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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of the Treasurer of the States [2013] JRC 113 (14 June 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_113.html Cite as: [2013] JRC 113 |
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Debt - reasons for authorising the Viscount to distrain on a vessel and sell it.
(Samedi)
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Kerley and Liston. |
IN THE MATTER OF THE REPRESENTATION OF THE TREASURER OF THE STATES OF JERSEY
AND IN THE MATTER OF AN ACT OF THE PETTY DEBTS COURT
Advocate G. G. P. White for the Representor.
judgment
the deputy bailiff:
1. In the afternoon of the Friday Court on 3rd May 2013, the Court, on the representation of the Treasurer of the States, authorised the Viscount, subject to receiving an indemnity from the Treasurer, to distrain on the vessel "Angel Dust" ("the vessel") and sell it. It was indicated that a reasoned decision would follow, which is now given.
2. On 30th May 2012, judgment was taken in the Petty Debts Court by the Treasurer of the States against a Mr Nelio Gouveia for the sum of £229.67 in respect of charges due by the Defendant, Mr Gouveia, to the Treasurer for the vessel for the period 1st February 2012 to 12th April 2012 in respect of the "boats on quays" charges. The Defendant was ordered to pay the costs of the action, and the Act of the Petty Debts Court concludes:-
3. The Act of the Petty Debts Court was sent to the Viscount's Department for enforcement, and subsequently returned to the Treasurer with a confirmation that the debtor had left the address given to the Viscount by the Representor, which address was the only address he held for the Defendant, and that the Defendant's whereabouts were unknown. The evidence before us suggests that there were other debts owed by the Defendant to different creditors, and in addition that the Defendant had closed his bank account in July 2012.
4. On 27th February 2013 the Group Commercial Director, on behalf of the Harbour Master, wrote to the Defendant at his last known address to inform him that unless the vessel was removed from St Catherine's boat park within 7 days of the date of service of the letter, the Harbour Master would cause the vessel to be removed from its present location, and the Defendant would be responsible for all costs associated with the removal of the vessel and a demand for payment of those costs would follow. The letter concluded:-
"You should also note that if, in due course, the removal costs are not settled within 7 days of being demanded, or if it otherwise appears to me that the vessel has been abandoned, I am empowered by the Regulations to order the disposal of the vessel as I deem appropriate, which may include sale by auction."
5. It is not clear from the matters put before us whether the removal costs were in fact claimed from the Defendant. What is clear, however, is that the judgment debt in respect of the vessel remains unpaid.
6. When the Representor sought to persuade the Viscount that the vessel, being movable property, could be distrained upon and sold to satisfy the judgment debt, the Viscount took the view that the judgment debtor would not necessarily be aware of the Viscount's distraint upon the vessel for the purposes of arranging a sale by auction, and that the Viscount was bound by Rule 11/4(1) of the Royal Court Rules 2004, and could not therefore take further action in relation to the vessel without further order of the Court.
7. Rule 11/4(1) of the Royal Court Rules is in these terms:-
8. The Representor has been advised that the Petty Debts Court has exhausted its jurisdiction when it gave judgment permitting the distraint and sale of the Defendant's movable property, and therefore is unable to take any further steps to assist the Representor in having the judgment debt satisfied.
9. Thus the difficulty faced by the Representor is that notwithstanding the express terms of the Act of the Petty Debts Court of 30th May 2012 which authorise him to have the personal property of the Defendant arrested and sold, the Viscount considers he is unable to give effect to the Act and the Petty Debts Court has determined that it is functus officio in relation to this matter.
10. This Court was established by Act of the States dated 16th August 1852, confirmed by Order in Council of 29th December 1853. The first paragraph of Article 14 of the Loi (1891) sur le recouvrement de menues dettes (the "1891 Law") as then adopted was as follows:-
However, by the Law Reform (Miscellaneous Provisions)(Jersey) Law 1967, the words after "biens meubles du defendeur" were deleted. It appears the States thus resolved at that stage that the rule that no sale of goods could take place until 8 days had gone by - no doubt to enable an appeal to take place - should be abrogated. That is a strong indicator that the Viscount could proceed immediately with a sale of the debtor's goods without further order of the Court in order to satisfy a judgment debt, but even before the amendment the inhibition on the Viscount's powers in this respect was limited to the 8 days following the distraint.
11. Article 22 of the 1891 Law provides as follows:-
12. It is immediately to be noted that the Act of the Petty Debts Court is to give the Plaintiff the rights to seize and sell the movable property of the Defendant in default of payment within the time fixed. The Act of the Court in this case therefore is entirely within the jurisdiction of the Petty Debts Court under the 1891 Law.
13. The question may arise as to whether the passage in Article 22, to which emphasis has been added above, is of general application, or is limited to the interrogation of the parties and of witnesses. In our judgement it is not of general application. We say this for two reasons. First of all it is a passage which appears in an article solely concerned with the taking of evidence on oath. Secondly, the rules of the Petty Debts Court are not the same as the rules of the Royal Court, as is plain from the exercise by the Superior Number of its rule making power to which we refer below, which indicates that the view has not been taken as far as one is aware, that the requirement to follow the rules of the Royal Court is of general application.
14. The power to make rules of the Court vests in the Superior Number of the Royal Court with the advice and assistance of the Rules Committee, pursuant to Article 13 of the Royal Court (Jersey) Law 1948. By sub-paragraph (1)(n) of Article 13, the power of the Superior Number to make rules includes a power to regulate and prescribe matters in relation to the Petty Debts Court which fall within other sub-paragraphs of Article 13(1). This is a statutory recognition that although the subject matter of the rules may be the same in the Petty Debts Court and in the Royal Court, the content of the rules may be different - and indeed this was very obviously the position when one looks at the Petty Debts Court (Jersey) Rules 1992, and the earlier versions of those rules.
15. The Petty Debts Court (Jersey) Rules 2004 came into force on 1st June 2004 and the Royal Court Rules 2004 came into force on 1st February 2005. The similarity between the Petty Debts Court Rules 2004 and the Royal Court Rules which were in force at that time and indeed those which came into force in February the following year is such that it is quite obvious that the draftsman of the Petty Debts Court Rules was aware of the content of the Royal Court Rules. We note also that Rule 9/5(1) of the Royal Court Rules 1992 is in very similar terms to Rule 11/4(1) of the Royal Court Rules 2004, the former rule providing:-
16. The Petty Debts Court Rules 2004 contain no provision equivalent to Rule 11/4(1) of the Royal Court Rules 2004. On ordinary principles of construction, given the similarity in the remaining rules in subject areas where the same matter arises in both the Petty Debts Court and the Royal Court, one would conclude that the omission of Rule 11/4 (or Rule 9/5 in relation to the 1992 Rules) was deliberate. In other words, the statutory jurisdiction conferred by the 1891 Law can simply be exercised in accordance with the Act of Court.
17. In the circumstances, we think the Viscount was entitled, on the existing Act of the Petty Debts Court, to distrain upon the movable property of the Defendant and sell it, without notice to the Defendant if the distraint was possible without notice being given. Accordingly, we think the Treasurer was entitled to ask the Viscount to enforce the judgment debt against the vessel using the powers conferred by the Act of Court.
18. However, that is not to say that there is any criticism raised of the Viscount in this respect at all. Indeed we think that the Viscount acted appropriately cautiously in indicating that he wanted to have further leave of the Court before enforcing the Act against the vessel. It seems to us that there may well be cases in the future where substantial hardship may be caused to a Defendant if an Act of the Petty Debts Court were to be enforced by a distraint without the Defendant knowing about it.
19. This possibly is recognised in a different context by Article 3 of the Loi (1867) sur la Cour pour le recouvrement de menues dettes which provides:-
This provision is not of general application, so it seems to us, but it both recognises that a provisional arrest can include a power of sequestration and that the Court may subsequently confirm that at a later stage.
20. The issue which is prompted then is whether it is open to the judge of the Petty Debts Court to ensure that Acts of Court are not enforced without leave of the Court in circumstances where the express provisions of Article 14 of the 1891 Law appear to indicate that the Act may afford the Plaintiff the ability to seize and sell the movable property of the Defendant. We think that it is and that consideration might be given to adding language to this effect as standard in the Acts of that Court. Furthermore, in our judgement the approach taken by the Greffier of the Petty Debts Court in the present case that the Court was functus officio, having given its judgment, was completely understandable, but in error. Enforcement of orders of a Court is within the control of the Court making those orders as long as the order was within its jurisdiction in the first place. In our judgement, that is a necessary ingredient in the Court's ability to do justice, because the facts of any particular case will vary from time to time.
21. We think it might be desirable for the Petty Debts Court Rules to include the provision which is to be found in Rule 11/4(1) of the Royal Court Rules 2004, but even without that express provision, it was open to the Representor to apply to the judge of the Petty Debts Court for an order which was appropriate to the enforcement of an Act of the Petty Debts Court. In the absence of the Petty Debts Court entertaining such an application, as here, it is open to the Royal Court, exercising its supervisory jurisdiction, to make the appropriate orders, which we did.
22. In summary therefore, we think that the judge of the Petty Debts Court may wish to give consideration to amendment of the standard enforcement provisions in Acts of the Petty Debts Court, and that the Superior Number of the Royal Court may wish to make an amendment to the Petty Debts Court Rules so as to introduce the equivalent of Rule 11/4 of the Royal Court Rules 2004.
