BNP Paribas Jersey Trust Corporation Ltd v Cristiana Crociani

JurisdictionJersey
CourtCourt of Appeal
JudgeSir William Bailhache,Bailiff of Jersey,James McNeill,Lord Anderson of Ipswich, K.B.E.
Judgment Date07 August 2018
Neutral Citation[2018] JCA 141
Date07 August 2018

[2018] JCA 141

COURT OF APPEAL

Before:

Sir William Bailhache, Esq., Bailiff of Jersey, President;

James McNeill, QC; and

Lord Anderson of Ipswich, K.B.E. Q.C.

Between
BNP Paribas Jersey Trust Corporation Limited
First Appellant
Appleby Trust (Mauritius) Limited
Second Appellant
Camilla de Bourbon des Deux Siciles
Third Appellant
and
Cristiana Crociani
First Respondent

and

A (by her Guardian ad litem)
Second Respondent

and

B (by her Guardian ad litem)
Third Respondent

Advocate W A. F Redgrave for the First Appellant.

Advocate E. Moran for the Second Appellant.

Advocate A. D. Hoy for the Third Appellant.

Advocate E. B. Drummond for the Respondents.

Authorities

BNP Paribas Ors v Crociani Ors [2018] JCA 136A.

In Parish of St Helier v Minister for Infrastructure [2017] JCA 076.

Botas v Tepe [2016] JCA 199D

Uprichard v Scottish Ministers [2013] UKSC 21

R v Secretary of State of Trade and Industry ex p Eastaway [2000] 1 WLR 2222

Trusts (Jersey) Law 1984

Judicial Committee of the Privy Council's Rules 2009

Appeal — decision of the Court in relation to the matter left over on 25th July 2018.

PRESIDENT:
1

On 25th July, 2018, BNP Paribas Ors v Crociani Ors [2018] JCA 136A the judgment of this Court on the substantive issues in the appeals before it (“the Substantive Judgment) was handed down in relation to the appeals of the Appellants. The Court had indicated previously that there may be issues arising out of the Act of the Royal Court of 11 th September, 2017 which might need attention in the light that judgment. Furthermore, the Court indicated to counsel that it would hear any other applications that might be made. Due to professional commitments, only two of the members of the Court which heard the appeal and issued the Substantive Judgment were able to sit to hear the ancillary applications. Martin JA has been apprised of the issues discussed and is in agreement with the determinations made in this judgment.

Costs
2

By agreement between all the parties save Camilla, the costs incurred in the Court below should be left undisturbed, and furthermore:-

  • (i) Each party should bear its own costs in relation to each of the appeals save that of Camilla.

  • (ii) Camilla would pay each party's costs in relation to her appeal on the standard basis.

  • (iii) The costs of and incidental to the provision of electronic material to the Court of Appeal for the hearing of the appeals would be shared by the parties equally.

3

In addition, Advocate Moran sought an order that Camilla pay £4,998 to Appleby Mauritius on account being 50% of that firm's costs in relation to her appeal.

4

Camilla, through Advocate Hoy did not enter any dissent to these orders but he did not formally consent to them.

5

The Court considered these orders to be appropriate in the light of the parties' expressed positions, and the orders were accordingly made.

Leave to appeal
6

Advocate Redgrave, on behalf of BNP Jersey applied for leave to appeal the Crica decision to the Judicial Committee of the Privy Council and for a stay pending appeal. Advocate Drummond, on behalf of the Respondents and Ocorian, sought leave to appeal the Court of Appeal's decision in relation to the reconstitution of Camilla's fund. Advocate Hoy, on behalf of Camilla, sought leave to appeal generally in relation to Camilla's appeal. In relation to the stay which Advocate Redgrave had sought, Advocate Drummond submitted that there was no uncertainty as to where the Plaintiff lived. There was a procedural requirement for an affidavit, and there was no such affidavit produced. He also made submissions in relation to guarantees which were in place.

7

In Parish of St Helier v Minister for Infrastructure [2017] JCA 076, this Court gave judgment refusing leave to appeal to the Judicial Committee of the Privy Council. In doing so, it considered it was acting consistently with the earlier Court of Appeal decision of Botas v Tepe [2016] JCA 199D, where the Court applied Uprichard v Scottish Ministers [2013] UKSC 21. In that case some importance was attributed to the opinion of Lord Bingham of Cornhill in R v Secretary of State of Trade and Industry ex p Eastaway [2000] 1 WLR 2222, at page 2228 when he said:-

“In its role as a Supreme Court the House must necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist.”

8

We accept that the way in which the Court should approach the exercise of discretion under Article 47E of the Trusts (Jersey) Law 1984 does raise arguable points of law. We are also prepared to accept that there may be an arguable point of law in relation to our conclusion that in the exercise of discretion we should treat Camilla's fund as entirely paid out when considering the reconstitution of her trust and indeed her appeal generally. However, the facts which are engaged in the present case are very specific and whether these arguable points of law should be treated as points of general public importance is a question which we think we should leave to the Judicial Committee to determine. Accordingly, following the Uprichard practice, leave to appeal to the Judicial Committee was refused.

9

As to the stay which Advocate Redgrave had sought, we recognise that he may well be instructed to seek leave from the Judicial Committee. In relation to the appeal to this Court, Commissioner Clyde-Smith said this:-

“In relation to the Crica shares, I am going to grant a stay pending the appeal. Advocate Robinson informs me that the First Plaintiff [Cristiana] has now moved from the Dominican Republic to Miami but there is uncertainty as to where she resides and, in my view, there is a risk that the Defendant [BNP Jersey] will have some difficulty in recovering any sums that were paid over to her as an individual should it succeed in its appeal. The funds paid into Cristiana's trust should ensure for her financial needs and those of her family pending the appeal.”

10

We are informed that Cristiana may now have moved and be living in Monaco, although BNP Jersey do not seem entirely clear as to whether that is or is not the case. However, in our view the broad assessment of the position made by Commissioner Clyde-Smith on 26th September remains applicable today, and if therefore leave to appeal to the Judicial Committee is given, it would be appropriate for there to be a stay on our order and on the order of the Court below pending the determination of that appeal. On the other hand, Cristiana is entitled to know that the application for leave to appeal will be taken forward expeditiously. We accordingly indicated on 25 th July that a stay would be imposed provided that BNP Jersey entered its application for leave to appeal within two months of that date and the stay would last until the application for leave had been determined, when no doubt it could be renewed before the Judicial Committee. After the Court had risen, our attention was drawn to the Judicial Committee of the Privy Council's Rules 2009 and Practice Direction 7. Rule 39 provides that a stay must be sought from the Court below and that only in exceptional circumstances will the Privy Council grant a stay. The relevant Practice Direction provides that the filing of a notice of appeal or an application for permission to appeal does not in itself place a stay of execution on any order appealed from. A party seeking such a stay must apply to the court appealed from, not to the Judicial Committee.

11

Given that we have accepted the principle that a stay should be granted until such time as the Judicial Committee has either dealt with the question of leave or the substantive appeal and that any applications to the Judicial Committee itself for a stay are discouraged, we directed the Greffier that the stay is granted until 30 th September, 2018, or, if an application for permission to appeal has been made to the Privy Council on or before 30 th September, 2018, until the final determination by the Privy Council of that application, and if permission is granted of the subsequent appeal.

12

In doing so, we acknowledge that whilst in normal...

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