A v H

JurisdictionJersey
CourtRoyal Court
JudgeMatthew John Thompson,Master Thompson
Judgment Date15 June 2016
Neutral Citation[2016] JRC 106
Date15 June 2016

[2016] JRC 106

ROYAL COURT

(Samedi)

Before:

Advocate Matthew John Thompson, Master of the Royal Court

Between
A
First Plaintiff
K
Second Plaintiff
L
Third Plaintiff
and
H
First Defendant
John Bisson and Others (practising under the name and style of Appleby)
Second Defendant

Advocate S. A. Franckel for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

Advocate D. S. Steenson appointed as amicus curiae for the Plaintiffs.

Authorities

In the matter of II [2015] JRC 194.

Royal Court Rules 2004

Lapidus v Le Blancq [2013] (2) JLR 308.

Williams on Wills.

Banks v Goodfellow (1869–70) LR5 QB 549.

In the matter of II [2010] JRC 209.

Customary Law Amendment (Jersey) Law 1948.

Flynn v Reid [2012] (1) JLR 370.

Haden-Taylor v Canopius [2015] (1) JLR 224.

White v Jones [1995] 2 A.C. 207.

Clerk and Lindsell on Torts (21st Edition).

Bagus v Kastening [2010] JLR 355.

Voisin Executors Limited v Kelleher [2016] JRC 051.

Estate — application by the first defendant to strike out claim of second and third plaintiffs.

CONTENTS OF THE JUDGMENT

Paras

1.

Introduction

1–2

2.

Background

3–21

3.

The adjournment application

22–32

4.

The Defendants' submissions

33–36

5.

The second and third plaintiffs' submissions

37–51

6.

Decision

52–76

THE MASTER:
Introduction
1

This judgment represents my decision in respect of the application by the first defendant to strike out the entirety of the claim of the second and third plaintiffs on the basis that it discloses no reasonable cause of action. The first defendant's summons was supported by the second defendant who also issued an alternative summons requiring the second and third plaintiffs to provide further and better details of their case if I was not minded to strike out the claims of the second and third plaintiffs.

2

The defendants' summonses were heard on Thursday 12 th May, 2016. At the commencement of the hearing the second plaintiff on his own behalf and on behalf of the third plaintiff made an application for an adjournment of the defendants' summons. The application for an adjournment was refused. This judgment therefore also sets out my reasons for refusal of the adjournment.

Background
3

The general background to the present proceedings is set out in the restricted judgment reported at In the matter of II [2015] JRC 194 (the ‘Amicus judgment’) relating to the appointment of an Amicus in the present matter and the scope of the authority of the Amicus. For purposes of this judgment I adopt paragraphs 3 to 12 of the Amicus judgment.

4

Paragraphs 3 to 12 state as follows:-

3. Proceedings were commenced by the plaintiffs in March 2012. It is a matter of real regret that these proceedings have not yet reached a trial date and are some way from doing so. I will deal later in this judgment why this is the case.

4. The proceedings commenced were brought by A as first plaintiff and her two children K and L, the second and third plaintiffs. For ease of reference I will refer to them in this judgment as A, K and L. L was a minor when the action was first commenced, represented by A as guardian ad litem, but L subsequently came of age .

5. The first defendant in the proceedings is H the brother of A. The second defendant is the law firm Appleby .

6. The essence of the claim brought by A and K, initially for themselves and by A as guardian for L against the first defendant relates to the estate of the mother of A and H, whom I will refer to as J .

7. In 2008 J made wills of her moveable and immoveable estate with the assistance of the second defendant. These Wills left the whole of the immoveable and moveable estate of J to H .

8. The plaintiffs' claim that J was concerned about the 2008 wills as they did not protect the interests of the plaintiffs. The plaintiffs further allege that H assured J that notwithstanding the Wills he would divide the estate equally with A provided that A's divorce had been completed and, if it had not been completed, the first defendant would hold half of the estate on trust for A .

9. The plaintiffs further criticise H for his conduct prior to J's death in 2011 .

10. The plaintiffs therefore claim from H half the value of J's former home, in the sum of £500,000 plus her légitime of J's moveable and immoveable estate .

11. The claims against the second defendant are founded in negligence based on the second defendant failing to advise J properly or at all and are for damages .

12. While A's right to légitime is accepted, the plaintiffs' claims are disputed. In relation to the légitime claim, H contends that sums paid from the estate to the benefit of A as avancement de succession will have exceeded any such entitlement. The second defendant disputes any allegations of negligence.”

5

The procedural history of the matter up to the Amicus judgment is set out at paragraphs 13 to 24. For the purposes of this judgment the relevant paragraph is paragraph 19 which states as follows:-

19. At the directions hearing on 11th June, 2014, directions were given covering the following issues:-

(i) the plaintiffs were required to set out what losses that they incurred;

(ii) the plaintiffs were required to set out particulars as to why it was said that each had suffered severe emotional distress as a result of the defendants' conduct, separated between each of the plaintiffs;

(iii) finally the plaintiffs were required to particularise whether or not they were alleging fraudulent conduct or dishonesty against each of the defendants and if so the grounds relied upon. It is also right to record that the first and second defendants reserved their rights to seek to strike out part of the plaintiffs' claims if fraudulent or dishonest conduct was alleged.”

6

While the detailed reasons I gave to the parties in respect of the appointment and the role of the Amicus were released to the parties on 23 rd September, 2015, on 27 th August, 2015, a hearing took place before me where I explained the role of the Amicus in summary.

7

Following the 27 th August hearing, the defendants, on 7 th September, 2015, issued summonses against all the plaintiffs including the present applications against the second and third plaintiffs. The initial return date for the summonses was 5 th October, 2015.

8

On 1 st October, 2015, the parties appeared before me because I had received an indication from the first plaintiff that she might not be able to proceed with a strike out summons against her, then listed for 5 th October, 2015, on health grounds. Having heard from the parties, I ordered that different parts of the defendants' summonses as well as the plaintiffs' application for a split trial should be heard on different dates. In relation to the applications against the first plaintiff I ordered that these should be heard on 19 th October, 2015. In relation to the applications against the second and third plaintiffs, I ordered that these should be heard on a date in December 2015. Ultimately, a hearing was fixed for 17 th December, 2015. In respect of the second and third plaintiffs I also ordered at paragraph 4 of the Act of 1 st October, 2015, as follows:-

4. by 30 th October, 2015 the Second and Third Plaintiffs shall file with the Court and serve on the other parties:-

a. a schedule of losses each say they personally have suffered as a result of the actions of each of the Defendants including identifying which loss is claimed for each of the Defendants; and

b. a statement of the severe emotional distress the Second and Third Plaintiffs claim to have suffered, identifying to what extent it is alleged that each of the Defendants are responsible for any such severe emotional distress and the reasons why”.

9

I made it clear that this order was a final order because it followed on from the directions I had given on 11 th June, 2014, summarised at paragraph 5 above. What I meant by a final order is that if it was not complied with without justification, the defendants would be entitled to apply either to strike out that part of the second and third plaintiffs' claim for non-compliance or to seek an unless order requiring compliance, failing in which the relevant parts of the second and third plaintiffs' claim would be struck out.

10

For the sake of completeness in relation to legal aid I should add that Advocate Sharp was appointed to act for the third plaintiff on 1 st October, 2015, and Le Gallais & Luce were appointed to act for the second plaintiff on 1 st December, 2015.

11

On 15 th October, 2015, I was advised by Advocate Sharp that he was also then acting for the first plaintiff. Accordingly, at Advocate Sharp's request, the summons listed for hearing as against the first plaintiff on 19 th October, 2015, was adjourned to 17 th December, 2015, to be heard at the same time as the application against the second and third plaintiffs. This was to allow Advocate Sharp time to give legal advice. The retainer of Advocate Sharp by the first plaintiff did not arise out of a legal aid certificate.

12

By 30 th October, 2015, I was informed that Advocate Sharp was no longer acting for the first or third plaintiffs. On 2 nd November, I made it clear that each of the plaintiffs should appear on 17 th December, 2015, in person unless they had legal representation by that date.

13

On 17 th December, 2015, the matter was further adjourned. This was because at the outset of the hearing, without any prior notification to the Court or the other parties, each of the plaintiffs produced a letter from their general practitioner indicating they were not capable of conducting litigation on their own behalf. On the basis of the letters received from the plaintiffs' general practitioner the matter was therefore adjourned to 25 th February, 2016, to enable the plaintiffs to obtain an expert psychiatric opinion,...

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5 cases
  • A v H
    • Jersey
    • Royal Court
    • 7 July 2016
    ...regarding applications by the first and second defendants to strike out parts of first plaintiffs claim. Authorities In the Matter of II [2016] JRC 106. Cummins v Howlands (Furniture) Limited [2014] JRC 165. Booth v Zenith [2014] JRC 231. Three Rivers D.C. v Bank of England (No.3) [2003] 2 ......
  • Caroline Beverly Elizabeth Powell v Brian Christopher Chambers
    • Jersey
    • Royal Court
    • 11 September 2018
    ...Wilson for the Second Defendant. Authorities In the matter of II [2018] JRC 031. In the matter of II [2015] JRC 194. In the matter of II [2016] JRC 106. In the matter of II [2016] JRC 116. In the matter of II [2017] JRC 001. Royal Court Rules 2004. Representation of Powell [2018] JRC 073. R......
  • A and K and L v H and John Bisson and Others (Practising Under the Name and Style of Appleby) and the First Plaintiff Appeared in Person. and The Second Plaintiff Appeared in Person. and The Third Plaintiff Did Not Appear
    • Jersey
    • Royal Court
    • 4 January 2017
    ...appear. Advocate O. A. Blakeley for the First Defendant. Advocate D. R. Wilson for the Second Defendant. Authorities In the matter of II [2016] JRC 106 . In the matter of II [2016] JRC 116 . Royal Court Rules 2004, as amended. In the matter of II [2015] JRC 194 . Le Clare v Brown [2014] JRC......
  • A v H
    • Jersey
    • Royal Court
    • 26 January 2018
    ...the First Defendant. Advocate D. R. Wilson for the Second Defendant. Authorities In the matter of II [2015] JRC 194 . In the matter of II [2016] JRC 106 . In the matter of II [2016] JRC 116 . In the matter of II [2017] JRC 001 . Human Rights (Jersey) Law 2006. Royal Court (Amendment No.20) ......
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