Continental v Deery

JurisdictionJersey
CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date04 January 2010
Neutral Citation[2010] JRC 1
Date04 January 2010

[2010] JRC 1

ROYAL COURT

(Samedi Division)

Before:

W. J. Bailhache, Esq., Deputy Bailiff, and Jurats Le Breton and Kerley.

In the Matter of an Application Under the Service of Process and Taking of Evidence (Jersey) Law 1960 as Amended.

In the Matter of the Representation of the C Trust Dated 2nd October, 2009

Between
AD
Applicant
and
The C Trust
First Respondent
PW
Second Respondent

Advocate J. Harvey-Hills for the Respondents.

Advocate M. H. D. Taylor for the Applicant.

Other parties not present.

Authorities

Wadman v Dick [1993] JLR 52.

Trusts (Jersey) Law 1984.

Service of Process (Jersey) Rules 1994.

Deputy Bailiff

THE

1

This is an application by AD to have the Royal Court give assistance to the Family Division of the High Court, pursuant to Letters of Request issued on 2 nd October, 2009, within matrimonial proceedings taking place in that Court between AD and her husband KD under case file reference FD04D00513 before Mrs Justice Macur.

2

The Letter of Request says this:-

“This letter of Request has been issued by Order of Mrs Justice Macur Sitting at the Royal Courts of Justice, Strand, London, WC2A 2LL on 1st October 2009

1. The Royal Courts of Jersey are due to hear an application by the C Trust on 5th October 2009 regarding the R and M Trusts under case number 2009/54.

2. The Respondent is the Settlor and principal beneficiary of the R and M Trusts.

3. The Respondent is involved in a Final Ancillary Relief Hearing which commenced on 30th March 2009.

4. PW the Trustee for the C Trust applied for leave to give oral and documentary evidence on behalf of the Respondent in these Ancillary Relief proceedings. His application was granted by Mrs Justice Macur on 1st April 2009.

5. On 1st April 2009 the aforemention final ancillary relief hearing was halted, during PW's cross examination, and following discussion between the parties representatives and with input from PW the parties agreed a Memorandum of Understanding, attached, to settle the Applicant's Ancillary Relief claims.

6. The Trustee, PW, confirmed that the C Trust would assist KD to meet his obligations under this Memorandum of Understanding which provided for the Respondent to pay the Applicant the sum of £2,285,000.

7. To date the £2,035,000 remains unpaid and PW, nor any other representative of the C Trust have been able to confirm that this sum will be paid.

8. We hereby request that you assist us in securing the attendance of PW forthwith, before the Royal Courts of Jersey, to produce two Affidavits referred to in the Witness Summons attached and for the two Affidavits to be faxed for the attention of the High Court in England. We attach a copy of the Order of Mrs Justice Macur dated 1st October 2009.”

That is there under the date stamp of 2 nd October.

3

The Witness Summons seeks production of an Affidavit dated 15 th May, 2009, and a further Affidavit dated 24 th September, 2009, both sworn by or on behalf of the trustee of the C Trust.

4

It is to be noted from the Order which accompanied the Letter of Request that the purpose of the Letter of Request was to assist the Court with enforcement of something, it is slightly unclear what.

5

This Court starts from the position that it should, where possible, give assistance under Letters of Request duly received. It is sufficient for this purpose to refer to the case of Wadman v Dick [1993] JLR 52 where the Court said this:-

“We conclude that, as a matter of principle, the requested court should always strive to give effect, if it possibly can, to Letters of Request. It should decline to comply with the foreign request only in so far as it is not proper or permissible or practicable under its own law to give effect to it. Observing faithfully the precept of not delivering what the foreign court has not asked for, and restraining any temptation to rewrite the request, the court may amend Letters of Request by excision, or by adding or substituting words in order to clarify what is being sought without altering the substance of the Letters of Request.”

So it is clear from that authority that we are required to review our own law in order to decide whether to give effect to the Letters of Request that have been sent to us.

6

In order to ensure that we were fully appraised of the facts we asked the trustee to produce to us copies of the Affidavits; we were also addressed by the trustee in private session in the absence of Advocate Taylor, Counsel for AD, with Advocate Taylor's consent. It is clear from the review of the material put before us, and we are able to draw a number of conclusions that;

  • (a) Firstly, the material relates to an application made by the trustee to the Royal Court under Article 51 of the Trusts (Jersey) Law 1984 a provision permitting a trustee to come to...

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9 cases
  • Trustee N v Attorney General
    • Bermuda
    • Supreme Court (Bermuda)
    • 13 July 2015
    ...Trustees placed particular reliance on two more recent cases, both from Jersey. The first was Deery v Continental Trust Company Limited [2010] JRC001, Royal Court. I adopt the statement of facts from the note of the decision reported at 2010 JLR Note 8. Letters of request were issued by the......
  • HSBC Trustee (CI) Ltd v Siu Hing Kwong
    • Jersey
    • Royal Court
    • 6 March 2018
    ...[1913] AC 417 . L v L [2016] 1 WLR 1259 . Trusts (Jersey) Law 1984. In the matter of M and Other Trusts [2012] JRC 127 . The C Trust [2010] JRC 001 . H v News Group Newspapers Limited [2011] 1 WLR 1645 . Re S Settlement 2001/154 . Civil Procedure Rules. Re Delphi Trust Limited 16 ITELR ......
  • THE M and OTHER TRUSTS [Royal Ct]
    • Jersey
    • Royal Court
    • 28 June 2012
    ...for the first respondent; The second respondent appeared in person. Cases cited: (1) Deery v. Continental Trust Co. Ltd., 2010 JLR N [8]; [2010]JRC001, dicta of Bailhache, Deputy Bailiff applied. (2) Macedonian Orthodox Community Church St. Petka Inc. v. Diocesan Bishop of Macedonian Orthod......
  • Simon Halabi (as executor of the estate of X, deceased) v Mark Wilson (as trustee in bankruptcy of Simon Halabi) and HM Revenue and Customs
    • Jersey
    • Court of Appeal
    • 2 July 2018
    ...Act 1975. European Convention on Human Rights. United Capital Corporation Limited v Bender and others [2006] JLR 269 . The C Trust [2010] JRC 001 . R v Grossman (1981) 73 Cr App R 302 . Mackinnon v Donaldson Lufkin & Jenrette Securities Corp [1986] 2 WLR 453 Trust — appeal against a j......
  • Request a trial to view additional results
2 firm's commentaries
  • Judgment Summary: Directions Re Disclosure To Foreign Courts
    • Jersey
    • Mondaq Jersey
    • 7 December 2012
    ...Court to make a candid appraisal of its position and the problems which are to be addressed (Deery-v-Continental Trust Company Limited [2010] JRC 001). In this instance the Royal Court invited the Family Division to consider carefully whether it needed the disclosure relating to the 2011 di......
  • Dispute Resolution Review (4th Edition) - Jersey
    • Jersey
    • Mondaq Jersey
    • 1 May 2012
    ...on International Mutual Legal Assistance, www.gov.je/government/nonexeclegal/lawofficers/pages/internationalassistance.aspx. 26 [2010] JRC 001. The court should, where possible, give assistance under letters of request duly received: 'It should decline to comply with the foreign request onl......

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