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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/228 - Corella and Ors v Lewin and Ors [1998] UR 228 (18 November 1998)
URL: http://www.bailii.org/je/cases/UR/1998/228.html
Cite as: [1998] UR 228

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ROYAL COURT

(Samedi Division)

18 November 1998

 

Before: Sir Peter Leslie Crill, KBE

and Jurats Gruchy and Tibbo

 

 

BetweenCorella LimitedFirst Plaintiff

S & J Properties Limited Second Plaintiff

Ashmill Holdings Limited Third Plaintiff

B T B LimitedFourth Plaintiff

Barry Edward DennisFifth Plaintiff

Edward Alfred Stevenson Dennis Sixth Plaintiff

Nicholas EvansSeventh Plaintiff

Christine EvansEighth Plaintiff

And Peter Randolph LewinFirst Defendant

Jacqueline Brenda CollinsSecond Defendant

Eric Sydney AxfordThird Defendant

Michael Charles RussellFourth Defendant

(The first, second, third and fourth defendants trading as Russell Limebeer Accountants)

Sierra Trust Company LimitedFifth Defendant

(by original action)

 

AND

 

BetweenSierra Trust Company LimitedPlaintiff

AndCorella LimitedFirst Defendant

Nicholas Evans Second Defendant

(By counterclaim)

 

Appeal by the Plaintiffs, under Rule 15(2) of the Royal Court Rules 1992, against the decision of the Judicial Greffier of 3rd August, 1998, to refuse requests for particulars/better statement of part of nature of case.

Advocate P C Sinel for the Plaintiffs

Advocate R J Michel for the Defendants

JUDGMENT

THE COMMISSIONER: On the 2nd September, 1998, the learned Greffier Substitute gave his judgment supporting the reasons for his decisions on the 3rd August, 1998, in respect of applications by the plaintiffs for 37 requests for particulars, or a better statement of, the nature of the defendants case. It is important to note that the request was not confined to particulars but also included, as I have mentioned, a better statement of the nature of the defendant’s case.

In the event the learned Greffier Substitute granted, either by agreement or by his order, all the applications except four, and it is in respect of those four that the plaintiff’s have appealed to this Court today.

In considering whether to allow this appeal in whole or in part, the Court has had to have regard to the principles upon which it acts in considering appeals from the Greffier, be it the Greffier himself or Greffier Substitute, in respect of the procedural matters before this Court because it must not be forgotten that we are today concerned not with the merits of the case, but purely with procedure, and ensuring that each side knows fully what it is they have to meet.

Certainly, so far as the general weight to be attached to a decision of Greffier in cases of this nature, a Court has always given proper consideration to his reasons, and these remarks I am now making are supported by a passage in the case of Mayo Associates S.A -v- Cantrade Private Bank of Switzerland (C.I.) Limited (7th December, 1995), Jersey Unreported. At page 2 of that judgement; the Court said:

"Firstly, that while we are to consider the matter ‘de novo’ we attach great weight to the learned Greffier’s judgment".

It goes on to refer to an earlier judgment in which the Court said:

"The Judicial Greffier is clearly a master of the procedure of this Court, we are unused to dealing with matters of practice and procedure in this way."

However, that does not mean to say that this Court is precluded from disturbing a Greffier’s finding if it thinks that he erred, but we have to be satisfied that he did so before we interfere.

There are four matters complained of in respect of this Appeal. The first relates to certain parts of the Order of Justice, to which I must now turn. The Order of Justice alleges, in paragraph 7 and 8 as follows:

"In or about November, 1993, S&J Properties was provided by Mr Harris and/or Mr Lewin with a prospectus relating to Corella and its subsidiaries. In addition Mr Lewin, as the executive director and nominal shareholder of Corella provided a letter…"

- The date of the letter is not mentioned in the Order of Justice, but it is in fact a letter of the 24th March, 1994 -

"…addressed to the directors of S&J Properties which contained the following undertaking:"

There follows a number of undertakings in respect of Cebadale and other matters, and Corella. Paragraph 8 continues:

"In reliance upon the said prospectus, and in reliance upon and as consideration for the said undertaking and other assurances given in the letter from Mr Lewin, and trusting that Mr Lewin would carry out his duties as a director of Corella with the care, skill and honesty which could be expected of a professional accountant and director, S&J entered into an agreement with Harris, dated 24th March, 1994 ("The S&J Purchase Agreement) for the purchase of 25% of the shares in Corella for a consideration of £125,000".

The reply to the allegations, contained in paragraph 8, as referred back to paragraph 7, which I have read, is contained in paragraph 9.4 of the Defendant’s answer and counter claim, which is as follows:

"That at no time did Mr Lewin and /or any of the other defendants enter into a contractual agreement or arrangement with S&J Properties and/or Mr Stuart Meldrum….."

I interpose here, who is the Owner of S&J Properties,

…"save and to the limited extent set out in the said letter of 24th March, 1994".

The learned Greffier says this in relation to that paragraph:

"The Defendants have very clearly stated that the only contractual agreement or arrangement entered into with the second plaintiff with regards Mr Stuart Meldrum, was in the terms of the undertaking. If the plaintiff’s are alleging that the undertaking constituted more than merely an undertaking then it is up to them to plead that, and the defendants can then respond to that specific pleading."

Mr Michel, for the Defendants has said that the Greffier was right; a contract was pleaded by the plaintiffs, and to that extent it is difficult quite to understand the wording, but Mr Michel now accepts that a contract was pleaded by the plaintiffs, and denied. Anything further that is being sought at the moment, in our opinion, by the plaintiffs is in fact a disclosure of the evidence to support that denial, and it is quite clear from the case of Daisy Hill Real Estate Ltd-v- Rent Control Tribunal, (1995) JLR 176, that that should not be permitted, and I refer to the paragraph beginning at line 32 on page 180 of that Judgment:

"Particulars will normally narrow the issues between the parties and limit the parties to matters which are fairly contained within them. There is, in our view, a distinction to be drawn at this stage. A party is entitled to know the outline of his opponent’s case; and the Greffier will always order a party to give particulars if he is satisfied that if he does not the applicant will be uncertain as to what is going to be proved against him at trial. What the Greffier will not do, is to order particulars of how the other party will prove his case. That, to us, is a matter of evidence and if the only purpose of particulars is to obtain details of such evidence, that would properly be regarded as an improper application. But in the case where the only object is to obtain particulars, if the information asked for is necessary, we would say clearly necessary, then the application is a proper one and must be given, even though it will disclose some evidence upon which the other party will rely at trial."

Authorities are then cited for that proposition.

In our view, we think that the application to review the decision of the Greffier is misconceived and is in fact searching for the evidence by which that denial is to be proved, and accordingly we dismiss the appeal in respect of Request. 4.

We now turn to Request 8. This stems from paragraph 15 of the Order of Justice which deals with a number of matters concerning actions which had to be taken by some of the plaintiffs in respect of Corella Limited which they say were the result of the actions and omissions of a certain Mr Harris, and a number of examples are given, both there and in paragraph 16. In the answer of the Defendants they plead:

"That it is denied that the plaintiffs themselves discovered that they had been misled by Mr Harris; it was Mr Lewin, in the course of administrating Corella and the Corella subsidiaries, who discovered facts which were previously unknown to him. Save that some, if not all, of these alleged inaccuracies, the true existence of which is not admitted, could or would have been discovered had Killminster, Cameron & Co instigated searches in the Companies Register and the Land Registry which searches Killminster Cameron & Co declined to undertake".

Request No.8 was:

"For all of the said facts which Mr Lewin discovered, which were previously unknown to him, together with the date upon and the manner in which discovery was made".

In our view this is a perfectly proper request. The word used in the answer, ‘facts’ is not limited to the allegations that I have mentioned in paragraphs 15 and 16 of the Order of Justice, and in our view is wide enough to entitle the plaintiffs to ask for further and better particulars as they have done, and accordingly that part of the appeal is allowed.

The next matter is in respect of Request.12, which concerns allegations that Cebadale, a company concerned in this case, had received monies, which had been used for the development of certain properties, by way of loan from Mr Harris and that the benefit of that loan had been assigned to Goldsphere. That in fact is the answer in respect of the allegations that there was a loan.

Request 11 mentions this and has been accepted by the Defendants:

"The date, terms, and surrounding circumstances for each of the alleged instances in which Cebadale received monies from Mr Harris".

The plaintiffs made a further request ( Request 12):

"All facts and matters relied upon in support of the allegation that the monies allegedly so received were received by way of a loan".

In our opinion the appeal against that decision of the learned Greffier Substitute should be and is dismissed.

The last matter relates to Request 36, that is in respect of paragraph 28 of the Order of Justice, which is as follows:

"The effect of the creation of the Goldsphere Charge, Mr Lewin’s actions in supporting Mr Harris in his efforts to rely upon it as against Corella Investors, and Mr Lewin’s refusal to use his position as a director of Corella to assist the Corella Investors, was greatly to increase the cost incurred by Ashmill BTB and the Corella Investors in bringing about the objectives pleaded in paragraph 16 above.".

Paragraph 16 sets out at least three matters which required investigating by the plaintiffs in respect of actions carried out to their detriment, and the paragraph I have just read ( 28), makes it clear that they are laying a good deal of the blame, if not entirely on Mr Lewin then partly on Mr Lewin and partly on Mr Harris, but sufficiently on Mr Lewin for his refusal to act in a certain way. The reply of the Defendant is as follows:

"Until he resigned as a director of Corella, Mr Lewin did all that could be expected of him to assist the Corella Investors".

Request 36 sought information as to:

" what the Defendants allege to have been the boundaries to the assistance which the Corella Investors were entitled to expect from Mr Lewin, and in particular, whether and if so upon what grounds, it is alleged that the Corella Investors’ entitlement to assistance from Mr Lewin was in any, and if so what, respects circumscribed by a duty on his part to act in the best interests of Mr Harris".

The learned Greffier then set out, what I have already read and says that 29(2) is a positive averment which cuts across the allegations, he also goes on to say:

"However, in Request 36 the plaintiffs are asking the defendants to plead what were the duties of Mr Lewin in relation to assisting the Corella Investors. It is clearly the responsibility of the plaintiffs to plead those duties and then to allege that Mr Lewin failed to fulfil those duties. If they do so then the defendants can then plead both as to whether such duties exist and as to whether they have been fulfilled."

As a general statement of the Law, that is unexceptional, but in the circumstances of this case we are satisfied that the duties have in fact been clearly pleaded and that the plaintiffs are entitled, for the sake of clarity, to know upon what the defendants are relying - not the evidence, of course, but what they say in pleadings, what the duties were. As to whether they were fulfilled would be a matter for the Court to decide in due course, and therefore as regards an appeal against a refusal to order particulars under request 36, that appeal is allowed.

Authorities.

Mayo Associates & Ors-v-Cantrade Private Bank (Switzerland)(C.I.) Ltd. (7th December, 1995) Jersey Unreported.

Daisy Hill Real Estates Ltd.-v-Rent Control Tribunal Ltd. (1995) JLR 176


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