Charles House v Primal Properties

CourtRoyal Court
JudgeThe Bailiff
Judgment Date13 December 2012
Neutral Citation[2012] JRC 230
Date13 December 2012

[2012] JRC 230




Sir Michael Birt, Kt., Bailiff, and Jurats Clapham and Liston.

Charles House Limited
Primal Properties Limited
First Defendant
Gilberto Franco
Second Defendant

Advocate C. M. Fogarty for the Plaintiff.

Advocate S. J. Habin for the First and Second Defendants.


Royal Court (Possession Orders) (Jersey) Law 1998.

Forster -v- Harbours and Airports Committee [1990] JLR 1.

Loi (1946) concernant l'expulsion des locataires réfractaires.

Petty Debts Court (Miscellaneous Provisions)(Jersey) Law 2000.

Bennion on Statutory Interpretation (5th Edition).

Property — jurisdiction relating to making a possession order.

The Bailiff

This application raises a short point of construction in relation to the Royal Court (Possession Orders) (Jersey) Law 1998.


Both parties were content essentially to rest on their written submissions although these were supplemented by short oral submissions and questioning by the Court.

The factual background

On 24th December, 2007, the plaintiff leased part of Charles House, 45/47 Bath Street to the first defendant (“Primal”) for a period of nine years at a rent which exceeded £15,000 per annum. The second defendant guaranteed the performance of the lease by Primal.


Primal fell into arrears of rent and on 1st October, 2012, the plaintiff brought an Order of Justice seeking cancellation of the lease, judgment for arrears of rent and service charge in the sum of £36,390.06, interest upon that sum and costs. Initially the matter was adjourned for two weeks at the request of the second defendant as he had indicated that a cheque for £25,000 would be forthcoming; but this did not occur.


On 12th October the second defendant made an application for a Remise des Biens, which was later granted.


These proceedings came back before the Court on 26th October and on that occasion the plaintiff obtained judgment against both defendants in accordance with the prayer in the Order of Justice, namely cancellation of the lease, judgment for the arrears of rent, interest thereon and costs. Advocate Habin and the second defendant were present in court when judgment was obtained.


Following the hearing, the defendants were requested by e-mail that same day to offer up vacant possession and their proposals were invited. However, no response was received. On 8th November the plaintiff issued a summons against both defendants seeking an order for possession. The summons purported to be in the same proceedings as those instituted by Order of Justice (in that the summons contained the same file reference) and had a return date of 16th November.


On that occasion the matter was adjourned for one week for the parties to consider the jurisdictional issue. On 23rd November, the Deputy Bailiff adjourned the summons for a further week until 30th November for full argument. It did not prove possible to consider the matter on 30th November and it accordingly came before us last Friday afternoon.

The issue

The issue can be shortly stated. Advocate Habin argued that, the Court having made no possession order on 26th October when it cancelled the lease, it now has no jurisdiction to make such an order. The sole court with jurisdiction to grant possession in these circumstances is the Petty Debts Court.


Historically, this was undoubtedly true. In Forster -v- Harbours and Airports Committee [1990] JLR 1, the Court of Appeal confirmed that, under the Loi (1946) concernant l'expulsion des locataires réfractaires (“the 1946 Law”), the Royal Court had no jurisdiction and the Petty Debts Court had exclusive jurisdiction to make an expulsion order (by which was meant a possession order i.e. an order granting possession of the premises to the landlord and authorising the eviction of the tenant by the Viscount if need be.) We shall use the expression ‘possession order’ in that sense in the remainder of this judgment.


The decision in Forster had the unfortunate result that in many cases the landlord had to take two sets of proceedings. He had first to obtain an order cancelling the lease from the Royal Court and then, having obtained this, he had to institute further proceedings in the Petty Debts Court to obtain a possession order.


This was commented on in the Second Interim Report of the Jersey Judicial and Legal Services Review Committee under the chairmanship of Sir Godfray Le Quesne (RC24/90) (“the Le Quesne Report”) and para 9.16 of that Report recommended:-

“The Royal Court should have power to make an order for possession, immediate or delayed, when it decides to cancel a lease, using the same criteria as at present apply in the Petty Debts Court.”


Pursuant to that recommendation, the States enacted the Royal Court (Possession Orders) (Jersey) Law 1998 (“the 1998 Law”). The relevant provision is Article 1 which is in the following terms:-

“(1) Notwithstanding the provisions of the Loi (1946) concernant l'expulsion des locataires réfractaires, (“the Law of 1946”), where the Royal Court:-

(a) is exercising its jurisdiction in proceedings for the cancellation (résolution) of a contract of lease of an immovable; and

(b) orders the cancellation of that lease ,

it shall have the power to make an order for possession of the immovable.

(2) The power in paragraph (1) of this Article may be exercised to grant –

(a) immediate possession of the immovable; or

(b) possession at a later date of the immovable ,

in accordance with Article 3(3) and 3A of the Law of 1946 as if the provisions of that Law applied to the Royal Court.” [Emphasis supplied].


The other change since the decision in Forster is that, since 2000 the Petty Debts Court has had jurisdiction to cancel paper leases where the annual rent does not exceed £15,000. Jurisdiction to cancel a contract lease remains vested solely in the Royal Court. This is the effect of Article 1(2) of the Petty Debts Court ( Miscellaneous Provisions) (Jersey) Law 2000 which provides as follows:-

“(2) The Petty Debts Court shall have jurisdiction in respect of any proceedings which may be brought in the Royal Court to pronounce the cancellation (résolution) of a contract (other than a contrat passé devant Justice) of lease (location) of an immovable or any interest in an immovable if the rent payable in respect of the immovable assessed annually at the time of the institution of the proceedings does not exceed £15,000.”


The effect of these various amendments is clear in most cases. In the case of a contract lease or a paper lease where the annual rent exceeds £15,000, proceedings to cancel the lease must be brought in the Royal Court and that Court may in those proceedings also make a possession order where it cancels the lease. In the case of a paper lease where the annual rental is less than £15,000, proceedings should be brought in the Petty Debts Court which may cancel the lease and also grant a possession order.


Advocate Habin submitted that the Royal Court has no jurisdiction to make a possession order in respect of a paper lease and that this jurisdiction is vested...

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