Striking out - detailed reasons for granting defendants' application to
strike out the plaintiff's order of justice.
[2019]JRC051
Royal Court
(Samedi)
28 March 2019
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Before :
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Advocate Matthew John Thompson, Master of
the Royal Court.
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Between
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Enrico Verga
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Plaintiff
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And
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Nedbank Private Wealth Limited
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First Defendant
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Lina Da Costa
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Second Defendant
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Cameron Walker
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Third Defendant
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Angela Mary Davies
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Fourth Defendant
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Advocate H. B. Mistry for the Plaintiff.
Advocate O. A. Lindop for the Defendants.
CONTENTS
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Paras
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1.
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Introduction
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1
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2.
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Background
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2-13
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3.
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The Limitation question
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14-24
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4.
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Other arguments
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25-26
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5.
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Absolute privilege
immunity
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27-46
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judgment
the master:
Introduction
1.
This
judgment contains my detailed written reasons for granting the
defendants’ application to strike out the plaintiff’s order of
justice.
Background
2.
The
proceedings commenced by the plaintiff were by way of order of justice signed
by the Deputy Bailiff on 14th December, 2018 and served by the
Viscount’s Department on 20th December, 2018. I refer to the chronology of events
leading to the signing of the order of justice by the Deputy Bailiff and its
subsequent service later in this judgment.
3.
The
allegations of the plaintiff in the order of justice follow on from an assize
trial in the matter of AG v Caruso, Siracusa and Verga leading to not guilty
verdicts on 16th December, 2015. The plaintiff and his co-accused were
charged with conspiracy to commit fraud.
4.
The
charges related to an alleged attempt by the co-accused including the plaintiff
to use a forged document to obtain money from bank accounts maintained by the
defendant.
5.
The
plaintiff’s case in summary is that one or more of the defendants are
liable to the plaintiff in damages for reporting various matters to the Jersey
Police leading to the arrest of the plaintiff and the criminal
proceedings. In particular, the
plaintiff was remanded in custody until his acquittal between 5th
February, 2015 and 16th December, 2015. The plaintiff alleges that as a result of
being remanded in custody he was dismissed from his employment in Italy and
also lost the opportunity of advancing other commercial projects where he would
have received financial reward.
6.
The order
of justice also alleges the following duties of care were owed:-
(a) A duty of care by the first defendant to carry
out comprehensive enquiries in relation to certain accounts in the name of a Mr
Alemi. It was in respect of these
accounts that a Mr Siracusa sought to obtain information where the plaintiff
pleads that he was acting as an interpreter. In the course of oral argument, Advocate Mistry clarified that this duty arose as
a result of the duty not to make negligent misstatements (see the well-known
case of Hedley Byrne v Heller 1964 A.C.465 as explained in Henderson
v Marrett Syndicates Limited [1995] 2 A.C. 145).
(b) The plaintiff further alleges that the
defendants owed a duty of care to ensure the contents of affidavits used in the
criminal proceedings were true and were not uttered or published maliciously
and that any anything reported was true and accurate.
7.
It is
common ground between the parties that the claims brought by the plaintiff are
all claims in tort and therefore a three year limitation period applies by
reference to Article 2(1) of the Law Reform (Miscellaneous Provisions)
(Jersey) Law 1960. Article 2(1)
provides that the limitation period for torts is 3 years from the date upon
which the cause of action accrued.
I address later when the cause of action accrued in this matter.
8.
In
relation to the history of the proceedings, it is also right to set out in more
detail the steps taken by the plaintiff to issue proceedings. This is because the plaintiff was acting
in person and therefore proceedings could only be issued by the Bailiff or the
Deputy Bailiff agreeing to sign an order of justice (see Rule 20/5(1) of the Royal
Court Rules 2004, as amended). This
history is taken from emails sent between the plaintiff and the Court prior to
the Deputy Bailiff signing the plaintiff’s order of justice on 14th
December, 2018.
9.
The
plaintiff emailed the Bailiff’s Judicial Secretary on 7th
December, 2018 applying for an order of justice to be signed. In his email the plaintiff set out that
he was aware that he needed to make arrangements for any order of justice, once
signed, to be served on each of the defendants.
10. On 11th December, 2018, the Judicial
Greffier (Advocate Adam Clarke) emailed the plaintiff with certain observations
on the order of justice provided on 7th December, 2018. The email also noted that the plaintiff
had previously been in the correspondence with Advocate Paul Matthews (Advocate
Clarke’s predecessor as Judicial Greffier) as recently as June 2018. The email also encouraged the plaintiff
strongly to obtain legal representation and contained the following statement
:-
“Moreover, the obtaining
of local counsel will satisfy two immediate pressing issues namely:-
…………
(2) Your local counsel will be able
to seek to obtain a standstill agreement with the defendants to suspend the
time limit within which to issue proceedings and, if that is not forthcoming,
ensure that the order of justice is issued at the appropriate time.”
11. The plaintiff replied on 14th
December, 2018, enclosing a revised order of justice which was signed by the
Deputy Bailiff later that day.
12. On 14th December, 2018, at 17:48 the
Judicial Greffier informed the plaintiff that the order of justice had been
signed by the Deputy Bailiff. The
Judicial Greffier’s email was copied to Mr Paul Stephens at the
Viscount’s Department to enable the latter to effect service on the
defendants who were all resident in Jersey. The Judicial Greffier in the interim
retained the original order of justice signed by the Deputy Bailiff.
13. Emails then followed between the plaintiff and
the Judicial Greffe to enable the plaintiff to transfer the appropriate fee for
the issuing of the order of justice and service. It appears that the plaintiff
transferred fees on or around 17th December, 2019. Service was then effected on 20th
December, 2019. Given that all the
defendants are based in Jersey, I have assumed for the purposes of this
judgment that service was effected as soon as the fees payable by the plaintiff
for the issuing of the order of justice and service were received in Jersey.
The limitation question
14. The primary ground the defendants relied upon
to strike out the plaintiff’s claim was that the proceedings were out of
time. This was said to be because
more than 3 years had elapsed since the cause of action accrued.
15. The defendants’ argument was that, at the
latest, the cause of action accrued when the second and third defendants gave
evidence and repeated their allegations that the plaintiff and his co-excused
were acting suspiciously. This
occurred on 23rd November, 2015.
16. The defendants’ submission was therefore
that at the latest all the ingredients of the claims the plaintiff was pursuing
by his order of justice had come together by 23rd November,
2015. This meant that the 3 year
limitation period commenced on that date and therefore the claim became time
barred by 22nd November, 2018, before the date upon which the order
of justice was served on the defendants.
17. I should record that it was not in dispute that
under Jersey Law and procedure what is required to interrupt the limitation
period is service of proceedings rather than issue.
18. In relation to question of when the
plaintiff’s cause of action accrued, in my judgment the cause of action
did not accrue until the plaintiff was acquitted on 16th December,
2015. I have reached this
conclusion because, had the plaintiff been convicted, there would be no cause
of action because the conviction would lead to at least the implicit position
that evidence filed by the defendants with the police and later with the court
had been accepted and so no question of negligent misstatement could apply. The alternative analysis, assuming a
duty of care was owed to the plaintiffs as alleged for the purposes of this
part of the judgment, had the plaintiff been convicted of conspiracy to
defraud, he could not be said to have suffered any loss. Any losses he claimed to have suffered
were as a result of being party to a conspiracy to defraud rather than arising
from breach of any alleged duty of care.
Only once the issue of whether or not the plaintiff was a party to a
conspiracy to defraud was resolved by the jury reaching a decision in the
criminal proceedings could the plaintiff be have said to have suffered any loss
(or not as the case may be). It was
only therefore upon acquittal could the plaintiff be said to have suffered loss
and have an arguable cause of action (subject to the other issues I will deal
with later in this judgment). On
this analysis any cause of action did not therefore accrue until 16th
December, 2015. This means that the
limitation period for any claims in tort expired on 15th December,
2018 and accordingly the plaintiff’s claim is out of time.
19. The potential difficulty with this conclusion
that the order of justice was signed on Friday 14th December, 2018. Confirmation of the Deputy
Bailiff’s signature was only provided by email by the Judicial Greffier
to the plaintiff after the court offices had closed which meant that service of
the order of justice could not take place before the limitation period
expired. This gives rise to the question
of whether in such circumstances the limitation period should be suspended
because the plaintiff was not in a position to effect service until after the
limitation period had expired.
20. In my judgment on the facts of this case, I do
not regard it as appropriate to conclude that there is any arguable case to
suspend the limitation period because the plaintiff was not in a position to
effect service before expiry of the limitation period once the Deputy Bailiff
had signed the amended version of his order of justice on 14th December,
2018.
21. This is because the plaintiff firstly had been
in previous communications with Advocate Paul Matthews (the previous Judicial
Greffier) about bringing proceedings in June 2018. Secondly, he was warned explicitly on 11th
December, 2018 by Advocate Clarke as Judicial Greffier, of the need either to
reach an agreement to suspend prescription or to take steps to ensure that
proceedings were served in time.
Despite having been considering issuing proceedings for some months and
despite the express warning, the plaintiff did not engage legal representation
and left matters too late to enable proceedings to be served within time. The difficulty the plaintiff finds
himself in is therefore of his own making because he left matters too late and
in my judgment is not one where the court would suspend prescription.
22. Advocate Mistry argued that I should give
latitude to the plaintiff because he was a litigant in person. I addressed a similar argument in Powell
v Chambers & Anor [2018] JRC 169 at paragraphs 85 and 86 as follows:-
“85. It is also not a relevant factor that the first
plaintiff is a litigant in person.
The position was summarised by Sumption JSC in Barton v Wright-Hassall
at paragraph 18 where he stated as follows:-
“18 Turning to the reasons
for Mr Barton's failure to serve in accordance with the rules, I start with Mr
Barton's status as a litigant in person. In current circumstances any court
will appreciate that litigating in person is not always a matter of choice. At
a time when the availability of legal aid and conditional fee agreements have
been restricted, some litigants may have little option but to represent
themselves. Their lack of representation will often justify making allowances
in making case management decisions and in conducting hearings. But it will not
usually justify applying to litigants in person a lower standard of compliance
with rules or orders of the court. The overriding objective requires the courts
so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f)
. The rules do not in any relevant respect distinguish between represented and
unrepresented parties. In applications under CPR 3.9 for relief from sanctions,
it is now well established that the fact that the applicant was unrepresented
at the relevant time is not in itself a reason not to enforce rules of court
against him.”
86. Lord
Briggs made a similar observation where he stated as follows:-
“…there cannot fairly
be one attitude to compliance with rules for represented parties and another
for litigants in person, still less a general dispensation for the latter from
the need to observe them.””
23. I consider that the same analysis applies to
service of proceedings. Indeed the
very issue in the Barton case referred to in Powell v Chambers
was whether Mr Barton’s claims should be allowed to continue because they
were not served in accordance with the rules and therefore had not been served
within the applicable limitation period.
24. I should also deal with the argument that no
cause of action had accrued.
Advocate Mistry argued although the plaintiff was acquitted, that time
did not start to run until either the time limit for any appeal in relation to
the costs orders made by the Royal Court had expired and that the quantum of
any costs had been determined. In relation
to any appeal he clarified that it was open to the Attorney General to
challenge the costs order made in favour of the plaintiff and therefore until
the time limit for any appeal had expired.
His client did not know the extent of any damage he had suffered. In addition, even if there was no
appeal, the precise limit of damage suffered could not be ascertained until a
taxation was completed. However, in
Lapidus v Le Blancq, Voisin and Seven Others [2013] 2 JLR 308 at
paragraph 49 I addressed this question.
Difficulty in quantification of damage does not mean that a cause of
action has not arisen in tort.
Rather the cause of action arises when damage has been suffered even if
the precise extent of that damage is not easily ascertainable. It is clear from the
plaintiff’s order of justice that he was remanded in custody between
February and December 2015.
Furthermore it is alleged that the plaintiff lost his employment and
other opportunities to earn a living.
The plaintiff therefore clearly suffered damage in 2015 even if the
precise amount of that damage was not necessarily quantifiable until a later
date. In relation to the question
of costs, in addition, the plaintiff’s claim is for damages for lost
employment not for irrecoverable costs, but even if his claim was amended, he
still suffered damage already due to losing his employment while in custody.
Other arguments
25. In view of my decision that the
plaintiff’s claim is out of time, strictly speaking it is not necessary
for me to consider the alternative grounds advanced by the defendants in
support of the application to strike out the plaintiff’s claim. However, I propose to do so for two
reasons:-
(a) in case I am wrong on my analysis of the
applicable prescription period; and
(b) the other grounds advanced are in any event
separate reasons which justify the plaintiff’s claim being struck out
even if it was brought within time, contrary to the conclusion I have reached.
26. The alternative grounds advanced by the
defendants are as follows:-
(a) there is absolute privilege from any defamation
action covering all matters reported to the police by the defendants;
(b) all witness testimony provided by the
defendants in the criminal proceedings is subject to criminal proceedings
immunity;
(c) the claims are contrary to the statutory
immunity confirmed by Article 32(5) and (6) of the Proceeds of Crime
(Jersey) Law 1999 (the “POCL”) relating to communications
between the second and third defendants on the one hand and the fourth
defendant on the other hand as money laundering reporting officer of the first
defendant.
(d) The statutory immunity confirmed by Article
32(1) and (2) of the POCL also covers information disclosed by the defendants
for the purposes of a criminal investigation or criminal proceedings in Jersey
to the Jersey States of Police.
Absolute privilege/immunity
27. The first issue that arises is whether the law
of defamation in Jersey follows English Law principles. Advocate Mistry for the plaintiff argued
that where the law of Jersey was not well settled then it was not appropriate
to determine on a strike out application, a developing or arguable principle of
law. While I agree with Advocate
Mistry that it is not appropriate to deal with arguable development of
principle of law on a strike out application, in my judgment it is well
established as a matter of Jersey law that the law of defamation in Jersey is
the same as the English law of defamation at common law (see Horsfall v
Sinel & Ors [1997] JLR 41 at paragraph 50 and Freeman and Anor v
Leveille [2018] JRC 235 at paragraph 23).
28. In relation to the defence of absolute
immunity, in my judgment as a matter of English Law this is clearly settled and
I see no reason why a trial is required in Jersey to determine a clearly
settled principle. The English law
position was summarised after a careful review of the authorities in the Court
of Appeal decision of Westcott v Wescott [2008] EWCA Civ 818 at
paragraphs 32 to 36 as follows:-
“32 The authorities recited
above have made it clear that the justification for absolute immunity from suit
will depend upon the necessity for the due administration of criminal justice
that complaints of alleged criminal conduct should always be capable of being
made to the police free from fear that the person accused will subsequently
involve the complainant in costly litigation. There is a countervailing public
interest in play which is that no-one should have his or her reputation
traduced, certainly not without affording him or her a remedy to redress the
wrong. A balance has to be struck between these competing demands: is it
necessary to clothe the occasion with absolute privilege in which event even
the malicious complainant will escape being held to account, or is it enough to
allow only the genuine complainant a defence? Put it another way: is it
necessary to protect from vexatious litigation those persons making complaint
of criminal activity even at the cost of sometimes granting that impunity to
malicious and untruthful informants? It is not an easy balance to strike. We
must be slow to extend the ambit of immunity.
33 Even if, for I have my doubts
about it, Shufflebottom is seen as an authority that the informant is only
protected by qualified privilege, nevertheless there are powerful modern
authorities — Daniels v Griffiths and Buckley v Dalziel —
expressing the contrary view. Since public policy provides the answer, it is
the public policy considerations of the 21st century not those of the 19th
century which prevail. In any event Mahon v Rahn has left the question open.
34 In my judgment the answer is to
be found in Taylor. That establishes that immunity for out of court statements
is not confined to persons who are subsequently called as witnesses. The policy
being to be enable people to speak freely, without inhibition and without fear
of being sued, the person in question must know at the time he speaks whether
or not the immunity will attach. Because society expects that criminal activity
will be reported and when reported investigated and, when appropriate, prosecuted,
all those who participate in a criminal investigation are entitled to the
benefit of absolute privilege in respect of the statements which they make.
That applies whether they are informants, investigators, or prosecutors. The
answer to the argument that immunity should not give protection to a malicious
informer was tellingly given by Lord Simon of Glaisdale in D. v National
Society for the Prevention of Cruelty to Children [1978] A.C. 171, 233:
“I cannot leave this
particular class of relevant evidence withheld from the court” [the
identity of the informant who gave information of ill treatment of children to
the N.S.P.C.C.] “without noting, in view of an argument for the
respondent, that the rule can operate to the advantage of the untruthful or
malicious or revengeful or self-interested or even demented police informant as
much as one who brings information from a high-minded sense of civic duty.
Experience seems to have shown that though the resulting immunity from
disclosure can be abused the balance of public interest lies in generally
respecting it.”
35 The test proposed by Drake J. in
Evans v London Hospital Medical College received endorsement from their
Lordships in Taylor. Thus the question is whether the oral statement made by
the defendant and her subsequent written statement can each fairly be said to
be part of the process of investigating a crime or a possible crime with a view
to a prosecution or possible prosecution in respect of the matter being
investigated.
36 The police cannot investigate a
possible crime without the alleged criminal activity coming to their notice.
Making an oral complaint is the first step in that process of investigation. In
order to have confidence that protection will be afforded, the potential
complainant must know in advance of making an approach to the police that her
complaint will be immune from a direct or a flank attack. There is no
logic in conferring immunity at the end of the process but not from the very
beginning of the process. Mr Craig's distinction between instigation and
investigation is flawed accordingly. In my judgment, any inhibition on the
freedom to complain will seriously erode the rigours of the criminal justice
system and will be contrary to the public interest. In my judgment immunity
must be given from the earliest moment that the criminal justice system becomes
involved. It follows that the occasion of the making of both the oral complaint
and the subsequent written complaint must be absolutely privileged.” [Emphasis
Added]
29. Lord Justice Stanley Burnton also added at
paragraph 42 the following:-
“In my judgment, a number of
inter-related matters have particular relevance to the issue raised on this
appeal. First, at the present date the public interest in victims or witnesses
of crime coming forward to the police is more pressing and more important than
the protection of the reputation of the person accused of the crime. It would
be very undesirable, for example, if victims of rape, particularly where the
alleged perpetrator is a man with substantial resources, were to be deterred by
the risk of defamation proceedings from complaining to the Police.”
30. And subsequently at paragraph at paragraph 44
he stated:-
“…the distinction
between the first report of an alleged crime and a statement made during its
investigation is liable to be arbitrary. If the latter is protected, so should
be the former.”
31. Advocate Lindop also referred me to the case Singh
v Reading BC [2013] EWCA Civ 909 where the relevant principles were
summarised as follows:-
“66 Summarising this part of
the case:
i) The core immunity relates to the
giving of evidence and its rationale is to ensure that persons who may be
witnesses in other cases in the future will not be deterred from giving
evidence by fear of being sued for what they say in court;
ii) The core immunity also
comprises statements of case and other documents placed before the court;
iii) That immunity is extended only
to that which is necessary in order to prevent the core immunity from being
outflanked;
iv) Whether something is necessary
is to be decided by reference to what is practically necessary;
v) Where the gist of the cause of
action is not the allegedly false statement itself, but is based on things that
would not form part of the evidence in a judicial enquiry, there is no
necessity to extend the immunity;
vi) In such cases the principle
that a wrong should not be without a remedy prevails.””
32. In relation to the suggestion that the
plaintiff’s claim is based on a duty not to make negligent statements,
assuming such a duty arises, I regard any such claim as a “flank attack”
designed to circumvent the clear principles that are set out in Westcott
and Singh.
33. Such a claim would also not arise out of facts
already pleaded and would require new allegations to be made to plead why
statements made to the police were negligent (see the discussion Neal v
Kelleher [2014] JRC 233 at paragraphs 61 to 69 and Voisin Executors
Limited v Kelleher [2016] JRC 51 at paragraph 66).
34. Advocate Lindop in his helpful submissions
(both written and oral) accepted that absolute immunity does not apply to
actions for malicious prosecution.
However, as he also correctly observed there is no pleaded case of
malicious prosecution in the order of justice. There is only a reference at paragraph
13 of the order of justice that any statements made to the police should not be
made maliciously. Therefore there
is also no pleaded case that the reports to the police and later written
statements were made maliciously.
35. In any event, it is difficult to see how any
prosecution could be malicious because such a claim in respect of a complaint
filed by an organisation or individual could only succeed where the
circumstances were such that the facts relating to the alleged crime were
exclusively within the claimant’s knowledge. Based on my knowledge of the reporting
regime under the POCL and the resources available to the police to obtain
information in respect of matters reported to them, this is not a case where
the decision to prosecute could be said to be based exclusively on matters
within the knowledge of the defendants only, but where any decision to
prosecute will have been based on the independent discretion and judgment of
both the States of Jersey Police and the Attorney General. Mr Mistry did not contend otherwise.
36. If I am wrong on such a conclusion in any event
it is too late to bring such an allegation of malicious prosecution because it
is clearly out of time, the limitation period for such an allegation being
three years which therefore also having expired on 15th December,
2018, following the plaintiff’s acquittal on 16th December,
2015.
37. Insofar as the plaintiff’s claim concerns
evidence given at his trial, this is also immune from suit by reference to Westcott
and Singh decisions case so cannot be the subject of civil proceedings.
38. In addition, I am not persuaded in any event
that any claim could be advanced on the basis of negligent misstatement. Such a claim firstly requires a
voluntary assumption of responsibly.
The problem with this is that the relationship between banker and
customer is generally an arm’s length and governed by the law of
contract. Each party should
therefore generally have regard to its own interests subject to any overriding
statute to the contrary in deciding whether or not to enter into a contractual
relationship. By way of
illustration in Toothill v HSBC Bank Plc [2008] JRC 046 the Royal Court
clearly accepted that “a bank does not owe any duty to
advise a borrower on the financial wisdom of entering into the loan”. By analogy a bank also does not owe a
duty of care to a customer in relation to that customer’s decision to
open a bank account. Rather the
duty only arises to operate the mandate properly once a banker and customer
relationship is created.
39. In the present case the plaintiff and the
co-excused were not even customers.
Rather they were individuals purporting to represent customers. I do not see how a voluntary assumption
of responsibility can arise in respect of individuals purporting to represent
customers. The question for the
bank is whether anyone purporting to represent a customer has the requisite
authority. If a duty of care does
not arise in respect of individuals becoming customers, I do not see why it
arises in respect of individuals purporting to represent customers when there
is no assumption of responsibility.
There are also no facts pleaded to set out why any assumption of
responsibility took place.
40. Advocate Lindop argued that there is
insufficient proximity between the plaintiff and the defendants to give rise to
any duty of care being owed applying Caparo Industries Plc v Dickman
(1990) 2 A.C. 605. I agree and do
not see how proximity can exist between someone purporting to represent a
customer and a financial services institution trying to ascertain the bona
fides of that person and their authority to represent the individual they claim
to represent.
41. In addition, the obligation to know your
customer is to prevent and forestall money laundering and arises out of the
POCL. The aim of seeking
information from those who see to deal with organisations covered by the POCL
and related legislation is ultimately to protect the Island’s
reputation. Breaches can lead to
criminal or regulatory sanction against financial services business and their
employees. The obligations do not
on the face of the relevant legislation create duties of care owed to potential
customers or their representatives and the legislation is not for their
benefit. Indeed, as argued for by the
defendants, Article 32(2) provides the opposite. Article 32 states as follows:-
“32 Protection for
disclosures, and defence of intended disclosure[44]
(1) Paragraphs (2) and (3)
apply where a person makes a disclosure to a police officer –
(a) of
a suspicion or belief that any property constitutes or represents proceeds of
criminal conduct and of any matter on which such suspicion or belief is based;
or
(b) of
information, for the purposes of a criminal investigation or criminal
proceedings in Jersey.
(2) The
disclosure –
(a) hall
not be treated as a breach of any restriction upon the disclosure of
information imposed by any enactment or contract or otherwise; and
(b) shall
not involve the person making it in liability of any kind.
(3) Where
the person making the disclosure does any act, or deals with the property in
any way which apart from this provision would amount to the commission of an
offence under Article 30 or 31, the person shall not be guilty of such an
offence if the conditions set out in paragraph (4) are fulfilled.
(4) The
conditions mentioned in paragraph (3) are that the disclosure is made in good
faith and either –
(a) if
the disclosure is made before the person does the act in question, the act is
done with the consent of a police officer; or
(b) if
the disclosure is made after the person does the act in question, it is made on
the person’s own initiative and as soon as reasonably practicable after
the person has done the act in question.
(5) In
the case of a person (“P”) who was in employment at the time of
making the disclosure, a disclosure by P to an appropriate person shall be
treated as though it were a disclosure to a police officer, and paragraphs (1)
to (3) shall have effect as though references to the police officer were references
to the appropriate person.
(6) In
paragraph (5) and in Article 34B, the “appropriate person” is the
person designated by P’s employer in accordance with the procedure
established by the employer for such disclosures to be made.
(7) In
proceedings against a person for an offence under Article 30, it shall be a
defence to prove that –
(a) the
alleged offender intended to disclose, to a police officer, the suspicion or
belief that property constitutes or represents proceeds of criminal conduct;
and
(b) there
is reasonable excuse for the alleged offender’s failure to make such a
disclosure.” [Emphasis Added]
42. It is clear from Article 32 therefore that any
disclosure made under POCL or related secondary legislation does not involve
the person making disclosure in liability of any kind whether the disclosure is
to the police Article 32(1) or to a financial services business money
laundering reporting officer under Article 32(5) and (6).
43. The argument advanced by the plaintiff, if
allowed to prevail, would drive a coach and horses through the immunity granted
by Article 32.
44. Advocate Mistry argued that the immunity is
subject to a duty to act in good faith by reference to Article 32(3) and
(4). However, Article 32(3) only
applies in relation to a person taking any steps to deal with the proceeds of
crime. The good faith requirement
does not however apply to the decision to report in the first place. Even then the order of justice
does not plead bad faith or set out material facts relied upon to justify such
an allegation.
45. Advocate Mistry also argued that I should allow
him more time to take instructions to see whether any other material facts
could be pleaded. There were
difficulties with this argument.
Firstly, no material facts had been identified at all to justify
allowing time to produce an amended pleading. Secondly, any amended facts would be new
matters which would be out of time in any event. There is no point therefore in allowing
leave to amend in respect of allegations that are bound to be themselves out of
time.
46. In conclusion, if the plaintiff’s claim
is within time, contrary to the view I have reached, the plaintiff’s
claim is in any event struck out for the reasons set out in the second part of
this judgment.
Authorities
Hedley Byrne v Heller 1964 A.C.465
Henderson v Marrett
Syndicates Limited [1995] 2 A.C. 145)
Law Reform (Miscellaneous Provisions)
(Jersey) Law 1960
Royal Court Rules 2004, as amended
Powell
v Chambers & Anor [2018] JRC 169
Lapidus
v Le Blancq, Voisin and Seven Others [2013]
2 JLR 308
Proceeds of Crime (Jersey) Law 1999
Horsfall
v Sinel & Ors [1997] JLR 41
Freeman
and Anor v Leveille [2018] JRC 235
Westcott v Wescott [2008] EWCA Civ 818
Singh v Reading BC [2013] EWCA Civ 909
Neal
v Kelleher [2014] JRC 233
Voisin
Executors Limited v Kelleher [2016] JRC 51
Toothill
v HSBC Bank Plc [2008] JRC 046
Caparo Industries Plc v
Dickman (1990) 2 A.C. 605