Jersey Unreported Judgments

Directions as to the role of the amicus curiae following a summons from the applicant.

[2018]JCA066A

Court of Appeal

3 April 2018

judgment

Mcneill ja:

1.        There is before me, sitting as a single judge of the Court of Appeal, a summons at the instance of the applicant, in which directions are sought from this court as to the role of the amicus curiae, Advocate Heidi Heath (the "amicus"), in proceedings currently depending before this court and which will be heard during the sitting of May 2018.

2.        The applicant had sought to bring judicial review proceedings against the respondents and, leave to bring judicial review proceedings having been refused, the applicant applied for leave to appeal that refusal on 21 February 2018.  This court was aware that an amicus had been appointed for the purpose of the proceedings below and, in ordering that the matter be set down for the May 2018 sitting and making ancillary orders for filing of bundles, expressed its understanding that the amicus would undertake the filing of the bundles.  In fact, through correspondence shortly after the lodging of the application, the amicus and Mr. Holmes had agreed that the amicus would arrange for the bundles to be filed electronically with the court of appeal on e-court.  The amicus indicated to Mr. Holmes, however, that if any or all of the parties or the court required hard copies in advance of the appeal, the production of those bundles would be the responsibility of Mr. Holmes. 

3.        Upon receipt of the court of appeal timings letter, Advocate Heath sought confirmation as to whether this court intended her to continue in the role of amicus.  She pointed out that, having been appointed amicus in the Royal Court proceedings and those proceedings having come to an end, arguably so had her role as amicus.  In response the court confirmed that Advocate Heath should continue in her role as amicus for the purposes of the current application. 

4.        The present summons seeks a direction from this court that "the role of the amicus as defined by Act of Court issued by the court below on 14 July 2017 shall continue for the instant appeal." 

5.        The reason for the applicant's summons is that, whilst the applicant has not set out what functions he would like to see the amicus carrying out, there is doubt as between the applicant and the amicus as to what is expected of the amicus. 

6.        In her written skeleton on this matter, the amicus reminded the court that the role of amicus had been considered by Commissioner Clyde-Smith in I v J [2014] JRC 021 at paragraph 14, where guidance to the English courts from 2001 was followed.  That guidance identified some flexibility as to the role of an amicus but indicated, generally, that the role was usually limited to providing assistance on relevant law and its application to the facts of the case and would not normally be one which included an instruction to lead evidence or investigate the facts of a case.  It was emphasised that an amicus to the court did not represent any person. 

7.        The directions given below by the learned Deputy Bailiff on 14 July 2017, below, followed that approach and gave specific directions to the amicus as follows:

"(i)       To assist the applicant in his preparation of statements or arguments and to ensure that they are properly and fully put, making the legal arguments as clear as possible;

(ii)       That, should the amicus identify authority that is against the applicant, the amicus should notify the applicant and the other parties; and

(iii)      That the amicus should make supplemental submissions to the extent that is necessary."

8.        In the same Order, other administrative acts such as distribution of papers were left to the applicant, subject to the amicus being in charge of the indexing and production of the bundles for the final hearing set down for August 2017. 

9.        From these directions it is clear that the learned Deputy Bailiff was following the approach that the role of the amicus was to provide limited assistance, was not to take the lead in presentation and was not being asked to represent any party.  Whilst the specific matters directed below are of limited relevance for the purpose of the present application and potential appeal, this court envisaged that the nature of the role of the amicus would be similar to that carried out below.  The changed circumstances are, of course, that the proceedings below have been completed and the current proceedings comprise an application and potential appeal.  Further, assuming, as I do, that the amicus has properly performed the functions directed below, the assistance given below is available to be used by the applicant for the purposes of his present application and appeal. 

10.      As with any appeal, however, not only may points which did not succeed below be reargued, further consideration or further investigation may identify new lines of argument or finer nuances to lines which were presented below. 

11.      In my view, therefore, insofar as any specific directions are required at this stage, they should be as follows:

(i)        To direct that the amicus curiae shall assist the applicant in his preparation of statements or arguments for the purpose of his present application and potential appeal, to ensure that they are properly and fully put, making the legal arguments as clear as possible;

(ii)       To direct that should the amicus curiae identify any further authority which is against the applicant, the amicus curiae shall notify the applicant and the other parties;

(iii)      To direct that the amicus curiae shall make supplemental submissions on the application and potential appeal to the extent that those appear necessary to the amicus and

(iv)      To direct that all other matters ancillary to the hearing in May 2018 be carried out by the applicant.

12.      These will be the directions in response to the summons.

Authorities

I v J [2014] JRC 021.