Property - appeal against a decision of the Royal Court dated 12 June
Before : |
Sir William Bailhache JA sitting as a single judge of appeal |
Between |
Alan Paul Booth |
Appellant |
And |
The Viscount of the Royal Court of Jersey |
Respondent |
The Appellant appeared in person.
Advocate D. R. Wilson for the Respondent.
judgment
Bailhache ja:
1. By a Notice of Appeal dated 9 July 2024, the Appellant seeks to appeal a decision of the Royal Court (Commissioner Thompson sitting with Jurats) on 12 June whereby it was declared that "the decision reached by the Viscount, in reaching his decision, has not acted unlawfully, has not reached a decision that no reasonable decision-maker could have reached, and has not breached any of the provisions of the European Convention on Human Rights or the Human Rights (Jersey) Law 2000, to the extent they apply".
2. As is clear from the judgment of the Court below at Booth v Viscount of the Royal Court of Jersey [2024] JRC 132, the issue confronting the Court was an application by the Appellant relating to the refusal of the Viscount to allow him to pursue a claim against David O Reynolds, trading as Reynolds Chartered Surveyors ("Reynolds") in respect of a valuation of a property known as King's Oak dated 4 March 2013 ("the 2013 King's Oak valuation"). The proceedings which the Appellant has issued against Reynolds allege that the 2013 King's Oak valuation was produced in breach of contractual duty and / or negligently.
3. The Royal Court concluded that, for the reasons set out in its judgment, it was satisfied that the Viscount, in reaching his decision, had not acted unlawfully, had not reached a decision that no reasonable decision-maker could have reached, and had not breached any of the provisions of the European Convention on Human Rights or the Human Rights law to the extent that they applied. Accordingly, the Appellant's challenge to the Viscount's decision to refuse to assign to him a claim against Reynolds based on the 2013 King's Oak valuation was refused.
4. Within the time permitted to enter a Notice of Appeal, the Appellant did so. Although he has expressly reserved the right to amend his grounds of appeal, the grounds set out were in essence that the Royal Court wrongly failed to address the Appellant's complaints that the Viscount and / or his lawyers had a collusive relationship with the lawyers for the putative defendant. This contention as set out in the Notice of Appeal complains about paragraph 39 of the Royal Court's judgment where there appeared the following passage:
"Mr Booth also sought to argue that the Viscount was in collusion with Reynolds. He was however prevented from making this submission because it was not pleaded and Mr Booth had elected in a directions hearing before Master Cadin in October 2023 not to seek discovery in relation to communications between the Viscount and Reynold's advisers, or to challenge any claim that such communications were privileged. The Jurats were therefore directed to ignore this argument as was made clear to the parties in open Court."
5. I sat as a single judge on 31 October at the request of the Respondent to consider what if any directions ought to be given to ensure that the Court of Appeal was only addressed on matters that were before the Court, and given Advocate Wilson's expressed concern that the Appellant would not accept what Advocate Wilson said to him.
6. It was said to me by Advocate Wilson that there were really three issues:
(i) The complaint against the Commissioner that it was inappropriate that he took the view that the Jurats should not consider the question of collusion because it was not on the pleadings;
(ii) The complaint that there was in fact collusion; and
(iii) The complaint that the Court below focussed on previous proceedings and did not focus on the Viscount's most recent decision.
7. Advocate Wilson also submitted that in the proceedings before the Master, it had been accepted that the question as to whether the Viscount had a discretion to exercise was a chose jugée. When I queried this with Advocate Wilson, I was referred to the Act of the Master of 12 April 2023 which provided as follows:
"...It is hereby ordered that:
(1) The Viscount's application to strike out the claim pursuant to RCR 6/13(1) is refused;
(2) By 5pm on 24th May 2023, Mr Booth provide by way of an Amended Order of Justice pursuant to RCR 6/15:
....
(3) Confirmation that he, Mr Booth, is not alleging that:
(a) The previous decision of the Court as to the matters which may be taken into account by the Viscount is wrong because it failed to address the provisions of the Human Rights (Jersey) Law 2000 (paragraph 1.12 of the 2023 Order of Justice); and / or
(b) The Viscount has no discretion and must reassign the claim given the provisions of the Human Rights (Jersey) Law 2000 (paragraph 1.13 of the 2023 Order of Justice)."
8. I have not been fully addressed on the circumstances in which this particular order came about, but on the face of it there is a direction from the Court to the Appellant that he provides an Amended Order of Justice containing a confirmation as to what he is not alleging. A direction that a party identify whether or not he is making a particular allegation is one thing, but it is unusual to see a direction that he accepts that he is not alleging something.
9. It is apparent to me that the question as to whether or not the Viscount has a discretion to exercise in deciding whether or not to reassign a chose in action to the debtor may not be entirely straightforward and does not seem expressly to have been addressed by the two cases in which the Appellant has challenged similar decisions of the Viscount in this respect in the past. These cases are reported at Booth v Viscount [2016] (2) JLR 473 and Booth v Viscount [2022] (2) JLR 141.
10. It is apparent that a judgment from a Court, whether at first instance or on appeal, considering a challenge to the exercise of a discretion on the usual grounds for judicial review may not involve the Court in making an assessment as to whether there was any discretion to exercise. Certainly it is not obvious that either party raised the issue before the Royal Court or the Court of Appeal and in neither of the Court of Appeal judgments is there any detailed consideration given to that issue. In the earlier judgment in 2016, there clearly was a discretion to exercise as the administration of the désastre was in full swing. By 2022 however, the désastre had come to an end and the Appellant had been discharged from it.
11. That discharge may raise the issue of what happens at the conclusion of the bankruptcy to an asset, which originally vested in the Viscount under Article 8 of the Bankruptcy (Désastre) (Jersey) Law 1990 and which the Viscount regards as having no, or insufficient, value to be administered within the désastre; whether the 1990 Law contains any provision relevant to the question; and if not, what the answer would have been under the customary law of désastre which continues save as superseded by the 1990 Law. The answers to these questions may also need to be considered within the scope of the Human Rights challenges which the Appellant wishes to raise.
12. In the circumstances, I have issued the direction that if the Appellant wishes to raise an additional ground of appeal that the Viscount had no discretion to exercise but was required to assign or surrender his title to the chose in action against Reynolds Surveyors, then the Appellant should file the amended grounds with contentions in support by close of business on 30 November 2024. If such amended grounds were filed, the Respondent would have until close of business on 10 January 2025 to file any contentions in response.
13. As to the question of collusion, the Appellant accepted that this was a serious complaint to make involving as it did effectively what is an allegation of dishonesty on the part of the Viscount. The Appellant did not accept that the existing pleadings did not contain this allegation, although I was not shown that part of the pleadings which clearly indicated such a complaint. It was, or should have been, apparent both to the parties and the Master and the Royal Court that if that claim fell to be advanced, it was not a claim that could possibly be adjudicated on affidavit evidence alone. There would have to be proper discovery and viva voce evidence. The fact that the Court below proceeded as it did may suggest that it did not expect such a submission to be made. If necessary, that will be investigated on appeal.
14. Although Advocate Wilson submitted that the issue of collusion had not been pleaded, Mr Booth contended it had. I have not examined the pleadings or affidavits sufficiently at this stage to form a view on this part of the dispute.
15. If the Court of Appeal at its sitting in January has to address the contentions of the Appellant as they now stand, it will of course do so. The grounds of appeal also suggest that there is material which the Appellant wishes to put before the Court which may not have been before the Court below, or if it was before the Court below was material on which he was unable to address the Court for the reason given at paragraph 39 of the Court's judgment.
16. It is for the Appellant to decide how he wishes to present his appeal to the Court of Appeal, but the Respondent is entitled to insist that the Court of Appeal should only be addressed on matters which are properly before the Court. If it is the case that there is no existing pleading of collusion, then, on the face of it, the Appellant would have to make an application to amend his Order of Justice to make that assertion. Whether he should be permitted to do so at this stage of the proceedings would be in issue if such an application were made.
17. Even if the Appellant takes the view that he has adequately pleaded the alleged collusion already, but has additional evidence which he wishes to put before the Court of Appeal which was not before the Royal Court, then he will have to make an application to adduce fresh evidence on appeal. That application would have to be considered on the usual grounds as set out in United Capital v Bender [2006] JLR 242 at paragraphs 26 to 29. As with the possibility of filing amended grounds of appeal to contend the Viscount had no discretion to exercise but was obliged to reassign the claim, any application to amend the Order of Justice and / or to adduce further evidence has to be brought before the Court by 30 November 2025: and the Respondent has until close of business on 10 January 2025 to file contentions in response.
18. The applications, if filed, would be dealt with by the plenary Court of Appeal in the week commencing 20 January 2025 when the appeal is heard.
Authorities
Booth v Viscount of the Royal Court of Jersey [2024] JRC 132.
Booth v Viscount [2016] (2) JLR 473.
Booth v Viscount [2022] (2) JLR 141.
Bankruptcy (Désastre) (Jersey) Law 1990.