Before : |
Sir William Bailhache, Esq., Bailiff, sitting alone. |
IN THE MATTER OF Q
AND IN THE MATTER OF THE CAPACITY AND SELF-DETERMINATION (JERSEY) LAW 2016
Advocate P. F. Byrne appeared for the Crown.
Advocate R. A. Leeuwenberg appeared for Q
Advocate C. L. Nicolle - Prospective Delegate
judgment
the bailiff:
1. Advocate Leeuwenberg makes an application for costs in relation to an application brought by the Solicitor General for the appointment of Delegate under the Capacity and Self-Determination (Jersey) Law 2016 ("the 2016 Law"). Article 25 of that law gives the Attorney the ability to make such an application. It is in these terms and application for the exercise of the Court's power under Article 24(2) may be made by an applicant who is (l) the Attorney General.
2. This is in different terms from the procedure which is followed in the Mental Health (Jersey) Law 1969 where if the Attorney received information which would justify the appointment of a curator it was his duty to bring an application to the Court for such an appointment.
3. The facts in this case are that the Attorney did receive such notification in March 2018 before the 2016 Law came into force which was on the 1st October of that year and that was in the form of a document signed by a Registered Medical Practitioner and countersigned by a second Practitioner would certify that Q spends excessive amounts of money impulsively and makes purchases of valuable items including property in a very irrational unpredictable manner that greatly compromises his financial security. He was said to be suffering from bipolar disorder and possibly personality disorder and/or cognitive decline. The doctors in that case said that they were not able to comment on whether this diagnosis was one from which the person was likely to recover.
4. The proceeding were not brought until 3rd January this year and between the time when they were brought and that letter which I have just referred to, the Solicitor General received a letter dated 21st December, 2018 from Advocate Leeuwenberg in which he said, that an application to appoint a curator in respect of the affairs of Q had been proposed earlier in the year. An application at that stage being made, the intimation of the application had caused Q financial difficulties and there was a lack of clarity as to the intentions of the Solicitor General which was unhelpful.
5. Advocate Leeuwenberg went on to give the Solicitor General some information namely, that Q had left Jersey with no intention of returning; he was living in the United Kingdom for a short period of time and then would be relocating permanently to the Philippines in January 2019, and the letter concluded, and I quote:
"In the circumstances in which Q will no longer be within the jurisdiction of the Royal Court, can you confirm that an application to appoint a delegate is no longer sought?".
6. Receipt of that letter was acknowledged but a notice convening Q before the Court was issued in January and on the 10th January Advocate Leeuwenburg sent an email to the Law Officers' Department in which he said this, and again I quote:
"Perhaps you could give some thought to whether or not you agree with me that the Court may not make an order under Article 24 of the 2016 Law in respect of a person who does not reside in Jersey, and is not within the jurisdiction of the Court, (as mentioned in my letter of 21st December)?. If we can agree on that, then we will no doubt need to consider how I can satisfy you that what I have stated above is correct and evidence the same to the Court".
7. Advocate Leeuwenburg received a response by an email from the Law Officers' Department which said this:
"It is a matter for Q to satisfy the Court that it does not have jurisdiction. Whilst writing I [enclose] an article dated 7th January, from a local newspaper. I have included correspondence from the Viscount's Department which, together with the enclosed letter, should be inserted under Tab 10..."
8. So, there Advocate Leeuwenburg was clearly being put on the spot to establish by evidence that Q was not resident in Jersey.
9. When the matter came before Court on the 14th January this question of residence was explored. Sian Davies, a social worker was sworn and she gave evidence to the effect that Q frequently goes off Island and when things have settled he comes back again. She told the court this was the fourth time since the end of November. He always says that he is leaving permanently and she also informed the court that in April of 2018 Q was detained under the Mental Health Act in the United Kingdom. It must have been for a period of less than 28 days, which was a conclusion which she reached having regard to the section under which he was detained. She said that she had last seen Q on the 4th January, 2019.
10. So what is the responsibility of the Attorney in these circumstances? As I have said, under the 1969 Law he was obliged to bring an application and it seems to me that the Attorney, although he is only one of many who can bring the application under the 2016 Law, has an obligation certainly to consider the evidence which is put before him, and where on the face of it that would seem to justify an application for the appointment of a delegate, it would be surprising, if no one else is bringing such an application, if the Attorney does not do so; because it is in the public interest that someone is there, that it is the Attorney, to defend the interests of those who are not able to defend their own interests. As it happens, no delegate has been appointed and there will be cases were the court having heard evidence does not appoint a delegate. That does not derogate from the nature of the Attorney's duty to bring to the attention of the Court circumstances which would suggest a delegate should be appointed.
11. The medical evidence in this case, it has to be said, is not as straight forward as it is in some other cases. Certainly Mr Harrison's report is pretty equivocal as far as that is concerned. He said in his report - in answer to the question: Why can't the making of the decision be delayed? He said, and I quote: "It is reported that Q has already proved he is unable to manage his finances", and in answer to an earlier question said, "Q believes this delegation to be in his best interests".
12. Both those two answers do suggest that when Mr Harrison made his assessment on the 16th October, 2018, and issued his certificate the level of enquiry could have been said to be such that the court would be prompted to ask further questions particularly if the application was then going to be resisted, as here it was. So, there was some evidence before the Solicitor General which certainly raised questions about the mental capacity of Q.
13. I have said the things I have about the nature of the Attorney's duty because it seems to me that is the explanation of what appears in Rule 14A at paragraph 12 of the Royal Court (Amendment No. 23) Rules 2018. Subparagraph 1 of that rule, says that where the proceedings concern Q's property and affairs, the general rule is that the costs of the proceedings or of that part of the proceedings that concern Q's property and affairs shall be paid by Q or charged to Q's estate. That is the general rule, the starting point, because it recognises that there is a public interest in ensuring that where there is a legitimate question over whether a delegate should be appointed it is the estate of Q which should bear the costs of that enquiry and application.
14. Now, of course, Advocate Leeuwenburg is right to remind me of subparagraph 4 of that rule which says that the court may depart from this rule if the circumstances so justify, and the rule goes on to say that in deciding whether it is justified the court has regard to all the circumstances, including the conduct of the parties, whether a party has succeeded on part of that party's case even if not wholly successful and also the role of any public body involved in the proceedings.
15. Advocate Leeuwenburg is also right to say that it is not a question of whether there are exceptional circumstances, but a question of whether the court is justified in departing from the general rule under paragraph 4; and in this case I can well see how Advocate Leeuwenberg feels frustrated that he never received a very substantial reply to his letter of 21st December which was intended to prompt an inquiry as to where Q was resident and in fact the evidence as to where he was permanently resident came out with an affidavit which Advocate Leeuwenburg supplied subsequent to the hearing on the 14th January. It was supplied on the 25th February having been sworn on the 11th February. It was as a result of the affidavit that the application was withdrawn.
16. In my judgment, this is one of those cases which is, in the round, somewhat unfortunate, but I do not think it is right to order for costs against the Solicitor General. The presumption is that Q's estate should bear the costs of these applications unless there is some circumstance to justify departure.
17. Well intentioned as Advocate Leeuwenburg's letter of 21st December is, the answer should have been to come back with an affidavit, certainly as soon as Advocate Leeuwenburg had seen the reply from Law Officer's department, an affidavit which set out clearly that Q was not resident in Jersey. If that had happened there would have been immediately, it seems to me, a requirement on the Attorney to consider whether it would be right to proceed with the application. In this case that was not the outcome. Indeed, we are told that Q did, in fact, come back to Jersey on 27th December, albeit briefly and so there was a considerable question mark over where he was resident and, indeed it was as a result of that that the application on the 14th January was in fact adjourned.
18. I find it impossible to say that the Solicitor General has acted unreasonably in bringing the application. The evidence which conclusively led to it being withdrawn was produced, as I say, in February after the application was made.
19. In those circumstances, I do not think that it is appropriate to depart from the general rule so the application for costs is dismissed.
20. No order made in relation to the costs of today.
Authorities
Capacity and Self-Determination (Jersey) Law 2016.
Mental Health (Jersey) Law 1969.
Royal Court (Amendment No. 23) Rules 2018