B.F. Burt and H.I. Burt v States of Jersey

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Le Quesne, Neill and Southwell, JJ.A.:
• Judgment Date: 14 July 1994
• Date: 14 July 1994

COURT OF APPEAL

Le Quesne, Neill and Southwell, JJ.A.:

G.R. Boxall for the appellants;

S.C. Nicolle, Solicitor General, for the respondent.

Cases cited by counsel:

(1) Auckland City Council v. Minister of Transport, [1990] 1 NZLR 264.

(2) Bank of England v. Vagliano Bros., [1891] A.C. 107.

(3) Fitzgerald v. Hall, Russell & Co. Ltd., [1970] A.C. 984.

(4) Le Monnier v. Att. Gen., 1989 JLR 170.

(5) Mayger v. Mayger, 1991 JLR N-1.

(6) Pepper v. Hart, [1993] 1 All E.R. 42.

(7) R. v. Home Secy., ex p. Brind, [1991] 1 A.C. 696.

(8) R. v. Maqsud Ali, [1965] 2 All E.R. 464.

(9) R. v. Tower Hamlets London B.C., ex p. Chetnik Devs. Ltd., [1988] A.C. 858.

(10) R. v. Wimbledon JJ., ex p. Derwent, [1953] 1 Q.B. 380.

Legislation construed:

Housing (Jersey) Law 1949, art. 4(1): The relevant terms of this paragraph are set out at page 247, lines 14-17.

States of Jersey Law, 1966, art. 47(1): The relevant terms of this paragraph are set out at page 248, lines 35-42.

Text cited:

Craies on Statute Law, 7th ed., at 69 (1971).

Constitutional Law—States of Jersey—privilege of States—although by States of Jersey Law 1966, art. 47 no member or officer of States or person employed to take minutes before States or Committee may give evidence of proceedings without leave, no absolute bar to use of evidence and use by other persons allowed—evidence admissible if formal proof not required by other party, since not then evidence of any witness falling within prohibition

The appellants brought an action against the respondent in the Royal Court to challenge the validity of a compulsory purchase order.

The respondent, the States of Jersey, decided to make a compulsory purchase order in respect of a house owned by the appellants, under art. 4 of the Housing (Jersey) Law 1949. The appellants sought to challenge this decision on the ground that in making it, the States had taken into account the wrong factors and to prove this assertion sought to introduce in evidence a tape recording and a transcript of a debate in the States in which these matters had been discussed and to call as a witness a Deputy who had spoken in that debate. No permission to use this material or to hear the Deputy was ever obtained from the States pursuant to art. 47 of the States of Jersey Law 1966 and the respondent therefore argued that the evidence was inadmissible; however, it conceded that should it be found to be admissible, it would admit that the transcript and tape were true recordings of the debate and would not require formal proof. The Royal Court (Hamon, Commr. and Jurats Coutanche and Hamon) ruled that the evidence was inadmissible. The proceedings are reported at 1993 JLR 376.

On appeal, the appellants submitted that by its unambiguous terms, art. 47 precluded the giving of evidence elsewhere of proceedings of the States without the States' leave by any member or officer of the States or any person employed to take minutes before the States or any Committee; whilst this prevented the Deputy from giving evidence, it did not preclude the use of the recording or transcript by any other person not within the terms of the prohibition in the article. They further submitted that the Royal Court had erred in inferring from the heading to art. 47 ("Evidence of Proceedings in the States or any Committee not to be given without leave") that the article totally prohibited the use of evidence of proceedings of the States without permission.

The respondent submitted in reply that for the purposes of art. 47, no distinction could be drawn between the direct oral evidence of the Deputy and recordings of such evidence and the tape recording and transcript had accordingly been properly excluded as being his evidence, since they amounted to evidence of persons within the terms of the prohibition in art. 47.

Held, allowing the appeal:

Article 47 was unambiguous and the Royal Court had therefore erred in looking to its heading to help explain its meaning; a heading could be used to aid the interpretation of an article only if the article were unclear. It was clear that art. 47 only precluded the giving of evidence by members or officers of the States and persons employed to take minutes before the States or any Committee, and did not preclude the giving of such evidence by anyone else. The transcript and tape recording were not the evidence of the Deputy merely because they recorded his speech in the States; on the contrary, they would be the evidence of whoever testified that they were a true record of the States' debate. Since in the present case the States were prepared to admit their contents without formal proof, the transcript and tape were not the evidence of anyone at all and they could not therefore fall within the prohibition of art. 47. Both were therefore admissible (page 250, line 5 - page 251, line 32).

LE QUESNE, J.A.: The appellants claim to be the owners of a house known as "Kent Lodge," 21 Clarendon Road. They live in the United States and this house has been empty for many years. It appears that the Island Development Committee became concerned about its derelict condition. So did the Housing Committee. On August 20th, 1991...