Eves v Le Main

CourtCourt of Appeal
JudgeCollins, Southwell and Gloster, JJ.A.:
Judgment Date22 January 1999
Date22 January 1999
Collins, Southwell and Gloster, JJ.A.:

The applicant appeared in person.

A.J. Belhomme for the respondent.

Cases cited:

(1) Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd., 1997 JLR 304; on appeal, 1998 JLR 173, applied.

(2) Perrot v. Le Breton, Royal Ct. (1891), 11 C.R. 29, unreported, applied.

(3) Public Servs. Cttee. v. Maynard, 1996 JLR 343, applied.

Additional case cited by counsel:

Wentzinger v. Castel Esnol, Royal Ct. (1991), 215 Ex. 112, unreported.

Legislation construed:

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, art. 2: The relevant terms of this article are set out at page 47, lines 29-34.

Royal Court Rules 1992 (R. & O. 8509), r.6/5: The relevant terms of this rule are set out at page 47, lines 36-38.

Texts cited:

Poingdestre, Les Lois & Coustumes de l'Ile de Jersey, at 51-52 (1928).

Terrien, Commentaires du Droict Civil, at 321 (1578 ed.).

Civil Procedureappearancenon-appearance of partyno denial of justice to hear defendant's strike-out application in absence of plaintiff if properly notified of time of hearingno breach of European Convention on Human Rights, art. 6(1)court has discretion not to hold hearing, e.g. if plaintiff genuinely absent from Island and likely to appeal

Courtsrcusationapparent biasBailiff or Deputy Bailiff may hear case involving conduct of member of States Committeenot apparently biased merely because also preside over Statesno infringement of European Convention on Human Rights, art. 6

Limitation of Actionsrunning of timesuspension of limitationaction based on fraudmere ignorance of cause of action insufficient to suspend limitation, unless action brought about by "la fraude et mauvaise foi" of defendantprescription not to run against plaintiff in respect of "concealed fraud" not discoverable with due diligence

The applicant sought leave to appeal against an order of the Royal Court striking out his action against the respondent.

The applicant, who owned a hotel business, alleged that the respondent, a member of the Tourism Committee, had conspired to prevent him from carrying on his business by persuading the Committee not to register his hotel. These allegations related to incidents between 1989 and mid-1992. The applicant served an Order of Justice on the respondent in December 1997, by which time the action was prima facie prescribed by virtue of art. 2 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, more than three years having elapsed.

The respondent applied to strike out the action and a date was fixed for the hearing of the summons, to which the applicant (an experienced litigant in person) said he could not come because of a long-standing family commitment out of the Island. He did not give any further explanation to the respondent's advocate, gave no address at which he could be reached while he was away and made no explanation or application for adjournment to the court. The court (Hamon, Deputy Bailiff and Jurats Potter and de Veulle) considered whether it could properly hear the matter in the applicant's absence and finding that his presence was not crucial to the issues to be decided, held that the action was frivolous, vexatious and an abuse of the process of the court and struck it out.

The applicant sought to appeal out of time against the Royal Court's order and made the present application for leave, adducing further evidence which had not been put to the Royal Court and which he claimed had not been available until August 1995. This comprised the minutes of various meetings of the Tourism Committee which he alleged "further substantiated" his claims. He submitted that (a) it had been a denial of justice and of his right to a fair trial under art. 6(1) of the European Convention on Human Rights to conduct the hearing in his absence; (b) the Deputy Bailiff had been biased because, as Deputy President of the States, he had an interest in the States and its Committees, including the Tourism Committee, and was therefore a judge in his own cause and not capable of providing a "fair and impartial tribunal" as required by art. 6 of the European Convention; and (c) in any case, his action should not have been struck out because, by virtue of the maxim qui est empch d'agir la prescription ne court point, time ceased to run against a person whose cause of action was unknown to him due to fraud and because new evidence had only come to light in 1995, the limitation period had not yet expired.

The respondent submitted in reply that (a) because the applicant had been properly notified of the hearing date but had nevertheless failed to attend court without any explanation, the Royal Court had been justified in conducting the hearing in his absence and because of the obviously unsustainable nature of the applicant's claim, had been right to strike out the action; (b) the Deputy Bailiff could not be said to have been biased merely because of his role in the States, since neither he nor the Bailiff were responsible for or interested in the actions of States Committees; and (c) ignorance of a cause of action was not alone sufficient to suspend prescriptionthere had to be an "empchement de fait" or practical impossibility preventing a plaintiff from bringing a suit (of which ignorance could be part)and although prescription was indeed suspended against a plaintiff who was ignorant of his cause of action because of "la fraude et mauvaise foi" of the defendant or "concealed fraud" not otherwise discoverable with due diligence, in the present case the applicant had known of the facts which he alleged amounted to a conspiracy and the new evidence was merely alleged to "further substantiate" his claims.

Held, refusing leave to appeal:

(1) It had not been a denial of justice to conduct the hearing of the respondent's application to strike out the applicant's action in his absence, since he had properly been notified of the date and time of the hearing but had nevertheless chosen to leave the Island at that time. Nor could it be said, therefore, that his rights under art. 6(1) of the European Convention on Human Rights had been infringed. However, the court had a discretion not to proceed with the hearing and it might have been better not to proceed, since it had been clear that the applicant had genuinely been out of the Island and would be likely to appeal (page 50, lines 20-40).

(2) Moreover, it could not be said that the Bailiff or Deputy Bailiff were necessarily biased in any case involving the conduct of a member of a States Committee, merely by virtue of their role both as judges and as President and Deputy President of the...

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2 cases
  • Syvret v Chief Minister, States Employment Board, States of Jersey and AG
    • Jersey
    • Royal Court
    • 20 June 2011
    ...558 , [2005] 2 AC 373. Haynes v. Harwood [1935] 1 KB 146 . Baker v. T.E. Hopkins & Son Ltd [1959] 1 WLR 966 . Eves v. Le Main [1999] JLR 44 . Boyd v. Pickersgill and Le Cornu [1999] JLR 284 . The Plaintiff appeared on his own H. Sharp, Esq., Solicitor General, for the Defendants......
  • Jeremy Patrick Michael Gosselin v Minister for Social Security
    • Jersey
    • Royal Court
    • 8 November 2016
    ...Law Journal 33. Mayo Associates SA and Others v Cantrade Private Bank Switzerland (CI) Limited and Another [1998] JLR 173. Eves v Le Main [1999] JLR 44. McGonnell v United Kingdom (2000) 30 EHRR 289. Findlay v United Kingdom [1997] 24 EHRR 221. Procola v Luxemburg (1996) 22 EHRR 193. Pabla ......

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