Jersey Unreported Judgments

Planning - decision on various applications.

[2022]JRC271

Royal Court

(Samedi)

7 December 2022

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

The Plaintiff appearing in person.

Advocate M. L. Preston as Amicus.

Advocate S. A. Meiklejohn for the Defendants.

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-8
3.	Strike out on the basis of limitations	9-28
4.	Strike out on the basis of vicarious liability	29-39
5.	The position of the eleventh defendant	40-48
6.	The claims against the sixth defendant	49-53
7.	Conclusion	54

judgment

the MASTER:

Introduction

1.        This judgment contains my decisions in respect of the following applications made by the defendants:-

(i)        To strike out the plaintiff's claims as a whole on the grounds that the proceedings were commenced outside the applicable limitation period;

(ii)       To remove the first to third and fifth to eight defendants as defendants on the basis that the tenth defendant is vicariously liable for their actions;

(iii)      To remove the eleventh defendant (the Attorney General) as a party; and

(iv)      To strike out claims against the sixth defendant on the basis that the proceedings against the sixth defendant are scandalous, frivolous, or vexatious.

Background

2.        The plaintiff's claims are set out in two orders of justice and relate to a conviction before the Magistrate's Court in November 2010 concerning certain infractions of the Planning and Building (Jersey) Law 2022.  The plaintiff appealed this conviction which was quashed on 29^th October 2013 when the Attorney General determined not to oppose the appeal with the plaintiff being awarded his costs.

3.        In an appeal against a taxation decision of the Assistant Judicial Greffier reported at Neville v AG [2017] JRC 043 Commissioner Birt set out the background to the conviction and appeal at paragraphs 2 to 15 as follows: -

"2.      It is necessary first to summarise briefly the background to the order for costs.

3.        The appellant is a builder by trade who was engaged in business involving the purchase, development and sale of immovable property. In November 2007 he purchased (with his wife) 17 and 19 Devonshire Place ("the property"). He applied for permission to construct a single storey unit to the rear of the property. This application was refused in June 2008 but permission was granted in May 2009. It appears that he replaced the front door and installed plastic windows in place of the old windows without getting permission and this was identified on 9th December, 2008. A letter was immediately sent to him asking him to submit a retrospective planning application.

4.        On 24th July, 2009, that retrospective planning application was rejected and permission to permit the replacement of windows and doors and to install roof lights was refused. The appellant did not appeal against that refusal.

5.        On 4th November, 2009, an enforcement notice was served upon Mr Neville. I have not seen that enforcement notice but I understand that it required him to remove the plastic windows that he had installed as well as the doors and to replace them with ones that matched the original timber windows and doors which had been removed.

6.        The appellant did not comply with the enforcement notice and was interviewed in that respect by enforcement officers from the Planning Department on 1st June, 2010.

7.        On 4th August, 2010, he was charged. It is not possible to identify from the papers before me the exact nature of the charges but they appear to relate both to a failure to comply with the enforcement notice and to carrying out unauthorised development by reference to the replacement of the windows and doors referred to. There were pre-trial reviews on 1st September, 15th September, 13th October and 10th November 2010. There was then a two day trial in the Magistrate's Court on 25th and 26th November, 2010, which resulted in the appellant being convicted of all four charges brought against him. There was a sentencing hearing on 10th December, 2010, when he was fined. The appellant represented himself at all of these hearings except for that on 15th September when he was represented by Advocate Le Maistre of Collas Crill.

8.        The appellant was - and remains - convinced that certain of the witnesses from the Planning Department who gave evidence before the Magistrate's Court committed perjury. In December 2010 he lodged a complaint to that effect with the police.

9.        On 24th August, 2011, the police wrote to him to say that they had found the allegations of perjury to be 'unsubstantiated'. Following further correspondence from the appellant, Superintendent Gull wrote on 15th September to say that he was satisfied with the police's findings.

10.      There then followed communications between the appellant and the Law Officers' Department but in December 2011, that Department wrote to the appellant saying that the Attorney General did not intend to request the institution of a criminal investigation by the police regarding the appellant's allegations of perjury. Between January and March 2012, there was communication between Deputy Higgins (on behalf of the appellant) and the Law Officers' Department concerning the availability of printed/audio transcripts of the trial before the Magistrate's Court.

11.      On 5th November, 2012, the appellant filed a notice of appeal against conviction together with an application for leave to appeal out of time.

12.      In May 2013 there was various correspondence concerning extensions of time because the appellant was contending that he had not yet received full disclosure. The appellant made a data access subject request to the Planning Department under the Freedom of Information Code of Practice and the Data Protection (Jersey) Law. There was a hearing before the Royal Court on 29th May at which time the appeal was adjourned to enable further disclosure to be obtained by the appellant.

13.      The matter came back before me sitting in the Royal Court on 18th July, 2013, and at that stage the appeal was adjourned, an amicus curiae ("amicus") was appointed and the Court ordered disclosure of all documents including internal emails, memoranda etc. which could in any way be relevant to an appeal based upon an abuse of process.

14.      On 4th October, 2013, Advocate Preston, who had been appointed as amicus, filed his contentions in connection with the appeal. He raised a number of concerns in relation to the prosecution including most significantly a submission that the enforcement notice was a nullity because of various defects in it which he identified.

15.      The appeal against conviction came on for hearing before the Royal Court on 29th October, 2013, at which time Crown Advocate Gollop, who had been appointed to conduct the appeal on behalf of the Attorney General, did not oppose the appeal. The appeal was therefore allowed, the convictions quashed and the appellant was awarded his costs out of public funds in connection with the appeal and the proceedings before the Magistrate's Court pursuant to Article 20(5) of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 ("the 1949 Law")."

4.        The proceedings commenced by two separate orders of justice were both dated 12^th October 2016.  Sir William Bailhache as Bailiff gave permission to the plaintiff on 17^th October 2016 to commence these proceedings by authorising the same to be served.  Service then occurred.  Both sets of proceedings were therefore commenced within three years of the plaintiff's conviction being quashed on appeal.

5.        Both sets of proceedings were initially adjourned sine die.  The initial adjournment was agreed to allow the States Jersey Police and/or the Attorney General to consider the criminal allegations made by the plaintiff in his orders of justice.  This investigation did not lead to any charges or any decision to prosecute.

6.        After conclusion of the review by the States of Jersey Police and the Attorney General, the defendants brought the stay to an end and took steps to place the actions on the pending list on 1^st December 2017.  They also issued a strike out application on the basis that the claims had been brought too late and were therefore out of time.  However, that strike out application was withdrawn because the States of Jersey Police then agreed to carry out a fresh assessment of the investigation of the plaintiff's complaint.  This investigation was carried out on behalf of the States of Jersey Police by the Norfolk Police and began in 2018.  It did not however conclude until earlier this year.  Partly these delays were due to COVID; however, the overall length of time it has taken to investigate the complaints was too long bearing in mind that the plaintiff's claims deal with a conviction that occurred in 2010 and was quashed without opposition in 2013.

7.        The investigation carried out by the Norfolk Police resulted in a decision to advise that no criminal proceedings be commenced against anyone; a decision was then made by the Solicitor General not to prosecute any of the defendants in connection with their actions towards this plaintiff or to any other individuals.  This decision was subject to a victim's right to review which the plaintiff exercised.  Since the hearing of this summons, I have been advised that the review has concluded and that the Solicitor General has again determined that there will be no prosecutions.

8.        Subsequent to the investigation of the Norfolk Police being concluded, a consolidated order of justice was produced by the plaintiff with the assistance of Advocate Preston as Amicus for which I am grateful.  Whilst the defendants do not object to the amendments proposed by the consolidation of the two orders of justice (which I had encouraged at a previous directions hearing), Advocate Meiklejohn maintained that the claims were still time barred and therefore ought to be struck out.  His alternative applications were made in case I was not in favour of his primary application (that all the claims were time barred) and were therefore made on the assumption that the amendments set out in the consolidated order of justice were otherwise approved.  I propose to deal with each of the applications made by Advocate Meiklejohn in turn.

Strike out on the basis of limitation

9.        The issue at the heart of this part of the defendants' summons was whether or not the plaintiff had brought proceedings in time.  It was common ground between the parties that what was at the heart of the plaintiff's application was an allegation of misfeasance in public office.  It was also common ground that a claim of misfeasance in public office is a claim in tort (see Huda v Minister for Health & Social Services [2021] JLR Note 6).  The applicable limitation period is therefore three years.  I record for the sake of completeness that the plaintiff's complaint alleges both targeted malice and untargeted malice.  However, the limitation period for both was accepted as being the same.

10.      Advocate Meiklejohn's argument was that all relevant discovery that the plaintiff had sought in order to challenge his conviction had been provided by August 2013.  As proceedings were not served until October 2016, it was argued that the claims were out of time.

11.      The application by the defendants begs the question of when the plaintiff accrued a cause of action against the defendants.  Alternatively, if the cause of action accrued more than three years prior to the quashing of his conviction on 29^th October 2013, was the plaintiff acting under an empêchement de fait therefore suspending the operation of the applicable limitation period until his conviction was quashed?

12.      I first touched upon when a civil cause of action accrued when there were related criminal proceedings in Pearce v States of Jersey Police [2019] JRC 225.  The Pearce proceedings concerned a representation brought by Mr Pearce (who at that stage was facing a criminal prosecution) that the actions of the police refusing to allow Mr Pearce's bank to deal with his bank accounts and those of a company Mr Pearce owned were ultra vires and unlawful.  As the action progressed Mr Pearce made it clear that all he was seeking through his representation were damages based on a customary law tort for an alleged unlawful freezing of his bank account.  The Chief of Police applied to strike out the representation on the basis that the correct way to challenge the actions of the police in freezing Mr Pearce's bank accounts was to make an application by way of judicial review and not for Mr Pearce to bring a claim in tort.

13.      In Pearce I refused to strike out Mr Pearce's claim and ruled "a failure to claim judicial review therefore does not operate as a legal bar where the same conduct complained of is later challenged in civil proceedings on the basis of an applicable tort" (paragraph 30).

14.       I also stated the following at paragraph 32: -

"32. I have referred to what is required to plead a claim in tort because while I am not persuaded by the respondent that the amended representation should be struck out, the maxim "Le criminal tient le civil en état" does apply because any civil claim the representor wishes to pursue in due course can only follow on after determination of the criminal proceedings (as conceded by the representor during the hearing). Obviously, if the representor is convicted then any civil claim will fall away. If the representor is acquitted or if the prosecution is not pursued, the representor will then need to consider at that stage, based on his knowledge, why he alleges a tort has occurred. He will further need to revisit his representation to set out all material facts relied upon to justify any claim in tort he may wish to bring at that stage. If the representor does not do so, there are appropriate powers vested in the Court to either strike out such claims or to grant summary judgment under Part 7 of the Royal Court Rules 2004, as amended. The fact that I am not willing to strike out the representation because the representor is no longer seeking to lift the de facto freeze, should not therefore be taken as accepting than an arguable claim in tort exists. That issue is for another day." (underlining added)

15.      This paragraph is relevant to the present application because the implication within paragraph 32 is that the time to bring any claim in tort based on unjustified criminal proceedings only starts to run once an individual is acquitted.

16.      However, in Verga v Nedbank Private Wealth Limited [2019] JRC 051, although not cited to me in Pearce, I had already considered when a plaintiff's cause of action accrues to bring a claim in tort following criminal proceedings.

17.      The allegations in Verga were claims based on a duty not to make negligent misstatements and/or defamation.  Both were therefore claims in tort with the same limitation period of three years as applies in the present case.

18.      At paragraph 18 of Verga I stated the following: -

"18.    In relation to the question of when the plaintiff's cause of action accrued, in my judgment the cause of action did not accrue until the plaintiff was acquitted on 16th December, 2015. I have reached this conclusion because, had the plaintiff been convicted, there would be no cause of action because the conviction would lead to at least the implicit position that evidence filed by the defendants with the police and later with the court had been accepted and so no question of negligent misstatement could apply. The alternative analysis, assuming a duty of care was owed to the plaintiffs as alleged for the purposes of this part of the judgment, had the plaintiff been convicted of conspiracy to defraud, he could not be said to have suffered any loss. Any losses he claimed to have suffered were as a result of being party to a conspiracy to defraud rather than arising from breach of any alleged duty of care. Only once the issue of whether or not the plaintiff was a party to a conspiracy to defraud was resolved by the jury reaching a decision in the criminal proceedings could the plaintiff be have said to have suffered any loss (or not as the case may be). It was only therefore upon acquittal could the plaintiff be said to have suffered loss and have an arguable cause of action (subject to the other issues I will deal with later in this judgment). On this analysis any cause of action did not therefore accrue until 16th December, 2015. This means that the limitation period for any claims in tort expired on 15th December, 2018 and accordingly the plaintiff's claim is out of time."

19.      Advocate Meiklejohn sought to distinguish Verga on the basis that the claims that the plaintiff was now bringing were not for malicious prosecution but were in respect of the conduct of the defendants leading to the enforcement notice which ultimately led to the prosecution.  He therefore argued that the plaintiff had enough information to commence civil proceedings to allege misfeasance in public office at the latest once discovery had been provided.  This led to the submission that a plaintiff wishing to bring a claim for damages where there is an existing conviction or pending criminal proceedings had to issue civil proceedings to claim damages within three years of the facts relied upon, even though a criminal investigation and any resulting prosecution might take longer or much longer, and a subsequent conviction would be fatal to any claim.

20.      I am unable to accept this submission. Firstly, I do not consider that the present case can be distinguished from my observations in Verga in paragraph 19 set out above.  Absent being satisfied that my decision in Verga was plainly wrong, which I am not, I am obliged as a matter of precedent to follow my own previous decision.  Putting matters at its lowest I am not convinced that my decision in Verga is incorrect.  Verga was also not a claim for malicious prosecution but was for other torts based on the underlying facts that led to the prosecution.  It is therefore indistinguishable from the present case.

21.      Furthermore, the decision is consistent with two English decisions Rudall v The Crown Prosecution Service & Anor [2016] EWHC 2884 and Da Silva & Anor v The Department for Business, Energy, and Industrial Strategy [2018] EWHC 1591.

22.      In the Rudall case, Mr Rudall was charged with conspiracy to defraud but in May 2005 after a trial he was acquitted on all counts.  There were then further proceedings in 2010 which proceedings were dismissed in 2013.

23.      Mr Rudall therefore brought proceedings in 2014 alleging malicious prosecution.

24.      In respect of the 2005 proceedings, Mr Justice Phillips ruled that the defendants had an unanswerable limitation defence and stated at paragraph 67 the following: -

"67. As Mr Rudall was acquitted of the Wolfram II charges on 20 May 2005, any cause of action in respect of that prosecution accrued, on the face of matters, on that date and the limitation period expired in May 20011, almost three years before the issue of the claim form in these proceedings. Both defendants advance a limitation defence as the primary ground on which they seek summary disposal of this claim."

25.      In Da Silva, the court also ruled that a cause of action in malicious prosecution was not complete until the acquittal and then reached the same view that the same principle had to apply to a cause of action based on misfeasance in public office based on exactly the same facts that had supported a claim of malicious prosecution.  In other words the cause of action only accrued on the date of acquittal.  This is the situation that I consider arises in the present case.

26.      Advocate Meiklejohn in support of his position also relied on the case of Escott v Tunbridge Wells Borough Council [2016] EWHC 2793.  Escott held that there was no legal requirement that an unlawful action by a public official be quashed or revoked by the public official/authority before a plaintiff could bring a claim for damages based upon misfeasance in a public office.  However, in Escott no criminal proceedings were pending.  Escott was solely about whether civil proceedings could be brought where there had been no challenge by way of judicial review to the action said to be unlawful and leading to a claim for damages.  The court concluded that the lack of an application for judicial review did not prevent a claim for damages based an unlawful act of a public official even if that act had not been legally quashed.  It did not address when a cause of action accrued in relation to a claim for damages following an unsuccessful criminal prosecution.  I also observe that the approach Escott is in effect the same approach I adopted in Pearce.

27.      The approach Advocate Meiklejohn suggested would also lead to the position where individuals facing prosecution, who felt that the prosecution was not justified and who might have claims in damages, would have to issue proceedings within three years of the matters giving rise to the prosecution even though any subsequent conviction would be a bar to such proceedings.  Prior to the termination of any criminal proceedings any civil proceedings started would also be stayed.  I do not consider this is an effective way for the law to proceed as it runs the risk of civil claims being made and then dismissed with unnecessary costs being incurred.  Rather I consider that it is only when an acquittal occurs, or a decision is made not to proceed with a prosecution, does time start to run for any subsequent civil claims for damages arising out of either the prosecution itself or matters said to have led to the prosecution.

28.      For all these reasons I therefore refuse to strike out the plaintiff's claim as a whole.  I am satisfied that the plaintiff's cause of action only accrued when the conviction was quashed on 29^th October 2013.  As proceedings were commenced within three years of this date then the plaintiff's claims were brought within time.  While those claims had been consolidated, there is nothing in the amended order of justice that involves pleading any new facts that were not raised in one way or another by Mr Neville in the orders of justice that he drafted and which were served in 2016.

Strike out on the basis of vicarious liability

29.      In relation to this part of the defendants' application, Advocate Meiklejohn sought to remove the first to third and fifth to ninth defendants as parties on the basis that because the tenth defendant (the States Employment Board) had accepted that it was vicariously liable for the actions of all the defendants apart from the fourth defendant and the eleventh defendant, that it was not necessary for all the other defendants to remain as parties.  As the tenth defendant had agreed to indemnify the plaintiff, if the plaintiff was successful, it would be proportionate and consistent with the overriding objective for the claims to be against the States Employment Board and the fourth defendant only.

30.      Advocate Meiklejohn stated that to leave the other defendants as parties would only cause further delay requiring instructions to be taken from eleven separate defendants at each stage of the proceedings.  He therefore contended that nothing was to be gained by the plaintiff in allowing the proceedings to continue in this manner.

31.      During the course of argument, I asked Advocate Meiklejohn to obtain undertakings from each of the former/current employees of the tenth defendant that they would submit witness statements, make themselves available for cross-examination and disclose any relevant documents.

32.      All the living individual defendants agreed: -

(i)        to disclose any documents relevant to the plaintiff's claim;

(ii)       to swear an affidavit relating to the events the plaintiff complains about; and

(iii)      to make themselves available at trial to answer questions on their affidavit.

33.      In relation to the sixth defendant, his widow confirmed that she did not have any hard documents in her possession relating to the plaintiff and nor did she have any emails on any devices relating to the plaintiff.

34.      I also asked the tenth defendant to confirm that it would not seek to take a point later in the proceedings that it was not vicariously liable.  I raised this issue because the claims brought by the plaintiff are those of misfeasance in public office as noted above based both on targeted and/or alternatively untargeted malice.  A finding by the Royal Court at trial of misfeasance in public office in particular if targeted might give rise to the tenth defendant denying vicarious liability.  That confirmation was provided.

35.      The plaintiff through Advocate Preston emphasised forcefully the importance of the named individuals remaining as defendants and that they should not be allowed to be witnesses only given the allegations against them.

36.      In relation to this issue there is force to both sides' arguments.  If each party were separately represented and had to file separate answers with separate legal representation the management of the proceedings both prior to and at trial could become overly complex and disproportionate to the plaintiff's claim.  In making these observations I intend no disrespect to the plaintiff or the strength of feeling that he has about how he feels he was treated.

37.      On the other hand, there is also force to the plaintiff's criticism that the individual defendants about whose conduct he has complained of for so long should not be able to be removed from the proceedings to be treated as witnesses only.  It was clear from the response sent on his behalf that ultimately his complaint is about their conduct as individuals.

38.      In relation to these competing concerns, I firstly agree with the plaintiff that it is not appropriate to remove the individuals he wishes to pursue as defendants so that they are solely witnesses.  He has a right to pursue individuals and, if I were to remove the defendants identified by Advocate Meiklejohn as parties, then I would be taking away that right from him.  Such a step goes beyond case management powers.

39.      However, the concerns raised by Advocate Meiklejohn also need addressing. I therefore have concluded that the position of the first to third, the fifth and seventh to ninth defendants can be dealt with in the following manner.  I deal with the position of the sixth defendant later in this judgment.

(i)        The tenth defendant shall represent the first to third, fifth and seventh to ninth defendants in the conduct of these proceedings pursuant to Rule 4/3(2) of the Royal Court Rules 2004, as amended; the tenth defendant will therefore have sole conduct of the claims against the first to third, fifth and seventh to ninth defendants.  This will include whether or not to settle the claim and how the case will be conducted at trial; the decision at trial or any settlement will therefore bind the first to third, fifth and seventh to ninth defendants.

(ii)       As the representative defendant, only the tenth defendant shall file an answer to the allegations against the first to third, fifth and seventh to ninth defendants.  While this will require the tenth defendant to ascertain from the other defendants what they say occurred and to plead a case in response, this is not the same as having 8 separate answers and firms of lawyers involved; it is a step that would have to be taken in any event even if I had acceded to the tenth defendant's request.

(iii)      The first to third, fifth and seventh to ninth defendants shall provide to the tenth defendant, in accordance with the undertakings given, all documents in their possession, custody or power relating to the plaintiff's allegations for review by the tenth defendant, who shall provide discovery accordingly;

(iv)      The tenth defendant shall further procure the provision of witness statements by the first to third, fifth and seventh to ninth defendants to stand as evidence in chief at trial; and

(v)       The first to third, fifth and seventh to ninth defendants shall further make themselves available for cross-examination at trial.

40.      The effect of these orders is that the first to third, fifth and seventh to ninth defendants will remain as parties, but the entire conduct of the defence of the litigation will be exclusively with the tenth defendant.  These directions address the concerns raised by Advocate Meiklejohn while maintaining the individuals the plaintiff has chosen to pursue as defendants.

The position of the eleventh defendant

41.      In relation to the eleventh defendant, (His Majesty's Attorney General) the plaintiff joined him as a party because all prosecutions against individuals are brought in the name of the Attorney General and therefore the Attorney General was vicariously liable for the actions of the fourth defendant who is a Centenier in the Parish of St Helier.

42.      Advocate Meiklejohn argued that the Attorney General was not a necessary party.  He was not the employer of the fourth defendant.  There was therefore no claim against the Attorney General and accordingly the case against him should be struck out.

43.      In relation to these arguments, firstly the claims made by the plaintiff are for misfeasance in public office.  There are no allegations made against the Attorney General personally.  Rather he was only joined on the basis that he was vicariously liable for the actions of the fourth defendant and vicariously liable jointly in respect of the fifth defendant because the latter worked in the Law Officers' Department.

44.      In relation to the position of the fourth defendant, I agree with Advocate Meiklejohn that the Attorney General is not vicariously liable for the actions of the fourth defendant.  This is for the following reasons.

45.      Firstly, Centeniers are appointed by a Parish following an election.  Primarily a Centenier is therefore representing a Parish not the Attorney General.  Although prosecutions are brought in the name of the Attorney General, this does not mean that the Attorney General is vicariously liable as a matter of law.

46.      Secondly, the Attorney General's powers in relation to the Centeniers are to remove them (see In Re Pearce [1987-88] JLR 109 and In re Constable of St Helier [2001] JLR Note 13).  The Attorney General also has power to overrule a decision whether to prosecute or not (See AG v Devonshire Hotels Limited [1987] JLR 577).  The power to remove and the power to overrule does not however mean that the Attorney General is vicariously liable for the actions of a Centenier.  The Centenier is someone in office discharging functions but can be removed if grounds are established and appropriate procedures followed and decisions to prosecute can also be overruled.  Both of these powers come from the overarching authority of the Attorney General in criminal matters.  The fact that the Attorney General has such authority does not however make him vicariously liable for claims in tort.  Although I was not addressed on this point it is right to observe that it might be possible for a Parish to be held vicariously liable for the actions of a Centenier given that the Centenier is a duly elected official of a Parish.

47.      In relation to the fifth defendant, the Attorney General is not the employer of the fifth defendant; that is the tenth defendant.  The fifth defendant's employment was with the tenth defendant.  Furthermore, the fifth defendant has given appropriate undertakings to provide relevant documents.  There is therefore no need for the Attorney General to remain a party.

48.      In reaching this decision I have not ignored the allegations in the consolidated order of justice of extensive conflicts of interest and that the defendants are represented by the Law Officers' Department when one of the defendants was a legal adviser ultimately reporting to the Attorney General.  However, this is not an application to prevent Advocate Meiklejohn from acting; if such an application were made, that would be for the Royal Court to determine.  Rather it is a strike out application as to who are the appropriate parties.  In this case, for the reasons set out above, I am satisfied that the Attorney General is not an appropriate party and accordingly the claim against him is struck out.

A claim against the sixth defendant

49.      Advocate Meiklejohn seeks to strike out the claim against the sixth defendant on the basis that a fair trial cannot take place because subsequent to the issue of proceedings the sixth defendant passed away.

50.      The fundamental allegation against the sixth defendant is pleaded at paragraph 38.f. of the consolidated order of justice where it is alleged that the sixth defendant committed perjury or lied on oath at trial.

51.      Advocate Meiklejohn submitted, given the nature of the claim now being brought, neither the sixth defendant nor his heirs or successors could have a fair trial guaranteed pursuant to Article 6 of the European Convention of Human Rights.  In support of this submission Advocate Meiklejohn relied upon Magnitskiy & Ors v Russia (Applications nos. 32631/09 and 53799/12) a decision of the European Court of Human Rights dated 27^th August 2019.  At paragraph 281 of the judgment the European Court stated as follows: -

"281. A trial of a dead person inevitably runs counter to the above principles, because by its very nature it is incompatible with the principle of the equality of arms and all the guarantees of a fair trial. Moreover, it is self- evident that it is not possible to punish an individual who has died, and to that extent at least the criminal justice process is stymied. Any punishment imposed on a dead person would violate his or her dignity. Lastly, a trial of a dead person runs counter to the object and purpose of Article 6 of the Convention, as well as to the principle of good faith and the principle of effectiveness inherent in that Article."

52.      In relation to this ECHR decision, it concerned a criminal prosecution rather than civil claim.  Advocate Preston therefore contended that I should look at any civil jurisprudence that might exist.  Advocate Meiklejohn in reply stated that he had not been able to find any other relevant case beyond Magnitskiy.

53.      It should be remembered in relation to this case that the allegations made against the sixth defendant are allegations of dishonesty, namely that the sixth defendant lied at trial and/or committed perjury.  The conclusion I have reached in this case is that the claim against the sixth defendant should be struck out because the sixth defendant is not in a position to defend the allegations of dishonesty made against him concerning whether what he said orally at trial was true or not.  I wish to add that this decision does not mean that a civil claim where a defendant has died cannot be pursued.  Rather, it is in this case only that I am satisfied that a fair trial cannot take place because no-one for the sixth defendant can explain why he said what he said at trial and there is no other means of reviewing the veracity of his evidence.  In reaching this conclusion I have also taken into account that the primary allegations made are against the first to fifth and seventh to ninth defendants.  The primary complaints that the plaintiff has will still therefore be able to be pursued at trial against the other defendants even if he cannot pursue the sixth defendant.  His claim for damages will not therefore be fundamentally affected by him not being able to pursue the sixth defendant.

Conclusion

54.      For the reasons set out in this judgment: -

(i)        The application to strike out the claim as a whole on the grounds of limitation is refused;

(ii)       The application to remove the first to third, the fifth and seventh to ninth defendants as parties is refused on the basis that the tenth defendant will act as a representative defendant and will have conduct of the proceedings for the first to third, the fifth and seventh to ninth defendants; and

(iii)      The application to strike out the claim against the sixth and eleventh defendants is granted.

Authorities

Planning and Building (Jersey) Law 2022. 

Neville v AG [2017] JRC 043. 

Huda v Minister for Health & Social Services [2020] (1) JLR Note 6. 

Pearce v States of Jersey Police [2019] JRC 225. 

Verga v Nedbank Private Wealth Limited [2019] JRC 051. 

Rudall v The Crown Prosecution Service & Anor [2016] EWHC 2884. 

Da Silva & Anor v The Department for Business, Energy, and Industrial Strategy [2018] EWHC 1591. 

Escott v Tunbridge Wells Borough Council [2016] EWHC 2793. 

Royal Court Rules 2004. 

In Re Pearce [1987-88] JLR 109. 

In re Constable of St Helier [2001] JLR Note 13. 

AG v Devonshire Hotels Limited [1987] JLR 577. 

European Convention of Human Rights

Magnitskiy & Ors v Russia (Applications nos. 32631/09 and 53799/12)