Jersey Unreported Judgments

Trust - re anti-suit injunction.

[2021]JRC286

Royal Court

(Samedi)

2 November 2021

Before     :

T. J. Le Cocq, Esq., Bailiff, sitting alone

 

Advocate H. B. Mistry for the Fifth Defendant. 

Advocate E. B. Drummond for the First Plaintiff.  

EX Tempore judgment

the bailiff:

1.        This is an application brought by HRH Princess Camilla De Bourbon des Deux Siciles (the 5^th Defendant) for the adjournment of an anti-suit injunction application brought by Cristiana Crociani (the First Plaintiff) to prevent the Fifth Defendant from continuing with proceedings she has commenced in Paris against the First Plaintiff and others.  The basis of the anti-suit application is that the Paris proceedings amount to a collateral attack on numerous findings and determinations by the Courts in Jersey and raise matters that are res judicata.  

2.        In the Paris proceedings there are answers to be filed on the 23^rd November 2021, but I am advised that those answers will deal with matters of procedure including issues of res judicata and jurisdiction but will not deal with the substance of the claims made in Paris.  

3.        The date for the anti-suit application was fixed in the middle of September.  At the same time an affidavit was filed on behalf of the First Plaintiff which foreshadowed to a significant extent the submissions made in the substantive skeleton argument filed with the Court last Friday together with accompanying bundles in connection with the main arguments in the anti-suit proceedings.  

4.        Advocate Mistry applies for an adjournment of the hearing, which is currently scheduled for Wednesday of next week, on the basis that he had previously asked for more detail in connection with the application made for an anti-suit injunction.  He argues that detail has only been provided by the filing of the substantive skeleton argument and bundles on Friday last, as I have mentioned.  Although he has immediately sent the skeleton argument to French lawyers acting in the Paris proceedings he does not, he submits, have time to prepare to fully deploy his client's case before this Court on Wednesday of next week.  

5.        The principles that I apply are well travelled within this Court.  I first make reference to the States Greffier v Les Pas Holdings Limited [1998] JLR Notes 3a in which the headnote states: 

"The party must be allowed adequate time to present his case; however, the potential prejudice to the parties and to the public interest must be balanced. The power to adjourn should be exercised with great care and only when there is a real risk of serious prejudice which may lead to injustice: in practice, this test is difficult to satisfy"

6.        That is the overriding thrust of the Court's approach, and, if anything, that approach has gained more weight in the overriding objective.  

7.        The issues that I consider, given that overriding objective, are set out in Dick Stock v G. B Trustees Limited, J. W. Dick II, Sharp (for the minor and unborn beneficiaries) and J. W. Dick [2019] (1) JLR Note 6, which sets out seven considerations for the Court.  Naturally not all of those considerations in any particular case bear equal weight, but it is for the Court to take them into account to the extent it deems appropriate in deciding whether an adjournment should take place.

8.        The first consideration is,

"...the importance of the proceedings and their likely adverse consequences to the party seeking the adjournment;...

9.        The proceedings are important, in as much as they are serious.  They derive from very substantial proceedings within this Island over many years and they are therefore important in my view.  The consequences for Advocate Mistry's client will of course be significant, in as much as she will be prevented from continuing with her proceedings in Paris if the Court grants the anti-suit injunction that is sought.  

10.      The second consideration is

...the risk that that party may be prejudiced in the conduct of the proceedings if the application to adjourn is refused;

11.      In my view, that is a harder test for Advocate Mistry to satisfy.  There is no doubt that the larger part of the thrust of the argument was deployed in the affidavit of Miss Shah and now detailed and elaborated in submissions made in the skeleton argument lodged on Friday last.  

12.      It does not seem to me that this is a matter predominately of French Law.  It is a matter of Jersey Law and the facts are the Jersey matrix of facts as has come out from the various determinations by the Court here from time to time.  French legal input will undoubtedly be necessary to the extent that those facts will be relevant to the French proceedings and those determinations will be undermined by the French proceedings, but it is predominately a Jersey matter.  It is a matter for Advocate Mistry to take instructions, very possibly from his French counterparts. 

13.      In my view, there has been since the middle of September the availability of a process identifying and discussing those issues and there is sufficient time between Friday last and Wednesday of next week to take full instructions on them. 

14.      The third factor is the risk of prejudice to the First Plaintiff.  If this adjournment were granted prejudice would, in my view, be substantial.  It is clear that, if it is unjustified to proceed in France because there are issues res judicata and collateral attack decisions in litigation that she has been involved in for many years then that would be oppressive and arguably vexatious.

15.      I am concerned to note, that in response to the filing of an anti-suit application in this Court, the 5^th Defendant has filed an anti-suit application in the Paris Courts in apparently stand-alone proceedings.  I am told that they are at an early procedural stage, but it does appear that there are jurisdictional rivalries in play which would not, in my view, be in the interests of justice to leave undetermined for long. 

16.      The prejudice to the First Plaintiff is further emphasised by the fact that there are a limited number of judges who could be available to deal with this matter were I to adjourn it, given conflicts which have already been referred to and diary availability.  I could not sit again until the 23^rd December 2021 which is a substantial delay in the context of a matter which was scheduled to be dealt with next week. 

17.      The other factors in the Dick Stock judgment relating to the convenience of the Court and the interests of justice, generally in the efficient dispatch of Court business and desirability of not delaying future litigants by adjourning early and leaving the Court empty are all in favour of a hearing of the anti-suit injunction next week.

18.      The final consideration is:

  "...[to]the extent to which the party seeking the adjournment has been responsible for creating the difficulty..."

19.      I make no findings as it would be unfair of me to do so in this respect, but as I have already indicated it seems to me that much of the argument to be deployed before the Court next week has been foreshadowed already in the affidavit of Miss Shah.  A process for exchanging affidavits and skeleton arguments which would have resulted in both parties exchanging skeletons I believe last week, which had been proposed by the First Plaintiff's legal advisers, did not meet with agreement from the 5^th Defendant's legal advisers.  Accordingly the process which would have put all of the paperwork before the Court was not accepted by them, and the delay is inherent in that refusal to accept a reasonable process. 

20.      For all of those reasons I believe it is in the interests of justice not to grant the adjournment applied for and the case will proceed next week.  In my view, subject to any further submissions, a skeleton argument should be filed by the 5^th Defendant dealing with the points raised in the skeleton argument of the First Plaintiff by close of business the second day before the hearing.  In other words, allowing a full day between its filing and the hearing.  It should be filed by 9am Tuesday 9^th November 2021. 

21.      Costs reserved, to be dealt with next week. 

Authorities

States Greffier v Les Pas Holdings Limited [1998] JLR Notes 3a. 

Dick Stock v G. B Trustees Limited, J. W. Dick II, Sharp (for the minor and unborn beneficiaries) and J. W. Dick [2019] (1) JLR Note 6.

Dick Stock v GB Trustees and Ors [2019] JRC 064