The Viscount of the Royal Court of Jersey v Trevor Mark Pitman and Shona Pitman (nee Smith)

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith,Jurats Morgan,Blampied
Judgment Date12 March 2014
Neutral Citation[2014] JRC 63
Date12 March 2014

[2014] JRC 63

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, andJurats MorganandBlampied

IN THE MATTER OF THE DESASTRE OF MR TREVOR MARK PITMAN

AND IN THE MATTER OF THE DESASTRE OF MRS SHONA PITMAN (NEE SMITH)

AND IN THE MATTER OF THE REPRESENTATION OF THE VISCOUNT OF THE ROYAL COURT OF JERSEY

Between
The Viscount of the Royal Court of Jersey
Representor
and
Trevor Mark Pitman
First Respondent

and

Shona Pitman (nee Smith)
Second Respondent

Advocate E. Drummond for the Viscount.

The respondents appeared on their own behalf.

Authorities

Pitman -v- Jersey Evening Post and 1st Jersey Limited [2012] JRC 092 .

Court of Appeal (Jersey) Law 1961.

Court of Appeal (Civil) Rules 1964.

Judicial Committee (Appellant Jurisdiction) Rules 2009 as amended.

Pitman -v- Jersey Evening Post and 1st Jersey Limited [2013] JCA 236 .

Bankruptcy (Désastre)(Jersey) Law 1990.

Jersey Insolvency and Asset Tracking 4th edition by Anthony Dessain and Michael Wilkins.

Jones v AG [2000] JLR 103 .

Mulkerrins v Price Waterhouse Coopers [2003] UKHL 41 .

Mulkerrins v Price Waterhouse Coopers [2003] 1 WLR 1937 .

Lewin.

Bankruptcy (Désastre)(Pensions)(Jersey) Regulations 2006.

In re GP Aviation Group International Ltd (in liquidation) Williams v Glover and another [2014] 1 WLR 166 .

Torkington v Magee [1902] 2 KB 427 .

Re Ostroumoff [1999] JLR 238 .

Barclays Wealth Trustees Ltd v Equity Trust [2013] JRC 094 .

Pinner v Everett [1969] 1 WLR 1266 .

Bennion on Statutory Interpretation 6th edition.

Heath v Tang [1993] 1 WLR 1421 CA .

Snell v Beadle [2001] JLR 118 .

Loi (1891) sur la cour pour le recouvrement de menues dettes .

Haig v Aitken [2001] Ch 110 .

Beckham v Drake (1829) 2 HL Cas 579 .

Wilson v United Counties Bank Ltd [1920] AC 102 .

Fletcher on the Law of Insolvency.

Muir Hunter on Personal Insolvency.

Ord v Upton [2000] Ch 352 .

Désastre — application by the Viscount for declarations in respect of two questions of law arising out of désastre proceedings.

THE COMMISSIONER:
1

The Viscount applies to the Court for declarations in respect of two questions of law arising out of the désastres of the respondents (“Mr and Mrs Pitman”) as follows:–

  • (i) Does a bare right of appeal fall within the scope of the property and powers of a debtor which vest in the Viscount immediately upon the making of a declaration of a désastre?

  • (ii) In whom does Mr and Mrs Pitman's claim for damages for libel against the Jersey Evening Post Limited (“JEP”) and 1 st Jersey Limited (“1 st Jersey”) (the “Defamation Claim”) vest following the declaration en désastre?

2

In the event that the Court finds that the Defamation Claim vests in the Viscount, further directions were sought as what action the Viscount should take; hence the involvement of the Learned Jurats in what were otherwise questions of law.

Background
3

The Royal Court dismissed the Defamation Claim brought by Mr and Mrs Pitman against the JEP and 1 st Jersey on 10 th May, 2012 ( [2012] JRC 092). The JEP and 1 st Jersey were awarded their costs which, after taxation, amounted to £73,318.08 for the JEP and £64,419.69 for 1 st Jersey.

4

The judgment of the Royal Court was final and Mr and Mrs Pitman were entitled to appeal as of right (i.e. without the need for leave) (Article 12 of the Court of Appeal (Jersey) Law 1961). However, in accordance with Rule 3 of the Court of Appeal (Civil) Rules 1964, such an appeal had to be brought within one month of the date on which the judgment or order of the court below was pronounced (i.e. on or before 10 th June, 2012), subject to any extensions of time granted by the Royal Court or the Court of Appeal or a single judge thereof pursuant to Rule 16.

5

Mr and Mrs Pitman did not appeal within that time but over a year later sought an extension of time from the Court of Appeal in which to do so. On the 27 th November, 2013 the Court of Appeal refused to grant Mr and Mrs Pitman an extension of time to file their appeal out of time and further costs orders were made against them in favour of the JEP and 1 st Jersey.

6

1 st Jersey applied for Mr and Mrs Pitman to be declared en désastre on the basis of their unpaid (taxed) costs. On 3 rd January, 2014 the Royal Court granted that application and declared their property en désastre.

7

Pursuant to Article 14(1) of the Court of Appeal (Jersey) Law 1961, leave is required to appeal the Court of Appeal's decision of 27 th November, 2013 to refuse Mr and Mrs Pitman's application for an extension of time. Article 14(1) states:–

“No appeal shall lie from a decision of the Court of Appeal under this Part without the leave of the Court [i.e. the Court of Appeal] or the special leave of Her Majesty in Council.”

8

However, there does not appear to be any requirement that one must first seek leave from the Court of Appeal before applying to the Privy Council for special leave (in contrast to the requirements of paragraph 4.1(a) of the Court of Appeal Practice Direction 05/01 in relation to seeking leave to appeal decisions of the Royal Court).

9

The procedure for seeking special leave from the Privy Council is governed by Part 2 of the Judicial Committee (Appellant Jurisdiction) Rules 2009 as amended (the “Privy Council Rules”) and Practice Direction 3: Applications for Permission to Appeal.

10

Pursuant to Rule 11(2) of the Privy Council Rules:–

“An application for permission to appeal to the Privy Council must be filed within 56 days from the date of the order or decision of the court below or the date of the court below refusing permission to appeal (if later).”

11

As the Court of Appeal's decision was delivered on 27 th November, 2013, the deadline for applying to the Privy Council for special leave was therefore 22 nd January, 2014.

12

On 20 th January, 2014 and given the intervention of the désastres, Mr Pitman applied on behalf of himself and his wife for permission from the Viscount to apply to the Privy Council for leave. The Viscount issued a decision stating inter alia that he intended to apply to the Royal Court for directions but that so far as it was permissible for him to do so, he granted Mr and Mrs Pitman permission to seek the leave of the Privy Council purely protectively given that an imminent procedural deadline was reportedly due to expire on 22 nd January 2014. He expressly stated that no view was given on Mr and Mrs Pitman's standing to pursue the Privy Council application.

13

Mr and Mrs Pitman issued and served their application to the Privy Council for leave on 22 nd January, 2014. According to Rule 13 of the Privy Council Rules, each respondent who wishes to object to an application must, within 28 days after service, file a notice of objection or else it will not be permitted to participate in the application. As the Privy Council Application was served on the JEP and 1 st Jersey on 22 nd January, 2014, they have until 19 th February, 2014 to file their notices of objection, if any.

14

The Registrar of the Privy Council wrote to Mr and Mrs Pitman by letter dated 3 rd February, 2014 informing them that the Privy Council did not have jurisdiction to entertain their application, pursuant to Article 14(2) of the Court of Appeal (Jersey) Law 1961, which is in the following terms:–

“No appeal shall lie from a decision of the Court of Appeal to grant, or to refuse to grant, leave to appeal.”

15

Mr Drummond, for the Viscount, expressed some surprise at the interpretation placed upon Article 14(2) by the Registrar. It is true that in its judgment of 27 th November, 2013 ( [2013] JCA 236) the Court of Appeal refers, in a form of shorthand, to the application of Mr and Mrs Pitman as an “application for leave to appeal out of time” but in fact Mr and Mrs Pitman were entitled to appeal the decision of the Royal Court as of right. Pursuant to the Court of Appeal (Civil) Rules 1964, that right has to be exercised within one month and their application, therefore, was for an extension of time in which to exercise that right pursuant to Rule 16, not for leave to appeal. In Mr Drummond's view, Article 14(2) refers to those appeals which, pursuant to Article 13(1)(e) of the Court of Appeal (Jersey) Law 1961, require leave (i.e. appeals from interlocutory orders or judgments).

16

It would not be appropriate for this Court to express a view on the matter and it will be for Mr and Mrs Pitman to pursue the point with the Registrar. However, in the light of the views expressed by Mr Drummond, it would seem arguable at the very least that the Privy Council does have jurisdiction to entertain their application, and therefore the Viscount's application was not rendered academic. Furthermore, even if there was no right of appeal to the Privy Council, Mr and Mrs Pitman had made it clear that they intended to apply to the European Court of Human Rights in Strasbourg, so the issue of their ability to do so following the intervention of the désastres would arise again.

17

Two preliminary points were raised by Mr Drummond which we take in turn.

Directions
18

There is no express provision in the Bankruptcy (Désastre)(Jersey) Law 1990 (“the Désastre Law”) permitting the Viscount to seek directions from the Royal Court. The Désastre Law is not, however, a codification of the customary law (see the preamble which refers to the Désastre Law being passed to “amend and extend the law”) and thus the customary law continues to exist in parallel. There are numerous examples of the Viscount seeking the directions of the Court prior to and after the introduction of the Désastre Law (see Jersey Insolvency and Asset Tracking 4 thedition by Anthony Dessain and Michael Wilkins at paragraph 5.12) in all of which cases it appears that the jurisdiction has been assumed.

19

We have no doubt that the jurisdiction exists under...

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    ...Trust (Jersey) Limited [2013] (2) JLR 22. Bankruptcy (Désastre) (Jersey) Law 1990. The Viscount of the Royal Court of Jersey v Pitman [2014] JRC 063. David McNulty v The Commissioner for Her Majesty's Revenue and Customs [2012] UKUT 174 (TCC). Insolvency Act 1986. Airey v Republic of Irela......

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