The Estate of Constantin Mattas
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Sir Michael Birt |
| Judgment Date | 03 November 2022 |
| Neutral Citation | [2022] JRC 237 |
[2022] JRC 237
Sir Michael Birt, Commissioner
ROYAL COURT
(Samedi)
Estate
State Immunity (Jersey) Order 1985.
General Dynamics United Kingdom Limited v State of Libya [2022] AC 318.
Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26.
Brunei Investment Agency v Fidelis Nominees Limited [2008] JLR 337.
Service of Process Rules 2019
Advocate S. J. Williams for the Representor.
Advocate S. A. Meiklejohn for the Attorney General.
The matter before me raises an issue as to how the Government of Greece is to be served with these proceedings and this in turn raises an issue as to whether this is an action in rem.
For present purposes, it is not necessary to give much detail about the factual background. Suffice it to say that Constantin Mattas (“the deceased”) died domiciled and resident in Jersey in 1979. His will and two codicils (“the Will”) was proved in the Probate Division of the Royal Court on 16 January 1980.
The Representor was the executor of the estate and is now the trustee of certain trusts created pursuant to the Will. In the events which have happened, the residue of the estate (“the trust fund”) is held upon trust to pay the income in equal shares to two nephews of the deceased during their lives and, following the death of the survivor, is to be paid to the Greek Government in Athens to hold upon certain specified trusts (“the Intended Capital Trust”).
An issue has arisen as to whether the Intended Capital Trust creates a valid trust. If it is invalid, there will be a partial intestacy. The Representor (“the Trustee”) has issued the present proceedings seeking a decision from the Court as to the validity of the Intended Capital Trust.
Clearly, the Greek Government should be convened to the proceedings so that, if it chooses, it can participate and put forward such arguments in connection with the validity of the Intended Capital Trust as it thinks fit.
Section 12(1) of the State Immunity Act 1978 (as extended to Jersey pursuant to the State Immunity (Jersey) Order 1985) is in the following terms:
“12(1). Any writ or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.”
Section 12(2) goes on to provide that any time for entering an appearance shall begin to run two months after the date on which the writ or document is received by the Ministry.
In its recent decision in General Dynamics United Kingdom Limited v State of Libya [2022] AC 318, the UK Supreme Court held by a majority that the provisions of Section 12(1) are mandatory and that accordingly service on a State by any means other than that set out in Section 12(1) is not permissible, regardless of what any rules of court may say.
However, Section 12(7) of the Act provides (so far as relevant):
“(7) This section shall not be construed as applying to …. an action in rem …”
The question therefore arises as to whether the present proceedings are an action in rem.
In Pattni v Ali [2006] UKPC 51, the Privy Council had to determine whether the judgment of a Kenyan court was a judgment in rem or in personam. Speaking for the Privy Council, Lord Mance discussed the distinction between actions ...
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