Shane Michael Holmes v Harry James Lingard and HJL Holdings Ltd and Angel Fish Ltd

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Bailiff
• Judgment Date: 11 November 2015
• Neutral Citation: [2015] JRC 226
• Date: 11 November 2015

[2015] JRC 226

ROYAL COURT

(Samedi)

Before:

Advocate Matthew John Thompson, Master of the Royal Court.

Between

Shane Michael Holmes

Plaintiff

and

Harry James Lingard

First Defendant

and

HJL Holdings Limited

Second Defendant

and

Angel Fish Limited

Third Defendant

Mr S. M. Holmes appeared in person.

Advocate G. A. H. Baxter for the First and Third Defendants.

Authorities

Holmes v Lingard [2015] JRC 172.

Royal Court Rules 2004.

Home Farm Developments & Ors v Le Sueur [2014] JRC 079.

Home Farm Developments & Ors v Le Sueur [2015] JRC 110.

Lapidus v Le Blancq & Ors [2013] 2 JLR 308.

Hayden-Taylor v Canopius & Ors [2014] JRC 221.

Corefocus Consultancy Limited v Cronk [2013] JRC 194.

Hard Rock Limited & Anor v HRCKY Limited [2013] JRC 244B.

Pacific Investments Limited v Christensen [1997] JLR 170.

Flynn v Reid [2012] (1) JLR 370.

Selby v Romeril [1996] JLR 210.

Marett v Marett [2008] JLR 384.

Injunctions — striking out of plaintiff's claim and previous action withdrawn and discontinued.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1–2
2.	Relevant chronology	3–78
3.	The law in relation to a strike out	79–83
4.	The contentions	84–89
5.	Decision	90–113

Bailiff

THE DEPUTY

Introduction

1 This judgment represents my decision as to whether or not Mr Holmes and the defendants have reached a settlement of all of their claims and therefore whether or not I should strike out the plaintiff's claims on the basis that to allow proceedings to continue, where a settlement had occurred, would be vexatious or an abuse of process.

2 The background to Mr Holmes' claims is set out in my judgment reported at Holmes v Lingard [2015] JRC 172 at paragraphs 2 to 6. I also refer to paragraph 7 to 11 which deal with other proceedings between Mr Holmes and the defendants which are relevant to matters before me.

Relevant Chronology

3 By reference to two affidavits filed by Mr Holmes dated 27 ^th August and 8 ^th September, 2015, and the first and third affidavits of the Mr Lingard dated 3 ^rd September and 20 ^th September, 2015, and communications with the Court on the court file, I set out the following as a chronology of relevant events.

4 On 22 ^nd June, 2015, at 9:44, Mr Holmes emailed Advocate Mark Taylor, then advocate for the defendants, setting out a proposal to resolve the hearing referred to at paragraph 10 and 11 of my earlier judgment. In an email from Mr Lingard to Advocate Taylor which is also dated 22 ^nd June, 2015, Mr Lingard confirmed his agreement with Advocate Taylor that there was no attraction to this proposal (see exhibit HJL3/3). An English solicitor Mr Michael Fitton who assists Mr Lingard express the same view (see exhibit HJL3/4).

5 On 24 ^th June, 2015, Mr Holmes emailed a Mr Andrew Robertson. By reference to an affidavit filed by Mr Robertson, to which I refer to later, Mr Robertson describes himself as knowing Mr Holmes for a number of years in both a professional and social capacity and as acting as a messenger or a go-between between Mr Holmes and Mr Lingard.

6 The email from Mr Holmes contained a proposal that all cases between him and Mr Lingard were dismissed with each party bearing their own costs, Mr Lingard receiving £6,000 out of an escrow account with the balance being paid to Mr Holmes.

7 This proposal was forwarded that day (i.e. 24 ^th June) by Mr Robertson to Mr Lingard who in turn forwarded it to Advocate Taylor and Mr Fitton indicating that he, Mr Lingard, had previously rejected the proposal and reconfirming his rejection of it. I note that as part of his proposal Mr Holmes raised the issue that he wanted all prior judgments of the Court set aside as part of any settlement.

8 Rejection of Mr Holmes' proposal was confirmed by Advocate Taylor to Mr Holmes in an email also dated 24 ^th June, 2015, sent at 15:41.

9 At 15:54 on 24 ^th June, 2015, following rejection of his proposal for an overall settlement, Mr Holmes indicated that he was prepared to withdraw the appeal listed for 26 ^th June, 2015, subject to reasonable terms. After an exchange of emails between Mr Holmes and Advocate Taylor, by an email sent by Mr Holmes on 26 ^th June, 2015, at 14:03, Mr Holmes confirmed that he had signed the consent order authorising the hearing of 26 ^th June, 2015, to be vacated.

10 On 29 ^th June, 2015, Mr Robertson texted Mr Holmes at 16:55 stating:–

“to finalise dispute with Harry, you drop the case and Harry will drop his case. Put this matter to bed once and for all, all you need to do is write to Mark Taylor once that has been done and finished I can meet you to discuss another matter.”

11 Mr Robertson in his affidavit does not explain what this other matter is. Mr Holmes in his first affidavit states that one of the key terms of the settlement with the defendants was that he would receive a deal worth £100,000. He does not explain how this key term was agreed, his understanding of Mr Robertson's text message of 29 ^th June, 2015, or what the other matter was. In oral submission however me Holmes contended that the other matter referred to was receipt of a deal or a sweetener worth £100,000.

12 It appears from the text messages exhibited by Mr Holmes that he and Mr Robertson spoke on 3 ^rd July, 2015. Neither gives any evidence in relation to this call.

13 However, on 6 ^th July, 2015, Advocate Taylor sent a settlement agreement to Mr Holmes by email:–

“I gather you have been in discussions with my client and I am instructed to send you this settlement agreement to seek to bring to a conclusion to all outstanding matters that exist between my clients, you and your companies.”

The email then invited comments on the settlement agreement prepared by Advocate Taylor.

14 This email appears to have followed a communication from Mr Robertson to Mr Lingard dated 3 ^rd July, 2015, sent 06:12 pm, where Mr Robertson states:–

“have been negotiating with Shane Holmes on your behalf and I have successfully agreed that Mr SH will drop all claims without remuneration of any kind. He has asked if you can prepare the necessary documents as a full and final settlement.”

15 Mr Robertson confirmed at paragraph 11 of his affidavit that the conversations prior to this email were between himself and Mr Holmes, rather than Mr Holmes speaking to Mr Lingard. This is accepted by Mr Holmes and Mr Lingard.

16 Also on 3 ^rd July, 2015, a draft of my security for costs judgment was released for comments, which comments were to be dealt with by me after 31st July, 2015.

17 Mr Holmes responded with comments on the settlement agreement sent by Advocate Taylor earlier that day by an email at 16:30. It appears that Mr Holmes added a new clause (vi) seeking the setting aside of previous judgments issued by the Royal Court.

18 In an email sent to Advocate Taylor at 11:17 on 7th July, 2015, Mr Holmes explained what he was seeking was that while judgments were presently a matter of public record “their setting aside would remove them from the public register effectively wiping the slate clean. It would be entirely counterproductive for the parties if judgments which are superseded by the settlement and therefore worthless are allowed to remain on record forever.”

19 Mr Holmes then continued “we are indeed writing to the Royal Court to withdraw and discontinue proceedings but we will not disclosing the terms of the settlement (it is not necessary to do so in any event). The terms may stay confidential between the parties.” (emphasis added).

20 Advocate Taylor replied indicating that there was no point including a request to remove judgments because there was no facility to do so. He stated “the judgments remain as a matter of record but the fact is a conclusion is reached by signing this agreement so between the respective parties the judgments are nothing more than a historical record and that is the same for all matters that have been conducted in open Court.”

21 In his reply sent at 11:46 Mr Holmes stated “it is not a case of removing judgments from the public domain. Rather it is a case of setting aside the judgments with the Court so they no longer appear on the Jersey law records/register. The setting aside of judgments is a routine exercise. This is not therefore a cause for doubt, not least because the settlement agreement is the overriding agreement which must supercede the judgments in any event.”

22 I observe that I do not understand on the one hand Mr Holmes' observation that this was not a case of removing judgments from the public domain but on the other his statement that the setting aside of judgments meant that they no longer appeared on the record. Setting aside judgments in the manner proposed by Mr Holmes appears to be an attempt to remove judgments from the public domain.

23 By an email sent at 11:57 on 7 ^th July, 2015, Advocate Taylor maintained his position that it was not possible to set aside judgments and indicated that, if terms could not be agreed by close of business that day, then his clients would proceed with the case.

24 Mr Holmes replied by an email sent at 12:59 where he stated “the setting aside of matters are matters subsequent so there is little point in delaying conclusion of the settlement at this point. The parties can look to tidy up the Court file register at a later date

Telling relevant people that the dispute is concluded is accepted and understood but, the terms of the settlement may remain confidential between the parties.

On the basis I would be obliged if you would engross the settlement ready for signing.” (emphasis added).

25 By an email sent at 15:51 also on 7 ^th July, 2015, Mr Holmes stated “I have delivered the signed agreement could you please provide me with a copy of the signed agreement. After that the parties may deal with the letter to the Court.”

26 The relevant part...