The Representation of Caroline Elizabeth Powell Nee Chambers and And The Loi (1839) Sur Les Remises De Biens

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith,Jurats Olsen,Sparrow
• Judgment Date: 16 February 2018
• Neutral Citation: [2018] JRC 73
• Date: 16 February 2018

[2018] JRC 073

Royal Court

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Olsen and Sparrow

In The Matter of the Representation of Caroline Elizabeth Powell Nee Chambers

And In The Matter of the Loi (1839) Sur Les Remises De Biens

Mrs Powell (on her own behalf) for the Representor.

The Viscount appeared for the reporting Jurats.

Advocate O. J. Passmore for Acorn Finance Limited.

Advocate M. W. Cook for Jersey Home Loans Limited.

Authorities

Loi (1839) sur Les Remises de Biens.

Jersey Insolvency and Asset Tracking (4th Edition).

In re Barker [1987] JLR 4 .

Super Seconds Limited v Sparta [1997] JLR 112 .

Le Maistre v Du Feu Royal Court June 22nd 1850 unreported.

Loi (1832) sur les Décrets.

Property —remise de biens.

THE COMMISSIONER:

1 The Viscount convened the parties before the Court on 11 ^th April, 2018, in order for the Court to receive the second report of Jurats Grime and Pitman in respect of the remise de biens granted by the Court on the application of the representor (“Mrs Powell”).

2 The remise operated as a stay of the dé]grèvement proceedings that had been initiated by Acorn Finance Limited (“Acorn”). The loan made by Acorn to Mrs Powell fell due in September 2013. After a period of indulgence, judgment was taken against her on 18 ^th September, 2015. Dé]grèvement proceedings followed in relation to her property in Jersey and on 22 ^nd April, 2016, her immovable and movable property was adjudged renounced.

3 Mrs Powell applied for a remise by way of representation dated 1 ^st June, 2016. The report of the Jurats appointed to investigate the application recommended against it being granted, one of the complexities being the existence of another property owned by her in Winchester, and therefore outside the jurisdiction.

4 Following three hearings at two of which Mrs Powell was legally represented, the remise was, nevertheless, granted on the 31 ^st January, 2017, for a period of six months and Jurats Grime and Pitman were appointed to conduct the same. The property in Winchester was excluded from the remise.

5 Within a few months of the grant of the remise, the Jurats applied to the Court through the Viscount for directions as a consequence of Mrs Powell's lack of co-operation in the sale of the Jersey property, in particular in her not allowing potential purchasers to view the property. The Viscount, on behalf of the Jurats, sought orders to compel her co-operation.

6 Those orders were made by the Court on 14 ^th June 2017 in these terms:–

“(a) That, pursuant to the act of Court dated 31 January 2017, granting Mrs Powell's application for a remise de biens, Mrs Powell is ordered to co-operate and comply with the requests of Jurat Geoffrey Grime and Jurat Pamela Pitman (the Jurats) in exercise of their duties under the Loi (1839) sur Les Remises de Biens, in particular, in relation to the sale of her property known as … (the Property) and that Mrs Powell is ordered:

• (i) To permit the Property to be viewed by (i) potential purchasers and (ii) estate agents instructed by the Jurats for the purposes of the sale of the Property, as notified to Mrs Powell by the Viscount from time to time, and

• (ii) To vacate the Property and to procure that any other person residing in the Property so vacates, within 21 days of a request by the Jurats (or by the Viscount on their behalf) to allow the property to be marketed for sale and/or to allow vacant possession to be provided to a purchaser of the Property:”

7 In their first report of 28 ^th July, 2017, the Jurats informed the Court that whilst it was feasible to sell the Jersey property for a price that could enable the remise to succeed, they could see no way of making the remise work because of Mrs Powell's continued lack of co-operation and failure to comply with the orders made against her. In the period from the granting of the remise they said she had not allowed any interested party to view the Jersey property. They could not see how further orders could be framed to guarantee a successful outcome.

8 Notwithstanding this advice, the Court extended the remise on 31 ^st July, 2017, for a further period of six months, in part because of unequivocal assurances given by Mrs Powell to the Court that she would allow potential purchasers to view the Jersey property.

9 The reasons for the granting of that further extension are set out in the judgment of the Bailiff dated 8 ^th August 2017 (unpublished), which goes into the background comprehensively and deals with a number of issues raised by Mrs Powell, namely the issue of her capacity, her rights under Article 8 of the Human Rights Convention and the reasons put forward for her failing to permit access, none of which found favour with the Court. In particular, the Court found that despite the stress she was under and her health generally, she had capacity. Quoting from paragraph 16 of the judgment:–

“There is no doubt that before us she was desperately concerned to save her home, anxious that she would have nowhere to live, and anxious that she would have let down her children by failing to protect the family home, whether as a result of the divorce from her husband, or from any other steps taken in respect of other pressures in her life. In her submissions to us, she was very anxious to find reasons for all the difficulties which had occurred, and reasons for any step to be taken which might save the family home for her. None of this however suggests any lack of capacity on her part. We were completely satisfied that not only was there no medical evidence of lack of capacity, but that by her own submissions in court she demonstrated that she knew what she wanted to say and understood what was being said to her. Although therefore she asserted that she did not have capacity, we rejected that submission.”

10 That extension of the remise expired on 31 ^st January, 2018, a year after it was first granted, without the Jersey property being sold. We now have the second report of the Jurats dated 16 ^th February, 2018, that sets out the whole history of the conduct of the remise and then concludes in this way at paragraphs 26 and 27:–

• “26 In the light of these facts, it is difficult to come to any conclusion other than that the remise should not be extended further. For the greater part of the remise period, Mrs Powell has not complied with her obligations under Article 5 of the Loi (1839) sur Les Remises de Biens (the Law) which requires her to act only with the counsel and advice of the appointed Jurats. (“Celui qui aura obtenu la permission de remettre ses biens entre les mains de la Justice ne pourra agir que d'après le conseil et avis des personnes autorisé]es de Justice pour l'examen dudit bien”). Mrs Powell has also not fully observed the orders of the Court dated 14 June 2017 and 8 August 2017.

• 27 In our view, in large part, the failure of the remise is as a result of Mrs Powell's unwillingness to engage with the process and her resistance to the marketing efforts undertaken by us with the assistance of the Viscount's Department.”

The report also stated at paragraph 7 that as at 31 ^st January, 2018, a year after the remise was first granted, no potential purchasers had been allowed by Mrs Powell to view the Jersey property.

11 A copy of the second report was sent by the Viscount to Mrs Powell by hand on 23 ^rd February, 2018. The Viscount procured a date fix on 15 ^th March, 2018, at which the 11 ^th April, 2018, was fixed for the Court to receive the second report of the Jurats. Although we did not hear evidence, it is not in dispute that at the date fix, Mrs Powell expressed concerns about a possible relapse of an illness she had suffered from earlier, and it was agreed by the Viscount that if she could produce evidence that she had a medical appointment on 11 ^th April, or a certificate that she was too unwell to attend the hearing, then the Viscount would look to re-scheduling the hearing, although that would, of course, require the consent of the secured creditors.

12 There followed considerable e-mail correspondence between Mrs Powell, the Bailiff's Judicial Secretary and the Viscount, over her ability to attend the hearing, and she produced two letters:–

• (i) The first, dated 7 ^th April 2018, was from her GP saying that she had an appointment with at...