A v B

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date12 February 2015
Neutral Citation[2015] JRC 32
Date12 February 2015

[2015] JRC 32

ROYAL COURT

(Family)

Before:

J. A. Clyde-Smith, Commissioner, sitting alone.

IN THE MATTER OF II

Between
A
Petitioner
and
B
Respondent

The Petitioner appeared on her own behalf.

The Respondent appeared on his own behalf.

Authorities

In the matter of II [2010] JRC 209.

In the matter of II [2010] JRC 233A.

In the matter of II [2011] JCA 126.

Matrimonial — issue of a summons for maintenance by the petitioner.

THE COMMISSIONER:
1

The petitioner (“A”) has filed a Form 15 summons giving the respondent, who is her former husband, (“B”), notice of her intention to apply for maintenance for herself and her two sons K, (who is aged 21) and L (who is aged 19). The summons was accompanied by a copy letter dated 3 rd November, 2014, from Mourant Ozannes making demand on behalf of Jersey Home Loans Limited in respect of its charge over her property in St. Brelade and its intention to have recourse to that security. Also attached were copies of the two judgments of the Royal Court dated 18 th November, 2010, ( In the matter of II [2010] JRC 209) and 21 st December, 2010, ( In the matter of II [2010] JRC 233A). The judgment of the Court of Appeal dated 29 th June, 2011, ( In the matter of II [2011] JCA 126) was not attached and indeed there was no other information filed with the summons. There did not appear to have been any letter before action.

2

In its judgment of 18 th November, 2010, the Court said this at paragraph 73:–

“The petitioner is not presently self-sufficient and needs time to become so. It would not be right in our view to dismiss her claim for spousal maintenance now and thus close the door on any claim for future support. The respondent has no ability to pay maintenance at the present time but we propose to order him to pay the petitioner nominal maintenance at the rate of £1 per annum, which has the effect of keeping that door open should there be a significant change in the circumstances. On the information that we have before us at the moment, we would expect the petitioner to have become self-sufficient in two years, at which points the respondent can apply to have her claim for spousal maintenance dismissed.”

3

Regrettably, the first hearing of this summons for maintenance was fixed before me on 30 th January, 2015. Both parties represented themselves. A was present in person, accompanied by Mr M as a Mackenzie friend, and B attended by telephone link.

4

On reviewing the papers and emails to the Bailiff's Judicial Secretary, I determined on 14 th January, 2015, that the first hearing would be a directions hearing. In the light of A's submissions it went further than that.

5

At the commencement of the hearing, I intimated to the parties that I was minded to give directions for the filing of sequential detailed affidavits, and the appointment of an amicus curiae, bearing in mind that neither party was legally represented.

6

A then addressed me at some length, raising two issues. Firstly, that I should recuse myself and secondly as to her capacity.

7

Taking the issue of my recusal first, she raised all of the same points as had been raised by her before the Court of Appeal (see paragraphs 35–43 of its judgment) and which were rejected by the Court of Appeal. I note that the amicus curiae in those proceedings, Advocate Haines, agreed that there were no grounds for my recusal.

8

A went on to say, as she did before the Court of Appeal, that I had been partisan in my conduct of those proceedings — a proposition that was again rejected by the Court of Appeal. A said that I was not a just and humane judge and she saw me, in a sense, as “her executioner”. My conduct had caused her great distress, to the point that she had been suicidal.

9

As the Court of Appeal said at paragraphs 41–43:–

“41. Advocate Hoy has submitted that the law as to recusal is well settled. The test to be applied is whether all the material circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased, see para 31 of the judgment of Vaughan JA in In The Matter of the Esteem Settlement and the No 52 Trust C.A. [2001] JLR 189, as endorsed (with the deletion of the words “a real danger”) by the Court of Appeal at para 6 of its judgment in Baglin v AG [2005] JLR 180, and at para 12 of the judgment of Montgomery JA in Syvret v AG [2009] JLR 330. The test is an objective one and the subjective opinion of the party alleging bias should not be taken into account. He submits that the nature of the “relationship” between the Commissioner and the respondent was a fleeting one 25 years ago and two meetings in 2004 which were entirely in a professional context. He submits that no fair-minded observer with a measure of detachment would conclude that the Commissioner's previous contact with the respondent would have given rise to an appearance of bias or even to a potential for bias. Had the applicant made an application before the hearing for the Commissioner to recuse himself it would have failed and for good reason. Even if no application had then been made, had the Commissioner for any reason considered the...

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