Jersey Unreported Judgments

Dispute.

[2022]JRC211

Royal Court

(Samedi)

12 October 2022

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Ramsden and Cornish

 

Advocate H. B. Mistry for the Plaintiff

Advocate W. A. F. Redgrave for the Defendant

judgment

the bailiff:

1.        These are further applications in the dispute between Camilla de Bourbon des Deux Siciles (who we refer to herein with no disrespect as "Camilla") and Zedra Jersey Trust Corporation Limited (formerly BNP Paribas Jersey Trust Corporation Limited (BNP)) ("Zedra").  This judgment reflects that since the matter was argued before me BNP has changed its name to Zedra.  Zedra, by summons, seeks an order that Camilla be debarred from prosecuting the claims in her Order of Justice dated 25^th May 2022 ("the Order of Justice") and Camilla, by summons, seeks a stay on the enforcement of an order of 22^nd December 2020 imposing a fine and/or default prison sentence until the determination of a Privy Council appeal and/or the determination of the Order of Justice and/or the determination of an appeal to the European Court of Human Rights.

Background

2.        I do not propose in this brief judgment to set out the full procedural background to this matter, which is lengthy.  It is important, however, to note that Camilla is presently in contempt of orders of the Royal Court for disclosure of information, having been found so by the Royal Court on 7^th October 2019 ("the contempt judgment"), in linked proceedings (File No: 2019/090).  The finding of contempt in question was to the criminal standard. 

3.        The matter of the sanction to be applied in connection with that contempt was held over for later determination and in the intervening period Camilla issued a Notice of Appeal against the contempt judgment. 

4.        The Court of Appeal dismissed Camilla's appeal against the contempt judgment on 29^th January 2020.  That dismissal has not been appealed, and consequently the contempt judgment is final and unappealable.

5.        On 25^th February 2020, the Court adjourned any decision on sanction, giving Camilla a further opportunity to purge her contempt by filing a fresh affidavit disclosing information she had withheld and warned her that if she did not purge her contempt she would face a very substantial fine. 

6.        Camilla provided a further affidavit and was, at a resumed sanctions hearing in November 2020, cross-examined on the content of her further affidavit, and submissions were heard on sanctions.  In its judgment of the 22^nd December 2020 ("the sanction judgment"), the Court found to the criminal standard that Camilla had not purged her contempt and that she had continued not to disclose all that she could and should have disclosed about her mother's assets.  The Court accordingly imposed a sanction in the form of a fine of £2 million with twelve months' imprisonment in default. 

7.        Camilla then appealed the sanction judgment to the Court of Appeal and applied for a stay pending the outcome of that appeal.  The Court of Appeal rejected her application for a stay in its judgment dated 15^th February 2021, stating:

"36.    It remains for the Court to draw together all the relevant circumstances and to balance the competing interests at stake, in the light of the ruling set out above.  First it is important to recognise that the starting point is always that an appeal does not operate as a stay.  Second, the onus is on the appellant to justify a stay.  Third, the specific grounds on which the appellant has sought to make good her application fail for the reasons set out above.  Fourth, it should be emphasised that the orders whose effect the appellant seeks to stay involve payments of money: in other words, they do not require any conduct which will be irreversible in the event that the appeal were to succeed.  Fifth, there is no reason to doubt that the money would be repaid if the appeal were to succeed: accordingly, it would not render a successful appeal nugatory if a stay were refused.  Sixth, the appellant's conduct to date in this litigation gives cause for concern that she would not pay either the fine or the costs if she were not required to do so before the hearing of the appeal: in particular, she has been found in contempt of Court and she has failed to comply with the February 2019 costs orders until she was effectively forced to do so in order to pursue her appeal against that finding of contempt.  Seventh, there is no evidence the appellant has any assets in this jurisdiction, nor any need to visit this jurisdiction: accordingly, enforcing compliance against her after the appeal (if it proves to be unsuccessful) could be problematic."

8.        Notwithstanding refusal of the application for a stay, Camilla did not pay the fine, although she made some part payments, namely four payments of £33,333.33 each.

9.        On 8^th June 2021, the Court of Appeal rejected all of Camilla's grounds of appeal against the sanction judgment and further rejected her application to pay the fine by instalments.  At paragraph 95, the Court of Appeal said this:

"Under the terms of the Orders made on the 22 December 2020, the Appellant was obliged to pay the entirety of her £2 million fine within two months, in default of which she was to serve twelve months in prison.  We rejected her application for a stay on the 15 February 2021, just a week before the fine fell due.  Since then we were told that she has taken it upon herself to pay four instalments of £33,333.33.  The vast majority of the fine thus remains unpaid, more than three months after it fell due."

10.      The Court of Appeal gave Camilla a further extension of time for payment of the full amount until 15^th July 2021 and ruled that if payment was not made by that date the order for imprisonment in default would take effect. 

11.      Camilla has not paid the fine.  Instead, she required that the Royal Court provide a bank guarantee before she would pay the balance to the Viscount.  The Royal Court issued a judgment on this requirement on 18^th October 2021 describing the application as 'completely inappropriate' and 'misconceived'.  The Court of Appeal rejected her application for leave to appeal against this judgment.

12.      On 17^th August 2021, Camilla applied to the Judicial Committee of the Privy Council ("the JCPC") for permission to appeal against the sanction judgment and applied for a stay of execution of the fine.  No stay has been granted by the JCPC as far as I am aware. 

13.      On 25^th May 2022, Camilla issued the Order of Justice seeking damages from Zedra for abuse of process.  The essence of the allegations appears to be that the order made against Camilla for disclosure had not included the standard wording against self-incrimination and, furthermore, that that wording was deliberately omitted.  I do not propose to go into the detail of the allegations contained within the Order of Justice but they include allegations made against Zedra's advocates.  A summons has been issued by Zedra to strike out the Order of Justice or, in the alternative, to give summary judgment against Camilla seeking security for the Zedra's costs.  That summons is scheduled, as I currently understand it, to be dealt with on 25^th October 2022.

14.      On 28^th June 2022, Zedra's legal advisers wrote a letter to the Court stating that the fine had not been paid and asking the Court to consider whether or not the proceedings commenced by Camilla, which it is said are connected with and critical of the contempt proceedings, should be allowed to continue.  The Court indicated that there should be a hearing prior to 25^th October to consider this question. 

15.      On 19^th July 2022, the JCPC refused Camilla's application for permission to appeal against the contempt sanction. 

Zedra's Summons

The Law

16.      The first authority placed before me is Hadkinson v Hadkinson [1952] 2 All ER 567, CA in which Romer LJ said this:

"It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.  The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person effected by an order believes it to be irregular or even void....

Such being the nature of this obligation, two consequences will, in general, follow from its breach.  The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise.  The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt."

17.      Denning LJ in the same case enunciated a different approach in the following terms:

"I am of opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed."

18.      In Bettinson v Bettinson [1965] Ch 465 at 472, the Court said this:

"In Clark v Dew, a party was in contempt for disobedience to an order in a cause was held not to have been precluded thereby from making a motion in another cause having reference to a distinct subject, though between precisely the same parties.  Lord Lindhurst LC said that the practice was the same, he apprehended, in equity as at the law, that a party could not move till he had cleared his contempt; but that the rule must be confined to proceedings in the same cause; otherwise the consequences would be, that a party, who is utterly unable to comply with an order of the court, might be prevented from afterwards prosecuting any claims, however just, against the person who had succeeded in obtaining that order."

19.      In X Limited v Morgan Grampian Limited [1990] 2 All ER 1, Lord Bridge held:

"I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning LJ better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions."

20.      I do not need to cite authority in support of the Court's inherent jurisdiction.  It is clear that the Court has the necessary reserve or fund of powers to draw upon as needed whenever it is just or equitable to do so to ensure observance of the due process of law and, amongst other things, to do justice between the parties.  This includes, if appropriate, taking draconian steps if a party properly joined to litigation has flouted or ignored the Court's orders.  In other words, this Court has at least the same jurisdiction as the court stated in Hadkinson above.

21.      In JSCBTA Bank v Ablyazof (Number 8) [2012] EWCA Civ 1411, the Court of Appeal reviewed the position against Article 6 of the European Convention of Human Rights and the right of a litigant to be heard where he had failed to comply with court orders.  Citing the reasoning of Arden LJ in Stolzenberg v CIBC Melon Trust Co Limited [2004] GWCA Civ 827, Rix LJ stated:

"....the state can impose restrictions on the right of access to court provided that the restrictions serve a legitimate aim, are proportionate and do not destroy the very essence of the right.  Here the legitimate aim in imposing a sanction is to secure compliance with court orders."

22.      In Orenga de Gafforj v Orenga de Gafforj [2018] EWCA Civ 2070, Peter Jackson LJ reviewed the Hadkinson principles and said of Hadkinson orders the following:

"9.      The nature of the Hadkinson order was described in this way....

'Such an order is draconian in its effect because it goes directly to a litigant's right of access to a court.  It is not and should not be commonplace.  As developed in case law, it is a case management order of last resort in substantive proceedings (for example for a financial remedy order) where a litigant is in wilful contempt rather than a species of penalty or remedy in committal proceedings for contempt.'

To this I would add that it is not a species of what has been    described in one of the cases as 'enforcement by the back door'.

10.      An order of this kind can be made at any stage of proceedings, both at first instance and on appeal.  Its history and modern development is set out in the judgment of Eleanor King J in C v C (Appeal: Hadkinson Order) [2011] 1 FLR 434 at [27]-[41]. 

11.      For present purposes it is enough to note the exceptional nature of the order and to record the conditions that are necessary before it can be made.  I would summarise these as follows:

1.        The respondent is in contempt.

2.        The contempt is deliberate and continuing.

3.        As a result, there is an impediment to the course of justice.

4.        There is no other realistic and effective remedy.

5.        The order is proportionate to the problem and goes no further than necessary to remedy it."

23.      Other cases have been cited in the argument before me but I believe that the essence of the principles that I am asked to apply are set out in the above cases.

24.      It is clear that Zedra is seeking a draconian order in that it is seeking to block Camilla from continuing proceedings within this jurisdiction whilst she remains in contempt of Court. 

25.      I have reviewed the Order of Justice and it appears to me that the subject matter of those pleadings is closely related to the subject matter of the proceedings which have given rise to the contempt finding.  Whilst technically they are separate proceedings, on one analysis, Camilla is seeking to undermine the finding of contempt by deploying arguments neither deployed at the time nor accepted by the JCPC as a ground of appeal. 

26.      Camilla argues that the Gafforj criteria have not been met inasmuch as there has not been a finding of the Court that she is in contempt of court for failing to pay the fine in full.  Furthermore, she argues, Zedra is unable to prove that there has been a deliberate contempt.  She says that the sanctions judgment may be appealed to the European Court of Human Rights.

27.      I do not find merit in those submissions.

28.      There is no doubt that Camilla is in contempt of court and that finding has not been appealed nor is it capable of being appealed.  Similarly, the Court has imposed a sanction in connection with the contempt, Camilla has failed in her appeal to the Court of Appeal and to the JCPC against that sanction.  There is no dispute as to the amount that Camilla has paid and therefore the amount that remains unpaid. 

29.      It is for me on the facts to take a realistic view as to whether the criteria in Gafforj have been made out.

30.      This is a clear case of contempt of the orders of this Court.  Camilla has refused to make the appropriate payment.  She has appealed to the Court of Appeal and has lost.  On my understanding, as I have said, her attempt to appeal further to the JCPC has also failed.

31.      Applying the five tests in Gafforj, it is clear that Camilla is in contempt and unquestionably so; that contempt is both deliberate and continuing; and, given the lack of any assets within the jurisdiction, there appears no other realistic or effective remedy to that contempt. 

32.      Is there an impediment to the course of justice?  I consider that there is.  There are some cases where the action of a contemnor is so flagrant and clear that to permit them to continue in a related set of proceedings would be an affront to justice and would bring the course of justice into disrepute.  In my judgment, this is such a case. 

33.      Is the order sought from me proportionate to the problem and does it go no further than necessary to remedy it?  Given that the contempt appears to me, on the facts and the procedural history to which I have made short reference above, to be both deliberate and wilful, I consider that the imposition of a Hadkinson type order is the only way to ensure that the order of this Court is obeyed.

34.      If the contempt is purged then it will be open to Camilla to continue with the proceedings and seek to have them vindicated before the Courts to the extent to which they have merit in law and fact.

35.      It could not have been realistically argued that, had Camilla prevailed in any appeal, any monies that she had paid would not have been returned to her promptly. 

36.      For these reasons I accede to the request made in Zedra's summons in this matter and order that Camilla be debarred from prosecuting the claims in the Order of Justice until she has paid in full the balance of the fine of £2 million imposed on her by the Royal Court for contempt of court on 22^nd December 2020. 

37.      In the circumstances, I also order that Camilla pay Zedra's costs of and incidental to this summons on the indemnity basis.

Camilla's summons

38.      I turn now to consider Camilla's summons which seeks a stay of the enforcement of the £2 million fine and/or the default prison sentence of twelve months as referred to above, pending the determination by the full board of the JCPC of whether Camilla may advance the new grounds of appeal dealing with self-incrimination and default imprisonment; and/or the determination of the Order of Justice; and/or the determination of an appeal to the European Court of Human Rights. 

39.      I do not propose to deal with this aspect at length and, of course, I keep in mind the background that I have referred to above. 

40.      In Crociani v Crociani [2017] JCA 162 at paragraph 28, McNeill JA states:

"Leaving aside cases where refusing the stay would make any realistic appeal nugatory, there would have to be exceptional circumstances to support the grant of a stay."

41.      Camilla's Order of Justice will not be rendered nugatory if she pays the fine.  There is no doubt that this Court would require the Viscount to repay any funds by way of the fine together with interest in the event of a successful appeal.

42.      No appeal, including the latest appeal to the JCPC, has been successful or even accepted.  Indeed, in the Court of Appeal, as set out above, an application for a stay pending appeal has been rejected in very clear terms. 

43.      It appears to me that Camilla has exhausted her avenues of appeal up to and including the JCPC.

44.      She raises the prospect of an appeal to the European Court of Human Rights, the bringing of which appeal is, on the submissions of her counsel, 'under consideration'.  No appeal appears to have been launched nor indeed accepted. 

45.      Furthermore, the European Court of Human Rights is not an appeal court in the sense that it can review the decision of the courts of the jurisdiction in which determinations have been made and simply overturn them.  It is concerned with the observance by contracting states of the engagement to act in accordance with the Convention and the protocols.  In Tomaso v Italy [2017] ECHR 43395/09, the European Court of Human Rights said this:

"The Court reiterates that its duty is to ensure the observance of the engagements undertaken by the contracting parties to the Convention.  In particular, it reiterates that it is not its function to deal with alleged errors of law or fact committed by the national courts unless and insofar as they may have infringed rights and freedoms protected by the Convention, for instance where they can be said to amount to unfairness in breach of Article 6 of the Convention... The Court should not act as a fourth instance body and will therefore not question under Article 6(1) the national courts' assessment, unless their finding can be regarded as arbitrary or manifestly unreasonable."

46.      This is clearly a high hurdle and it is far from clear to me in the light of the circumstances that I have referred to above that any reference to the European Court of Human Rights is realistic.  Be that as it may, I am not informed that any such reference has been attempted at this point. 

47.      I refer, in particular, to the judgment delivered on 15^th February 2022 by the Court of Appeal referred to at paragraph 7 above.

48.      In the circumstances, I reject Camilla's application for a stay.

Authorities

European Court of Human Rights.

Hadkinson v Hadkinson [1952] 2 All ER 567, CA.

Bettinson v Bettinson [1965] Ch 465 at 472.

X Limited v Morgan Grampian Limited [1990] 2 All ER 1.

JSCBTA Bank v Ablyazof (Number 8) [2012] EWCA Civ 1411.

Stolzenberg v CIBC Melon Trust Co Limited [2004] GWCA Civ 827.

Orenga de Gafforj v Orenga de Gafforj [2018] EWCA Civ 2070.

Crociani v Crociani [2017] JCA 162.

Tomaso v Italy [2017] ECHR 43395/09.