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Before : |
The Hon. Michael Beloff, Q.C., President; |
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Between |
Angela Amy |
Appellant |
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And |
Marianna Amy |
Second Respondent |
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Angela Amy |
Appellant |
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And |
Anastasia Amy |
First Respondent |
And |
Marianna Amy |
Second Respondent |
Appeal against the orders of the Royal Court made on 24 February 2010.
Advocate P. C. Sinel for the Appellant.
Advocate D. A. Corbel for the First Respondent.
Advocate C. M. Fogarty for the Second Respondent.
JUDGMENT
nugee ja:
1. The matters before the Court arise out of orders made by Commissioner Bailhache on 24 February 2011 in two separate proceedings which he heard together. In the first set of proceedings he gave summary judgment against Mrs Angela Amy ("Mrs Amy") in favour of Mrs Amy's daughter Anastasia. In the second set of proceedings he gave summary judgment against Mrs Amy in favour of her daughter Marianna. He also refused Mrs Amy's application to lift a caveat lodged by Mariana. Mrs Amy appeals against the order for summary judgment in each set of proceedings, and applies for leave to appeal (and if granted, appeals) against the refusal to lift the caveat.
2. Both sets of proceedings concern the administration of tutelles which were constituted after the death of Mrs Amy's husband for their three children with Mrs Amy as tutrice. It is necessary to give some account of the background to this unhappy litigation.
3. Mrs Amy was married to the late Edward Amy ("Mr Amy"). They had three children, Anastasia (born in December 1989 and now aged 21), Marianna (born in May 1991 and now aged 20) and Philip (born in December 1992 and now aged 18). I will refer to the children by their first names, and to the three of them together as "the children".
4. Mr Amy died on 13 April 2000 when the children were aged 10, 8 and 7 respectively. He left a will of his moveable estate dated 30 November 1999 under which he left his estate as to one-third to Mrs Amy and as to the other two-thirds to be shared equally between the children (and an adopted daughter of Mr Amy, Mrs Wendy Abraham, to whom no further reference is necessary). Advocate John Kelleher was appointed executor. It appears however that the liabilities exceeded the moveable assets.
5. In addition Mr Amy left a will of his immoveable estate also dated 30 November 1999. He owned Hastingue Farm, St Ouen where as well as the main house there were other buildings which had been converted and let out to tenants as well as some land. In his will he divided his estate into two parts, the "matrimonial home" (limited to that part of the main house then occupied as the matrimonial home and excluding that part then let to tenants), and "the remainder". He declared that the children should be responsible for payment of any mortgages on his estate, and that his wife should not have any liability for either interest or capital repayments on any such mortgage. He left the usufruct or life enjoyment of the matrimonial home to Mrs Amy, together with the right to use the gardens in front of the matrimonial home and another piece of land known as La Cache, on terms that she bear all charges due on the matrimonial home and keep it in good repair and adequately insured; and after her death he left the life enjoyment to the children and the survivor of them on the same terms. So far as the remainder of the estate was concerned he left his wife no interest in it, giving the immediate life enjoyment to the children and the survivor, again on the same terms. He left the nue-propriété or reversionary ownership of the whole estate to Philip. This will was registered on 16 August 2000.
6. The 1999 wills replaced earlier wills dated 5 November 1996 of his moveable and immoveable estate in which Mr Amy had left the entirety of his estate to Mrs Amy absolutely. Mrs Amy believes that Mr Amy changed his wills because in November 1999, shortly before the new wills were made, she obtained an ouster order excluding him from the matrimonial home on the basis of allegations made by the children of maltreatment, allegations which remained unresolved at his death, but which Mrs Amy now considers to be unfounded. I return to this point below.
7. Tutelles were established for the children, Mrs Amy being sworn in as tutrice on 30 June 2000. The électeurs were Dr Kelleher, Mr David Bisson (an accountant), and four members of the family or friends of Mrs Amy (Mr Barry Horman, Mr Christopher Reynolds, Mrs Jacquie Callaghan and Mrs Alice Huelin). The administration of the tutelles was undertaken by Dr Kelleher's firm, Olsens. Mrs Amy was however soon expressing disappointment at the level of professional fees being incurred, and it is apparent that relations between her and Dr Kelleher were, and remained, strained. By December 2000 she had invited him to stand down as électeur, an invitation he did not take up; Mr Bisson did resign in June 2001, although we do not know the reasons. By September 2004 it appears that Dr Kelleher had suggested Mrs Amy should be removed as tutrice; and we are told (although we have not seen the documents) that in November 2004 Dr Kelleher presented a representation to the Court seeking accounts from the inception of the tutelles to 2004, which led to Mrs Amy providing such accounts and being ordered to pay the costs. The Commissioner's judgment under appeal also records that three of the other électeurs (Mr Horman, Mr Reynolds and Mrs Callaghan) had expressed concerns at the way the tutelles were being administered, although again we have not seen the documentary evidence for this.
8. In October 2007 Dr Kelleher presented another representation to the Court, this time seeking accounts for the years 2005 to 2007. This led to an Act of Court dated 7 November 2007 (Commissioner Clyde-Smith) whereby Mrs Amy was ordered to provide those accounts within 24 hours; provision was made for Dr Kelleher and the other électeurs to serve a schedule requesting further information, explanation or verification of the accounts and for Mrs Amy to give a detailed response thereto; and the parties were directed to use their best endeavours to agree on a reconstitution of the tutelles and the identity of a new tuteur or tutrice designate.
9. The schedule requesting further information was served and Mrs Amy gave a detailed answer to it. The proceedings were then compromised by Act of Court dated 14 March 2008 approving a consent order. By then Anastasia had turned 18 (in December 2007) and the consent order noted that she was therefore no longer subject to tutelle. Dr Kelleher, Mr Horman, Mr Reynolds and Mrs Callaghan agreed that the accounts for the years 2004 to 2007 were satisfactory, and they were all discharged by the Court as électeurs of the remaining tutelles; Mr Bisson was also discharged as at the date of his resignation in 2001. The remaining tutelles (those of Marianna and Philip) were to be reconstituted with Mrs Huelin remaining in office and new électeurs replacing those discharged by the Court, namely Anastasia, Mr Charles Barnett, Mrs Caroline Leach, Mr Gavin Roberts and Mrs Jacqueline Roberts. Mr Barnett is Mrs Amy's partner and lives with her at Hastingue Farm. We are told that Mrs Leach is a friend of the family and Mr and Mrs Roberts members of Mr Barnett's family; and that the tutelles were reconstituted in April 2008 although Anastasia never took the oath as électeur.
10. Marianna turned 18 on 31 May 2009. On 30 May 2009 Mr Barnett sent a letter to her enclosing a cheque for £100 from the tutelle for her birthday and telling her in effect that she could expect little if anything else from the tutelle. Among other things he said:
"I now have to inform you that no money from the Tutelle account is necessarily due to any of you at all regardless of age... It has now been established that you three Children could have a theoretical two-ninths interest in the outbuildings adjoining the property known as Hastingue Farm. However that is where it ends. It does not include the ensuing business interest.
...
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."
11. On 24 November 2009 Marianna presented a representation to the Court complaining that no accounts had been provided to her within 3 months of her coming of age as required by article 6 of the Loi (1862) sur les Tuteurs. On 21 December 2010 the representation was considered by Commissioner Bailhache, who among other things directed the Greffier Substitute to refer certain papers to the Attorney General to consider whether a representation should be made to appoint an independent person to act as tutrice in place of Mrs Amy.
12. On 12 March 2010 the Solicitor General presented a representation to the Court applying to remove Mrs Amy as tutrice of Philip's tutelle (he being the only one of the children still under age). The grounds were that she had failed to comply with the requirement of the 1862 Loi to file proper and signed annual accounts; that she did not accept that Philip's rights were those defined in Mr Amy's will; and that she had not preserved and was not minded to preserve assets for Philip's benefit in accordance with her oath.
13. This representation came before the Court (Commissioner Bailhache, sitting with Jurats John Tibbo and Robert Kerley) on 18 March 2010, together with a summons issued by Marianna seeking the appointment of accountants to draw up proper accounts, and was granted. The Court ordered that Philip's tutelle be dissolved, that Mrs Amy be removed as tutrice, the Viscount be appointed to administer Philip's affairs until he became 18 (in December 2010) and that Mrs Amy and Mr Barnett forthwith procure delivery to the Viscount of all books and papers relating to the tutelle together with the cheque book, bank statements and other financial papers.
14. The judgment of the Court was handed down on 1 April 2010. The salient features of the judgment are as follows:-
(i) The Court held that Mrs Amy had not complied with the accounting obligations of a tutrice under the law, in particular in failing to prepare a statement of the childrens' immoveable property within 3 weeks of her appointment (as required by article 3 of the 1862 Loi) and in failing to prepare annual accounts to be approved by the électeurs (as required by article 4 of the 1862 Loi).
(ii) Some record of income and expenditure had been kept in the form of spreadsheets but these were inadequate because they did not specify in sufficient detail the nature of expenditure, or distinguish between the interests of the three children. It was not possible to tell from them what was due to Anastasia and Marianna although they had both attained their majority.
(iii) These failings by themselves would have justified removing Mrs Amy as tutrice; but there was an even more compelling reason in that she had intimated an intention to assert her customary right to dower. This needed to be done by applying to the Court (a clameur de douaire), it being clear from the authorities that no dower is due until such a claim is made (as was accepted by Mr Thacker who then appeared for her). In any such claim she would be claiming against Philip as the heir and would therefore in effect have to claim against herself in her capacity as tutrice of Philip. This was an impossible conflict of interest.
(Such a claim was in fact brought by Mrs Amy by summons issued on 30 March 2010 but it has been adjourned sine die and not proceeded with).
(iv) The Court declined to make any adverse finding at that stage in relation to the other grounds relied on by the Solicitor General but said:-
"we feel considerable unease and suspect that things may have gone badly wrong."
They left over the question whether to pronounce any adverse finding until after the accounting exercise referred to below had been carried out.
(v) The Court had no doubt that the books and accounts of the tutelle needed to be closely and professionally examined and agreed with the Solicitor General and counsel for Marianna that what was needed was a forensic accountant; they therefore authorised the Viscount to appoint an appropriate professional of his choice.
(vi) They offered some guidance as to the principles to be followed in drawing up the accounts which I refer to below.
(vii) They made a number of comments on the facts, including that although Mrs Amy was the tutrice, it was clear that her partner Mr Barnett had been a dominant force in the tutelles; they described his letter of 30 May 2009 to Marianna as cruel and misleading; they recorded that of the income of the rented properties from August 2000 to August 2008 (totalling over £560,000), only some 13% (about £75,000) was recorded as being applied for the benefit of the children; that in the period from 1 September 2002 to 27 August 2008 Mr Barnett, who was receiving about £10,000 per year for services he provided purportedly as secretary to the tutelles, was in fact receiving a greater share of the income than was shown as applied for the children; and that even a cursory glance at the spreadsheets showed that some of the entries for the latter, and for repairs and renewals, required explanation.
(viii) They also expressed surprise at being told that Marianna had been placed in foster care at the age of 12 and had never returned to live with her mother, being first placed in a children's home until April 2008 and then going to live with Mrs Leach, one of the électeurs; and that Philip had also left home in July 2009 to live with Mrs Leach. Both Marianna and Philip were being supported at public expense.
15. The principles which the Court offered as guidance for the drawing up of the accounts of the tutelles were as follows:-
(i) The interests of the three children were to be treated separately.
(ii) The tuteur is required to protect the financial interests of the child; but:-
"Nonetheless, 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. It should be borne in mind that the obligation of maintaining the matrimonial home was laid, by clause 3 of the will, on Mrs Amy."
(iii) 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 électeurs as recompense for the duties of management. Since Mrs Amy had engaged Mr Barnett to manage the estate, presumably with the approval of the électeurs, a fee of 5% would be lawfully chargeable.
(iv) Under the terms of the will the children were obliged to pay for repairs, including structural repairs, to the immoveable property of which they had the life enjoyment. But any work which involved an expansion or extension of the estate as opposed to repair would be chargeable to the interest of the reversionary owner, that is Philip.
(v) Mrs Amy had neither to date made a claim for dower nor reached any dower agreement with the heirs and hence was not entitled at that stage to any income from the remainder of the estate. They added:-
"Any monies taken by Mrs Amy from the tutelles under the rubric of dower payments should accordingly be repaid."
(vi) They expressed some doubt whether Mrs Amy could both claim dower and claim the life enjoyment of the matrimonial home given her by the will as this would seem to involve her both approving the will by taking the life enjoyment and disapproving it by asserting a right of dower over the remainder; but they did not decide the point not having heard argument on it.
16. The Viscount duly instructed Grant Thornton ("GT") as investigating accountants. They reported on 2 July 2010. Their report ("the GT Report") forms the foundation of the summary judgment claims which the Commissioner upheld and I will have to refer to it in more detail in due course. In summary however it showed substantial sums to be due from Mrs Amy as tutrice to each of the three children, including in particular a sum of £86,135 being owed to each of them. Mrs Amy had since the commencement of the tutelles drawn one-third of the gross rental income from the properties as dower payments; and this sum consisted of the difference between the amount in fact paid to her as dower payments and the amounts she could have claimed by way of tutrice allowance.
17. Bedell Cristin, who act for Anastasia, almost immediately e-mailed Mr Thacker to the effect that Mr Thacker's client Mrs Amy owed Anastasia that sum and asking for proposals for payment. This was followed by letters before action in August 2010 from both Bedell Cristin and Ogiers, acting for Marianna, and from Baker Platt, acting for the Viscount on behalf of Philip's tutelle claiming sums under various heads; and in due course by an Order of Justice issued by Anastasia on 22 October 2010 against both Mrs Amy and Mr Barnett seeking an account and payment, and a similar Order of Justice issued by Marianna on 3 November 2010. In December 2010 Anastasia and Marianna each issued a summons seeking summary judgment on their claims. These summonses were heard by Commissioner Bailhache on 22 December 2010 and are the summonses on which he granted summary judgment (in part) in the judgment under appeal.
18. Meanwhile Philip had attained 18 on 4 December 2010, and the Viscount was accordingly discharged by the Court as administrator of his affairs. The Viscount produced a report of his administration dated 10 November 2010. It is not necessary to detail its contents. For the sake of completeness, although it does not directly affect the issues before us, I note that Philip has now (on 17 February 2011) himself issued an Order of Justice against Mrs Amy and Mr Barnett.
19. Also in the meantime (on 5 October 2010) Marianna filed an application seeking leave to lodge a caveat against the passing before the Royal Court of any contract of alienation, lease or hypothecation which Mrs Amy might present in respect of certain properties namely Hastingue Farm, Field No 268 in St Ouen, Sous Le Mont in St Helier and Glengarif in St Peter. A caveat was duly lodged on 7 October 2010. On 10 November 2010 Mrs Amy issued a summons to have the caveat lifted.
20. In his judgment Commissioner Bailhache considered first the summary judgment claims. Although the summonses issued by Anastasia and Marianna simply sought summary judgment on their claims, their affidavits in support made it clear that they were only seeking judgment against Mrs Amy in respect of specific sums identified in the GT Report, namely £94,319 in the case of Anastasia and £103,074 in the case of Marianna. (These were not in fact calculated in quite the same way). In each case there was an alternative claim of a lesser amount against Mrs Amy (£86,134 or £86,135) combined with a claim against Mr Barnett (£16,940 or £16,939), but it is not necessary to consider these alternative claims in detail as no judgment was in the event given against Mr Barnett.
21. Commissioner Bailhache accepted that the GT Report provided prima facie evidence that these sums were due from Mrs Amy, subject to one qualification. This was that the GT Report had made it clear that they had made no provision for undocumented expenditure by Mrs Amy on the children. As appeared from the Court's judgment of 1 April 2010, a tuteur is entitled to spend money of the tutelle on the child in question, and the GT Report recorded that Mrs Amy had advised that there were considerably more items of household expenditure from which the children benefited which were paid by her from her own funds (derived from drawings from the tutelles). The Commissioner accepted that in principle it was possible that Mrs Amy might be able to justify the incorporation into the GT accounts of some further allowance; subject to that qualification he accepted that the GT Report afforded a "firm foundation" for the claims of Anastasia and Marianna against Mrs Amy.
22. After considering, and rejecting, various suggested defences put forward on behalf of Mrs Amy, the Commissioner held that there was no defence to the claims other than that which he had already mentioned, namely the possible additional claim for monies expended by Mrs Amy for the benefit of Anastasia and Marianna. He held that this raised, just, a triable issue. In the event he decided that allowance should be given for this possible defence by only giving judgment for 75% of the sums claimed; as to the remaining 25% Mrs Amy should have leave to defend conditional on payment of the balance into court. In terms of figures, that meant that he entered judgment against Mrs Amy for £70,739.25 in favour of Anastasia; and £77,305.50 in favour of Marianna.
23. He then considered the application to lift the caveat, and rejected it. The essence of his reasoning was that as summary judgment had been given, Marianna was now a judgment creditor and it was not right for Mrs Amy to be able to dissipate her assets in the payment of legal fees at the expense of a plaintiff who was now a judgment creditor.
24. Mr Sinel, who appeared for Mrs Amy, criticised the Commissioner's judgment on a number of grounds. The issues that arise can I think conveniently be summarised as follows:-
(i) Did Mr Amy enter into a contract with Mrs Amy to leave her the entirety of his immoveable estate and if so what are the consequences for the present claim?
(ii) Can Mrs Amy rely on the fact (if it is a fact) that the children made false allegations against Mr Amy which led to him changing his will and disinheriting Mrs Amy?
(iii) What was the evidential status of the GT Report?
(iv) Was Mrs Amy entitled to payment of one-third of the gross income of the estate by way of dower? This involves the questions (a) what is the nature of the widow's right to dower? (b) does dower have to be formally claimed and if so had Mrs Amy done sufficient to make a claim? (c) does Mrs Amy have the benefit of a dower agreement which entitled her to dower payments ?
(v) What sums could Mrs Amy properly charge the tutelles in respect of management? This involves the questions (a) was the payment of £10,000 per year to Mr Barnett a proper disbursement? (b) was Mrs Amy entitled to 5% of the gross income by way of an allowance for management?
(vi) If Mrs Amy had received monies from the tutelles in excess of her entitlement, does she nevertheless have a defence to the claim on the basis (a) that she spent the money for the benefit of the children; or (b) that she has a change of position defence?
(vii) In the light of the foregoing what should be done about the summary judgments?
(viii) In the light of the foregoing what should be done about the caveat?
25. Before considering these issues, it is worth reiterating that what we are concerned with is an application for summary judgment. The principles applicable to such an application are well established.
26. An application for summary judgment is governed by Part 7 of the Royal Court Rules 2004, which is closely modelled on the former Order 14 of the Rules of the Supreme Court in England. Like Order 14, Part 7 entitles the plaintiff to apply to the Court for judgment against a defendant on the ground that the defendant has no defence to his or her claim or to a particular part of the claim (Rule 7/1(1)); the application must be supported by an affidavit verifying the facts and stating that in the deponent's belief there is no defence to the relevant claim or part (Rule 7/1(2)); and such affidavit may contain statements of information or belief with the sources and grounds thereof (Rule 7/1(4)). Under Rule 7/2(1):-
"Unless on the hearing of an application under Rule 7/1 either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against the defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed."
A defendant may show cause against an application under rule 7/1 by affidavit or otherwise to the satisfaction of the Court (Rule 7/3(1)); such an affidavit may, like the plaintiff's, contain statements of information or belief with the sources and grounds thereof (Rule 7/3(2)); and the Court may give the defendant leave to defend either unconditionally or on such terms as it thinks fit (Rule 7/3(3)).
27. The way in which the Rule is structured means that a defendant can either meet an application under it by taking a preliminary objection (for example that the case is not within the rule, or that the plaintiff has not satisfied the preliminary requirements for proceeding under it, or that the plaintiff's affidavit in support is defective); or by objecting on the merits: see Le Masurier, Giffard & Poch v Pinson [1992] JLR N-3a. If a defendant is to meet the case on the merits, all he has to do is raise an arguable defence, that is a triable issue. It is not the function of the Court on hearing a summary judgment application to try the case on affidavit, but to determine whether there is an arguable defence that ought to be determined at a trial.
28. On the other hand, as Rule 7/2(1) makes clear, where the application is within the Rule and properly supported by an affidavit on behalf of the plaintiff, it is for the defendant to satisfy the Court that there is an issue which ought to be tried. This in general requires evidence on behalf of the defendant rather than just assertion or the production of a pleading; and it is well established that the defendant's affidavit should be specific enough to enable the Court to see that there is a real issue to be tried: see Toothill v HSBC Bank [2008] JLR 77 at [29] per Birt DB:-
"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, so far as possible, deal specifically with the plaintiff's claim and affidavit, and state clearly and concisely 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"."
29. Mr Sinel in his written contentions referred to Alhamrani v Alhamrani [2009] JLR Note 22 as authority for the principle that a party could not be bound by the evidence of another party's witness without having had the opportunity to cross-examine that witness. I do not think this decision has any bearing on the practice under Part 7. It was a case where the Court had sought to restrict the cross-examination of the plaintiff's witnesses at trial to one counsel for the defendants, there being no community of interest between the defendants. It is therefore concerned with the proper conduct of a trial where one takes place. Part 7 on the other hand is concerned with the question whether there is to be a trial of a claim at all. It is the inevitable result of a successful application under Part 7 that there will not be a trial of the claim or the part of the claim for which judgment is given, with the result that the defendant will have no opportunity to cross-examine the plaintiff or his or her witnesses. This does not mean that the rule cannot be invoked in appropriate cases. It does of course reinforce the point that judgment should not be given under Part 7 where the defendant satisfies the Court that there is an arguable defence such that there should be a trial (with all the attendant safeguards of discovery and cross-examination), but if the defendant fails to do this, the Court has power to give summary judgment even though it necessarily means that the defendant will never have the opportunity to cross-examine the plaintiff's witnesses.
30. I can now consider the various issues which have been raised.
31. One of the matters pleaded in the Answers and Counterclaims of Mrs Amy and Mr Barnett to each of the Orders of Justice is that when Mr Amy bequeathed the entirety of Hastingue Farm to Mrs Amy by his 1996 will he did so pursuant to an agreement with her to that effect. Mr Sinel argued that this agreement was broken by Mr Amy when he replaced his 1996 will with his 1999 will, and that as a result Mrs Amy is or may be entitled to set aside the 1999 will, and claim under the 1996 will instead.
32. I agree with Commissioner Bailhache that the first and most obvious difficulty with this argument is that there is no evidence before the Court of any contract between Mrs Amy and her husband. No such contract is referred to in Mrs Amy's affidavit, far less is there any attempt to "condescend to particulars" which would enable the Court to conclude that she had satisfied the Court that there was here a triable issue. Mr Sinel referred in his written contentions to the fact that on 5 November 1996 Mr Amy and his wife executed mutual wills in terms which reciprocally bequeathed their immoveable property to each other. I do not think we have in fact seen any evidence of a will being made by Mrs Amy in favour of her husband on that date, or any evidence that she then possessed any immoveable property of her own; but in any event the mere execution by husband and wife of wills in favour of each other (which one suspects is a very common occurrence) is not by itself evidence of a contract between them under which they agree not in any circumstances to revoke their wills. In my judgment there was no material on which the Commissioner should have found a triable issue that Mr Amy was in breach of contract in not leaving the entirety of his immoveable estate to her.
33. That makes it unnecessary to consider the other difficulties which such a claim might face. I will therefore just briefly say that it is far from obvious that the successful establishment of such a contract and its breach would lead to Mrs Amy having a right to set aside the 1999 will; and that even if it would, it appears that she would face formidable difficulties in bringing such a claim now, over 10 years after Mr Amy's death and the registration of the 1999 will. The Commissioner referred to the time limit for an action to set aside a will of immoveables as being a year and a day of the Act of Court ordering its registration (under article 15 of the Loi (1851) sur les testaments d'immeubles), and held that there was no empêchement de fait, said to mean "practical impossibility" (Boyd v Pickersgill & Le Cornu [1999] JLR 284) preventing Mrs Amy from bringing such a claim in time. This was said by the Commissioner in the context of an action to set aside the will as having in effect been procured by false allegations of child abuse (see below) but would appear to be equally applicable to an action to set aside the will on the ground of breach of contract. We have not been shown any material which casts doubt either on the Commissioner's statement of the time limit or on his conclusion that it was not practically impossible for Mrs Amy to bring such a claim.
34. Another matter pleaded in the Answers is that the children falsely told Mrs Amy that Mr Amy had been maltreating them; that this led to the ouster of Mr Amy from Hastingue Farm; that as a result Mr Amy was angry with Mrs Amy and changed his will accordingly; and that the children had later confided in the defendants (Mrs Amy and Mr Barnett) that they had deliberately lied about their father and the allegations of maltreatment were false. The pleading does not suggest that the children made false allegations with the intention of inducing Mr Amy to alter his will to the prejudice of Mrs Amy; it says that they did so because they did not wish to live with their father any more as he had become short tempered and strict with them, perhaps as a result of medications he was required to take. Miss Forgarty, who appeared for Marianna, told us that her instructions were that the children denied having lied or later confessing to having done so.
35. Mr Sinel argued that it was unfair that the children should be able to reap the benefits of their false allegations. He admitted however that he found it difficult to formulate a relevant legal principle on which he could rely, although he said that Mrs Amy might have a cause of action that was a species of unjust enrichment.
36. Here too there is in fact no relevant evidence before the Court. But the ground on which the Commissioner rejected this claim was, as already referred to, that Mrs Amy was out of time to set aside the 1999 will, and any claim to do so now was entirely hopeless. I agree that it would be necessary to set aside the 1999 will and unless and until that could be done, I do not see how any claim could lie to prevent the children from asserting their claims under that will: we have not been shown any material which would suggest that a party can invoke the doctrine of unjust enrichment where the recipient of money is legally entitled to it. That means this claim faces the same difficulties as the contractual claim.
37. In any event I consider it very doubtful that the rights of the children could be affected by anything done while under age; in November 1999 (the date when it is pleaded that they made false allegations) the children were only aged 9, 8 and 6 and I would find it surprising if their legal rights could be affected by any actions that they took at such a young age.
38. I therefore consider that the Commissioner was correct to conclude that the defendant had not established that there was here a triable issue.
39. Mr Sinel began his submissions by criticising the Commissioner's reliance on the GT Report. He said that it was not commissioned by his clients, that GT were not agreed experts, that they had not been appointed arbitrators, and that the report had not even been prepared for these proceedings, in that it antedated the Orders of Justice on which the summary judgment applications were based. It was therefore not evidence that Mrs Amy owed money to the children.
40. These criticisms are in my judgment misconceived. The GT Report was drawn up, as it itself makes clear, from the available paper and computer records which the Viscount had recovered and the representations made to GT by Mrs Amy and Mr Barnett. As such it was a mathematical exercise which is at least prima facie evidence as to what income had been received from the properties and what, so far as was apparent from the records, had been done with it. Mr Sinel indeed accepted that, and he also accepted that where the GT Report showed monies as paid to Mrs Amy, this was evidence that she had indeed been paid that money; the same would apply to monies shown as being paid to Mr Barnett. The fact that the GT Report antedates the Orders of Justice does not affect this; the affidavits of Anastasia and Marianna each exhibit the GT Report and rely on it as evidence as to the sums of money received by Mrs Amy and Mr Barnett; and since a plaintiff's affidavit under Part 7 may contain statements of information or belief with the sources and grounds thereof, I do not see why this is not capable of being evidence for this purpose. Indeed since the information which underlay the GT Report was all drawn from the records kept by Mrs Amy and Mr Barnett, together with their explanations, statements in the report that they had received monies were, or were close to being, admissions by them of having received those monies.
41. Mr Sinel's real point was that the GT Report neither established whether Mrs Amy and Mr Barnett were entitled to the money or not, nor indicated what Mrs Amy had done with the money she received. But I do not think GT purported to decide any such thing. They drew up the accounts the way they did because they were following the directions of the Court in its judgment of 1 April 2010, and they expressly said (paragraph 11):-
"We have provided this report and the attached accounts for the Viscount's Department under the instructions given by the Royal Court. We were not engaged to advise on the results or on the legal matters and arguments, nor to carry out an audit or form an opinion."
They also made clear that they had not made any provision for any undocumented expenditure by Mrs Amy for the benefit of the children from the drawings she had made from the tutelles.
42. In my judgment therefore the GT Report was evidence of the receipt of monies from the tutelles by Mrs Amy and Mr Barnett. It was not conclusive evidence but it was prima facie evidence, and Anastasia and Marianna were entitled to rely on it as such. If Mrs Amy wished to dispute that she had received the monies shown as paid to her, it was incumbent on her to provide some basis for thinking the figures were wrong; but as I understood Mr Sinel, he did not suggest that the figures were wrong as figures. Mr Sinel argued that Mrs Amy had been in some way denied due process because she could not predict the use to which the GT Report would be put when it preceded the inception of the present proceedings. However once it was relied on by Anastasia and Marianna in these proceedings, Mrs Amy had a fair opportunity to respond to it if she could.
43. It is true that the GT Report refers to certain sums as "due from" Mrs Amy. This is not surprising in circumstances where the principles laid down for their guidance by the Court included the statement that any monies taken by Mrs Amy from the tutelles under the rubric of dower payments should be repaid (Paragraph 15(5) above). In following this guidance I do not think GT were purporting to decide the issue. I agree therefore that the GT Report does not prove that Mrs Amy was not entitled to the dower payments. But it is evidence that she received money from the tutelles under the rubric of dower payments. That means that unless she was entitled to the dower payments or part thereof, she has received money which in fact belonged to the children; and unless she spent it for the benefit of the children, she is prima facie liable to account to them for it.
44. In my judgment therefore Mr Sinel's criticisms of the Commissioner for relying on the GT Report are not well founded, and it was indeed appropriate for him to treat it as a firm foundation for the claims, subject to the qualification that he mentioned and the defences which he went on to consider.
45. This is the most significant issue as the basis of the claims by Anastasia and Marianna is that Mrs Amy received a third of the income of the let properties by way of dower payments. The Court in its judgment of 1 April 2010 had expressed the clear view that she was not at that stage entitled to any part of the income from the remainder of the estate, and that any monies taken by Mrs Amy from the tutelles under the rubric of dower payments should accordingly be repaid; but Mr Sinel is no doubt right when he says that this was not a matter that he could then have appealed as the Act of Court of that date did not contain any order giving effect to this part of the Court's judgment, and appeal lies against Acts of Court not against judgments (cf the English decision of Lake v Lake [1955] P 336).
46. The Commissioner in the judgment under appeal followed the earlier judgment in holding that dower was only due from the date that a claim was made, and that no claim had been made until 30 March 2010; and hence that the claim for dower does not afford any defence to the claims of Anastasia and Marianna.
47. Dower is the customary right of a widow in respect of her husband's immoveable property. There were formerly two types of dower known as Norman dower and Jersey dower but Norman dower was abolished by Article 6 of the Bankrupcty (Désastre)(Jersey) Law 1990 as from 2 April 1991. Jersey customary dower entitled the widow, so long as the marriage had been consummated, in effect to life enjoyment of one third of her husband's immoveable property: there is some lack of clarity as to precisely which immoveables dower could be claimed over (see Matthews & Nicolle, The Jersey Law of Property §§8.89-8.91), but it has not been suggested that these points have any bearing on the present case and for present purposes dower can be regarded as extending to one-third of the immoveables possessed by the husband at the date of his death.
48. Since the widow was entitled to life enjoyment of only one third of the estate, there necessarily had to be a process for determining which third she took. It seems clear that the widow could not simply choose which part to take: the customary law procedure for determining her part of the estate is described in the Jersey Law Commission's Consultation Paper No 8 on Security on Immoveable Property (at paragraph 12.5(b)) as follows:-
"Though a widow's right of dower was firmly enshrined in law, she had to take active steps to claim it after her husband died. Sometimes a dower settlement was made by private agreement, but the customary legal procedure was for her to action the principal heir before the Royal Court to deliver her dower, whereupon the Court sent the parties to arbitration before the Greffier. The heir produced a statement of the property on which the dower was due; the widow, or her lawyer, took this away to examine and divided the property into three portions; the heir was then granted a delay to examine the apportionment and, if he approved it, he chose two of the portions and left the third to the widow for her dower."
See also the statement in the Report of the Commissioners on Civil Law (1861) at page xv to the same effect.
49. This remains the procedure and is now found in Rule 13/2 of the Royal Court Rules. This provides that an action against the legatees for dower must be instituted by summons; that unless the Court otherwise directs, the Greffier shall be appointed arbitre (Rule 13/2(1)); that the legatees must produce to the Greffier an entier of the immoveable estate (Rule 13/2(2)); that the widow must produce to the Greffier a statement that divides the immoveable estate into three parts (Rule 13/2(3)); and that the legatees must choose two parts and the widow shall take her dower on the remaining part (Rule 13/2(4)). It continues:-
"the right to dower dates from the day on which the summons is served."
(Rule 13/2(5)).
50. This last provision reflects the position as stated in Le Gros, to which the Court referred in its judgment of 1 April 2010, to the following effect:-
"Le douaire n'est dû que du jour de clameur. L'héritier fait les fruits siens tant que la veuve dort."
The Court in that judgment, citing this passage, regarded it as "quite clear from the authorities" that in order to claim dower "an application must be made to the Court - a clameur de douaire", as indeed was accepted by Mr Thacker who then appeared for Mrs Amy; the Commissioner repeated this in the judgment under appeal, saying that it was "trite law" that dower is due only from the date on which "a formal claim (a clameur de douaire) is made".
51. Mr Sinel did not accept the correctness of this statement, either before the Commissioner or before us; but it seems to me to be plainly supported by Rule 13/2(5) of the Royal Court Rules. Until the one third has been identified, the widow does not know which part of the estate she is entitled to enjoy; and unless a dower agreement is made between the widow and the legatees, the only way in which the dower can be identified is by the procedure that has already been described. This procedure in its current form itself provides that dower dates back to the date of service of summons but not before. We have been shown no other authority which casts doubt on this position and in my judgment the Court on 1 April 2010 and the Commissioner in the judgment under appeal were right. One may note incidentally that Le Gros continues:-
"Remarquons que le veuf, au contraire, jouit à titre de viduité des heritages que possédait sa femme au temps de son décès sans clameur ni autre formalité."
This by itself suggests that Le Gros regarded a clameur as a formal step. It is also an interesting contrast in that where a widower was entitled to viduité (which was only the case if there were live-born children of the marriage) his entitlement was to life enjoyment of the whole of his wife's immoveable estate and hence there was no need for an action or other process to determine which part his rights extended to.
52. It is not disputed that in this case Mrs Amy did not action the heirs for dower until 30 March 2010. It follows that the Commissioner was right to hold that her customary right to dower could not justify the payments made to her by way of dower payments.
53. That makes it strictly unnecessary to reach a conclusion on a point which was raised in argument, which is whether a widow who is left by will life enjoyment of part of her husband's estate can in addition claim dower in respect of the remainder of the estate. I have found most helpful on this question the Law Commission's Consultation Paper. This explains that the effect of article 6 of the Wills and Successions Law of 1993 neither dower nor viduité can now arise in an intestate succession as the law itself makes alternative provision for a surviving spouse (differing in the case where the deceased leaves issue as well a spouse from the case where he only leaves a spouse). This means that dower can now only ever arise in a case of testate succession. As the Consultation Paper says (paragraph 12.4):-
"Since dower and viduité are not otherwise redefined by the 1993 law, we are left to infer that they still exist in their customary form but only arise in testate successions where the will does not make equivalent provision for the surviving spouse. It is regrettable that the law does not spell this out, but, if it is correct, a widow can presumably claim her Jersey customary dower on any part of her husband's estate of which his will does not leave her at least the life-enjoyment."
54. This passage is consistent with an earlier one (at paragraph 12.1) to this effect:-
"...a husband could not oust his wife of her dower by will. If the share of the immoveable estate that he devised to her was less than her dower entitlement, she could claim the balance of her dower on the rest of the immoveables; and if a will that made adequate provision for her was for any reason set aside by the Court, her customary right of dower on the estate was revived."
55. These passages plainly envisage that where the will does make adequate provision for the surviving spouse (ie that he leaves her a life enjoyment of at least one third of the estate), she has no further claim; and that where she is left life enjoyment of part of the estate, but less than one-third, her claim is to life enjoyment of such extra part of the estate as would make one third in total. No other authority touching on this point was shown to us; it does not appear to have been one that could have arisen before 1851, because until then there was no power whatever of devising real estates by will (see the Report of the Commissioners (1861) at page xviii). The position adopted by the Consultation Paper seems to me to be good sense and consistent with the principles underlying the right of dower: if a widow is entitled to life enjoyment of at least one-third of her husband's estates, then it is difficult to see that her rights to dower have been infringed if the husband, now being able to devise immoveables to her, leaves to her life-enjoyment of more than a third. We were shown no material which casts doubt on the position as stated in the Consultation Paper and at the moment I am firmly disposed to accept it as correct.
56. That leaves the question whether a dower agreement was made here. It appears that the widow does not need to bring a dower action if she reaches an agreement out of court with the heirs: this is stated in the Report of the Commissioners ("her third is sometimes assigned to her by private arrangement, but the usual mode is that the widow sends an action to the principal heir"), and is no more than one would expect. It also appears that such an agreement could either take the form of an agreement as to the land of which the widow should have life enjoyment (if she was to take her dower in possession); or could make provision for payment to the widow of money in lieu: see the Law Commission's Consultation Paper at 12.5(c):-
"Not every widow took her dower in possession. The 1880 law obliged her in certain circumstances to accept instead an equivalent annuity in money, known as a franc douaire; Article 9 also envisages this being done voluntarily, and it had become the most usual way for a widow to take her dower by the time Le Gros wrote in 1943."
This refers to a franc douaire as an annuity, that is a fixed annual payment. It has not been suggested that an agreement of that type was made in the present case.
57. Mr Sinel has however argued strongly that there is evidence of an agreement that Mrs Amy should receive, in addition to her life enjoyment of the main house forming the matrimonial property, one third of the gross rents payable by the tenants of the remainder of the estate. We were told by Miss Fogarty that the main house is by far the most valuable part of the estate and she suggested that it was worth more than one-third by itself, but although we have been shown photographs, I do not think we can reach any conclusion on this at this stage of the litigation. But if I am right that the widow can only claim dower if the will does not make adequate provision, then any such agreement was plainly very disadvantageous to the children.
58. The Commissioner rejected the suggestion that there was an agreement, saying that no evidence of an agreement had been exhibited. It is therefore necessary to consider what the evidence before the Court reveals. The starting point is to look at Mrs Amy's affidavit as this is where one would expect to find the evidence relied on by a defendant to establish to the satisfaction of the Court that there is a triable issue. But there is in her affidavit no evidence of an agreement at all: there is simply an assertion that:-
"I am also entitled to one third of the monthly rents from the units at Hastingue Farm."
This does not read as if she were relying on an agreement; it reads as if she believed she were entitled to the one-third as a matter of law.
59. Mr Sinel pointed in addition to various documents in the bundles before us. In a meeting note of 28 June 2000 and again in a letter of 4 August 2000, Dr Kelleher made various statements to Mrs Amy as to what her entitlement to dower consisted of, but he pointed out in the latter that the election of dower was her decision and "you may wish to discuss it further with Advocate Whittaker as I cannot advise you." This is consistent with an internal memo from Dr Kelleher's firm in which Charlotte Perchard details the work done for the Amy tutelles and includes a record of:-
"countless telephone calls from Mrs Amy to SMM [Sharon Mallet, another person dealing with the matter at Olsens] and CJP [Charlotte Perchard] regarding the above issues and particularly the point of Mrs Amy receiving her one third share of rentals, her dower and maintenance for the children and despite me explaining to Mrs Amy that I could not assist her with such queries."
60. So far the evidence does not seem to me to give any support to the suggestion that any agreement had been made, and indeed is to the contrary. Miss Fogarty pointed out that what would be required is an agreement between Mrs Amy in her capacity as widow and Mrs Amy in her capacity as tutrice in which she would be in an inevitable and very stark conflict of interest, and that one would expect at the very least a degree of formality in the drawing up of any agreement which might prejudice the children as heirs, if not the approval of the Court to avoid any later suggestion that the agreement could be challenged. Whether or not such formalities were required to bind the children, the fact is that there is in these materials no evidence of an agreement at all.
61. Mr Sinel then pointed to the fact that Dr Kelleher in fact paid Mrs Amy one third of the rentals when he had control of the bank account; and that this arrangement had continued ever since (until Mrs Amy was removed as tutrice by the Court on 1 April 2010). In particular he referred to the questions and answers on the accounts given in 2007 shortly before Dr Kelleher resigned, in which Mrs Amy was asked what the basis or authority was for the payments to her of some £22,000 a year and she answered in terms:-
"The Common Law right (Dower) of a Widow and in this case "My entitlement to one third of the total income of the Units of Accommodation"."
Mr Sinel pointed out that Dr Kelleher, who was no friend of Mrs Amy's, had then accepted the accounts as recorded in the Act of Court of 14 March 2008, as had the other électeurs who then resigned.
62. I have considered this evidence with care because, as Mr Sinel rightly points out, Mrs Amy no doubt believed she was entitled to take one third of the income by way of dower payments and Dr Kelleher did nothing to disabuse her of that belief. To that extent the decision of the Court in April 2010 and of the Commissioner in the judgment under appeal that she was not entitled to the payments after all is capable of operating very harshly. But having been taken through the material by Mr Sinel, I can find nothing that would suggest that any agreement was ever reached. The evidence is entirely consistent (and indeed more consistent) with a belief on all sides that she was entitled as a matter of customary law to these payments. Since I have held above that she in fact had no customary law entitlement to dower until she either actioned the heirs or reached a binding agreement with them, a mere belief that she was so entitled, even if shared by Dr Kelleher and the other électeurs, is not in my judgment sufficient to deprive the children of their rights.
63. I may add that we were referred by Miss Corbel to an Order of Justice issued by Mrs Amy against Advocate Whittaker's firm on 14 July 2010 which contains pleaded assertions that:-
"The Plaintiff wrongly believed that she was entitled to receive one third of the income from Hastingue New Farm and to live there free of charge"
that:-
"The Plaintiff did not establish entitlement to dower rights by way of an agreement with the Deceased's heirs or an application to the Court"
and that:-
"Had the Plaintiff been properly advised she would properly have established her entitlement to dower rights by way of an agreement with the Deceased's heirs or an application to the Court."
On their face these statements in a pleading signed by Mr Sinel as her advocate are inconsistent with the suggestion that any agreement has been reached. He explained to us that this Order of Justice was issued as a precaution after the judgment of 1 April 2010, and if he had misexpressed the position he would amend it. I do not think it necessary for the purposes of this judgment to place any particular reliance on this pleading, but it is consistent with and tends to support the conclusion I have already come to.
64. In my judgment therefore the Commissioner was right to conclude that there was no evidence before him, sufficient to raise a triable issue, that an agreement had been reached between Mrs Amy and the heirs which entitled her to the payments as dower.
65. It follows that, subject to the points considered below, Mrs Amy has received monies from the tutelles which she has no legal entitlement to and is prima facie liable to repay them.
66. I add that Mr Sinel relied before us, as he had before the Commissioner, on the fact that Anastasia, who had then turned 18, had signed the letter containing the answers given by Mrs Amy and Mr Barnett to Dr Kelleher on 27 December 2007 and the letter contained a statement that she had read the letter and understood and agreed with all its contents. The Commissioner dealt with this very briefly saying that Anastasia was but a few days past her 18th birthday and that it would be very inequitable to hold that she was estopped by it. I agree with the Commissioner. I do not think this can be read as an agreement by Anastasia, who had by then had no independent advice, to give up her rights under the tutelle.
67. This involves two questions (a) were the payments of about £10,000 per year to Mr Barnett proper disbursements? (b) was Mrs Amy entitled to 5% of the gross income by way of an allowance for management?
68. So far as the payments to Mr Barnett are concerned, Mr Barnett in his affidavit said that he moved to Hastingue Farm in May 2001, and assisted initially on a voluntary basis, but had worked full time as "secretary" from January 2003. The GT Report shows that from then on he received regular payments out of the income of the tutelles at the approximate rate of £10,000 per year. The justification for these payments put forward by Mrs Amy and Mr Barnett is that he was engaged by her to manage the tenanted properties, his services including arranging for advertising, viewing and letting of the properties, maintenance and cleaning of the properties, maintenance of the estate generally, payment of bills and bookkeeping services.
69. The Court in its judgment of 1 April 2010 referred to the principle that 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 as recompense for the duties involved in managing the estate: Tostevin v Piquet (1904) 11 CR 431. It continued:-
"In this case, Mrs Amy engaged the services of Mr Barnett to manage the estate, presumably with the approval of the electors, and a fee of 5% of the gross income would be lawfully chargeable."
The GT Report indicates that GT have interpreted the judgment as meaning that Mr Barnett was entitled to only 5% of the gross income in respect of his role. GT has treated the actual payments to Mr Barnett in excess of that sum as overpayments. These total £50,818, which divided by 3 produces the figure of £16,939 (or £16,940) shown as due to each of the children under this head.
70. Miss Fogarty sought to uphold the decision that no more than the 5% could be justifiable under this head, pointing out that Mr Barnett's status was very informal, there being no suggestion of any written contract, and that if Mrs Amy was limited as tutrice to 5% for the duties of managing the estate, it was unsatisfactory that she could in effect pay her partner more for doing the duties that fell on her. One can see the force of this submission, but the question is whether Mrs Amy has shown a triable issue that the payment to Mr Barnett was justified. In circumstances where the facts have not been found, and there is before the court evidence not only that Mrs Amy did reach an agreement with Mr Barnett and that his services might have been worth at least what he was paid, I conclude that this is a matter where Mrs Amy has indeed shown a triable issue.
71. I do not think it either necessary or appropriate to go into the matter in any great detail. The report of Tostevin v Piquet reads (in its entirety) as follows:-
"le tuteur a droit, en règle générale, pour l'entier de ses peines et vacations, outre ses légitimes débours, à une somme de cinq pour cent du revenue du pupille, sans faire déduction de ses dettes, sujet néanmoins à diminution ou augmentation en cas de facilité ou difficulté extraordinarire, à la discretion des électeurs de la tutelle."
This plainly deals with two matters: first the tuteur is entitled to a sum in addition to his "legitimate disbursements" and secondly, the tuteur can recover a greater fee than 5% with the agreement of the électeurs in cases of unusual difficulty. On a summary judgment application, I do not think one can confidently conclude that the payment to Mr Barnett was incapable of being a legitimate disbursement, however much one may harbour doubts about it. Miss Fogarty suggested that it could never be a legitimate disbursement for the tuteur to engage someone to manage the estate but I do not think this can be said to be unarguable; and even if it were the case, then Mrs Amy might be able to show that this was a case of unusual difficulty and she had in effect agreed a higher fee with the électeurs.
72. I therefore conclude that in this respect a triable issue has been shown.
73. This makes it unnecessary to consider at any length the question of Mrs Amy's 5%. There is nothing to suggest that Mrs Amy was ever intended to have 5% as well as the payments to Mr Barnett, nor has any such payment been agreed. One can see that from the date when Mr Barnett was managing the estate the agreement with him, if valid, is to be regarded as an alternative way for the estate to be managed, and it does not seem appropriate for her to have the 5% as well: if he took over all the management, it would not seem there was any management left for her to do. No separate argument has been advanced why she should have the 5% as well as the payments to Mr Barnett.
74. In my judgment therefore the amounts prima facie due from Mrs Amy are limited to the dower payments and do not include the amounts paid to Mr Barnett; Mrs Amy is entitled to a 5% allowance for the period until Mr Barnett was appointed - which is what the GT Report allows her - and the prima facie figures due from her are therefore £86,134 in respect of each tutelle.
75. I will deal with the suggested change of position defence first as it is simpler. Mr Sinel relied on the English decision of Lipkin Gorman v Karpnale [1991] 2 AC 548 for the proposition that a change of position is in general available for the recipient of monies who is subject to a restitutionary claim.
76. In my judgment this decision does not assist Mrs Amy. It was a case where A's money had found its way into the hands of B in circumstances where B was entirely innocent of any wrongdoing. It was in such circumstances that A's restitutionary claim against B was liable to met by a defence that B, an innocent recipient, had changed his position.
77. That however is not this case. Here Mrs Amy as tutrice undoubtedly owed duties to the children to look after their money. When some of the money has found its way into her hands in circumstances where she had no right to it, this is not I think so much a restitutionary claim as a claim by the children for an account of what has become of their money. She is not an innocent recipient for these purposes but a recipient who has received the money in breach of her own duty. Although the position of a tuteur in Jersey law is no doubt not the same as a trustee, in this respect I understand it to be analogous, and since Mr Sinel is relying on the English law for his change of position defence, it seems to me that one is entitled to look at the comparable position in the English law where the closest equivalent to a tuteur is that of a trustee. We have not been shown any authority, either from England or Jersey, that a trustee who has mistakenly received property belonging to his beneficiary can resist the obligation to account to the beneficiary by saying that he has spent the money or otherwise changed his position, and I do not understand that to be the law. In my judgment this affords Mrs Amy no defence.
78. That leaves the question whether Mrs Amy can resist the claim by saying that she spent the money for the benefit of the children. In principle this is a good defence as accepted by the Court on 1 April, 2010.
79. The Commissioner accepted this, and made a deduction of 25% from the sums for which judgment was entered on account of it. He pointed out that in many respects the GT Report had erred on the side of Mrs Amy, in that some 35% of the expenditure from the tutelles was undocumented but GT had assumed that this was all for the benefit of the children; they had also assumed that expenses incurred in for example renovating the children's bedrooms in the main house were properly chargeable to the tutelles despite the terms of Mr Amy's will under which Mrs Amy was responsible for keeping the matrimonial home in good repair and decoration. Nevertheless the question whether Mrs Amy spent the money she drew from the tutelles on the children is a separate point and one that cannot be determined by other assumptions in Mrs Amy's favour.
80. In this respect as in the others, one is looking first of all for evidence from Mrs Amy sufficient to raise a triable issue. Mrs Amy's affidavit says that the GT Report:-
"omits to take into account any expenditure that I incurred for the children's benefit"
and that:-
"I was entitled to apply part or even all of the income of a child for his or her benefit. This included expenditure on food, clothing, entertainment and education. This sum of money spent for the children's benefit completely extinguishes the claim against me."
81. That is the entirety of the evidence. The GT Report itself shows that Mrs Amy had told them that she had advised that there were "considerably more items of household expenditure from which the children benefited" met from her own funds derived from the drawings from the tutelles. But they said that they had not been provided with any information or claim in respect of these items.
82. Nor was the Commissioner, nor have we. Mr Sinel says that the onus is on the plaintiffs to make out their claim and if it is uncertain what was spent, the onus is therefore on them to show that Mrs Amy has had the benefit of the money herself. But this does not seem to me to be right. In circumstances where Mrs Amy has received money which belonged to the children and to which she has no entitlement the onus is in my judgment clearly on her to establish by way of defence that she has in fact spent money for their benefit.
83. Given the paucity of the evidence I have considerable sympathy for the Commissioner for allowing Mrs Amy a figure of 25%. So far as her affidavit is concerned, he could legitimately have taken the view it did not give any particulars at all, and hence no triable issue had been shown.
84. Mr Sinel however asked us to take into account the fact that Mrs Amy had no other income, and that everything was spent on the family. He asked us to conclude that there is a triable issue that she spent the whole of, if not more than, the drawings and hence leave to defend should have been given not just for 25% but for 100%. I do not think there is any real evidence of this; but I see the force of Mr Sinel's appeal to the realities.
85. On the other hand, in the absence of any particulars at all and in the absence of any suggestion that any further details might be forthcoming, and in the light of Mr Sinel's statement that Mrs Amy had no other income and spent it all on the family, I consider there is no realistic prospect of her establishing at trial that 100% of the drawings were spent on the children. In the absence of any other evidence (and as I have said there is none put forward, and no reason to think that any might be forthcoming) and accepting for present purposes Mrs Amy's assertion that the money was all spent on general household expenditure, it seems to me that the Court should regard this as having been spent equally on Mrs Amy and her three children. This would mean that 75% of the expenditure was attributable to the children. This is no doubt in fact generous to Mrs Amy, particularly as Marianna was not living at home for all this period (although Mr Sinel told us, but again there is no evidence before the Court, that Mrs Amy made some payments in respect of this); but we should of course only uphold the Commissioner's judgment to the extent that there is no triable issue shown.
86. I would therefore allow the appeal to the extent of substituting for each judgment the sum of 25% of the payments received by Mrs Amy under the rubric of dower. This is 25% of £86,134 or £21,533.50.
87. The Commissioner granted conditional leave to defend in relation to the 25% for which he did not give judgment. No separate argument was addressed to us on that aspect of his judgment and it seems to me that he was justified in concluding that leave to defend the balance should be conditional on payment into court for the reasons that he gave. I would therefore grant leave to defend the balance of the claim in respect of payments made under the rubric of dower conditional on payment of the money into Court, being in each case 75% of £86,134 or £64,600.50.
88. Mr Sinel as I understood him accepted that in principle the children were entitled to be protected if they were judgment creditors, Mrs Amy having no other assets other than the properties which were the subject of the caveat. Although the result of my judgment, if the other members of the Court agree, will be that the amount of the judgments is significantly reduced, I do not think this affects the question of principle. As the Commissioner said, there is clear evidence of a risk that otherwise Mrs Amy may spend such assets as she has on borrowing for the purpose of funding further litigation. It is not necessary to repeat the details.
89. Mr Sinel relied on what he said was non-disclosure by Marianna on the application for the caveat; but I am not persuaded that any of the matters which he said were not disclosed affected the substance of her evidence to the court so as to be misleading.
90. Mr Sinel however did make another point which has some force, which is that there is no judgment against Mr Barnett and since the effect of the caveat is to prevent him raising any money from the properties which he jointly owns with Mrs Amy this is unfair to him. I agree. What is required is a mechanism which both protects the plaintiffs from the risk that Mrs Amy's assets will be dissipated in further costs, and protects Mr Barnett's position. What I suggest therefore is that the caveat should be lifted on provision of a suitable undertaking by Mrs Amy not to dispose of her interest in the properties or their proceeds of sale or her share of any monies from them. It would be inappropriate for us to try and settle the form of such undertaking now, but I would encourage the parties to see if they can agree the terms, and would remit this aspect of the case to the Royal Court so that if agreement can be reached the caveat can be lifted; and if agreement cannot be reached, the Court can decide what the details of any such undertaking should be.
The president:
91. I agree and would add only this. Mr Sinel made a stringent criticism of the Commissioner's postscript to his judgment in which the Commissioner said "this case calls out for mediation and compromise." I entirely reject Mr Sinel's submission that the Commissioner in those observations or his subsequent remarks, specifically said to be obiter, was acting in any way unjudicially or expressing any unjustified views as to the character or Mrs Amy or indeed of the children. He was merely stating a common sense view shared, I am aware, by my colleagues on this Court, that this unhappy family dispute would be better resolved by settlement than by litigation, whose continuation could only certainly benefit the lawyers involved.
Authorities
Loi (1862) sur les Tuteurs.
Royal Court Rules 2004.
Le Masurier, Giffard & Poch v Pinson [1992] JLR N-3a.
Toothill v HSBC Bank [2008] JLR 77.
Alhamrani v Alhamrani [2009] JLR N 22.
Loi (1851) sur les testaments d'immeubles).
Boyd v Pickersgill & Le Cornu [1999] JLR 284.
Lake v Lake [1955] P 336.
Bankrupcty (Désastre)(Jersey) Law 1990.
Matthews & Nicolle, The Jersey Law of Property.
Jersey Law Commission's Consultation Paper No 8 on Security on Immoveable Property.
Le Gros.
Tostevin v Piquet (1904) 11 CR 431.
Lipkin Gorman v Karpnale [1991] 2 AC 548.