Although Advocate Belhomme has very carefully trawled all the relevant authorities in very great detail before us this morning, and cited to us the case of Le Cocq -v- Gillespie [1991] JLR N5; (12 March 1991) Jersey Unreported, which deals with the inherent jurisdiction of the Court, we do not need in our view to examine that aspect of inherent jurisdiction, nor indeed the case of Mauger (née Kenny) -v- Batty [1995] JLR N9; (9 October 1995) Jersey Unreported, although of course we have considered all the cases very carefully.
We say that because the Court of Appeal in Minories Finance Limited -v- Arya Holdings Limited [1994] JLR 149 , CofA has examined the principles of law that we should adopt in this type of proceeding and in particular after saying that: " The burden on the Defendant in seeking to stop the proceedings before trial is a heavy burden"- a point that we have taken very carefully on board - the learned Court of Appeal Judge, Southwell, JA, says this at page165:
"Where a prescriptive defence and raised and it is entirely clear on the pleadings and the other material before the Jersey Court that the prescriptive defence will in any event succeed, an action may be struck out as being an abuse of process: compare the decision of the English court of Appeal in Ronex Properties Ltd -v- John Laing Constr.Ltd. But I stress that this will be a ground for striking out only in a very clear case" .
The Court of Appeal goes on at page 167 to say this:
"Arya therefore has no answer to prescription in respect of its tort claims, which must be struck out".
Could we say this in passing: Mr Eves, an experienced litigant, having drafted his Order of Justice, must have been well aware that, on 10 February 1998, in David Eves et Uxor -v- Richard John Michel & Ors, practising as Crills: (10 February 1998) Jersey Unreported, (this was an application to strike out on four grounds, the second of which was: The action was founded in tort and therefore prescribed:) The Court said this:
"It is not necessary for us to deal with the other three grounds except, as I have said, that in view of the clear position as regards prescription in respect of tortious actions - this action being clearly tortious - even if we had not found in favour of the Defendants on Foss -v- Harbottle, we would have been, I think, faced with an impossibility of finding other than the action was itself prescribed"
That case would have alerted him to what was in his Order of Justice, and in our view, he should at that point have gone back to re-examine it in detail.
We really need to go no further on the matter except to look at what is alleged in the Order of Justice. The Order of Justice sets out at paragraph 1, the following facts: there is an alleged conspiracy by members of the Tourism Committee, including the Defendant, to close down the Glendale Hotel, which was the property run by Mr Eves at the time. It refers to a meeting of the Tourism Committee on the 5 October 1989, and that, of course, is the tort of conspiracy to damage the Plaintiff’s business interests. The case relied upon there would be Golder -v- Peak & Ors (1966) JJ 555 , and alternatively, the tort of administrative malfeasance the case there being Sauvage -v- Agriculture and Fisheries Committee [1991] JLR 60 .
Paragraph 2 sets out is an alleged breach of the Defendant’s Oath of Office and support by the Defendant of "‘Lynch Justice’ which he knew to be unlawful ", by confirming that he supported the Committees decision to close down Glendale Hotel for reasons unrelated to those put forward by the Committee. Misfeasance in public office and administrative malfeasance, 8 October 1989.
Paragraph 3 alleges outrageous breach of conscience and deliberate failure to discharge duties as a States Member by failure to oppose the Tourism Committees decision to close down the Glendale Hotel. Those torts apparently are misfeasance in public office, administrative malfeasance. The date 10 October 1989
Paragraph 4 alleges abuse of the Defendants position as a member of the Tourism Committee by allowing Glendale Hotel to re-open under new management upon conditions the Defendant knew to be unlawful and fraudulent. Misfeasance in public office, and administrative malfeasance. The date: 30 October 1989.
Paragraph 5 alleges collusion with the President of the Tourism Committee, with other members of the Committee, with Tourism Department, and Mr Brown to ensure that Glendale Hotel was not ready to accept a party of old age pensioners, thereby defaming the reputation of the Plaintiff. Conspiracy, defamation, and malicious falsehood, are the relevant torts, That was on or around the 17 May 1990.
Paragraph 6 alleges collusion by the Defendant and other Tourism Committee members with the "Jersey Evening Post" to give maximum publicity to the circumstances outlined above and publicly to destroy the reputation of the Plaintiff and his wife. That again is the tort of conspiracy and defamation. The cases are Woolmer -v- WE Guiton & Company Limited [1966] JJ 667 , and Johnson -v- Lucas [1982] JJ 67, and that deals with various Tourism Committee meetings in the Spring of 1990.
Paragraph 7 sets out the alleged carrying out by the Defendant of acts which he knew to be fraudulent, unlawful and in breach of his oath of conscience as an elected Member of the States, in connection with conditions imposed by the Committee on the reopening of the Glendale Hotel. Those torts are misfeasance in public office and administrative malfeasance, and occurred in the Spring of 1990.
Paragraph 8 alleges divulgence of confidential information to the "Jersey Evening Post", relating to an emergency meeting of the Tourism Committee on the 16 July 1990, constituting a further breach of the Defendant’s oath of office and a deliberate act to erode the reputation of the Plaintiff and his business. Those offences are defamation and the torts are defamation and malicious falsehood and the relevant date is the 16 July 1990.
Paragraph 9 alleges involvement of the Defendant in a personal vendetta against the Plaintiff and his wife, constituting further breach of the Defendant’s oath of office as an elected Member of the States, by supporting an act he knew to be dishonest, deceitful, and an abuse of power. Those torts are misfeasance in public office and administrative malfeasance and occurred on the 2 August 1990.
Paragraph 10 sets out an alleged breach of the Defendant’s Oath as a States Member, making false and misleading statements, duress, and being party to illegitimate acts of the Tourism Committee. The torts there again are misfeasance in public office and administrative malfeasance on or around the 30 August 1990.
Paragraph 11 alleges support by the Defendant of a Tourism Committee decision in breach of his oath of conscience, conspiracy to destroy the Plaintiff’s business interests, being party to an illegitimate threat and blackmail by the Tourism Committee. Those are torts of conspiracy and malicious falsehood. The date is the 8 September 1990.
Paragraph 12 alleges involvement by the Defendant in conspiracy to put the Plaintiff out of business, and breach of oath of conscience as a States Member. Those torts are conspiracy and misfeasance in public office and administrative malfeasance, and they occurred on or before the 27 September 1990.
Paragraph 13 alleges breach of the Defendant’s oath of office, by being party to bringing the Plaintiff and his wife before the Royal Court for contempt, and failing to discharge duties in an honest manner, and of causing chaos to the Plaintiffs business. Those torts are misfeasance in public office and administrative malfeasance, and those occurred on the 11 October 1989.
Paragraph 14 alleges an attack on the Plaintiffs reputation by the placing of an advert in the "Jersey Evening Post" seeking complaints against the Plaintiffs tour operating business, in an attempt to defame the Plaintiff and or his business. Those torts -defamation, malicious falsehood, misfeasance in public office and administrative malfeasance - occurred around the 12 February 1992.
Paragraph 15 alleges outrageous abuse of privilege as a States member, by asking questions in the States, causing damage publicly to the Plaintiff and his business, as a result of a Radio Jersey broadcast and a "Jersey Evening Post" article. Those torts are misfeasance in public office, administrative malfeasance, defamation and malicious falsehood, and occurred on or around the 20 March 1992.
Paragraph 16 alleges damaging publicity in the "Jersey Evening Post" against the Plaintiff and his business, arising from failure by Mr Clucas to gain permission to board a flight booked through Blue Horizon Holidays Limited. An alleged vendetta against the Plaintiff in his business in conjunction with the President of the Tourism Committee. Those torts are defamation, and malicious falsehood, and occurred on or around the 4 June 1992.
Paragraph 19 alleges a deliberate act of bad faith on the part of the Defendant and a breach of his Oath as a States Member, misleading the Tourism Committee by remaining silent. That is the tort of misfeasance in public office and the tort of administrative malfeasance, and those occurred around 8 October 1989.
We are clearly of the view - indeed there is no doubt in our minds - that there has been a clear prescription period from the time the alleged events occurred, to the time that the Order of Justice was served.
Rule 6/5 of the Royal Court Rules 1992 is perfectly clear:
"Prescription of a right of action is interrupted inter alia on service of the summons in the action for appearance before the Court".
And just so that we can understand the dates, the Order of Justice was served on the Defendant on the 18 December 1997, and all the allegations occurred, more than three years prior to that date. There is an absolutely clear prescription applicable to all those paragraphs of the Order of Justice.
We are not at all certain that had Mr Eves been here, he would have been able to help us. We are very grateful to Advocate Belhomme, and we regret we have not done full justice to the immense amount of work that he has carried out in preparing all the cases and the background for us, but we feel that what we have outlined here is quite sufficient for us to reach the decision that we have today.
We therefore order those paragraphs to be struck out, which leaves Mr Eves then with two paragraphs available to him, but those are still being dealt with by Advocate Livingstone. We would merely add this: When Mr Eves receives a copy of this Judgment - which we will ask the Greffier to send him as soon as it is transcribed - he should be cautious in our view, before he proceeds further.
Authorities
Hambros Bank -v- Eves (11 th January 1995) Jersey Unreported CofA
Hallam -v- Riley (1975) JJ 193
Golder -v- Peak et aus (1966) JJ 555
Sauvage -v- Agriculture & Fisheries Committee (1991) JLR 60
Woolmer -v- W.E. Guiton & Co Ltd (1966) JJ 667
Johnson -v- Lucas (1982) JJ 67
In re: Wooley [1991] JLR N.11; (2 nd December 1991) Jersey Unreported.
Le Cocq -v- Gillespie [1991] JLR N.5; (12 th March 1991) Jersey Unreported
Mauger (née Kenny) -v- Batty [1995] JLR N.9; (9 th October 1995) Jersey Unreported
Eves et Uxor -v- R.J. Michel et aus practising: (10 th February, 1998,) Jersey Unreported
Minories Finance Limited -v- Arya Holdings Limited [1994] JLR 149 CofA
R.S.C. [1997 Ed’n] Volume 1: 0.18/19/11:
0.18/19/13;
0.18/19/19;
Royal Court Rules 1992, as amended: Rule 6/13
Law Reform (Miscellaneous Provisions) (Jersey) Law, 1960: Article 2