Le Mottee v Wilson

JurisdictionJersey
CourtRoyal Court
Judge(Crill, Deputy Bailiff and Jurats Hamilton and Coutanche):
Judgment Date03 August 1978
Date03 August 1978
ROYAL COURT
(Crill, Deputy Bailiff and Jurats Hamilton and Coutanche):

R.J. Michel for the respondent;

S.A. Pearmain for the complainant.

Civil Procedure—appeals—matters of fact—no appeal on fact alone against judgment of Petty Debts Court under Loi (1902) sur la Cour pour le recouvrement de menues dettes (appels) but may appeal against inferences from facts

Family Law—maintenance orders—unenforceable if wife "residing with" husband—not "residing with" husband within Separation and Maintenance Orders (Jersey) Law 1953, art. 12(1) if does not share ordinary communal life although lives under same roof—matter to be resolved by taking evidence

CRILL, DEPUTY BAILIFF: On the 14th September, 1977, the Petty Debts Court found the husband to have been guilty of persistent cruelty to the wife. On the 19th October, 1977, the wife was awarded maintenance for herself and her children. That for the children we understand has been paid. We were told that the basis of the award was that at the time it was made the wife would leave the matrimonial home and live apart. However she remained in the house and the husband in fact paid less than the order. The wife sued for her arrears and the matter came before the Petty Debts Court by way of summons in the usual way on the 30th November, 1977. On the 4th January, 1978, the Magistrate gave judgment for the wife. The husband wished to appeal. He was out of time but the Greffier granted him an extension by an order of the 2nd February, 1978, as if the appeal were governed by the Separation and Maintenance Orders (Appeals) (Jersey) Rules, 1953. Mrs. Pearmain for the wife submitted that (1) the Petty Debts Court remains as such, that is to say it is so defined in the Separation and Maintenance Orders (Jersey) Law, 1953. I quote:

"the court means the court known as the 'Cour pour le recouvrement de menues dettes' or the 'Petty Debts Court' constituted in pursuance of the 'Loi sur la Cour pour le recouvrement de menues dettes' confirmed by Order of Her Majesty in Council of the 9th day of May, 1891".

Secondly, she said there were no divisions as exist in the Royal Court's jurisdiction; thirdly, the action was for the recovery of a petty debt, and fourthly, it followed that as regards an appeal from the judgment of the Petty Debts Court on the action for the recovery of a debt any right of appeal was governed by the Loi (1902) sur la Cour pour le recouvrement de menues dettes (appels). That is to say, there is none on matters of mere fact, although it is fair to point out that this Court on an appeal from a judgment of the Petty Debts Court sitting when dealing with a matrimonial matter is prepared to intervene when the Magistrate has drawn inferences from facts. On the other hand Mr. Michel, for the husband, said first, that the action was brought originally under the 1953 Separation and Maintenance Orders (Jersey) Law, 1953; secondly that the action for the recovery of maintenance is a continuation, in a manner of speaking, of that action, and thirdly, if the wife sues for arrears of maintenance, Article 8 of the Separation and Maintenance Orders (Jersey) Law applies, which allows the Court to alter, vary or discharge any order, or remit payments upon the application of the husband or the wife, and the Court may, on cause being shown upon fresh evidence, remit, vary or discharge the order or remit the payments. Article 8 does not cover an action for the recovery of arrears. It is, in our opinion, designed to cover the position where fresh evidence arises. Having considered the position, we have come to the decision that as far as concerns the judgment appealed from on the 4th January, 1978, that judgment is in fact a judgment of the Petty Debts Court and appeals from it lie in accordance with the Law of 1902. It therefore follows that the appeal by the wife from the Greffier's order of the 2nd February, 1978, should be allowed. However that does not dispose entirely of the matter. The two other appeals are called, for the sake of convenience, the first and third appeals and these concern the interpretation which the Assistant Magistrate put on the words "reside with" which are to be found in Article 12(1) of the Separation and Maintenance (Jersey) Law, 1953. Since these words were taken, as the Magistrate rightly says in his resumé of...

To continue reading

Request your trial
1 cases
  • Lesquende Ltd v Planning and Environment Committee
    • Jersey
    • Royal Court
    • 17 February 1997
    ...J.J. 77, considered. (16) Le Masurier v. Natural Beauties Cttee., Royal Ct. (1958), 13 C.R. 138, unreported. (17) Le Mottée v. Wilson, 1978 J.J. 167. (18) Lloyd v. McMahon, [1987] A.C. 625; [1987] 1 All E.R. 1118; (1987), 85 L.G.R. 545; 27 R. & V.R. 58; 131 Sol. Jo. 409, dicta of Lord Bridg......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT