Ball v King

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Deputy Bailiff
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] JRC 171
• Date: 28 November 2006

[2006] JRC 171

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats de Allo and Le Cornu.

Betweena

Robert James Ball

Plaintiff

and

Russell Stephen King

Defendant

Advocate P.C. Sinel for the Plaintiff.

Advocate S. A. Franckel for the Defendant.

Authorities

Spiliada and Maritime Corp v Cansulex Limited [1986] 3 All ER 843.

Dicey & Morris, Conflict of Laws (13 ^th Edition).

Judgments (Reciprocal Enforcement) (Jersey) Law 1960.

Re Hardwick [1995] JLR 245.

Deputy Bailiff

1 This is an application by the defendant, who is a resident of Jersey, to stay the proceedings brought against him on the grounds of ‘forum non conveniens’.

Factual background

2 The parties have filed affidavits. The factual background would appear to be as follows.

3 At all material times an English company Blackbrook Nominee 46 Limited (“Blackbrook”) was the owner of a property in Hampshire known as the Walled Garden (“the Property”). The single issued share of Blackbrook was owned by Aceport Property Limited, another English company. We have not been given any details of that company but we assume that the plaintiff, who resides in the Isle of Wight, was either the owner of Aceport or had a beneficial interest therein.

4 On 25 ^th August 2002 the plaintiff agreed with the defendant to sell the Property. The plan was that a company called McBain Holdings Inc, a company incorporated either in Gibraltar (according to the defendant) or BVI (according to the plaintiff) would purchase the entire issued share capital of Blackbrook, thereby acquiring indirect ownership of the Property. McBain is apparently owned by the Madeleine Trust. The Court has no details of that trust but one can probably assume that the defendant is a beneficiary under that trust.

5 One might have thought that any agreement for the purchase of the share capital of Blackbrook would be between Aceport as vendor and McBain as purchaser. In fact the plaintiff and the defendant personally entered into a homemade written agreement between them dated 25 ^th August 2002 (“the August agreement”). By that agreement the defendant agreed to purchase the Property from the plaintiff for a total purchase price of £900,000 of which £450,000 was to be paid on completion and £450,000 before the end of November 2003.

6 The agreement went on to provide that the structure of the deal was that McBain would purchase the entire share capital of Blackbrook for £3,500 and that the balance of the first instalment in the sum of £446,500 would be paid to a client account in Gibraltar or otherwise as the plaintiff might direct.

7 Completion duly took place on 29 ^th October 2002. A formal share sale agreement, drawn up by English solicitors, was entered into and completed that same day concerning the purchase of the share capital of Blackbrook by McBain for £3,500. That agreement was expressed to be governed by the law of England and the parties (i.e. McBain and Aceport) submitted to the non-exclusive jurisdiction of the English courts. There was no governing law or jurisdiction clause in the August agreement. The sum of £446,500 was also paid on completion in accordance with the August agreement.

8 It followed that a balance of £450,000 was outstanding and this was due to be paid by the defendant before the end of November 2003. In fact the defendant failed to pay it at that time. There were numerous subsequent requests for payment by e-mail from the plaintiff to the defendant. No valid excuse for non-payment was put forward by the defendant and eventually, one year later in December 2004, he paid the sum of £150,000 to the client account in Gibraltar, leaving £300,000 outstanding.

9 There followed considerable e-mail correspondence between the plaintiff and the defendant whereby the plaintiff pressed for the balance and the defendant made various promises that payment would be forthcoming shortly. To give but one example, he sent an e-mail on 23 ^rd December 2004 referring to the payment of £150,000 and stating that he would make two more payments in January to complete the outstanding balance. It became clear that the defendant was hoping to fund the balance by selling the Property. Eventually on 14 ^th February 2006 (i.e. some 14 months after the last payment and over two years after the second instalment of £450,000 should have been paid) the defendant sent an e-mail stating that the proposed purchaser of the Property had raised a question on the ‘planning and building’ on the orangery at the Property. He asked if the plaintiff could provide any background or knowledge that he might have on the issue in order to speed the matter along. The plaintiff replied by e-mail on 16 ^th February to the effect that the orangery was already built when he had purchased the Property and all he had done was fit out the internal work of the orangery. By now the plaintiff was threatening to institute proceedings against the defendant in Jersey and the defendant was indicating that the agreements were governed by English law with jurisdiction in the English courts. There was subsequently further e-mail correspondence with the defendant again asking for assistance in the planning query but without giving any further clarification as to what the problem was. The plaintiff said that he was unaware of any planning problem and could not help if he was not informed exactly what the alleged problem was.

10 Eventually the parties agreed to meet in order to try and settle the position. They met in Jersey at the Grand Hotel on 9 ^th March 2006 and the plaintiff alleges that they came to terms. He has exhibited a written document which he says is, for the most part, in the defendant's handwriting and reads as follows:-

“Robert, to confirm that in order to settle the outstanding payment on Walled Garden, as per our agreement I am currently in the process of organising a mortgage which will enable me to complete the payments.

If this is not able to be completed in a timely manner then I shall arrange for payment to be completed in three instalments over April, May and June [2006]. My preference is to finalise the payments in one tranche in the next few weeks however the above shall be the backstop solution.

I shall keep you updated as to progress.

Regards

Russell King

9 March 2006”

The plaintiff says that he wrote in the figure 2006 referred to in square brackets above. He also inserted the date of 9 ^th March 2006 and added two lines at the foot of the document which read “ I confirm that I owe Robert Ball the sum of £300,000 plus interest and I will discharge this debt as detailed above.” He handed the document back to the defendant who then initialled the change concerning 2006 but added “the figure to be agreed” after the two lines which the plaintiff had added at the foot of the document. He initialled those changes

11 In his affidavit the defendant says that this does not evidence an agreement between him and the plaintiff. He admits that some of the letter is in his handwriting but says that it does not amount to an agreement and was never signed by him. He says that he did not sign after the additional passage handwritten by the plaintiff and he did not agree that any interest was owed.

12 In early May 2006 a further sum of £65,000 was paid by the defendant to the client account in Gibraltar. The plaintiff protested that the payment should have been for £100,000 in accordance with the March 2006 agreement and the defendant subsequently assured him in e-mails dated 15 ^th and 22 ^nd May that the correct instalments would be sent in May. Despite this, no further payments have been made. In an e-mail dated 5 ^th June the defendant blamed this on the fact that he had lost three purchasers because of ‘the situation on the property’. The plaintiff therefore asserts that the sum of £235,000 remains due.

13 On 6 ^th June 2006 the defendant issued proceedings in the Southampton County Court seeking a negative declaration to the effect that he is not liable to the plaintiff in the sum of £200,000 or any other sum. The Particulars of Claim are brief and not specific. After reference to an agreement (of which no particulars are given) between the plaintiff and defendant the two key paragraphs read:-

“3 There was a representation that material development at the property complied with the terms of planning permission permitting such material development. It was accordingly an express alternatively an implied term of the said sale that material development at the property complied with the terms of planning permissions permitting such material development.

4 The said material development does not comply with the terms of such conditions. The claimant has suffered loss. Full particulars of such planning permissions and the non-compliance will be provided on disclosure. The claimant is entitled to damages for non disclosure representation and/or breach of contract.”

14 On 15 ^th June 2006 the plaintiff issued the current proceedings in this Court by way of summons claiming £235,000 pursuant to the August agreement and the March 2006 agreement, together with interest. The matter came before the Court for the first time on 23 ^rd June at which time it was placed on the pending list with the defendant's advocate giving notice that the defendant proposed to challenge the jurisdiction.

15 As far as the English proceedings are concerned, it appears that, due to an error in the court office, the wrong procedure was followed. The plaintiff entered an appearance by returning the acknowledgment...