of the Judgment states: "...the tuteur is entitled to apply part or even all of the income of a child for his or her benefit.  Clearly, expenditure on food, clothing, entertainment and education falls within those parameters."

Tutelle expenditure comprises a wide range of items for the children including clothing, leisure and entertainment equipment, furniture and home entertainment, holidays, birthday presents, vehicle repairs and pocket money.  The tutelle funds were not used for board and lodging expenditure for the children, until they reached the age of 16 years. 

Mrs Amy has advised that there are considerably more items of household expenditure from which the children benefited, including groceries, children's activities, transport costs, etc. which from the Commissioner's comments in the Judgment could be payable from the tutelles.  These were met from her own funds (derived from drawings from the tutelles).  We have not been provided with any information or claim in respect of these items, and no provision has been made for them."

As is there stated, GT was not given any information about this household expenditure, nor was any claim made to them that such expenditure should be taken into account.  This was unfortunate because it was something which could have been evaluated by the forensic accountants and included as appropriate in their calculations.  Counsel for Marianna contended that this kind of expenditure was the ordinary responsibility of a mother.  That may be true, but one must look at the issues in the context of this family.  When Mr Amy died, he left nothing by way of légitime to his widow.  The movable estate appears to have been substantially consumed by debts and legal expenses.  Mrs Amy received the life enjoyment of the matrimonial home, but no other means of support.  At the time of Mr Amy's death, the children were aged 11, 9 and 8 respectively.  To use the children's income to meet at least part of the family's expenditure on groceries and other household expenses, as well as costs directly attributable to the children, would have been entirely legitimate.  It should, again, have been the subject of discussion with and agreement from the electors, but there is no evidence that any such discussions took place.  Be all that as it may, it is possible that Mrs Amy might be able to justify the incorporation into the GT accounts of some further allowance for expenditure incurred for the benefit of one or more of the children.  Considerable allowance has already been made, but, as the GT report acknowledges, no provision has been made for the claim thus asserted.  Subject to that qualification, I am satisfied that the GT report affords a firm foundation for the claims of Anastasia and Marianna against Mrs Amy, and for their applications for summary judgment. 

37.      I turn to consider the defences to the claims which have been articulated by Mr Sinel on behalf of Mrs Amy, and take first the elements of the defences which are common to the proceedings issued by both Anastasia and by Marianna.  

38.      First, it is asserted that Mrs Amy complied with the duties incumbent upon her as tutrice pursuant to the Loi (1862) sur les tuteurs.  That submission can be dealt with very shortly.  I have already cited at paragraph 21 above the terms of paragraph 9 of the judgment of 1^st April 2010.  The Court there stated that Mrs Amy had not complied with the accounting obligations of a tutrice.  There was no appeal against that judgment and Mrs Amy is estopped from asserting otherwise.  Mrs Amy's failure to prepare proper accounts went to the root of her obligations as tutrice and was the reason why she was summarily removed from office in relation to Philip's tutelle. 

39.      Secondly, the answers of Mrs Amy relate some family history going back to 1981 and culminating in the ouster of Mr Amy from the family home and his decision to change his testamentary dispositions.  Mrs Amy asserts that the actions of the children (including Anastasia and Marianna) "caused Hastingue Farm, to which [she] had proprietary contractual and testamentary entitlements to be lost to her".  It is unnecessary to consider whether that assertion is justified in fact.  As a matter of law, Mrs Amy had no proprietary entitlement to Hastingue Farm.  No evidence is before the Court as to any contract between Mrs Amy and her late husband.  As to testamentary entitlement, it is trite law that the Will speaks from death.  Under Mr Amy's 1999 Will, his final testamentary document, Mrs Amy had no entitlement other than the life enjoyment of the matrimonial home. 

40.      Thirdly, it is asserted both in the answer and in counterclaims that Mrs Amy has the right to seek to have the 1999 Will set aside in favour of the 1996 Will by which the immovable property of Mr Amy was devised to her.  The grounds upon which such alleged right is founded appear to be that Mr Amy changed his Will because false allegations of maltreatment were made by his children, and he held Mrs Amy responsible for his ouster from the family home.  There are a number of evidential difficulties in the way of this claim, but the legal difficulty appears to me to be insurmountable.  Article 15 of the Loi (1851) sur les testaments d'immeubles provides that an action to set aside a Will relating to immovable property must be instituted within a year and a day of the Act of the Court ordering its registration.  Counsel suggested that Mrs Amy might have been under some empêchement de fait or practical impossibility under the maxim contra non valentem agere nulla currit praescriptio, so that the limitation period did not start to run until Mrs Amy was advised that she might have a cause of action.  No authority was cited in support of this proposition and it appears to me to be in conflict with the leading case of Public Services Committee-v-Maynard [1996] JLR 343.  In that case, Southwell JA stated, at page 354:-

"We can summarize our conclusions so far on the application of the maxim in Jersey law in this way:-

(a) It is common ground that the maxim can apply to the customary law prescription of claims in contract after 10 years, and is preserved by Art. 2 of the 1960 Law in relation to the prescription of claims in tort after 3 years. 

(b) The principle underlying the operation of the maxim in Jersey law is the practical impossibility of the plaintiff being able to exercise his rights. 

(c) Mere ignorance does not bring the maxim into operation. 

(d) Where there is an impediment creating such a practical impossibility, of which ignorance is a part, then the maxim may come into operation and prevent time running."

There was no practical impossibility preventing an action to set aside the 1999 Will.  Mrs Amy knew its terms and knew that it had superseded the 1996 Will.  Mrs Amy could have discovered whether she had a cause of action to set aside the 1999 Will by taking legal advice after the registration of the Will.  If she was ignorant as to the existence of a cause of action (if indeed there is one), that ignorance could have been cured.  It is quite unreasonable to suggest that a prescription period can be suspended merely because the prospective plaintiff fails to take legal advice at the proper time.  Any claim seeking to set aside the 1999 Will at this stage, more than ten years after it was registered, seems to me to be entirely hopeless. 

41.      Fourthly, it is asserted that Mrs Amy received poor advice as to the establishment and operation of the tutelles, and as to the nature of her responsibilities as tutrice.  Counsel for Mrs Amy drew my attention to correspondence passing between Mrs Amy and Advocate Kelleher who was then an elector on the tutelles.  I am not persuaded that Mrs Amy was in fact badly advised but, even if she were, that can have no bearing upon her duties as tutrice to administer the property of the children as well as or better than her own, and to account to them for what was due once they achieved their majority.  The GT accounts make it clear that Mrs Amy, with the connivance of Mr Barnett, used funds from the tutelles for her own purposes.  The alleged receipt of poor legal advice is no defence to a claim by the children for what is their due. 

42.      Fifthly, it is asserted that Mrs Amy was entitled to one third of the gross rental income from the units adjacent to the matrimonial home by way of dower.  It is also asserted that there was an agreement with the electors to that effect, but no evidence of any such agreement has been exhibited.  It is further claimed that Mrs Amy was advised by Advocate Kelleher to that effect.  It does not seem to me from correspondence that has been exhibited that any such advice was given by Advocate Kelleher.  However, even assuming that such advice was given, and on the further assumption that the electors were in agreement, it is trite law that dower is due only from the date upon which a formal claim (a clameur de douaire) is made.  Le Gros states at page 44 of his Droit Coutumier de Jersey:-

"Le douaire n'est dû que du jour de la clameur.  L'héritier fait les fruits siens tant que la veuve dort."

I translate that passage as follows:-

"Dower is due only from the date of the claim.  The heir is entitled to take the fruits for himself while the widow sleeps on her rights."

A clameur de douaire was made by Mrs Amy only on 30^th March, 2010, although the action has made no progress since then.  If the claim for dower is upheld, or agreed, Mrs Amy will be entitled to the fruits of that claim with effect from that date.  The submission that a dower claim can be back-dated to the day of Mr Amy's death was not supported by any authority, and is indeed directly contrary to the extract from Le Gros' work cited above.  In my judgement the claim for dower does not afford any defence to the claims of Anastasia and Marianna. 

43.      I turn to the additional elements of Mrs Amy's answer to the Order of Justice issued by Anastasia.  Mrs Amy asserts that Anastasia is estopped from bringing a claim because she was appointed as an elector on 14^th March, 2008, and in effect endorsed the actions of the tutrice.  Advocate Sinel referred me to a letter dated 27^th December, 2007, purportedly written by Mrs Amy (it seems clear that it was in fact written by Mr Barnett) and countersigned by Anastasia.  The letter was written to the Court in response to questions raised by Advocate Kelleher, Mr Horman, Mr Reynolds and Mrs Huelin in the context of Advocate Kelleher's representation.  A schedule of questions was attached to the Act of the Court of 7^th November, 2007, and Mrs Amy had been directed to respond to them.  The letter responded to the questions and concluded with the following paragraph:-

"My daughter, Anastasia Amy is referred to in various parts of this letter.  She has attained the age of majority and is no longer a Pupille; she now has a certain interest in the whole property and a specific interest in a part of it.  She has read this letter and she both understands and agrees with all the contents therein.  She has given her signature to it to indicate the same.  Charles Barnett gives his signature as a witness to the contents of the above and generally."

44.      Mr Sinel submitted that, having expressed her agreement with the explanations offered in the letter, Anastasia was now estopped from claiming, for example, that Mrs Amy was not entitled to one third of the gross rental income from the units.  Counsel placed no authorities before me in relation to estoppel nor was I addressed in any detail on this point.  There is clearly no judgment estoppel in the sense of chose jugée.  I assume that counsel's submission involves an alleged equitable estoppel on the basis that Anastasia is to be taken as consenting to the position outlined by her mother in the letter, and that there is therefore some form of conduct estoppel. 

45.      This submission seems to me to be without any foundation.  Anastasia was but a few days past her eighteenth birthday when she signed this letter.  Although she was of age, she had not played any significant part in the administration of her tutelle and it would seem to me very inequitable to hold that her signature to a letter which involved the conduct of her mother and Mr Barnett, of which she had no direct knowledge, should bind her to approve that conduct.  More importantly, an estoppel involves an allegation that a party has relied upon some action or omission by another party, and acted to her detriment as a result.  There is no evidence whatsoever that Mrs Amy relied upon Anastasia's apparent approval of the contents of the letter of 27^th December, 2007, to her detriment.  

46.      Mr Sinel also submitted that Anastasia was too late to bring a claim against Mrs Amy arising from the administration of the tutelles.  She had attained her majority on 19^th December, 2007, and had only three months to challenge the accounts.  In fact, Article 7 of the Loi (1862) sur les tuteurs allows a former minor six months to challenge the accounts but Mrs Amy's difficulty with this submission is that Anastasia was never furnished with any proper accounts of her tutelle by her mother.  That is a chose jugée - see paragraphs 9-12 of the judgment of 1^st April 2010.  The only proper accounts to be produced of the administration of Anastasia's tutelle were produced by GT in July 2010.  Anastasia's Order of Justice was brought well within the requisite time. 

47.      My conclusion is therefore that none of the issues raised in Mrs Amy's answers and counterclaims has any substance or offers a defence to the claims of Anastasia and Marianna for summary judgment, with the exception of the possible additional claim for monies expended by Mrs Amy for the benefit of Anastasia and Marianna which has not yet been taken into account, as described in paragraph 36 above.  How is this element of the defence to be characterised?  It seems to me that this element of the defence raises, just, a triable issue.  It may have little or no substance but it is more than "shadowy". 

48.      Counsel for Anastasia and Marianna submitted that, if their primary submission failed, I should consider granting Mrs Amy only conditional leave to defend, that condition being the payment into Court of the amounts found to be due in the GT report.  Counsel both submitted that it was imperative that steps be taken to protect the entitlements of their clients to their inheritance, failing which the proceedings were likely to be rendered nugatory or frustrated by the intransigence of Mrs Amy and her partner Mr Barnett. 

49.      Counsel for Anastasia gave the following examples of unreasonable behaviour by Mrs Amy and/or Mr Barnett:-

(i)        They failed to comply with the Court's order of 18^th March, 2010, to deliver up the tutelles' books and papers so that a peremptory order on pain of contempt had to be made on 1^st April, 2010. 

(ii)       On 7^th April, 2010, the Viscount decided to appoint F Le Gallais & Sons Limited to manage the property, but they declined to accept the appointment "due to the nature of Mrs Amy's and Mr Barnett's conduct". 

(iii)      In early September 2010 Mr Barnett warned that the supply of water to the units of accommodation would be disconnected at the end of the month, but the supply of water to the elderly tenants of The Cottage was in fact terminated on 27^th September, causing some difficulty. 

(iv)      An unpleasant letter dated 11^th October, 2010, was sent to Anastasia's boyfriend, Jacob Bowie, by Mrs Amy's lawyers after they had moved into one of the units of accommodation to which Anastasia has a joint legal entitlement.  The letter stated that Mr Bowie's "presence there is most unwelcome ...", and that he had come to live at the property "without having obtained the permission of Mrs Amy".  Legal proceedings were threatened. 

(v)       Anastasia's occupation of the unit with her boyfriend, Mr Bowie, had been the subject of interference by Mrs Amy and Mr Barnett to the extent that the States of Jersey Police and a Centenier of St Ouen had had to attend at the property. 

50.      I accept the submission that the conduct of Mrs Amy and/or Mr Barnett has been occasionally unreasonable.  I also have regard to the letter dated 30^th May, 2009, sent to Marianna on the occasion of her eighteenth birthday by Mr Barnett, to which reference has already been made.  This was a threatening letter which included the following passage:-

"Though you may have a certain right of interest in a part of the property, it is so closely allied with the interest that your Mother and your relatives have, that she will not suffer interference with the running of it.  It could affect everybody's interest here and I cannot emphasise strongly enough that if you attempt to disrupt the well-organised state of affairs, then your Mother will prevent you from so doing by any means at her disposal. 

You may have seen and read the letter that was sent to Anna on her Birthday explaining the financial position here.  The situation has now changed very considerably and Anna understands and agrees with it absolutely.  There is little money in the account anyway.  Provided that the status quo remains then you can look forward to an inheritance at some time, but if financial demands are attempted on the Tutelle account then the Tutelle will employ a Firm of Lawyers and what ever remains will soon be gone."

51.      The indications that Mrs Amy would prevent so called interference with what was in part Marianna's inheritance "by any means at her disposal" and that if Marianna demanded her inheritance the Tutelle would resist and employ lawyers so that "whatever remains will soon be gone" are chilling and unhappy reflections upon the characters of Mr Barnett and Mrs Amy.  This is not a very large estate, and, if matters continue to be disputed in arid litigation, there is indeed a high risk that the children's entitlements under their father's Will will be consumed in legal costs.  This is a dispute that cries out for mediation and compromise, but no compromise will be possible, given the characters of Mrs Amy and her partner, without robust judicial intervention. 

52.      My conclusion is therefore that summary judgments should be given for 75% of the amounts referred to in the GT report and that conditional leave to defend should be given in relation to the remainder of the claims of Anastasia and Marianna.  Summary judgment is given in favour of Anastasia in the sum of £70,739.25 (75% of £94,319).  Summary judgment is given in favour of Marianna in the sum of £77,305.50 (75% of £103,074).  The condition to be attached to the leave to defend is that the balance of the sums referred to in the GT report be paid into Court.  Leave to defend the Order of Justice filed by Anastasia is conditional upon the payment into Court by Mrs Amy of £23,579.75.  Leave to defend the Order of Justice filed by Marianna is conditional upon the payment into Court by Mrs Amy of £25,768.50. 

The Caveat

53.      Counsel for Mrs Amy has issued a summons seeking to lift the caveat lodged with the Bailiff by Marianna on 7^th October, 2010. against the passing before the Royal Court of any contract of alienation, lease or hypothecation of:-

(i)        Hastingue Farm, St Ouen;

(ii)       Field No. 268, St Ouen;

(iii)      Sous le Mont, Undercliffe Road, St Helier;

(iv)      Glengarif, 80 Ville du Bocage, St Peter. 

The grounds given for the lifting of the caveat are that the caveat was improperly obtained and that it is not necessary, proportionate or in the interests of justice. 

54.      No oral argument was addressed to me in support of the contention that the caveat was improperly obtained.  An affidavit was filed with the Bailiff in accordance with the requirements of Rule 18(5).  Attached to that affidavit were a copy of:-

(i)        The 1999 Will of Mr Amy;

(ii)       Mrs Amy's summons seeking dower;

(iii)      Marianna's representation of 24^th November. 2009;

(iv)      Marianna's summons of 16^th February, 2010;

(v)       The Act of the Court of 18^th March 2010;

(vi)      The Act of the Court of 1^st April, 2010;

(vii)     The GT report of 30^th June, 2010;

(viii)    Ogier's letter before action of 9^th August, 2010, setting out Marianna's claim;

(ix)      Sinels' responses to that letter and other correspondence between Ogier and Sinels. 

The GT report made it clear that Marianna had a valid claim against Mrs Amy.  She explained her concerns as to the dissipation of assets by alluding to the lack of trust between them, and to the failure of Mrs Amy and Mr Barnett to comply with the court order in relation to the books and papers of the tutelles until threatened with sanctions for contempt.  Mrs Amy's affidavit suggested that there was a failure in the duty of full and frank disclosure to the Bailiff.  In my judgement, there was no such failure. 

55.      Ogier's letter of 9^th August, 2010, sought an undertaking from Mrs Amy as to dissipation but no such undertaking was forthcoming. 

56.      Mrs Amy's affidavit in support of her application to lift the caveat gives some financial information as to the purchase of properties by her and Mr Barnett, but to my mind, that information only serves to reinforce the concern that there may be limited resources to meet the judgment debt which now exists, let alone any other sums which may be due. 

57.      The real thrust of Mr Sinel's submissions was that Mrs Amy was entitled to have the caveat lifted so that she could borrow more money in order to fund her defence of the actions brought by Marianna and Anastasia.  Mrs Amy's affidavit disclosed that she had borrowed £30,000 from a finance company, but no further loans could be made until such time as the caveat had been lifted.  Counsel for Mrs Amy relied upon Armco Inc and Others-v-Donohue and others (24^th September 1998 unreported), where the Court of Appeal held that it was only in an exceptional case that a defendant should not be free to draw upon enjoined funds to finance his defence.  I do not think, however, that the Court of Appeal was establishing a principle that defendants should always be permitted to use enjoined funds (or in this case property) for the purpose of funding their defence.  It was an exercise of judicial discretion.  The facts of that case were very different from the situation here.  In Armco there was substantial commercial litigation involving a claim for some $42.5M.  The Royal Court had allowed the defendants to apply £10,000 from the enjoined funds for the purpose of making certain disclosure.  The defendants sought to apply £50,000 from the substantial funds that were subject to the injunction.  The first plaintiff was a large US corporation which had no difficulty in paying its legal fees.  By contrast, the position in this case is that Marianna has obtained legal aid in order to pursue her claim against her mother for funds due to her following the administration of her affairs during her minority.  Summary judgment has just been given in relation to part of her claim.  The submission for counsel for Mrs Amy amounts to a proposition that Mrs Amy should be permitted to dissipate her assets in the payment of legal fees.  Mrs Amy is of course entitled to defend the claim to the extent that conditional leave to defend has been given.  In the absence of any undertaking to secure the position of Marianna, she is not entitled, in my judgement, to dissipate her assets by expending more funds on legal fees at the expense of a plaintiff who is now a judgment creditor.  If Mrs Amy is unable to afford to pay for her defence, she is entitled, like anyone else, to apply for legal aid. 

58.      In my judgement, the existence of the caveat is necessary, proportionate and in the interests of justice, and the application to lift it is accordingly refused. 

Postscript

59.      I suggested at paragraph 51 above that this case cried out for mediation and compromise.  The following remarks are entirely obiter and gratuitous but they are offered in case the parties should seek to settle their substantial outstanding differences.  Those differences relate to the past, i.e. the administration of the tutelles and the future, i.e. how Mrs Amy's rights to dower, should she pursue them, can be fairly compromised. 

60.      So far as the past is concerned, Anastasia and Marianna have outstanding claims under their Orders of Justice under various heads.  They may have merit.  On the other hand, Mrs Amy asserts a claim for other monies expended for the benefit of the children.  That may have merit.  From a moral perspective, although her claim for dower cannot ante-date the day upon which the application was made, it might be said that she has a moral claim for the share to which she would have been entitled had the application been made at the proper time.  Viewed from a pragmatic perspective, it seems to me that a settlement somewhere between the amounts of the summary judgments and the amounts assessed in the GT report as being due would not be unfair. 

61.      So far as the future is concerned, I am assuming that Mrs Amy does have a right, even at this late stage, to make a claim for dower.  I also assume, with the qualifications set out in paragraph 23 of the Court's judgment of 1^st April, 2010, that Mrs Amy cannot both approve and disapprove the 1999 Will, i.e. she cannot claim her entitlement under the Will and her rights at customary law.  On that basis all that needs to be done to establish the foundation for a dower agreement is to obtain a valuation of the fair rent for the matrimonial home bearing in mind that it is subject to a usufruit.  The rental values of the remaining parts of the property are already known.  The entitlement of Mrs Amy will be to one third of the total rental value, to be taken either in cash or in specie (i.e. the matrimonial home) together with a small amount of cash. 

Authorities

Loi (1862) sur les tuteurs.

In the matter of F [2010] JRC 067.

Royal Court Rules 2004.

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

Kemp and Others-v-Meditco Limited (1995) JLR N 5A.

Loi (1851) sur les testaments d'immeubles.

Public Services Committee-v-Maynard [1996] JLR 343.

Droit Coutumier de Jersey.

Armco Inc and Others-v-Donohue and others 1998/183 (24th September 1998 unreported).