J v 1. Kathryn Tully

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date27 June 2016
Neutral Citation[2016] JRC 110
Date27 June 2016

[2016] JRC 110

ROYAL COURT

(Samedi)

Before:

W. J. Bailhache, Esq., Bailiff, and Jurats Olsen and Ramsden

Between
J
Plaintiff/Respondent
and
1. Kathryn Tully
2. Louise Dods
3. Rawlinson & Hunter
4. R & H Trust Co (Jersey) Limited
5. R & H Fund Services (Jersey) Limited
Defendants/Appellants

Advocate J. M. P. Gleeson for the Plaintiff/Respondent.

Advocate A. Kistler for the Appellant Trustee.

Authorities

Service of Process and Taking of Evidence (Jersey) Law 1960, as amended.

AD v The C Trust and PW [2010] JRC 001.

Service of Process (Jersey) Rules 1994.

Royal Court Rules 2004.

Human Rights (Jersey) Law 2000.

European Convention of Human Rights 2000.

Downes v Marshall [2010] JLR 265.

Wadman and another v Dick [1993] JLR 52.

Trusts (Jersey) Law 1984.

Mubarik v Mubarak and others [2008] JLR 430.

Rio Tinto Zinc Corp v Westinghouse Elec. Corp [1978] A.C. 547, [1978] 1 All ER 434.

Trust/matrimonial — taking of evidence — appeal against the Greffier's order of 22 January 2016 allowed to limited extent.

Bailiff

THE

1

The Respondent and her husband are in the course of divorce proceedings in the circuit court of the County of St Louis, Missouri (“the St Louis court”) in the United States. The St Louis Court issued a letter of request on 31 st December, 2015, seeking assistance to enable the Appellants, or some of them, to be examined on oath and produce various documents as set out in the letter of request. On 19 th January, 2016, the Respondent's Missouri attorneys sent the letter of request directly to the Law Officers' Department, who transmitted it to the Judicial Greffe on 21 st January, 2016. On 22 nd January, 2016, the Greffier made an order, by virtue of the Service of Process and Taking of Evidence (Jersey) Law 1960, as amended, that the first and second named Appellants should attend before the Viscount on a date to be fixed to answer on oath the questions set out in paragraph 10 of the letter of request and to produce the documents set out in paragraph 11 of the letter of request. The present proceedings arise by way of an appeal against the Greffier's order. The appeal was heard on 25 th May and dismissed with reasons to be furnished later. This judgment contains those reasons.

Jurisdiction
2

Although it is listed as the second ground of appeal against the Greffier's order, we take it first because the assertion is that the Greffier had no jurisdiction to make the order of 22 nd January, no application having been made to him pursuant to Article 3 of the Service of Process and Taking of Evidence (Jersey) Law 1960 (“the Law”). It is a point which the Appellants say they raise without enthusiasm. In a nutshell, it is that no application has been made to the Royal Court for the order to be made, and Article 3 contemplates such an order only on application. The Appellants refer to a comment by this Court in the case of AD v The C Trust and PW [2010] JRC 001 where a different procedural objection was taken, namely that the letter of request was not transmitted to the Royal Court by Her Majesty's Secretary of State for the Home Department, as envisaged by the Service of Process (Jersey) Rules 1994 (“the Rules”). The Court said at paragraph 12 of its judgment in that case:-

“… the Royal Court makes Rules for a purpose and it is to be expected that the Rules therefore will be complied with and there should be at least some explanation given to the Court as to why the Rules have not been complied with. In this instance if it is the case that the request has been made by the Family Division of the High Court simply upon the basis of the application by AD, and AD's lawyers have not seen fit to make proper enquiry as to how the request to the Royal Court of Jersey should be formulated, then there is proper criticism to be made, not of the Family Division of the High Court, but of the lawyers who made that application to that Court and that would be a factor which this Court, in any subsequent case, would be entitled to take into account.”

3

It is to be noted that the letter of request in that case did not contain any of the usual courtesies which one might have expected from a requesting court and we have no doubt that the comment of the Royal Court at paragraph 12 of its judgment reflects its regret that the letter of request had been issued in that form. In the present case, where once again the letter of request was not transmitted through the Secretary of State for the Home Department, we take the view that this non-compliance with the Rules is a procedural matter rather than one of substance. As the Royal Court indicated in Re the C Trust (supra), the Home Office is no longer the official channel of communication between the United Kingdom and Jersey, although that was the position in 1994 when the Rules were made. It appears that the amendment of the Rules to reflect the current position has regrettably not yet occurred.

4

In the present case the letter of request does not display any of the lack of courtesies to which the Court made reference in the case on which the Appellants rely. It is clear from the letter of request that the request was issued by Judge Douglas Beach of the Circuit Court of the County of St Louis, State of Missouri and the request was addressed to “the United Kingdom – Jersey”. It was to be sent to the Central Authority of the United Kingdom, the Senior Master, for the attention of the Foreign Process Section, Room E16, Royal Courts of Justice, Strand, London. Such a process would seem to be consistent with Article 3 of the Convention which we think is currently a reference to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil Law Commercial Matters, a multi-lateral treaty adopted on 15 th November, 1965, Article 3 of which is in these terms:-

“The authority or judicial officer competent under the Law of the State in which the documents originate shall forward to the Central Authority of the state addressed a request confirming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality .

The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate.”

No doubt it was this provision which led to Rule 2 of the Rules being drafted as it was.

5

The repository of the Convention is the Foreign Office of the Hague, and the request is properly transmitted to the Senior Master as the Central Authority. It would appear that as far as United States law is concerned, no objection can be taken to the procedure which has been adopted in the St Louis Court, and certainly no such objection has been notified to us. In fact in this case, the request of the St Louis court was not transmitted to us in the way Article 3 of the Convention anticipates, as set out below.

6

Although reference was made to the Hague Convention, no document was produced to us to show that the United Kingdom's ratification of that Convention has been extended to Jersey. It is settled constitutional practice that where the United Kingdom ratifies a treaty or convention, it does so on behalf of the United Kingdom of Great Britain and Northern Ireland and such, if any, of the Crown Dependencies and its overseas territories as wish the treaty or the convention to apply to them. This practice has been acquiesced in by other States and is regarded by the Secretary General of the United Nations as establishing “a different intention” for the purposes of Article 29 of the Vienna Convention. Where reliance is being placed on a convention or treaty which is said to have application to Jersey, counsel should provide to the Court a copy of the United Kingdom's instrument of ratification which confirms that the convention or treaty does have application to the Island. Whether the Hague Convention relevant to this case has or has not been ratified on the Island's behalf by the United Kingdom, however, we think there is no doubt that this Court has a settled practice of acting in comity with the requesting court of other states, unless there is some particular reason not to do so. The procedural formalities which a multi-lateral convention often requires may well be useful guidance – the Court will for example want to be satisfied that the request genuinely does emanate from a foreign court with jurisdiction to deal with the matters before it, and the receipt of a request through the official diplomatic channel does provide some comfort in that respect. That does not arise in the instant case because there appears to be no doubt that there are divorce proceedings currently on hand in the St Louis court, that the St Louis court has jurisdiction to deal with them and has made the request a copy of which is in our papers. No one before us has contended otherwise, and it is clear that there have been some communications between the Appellants and the husband such that we can be reasonably satisfied that if there were an issue, it would have been taken.

7

It appears that although addressed to the UK Central Authority, the request was transmitted by the Respondent's US lawyers to Her Majesty's Attorney General, who subsequently transmitted it to the Judicial Greffier. This is not procedurally in accordance with the Rules, which, as we have indicated need attention. Nonetheless, it cannot be said that no “application” has been made for the purposes of Article 3 of the Law. The request has been issued by the requesting court, and the Respondent's lawyers have procured that it be transmitted to the Attorney General. Whether one concludes that the application has been made by the Respondent or by the Attorney General seems to us for present purposes to be beside the point. There has been an application, and the Judicial Greffier has made an order. Advocate Gleeson, on behalf of the...

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