1998/12a - Mayo Associates and Ors v Anagram (Bermuda) Ltd an [1998] UR 12a (12 January 1998)

(I)Application by the Plaintiffs in both actions that the Bailiff should recuse himself in relation to these and related proceedings;

(II)Application by the said Plaintiffs for the following leave in respect of documents discovered to the Plaintiffs by the Defendants (the "Discovery Documents"):

1.Disclose such of the Discovery Documents as it thinks fit to the investors who stand behind Mayo Associates SA and Troy Associates Ltd in respect of action 94/254 and 94/06.

2.To utilise the Discovery Documents for the purpose of instituting and prosecuting action No. 97 Civ 8835 in the Courts of the United States of America, Southern District of New York.

3.That the costs of and occasioned by this application be paid by the Defendants in any event.

(III)Application by Cantrade Private Bank (Switzerland) (CI) Ltd ("Cantrade") for the following orders:

1.That the implied undertaking given by Cantrade in relation to documents disclosed by the parties in actions 94/6 and 94/254 be varied to permit use for the purposes of the conduct of Cantrade’s defence of criminal proceedings brought against Cantrade and others by Her Majesty’s Attorney General due for trial on 16^th February, 1998.

2.That no party shall be entitled to make use in action No. 97 Civ 8835 in the United States District Court for the Southern District of New York (the "New York proceedings") of any documents disclosed on discovery by any other party in respect of actions 94/6 and 94/254 until the Court’s determination of Cantrade’s proposed motion to dismiss the complaint or any amended complaint in the New York proceedings on grounds that the issues, or the substantial issues in the New York proceedings have since September, 1994, been the subject of proceedings instituted in Jersey by the Plaintiffs, and that the resolution of those issues is the responsibility of the Royal Court of Jersey at the Plaintiffs’ own choice; with liberty to apply for further directions if, following the determination of the proposed motion, the New York proceedings are not dismissed in their entirety.

3That the Court (having considered any explanation that the Plaintiffs and the Fourth Third Party may put forward) make such order as it thinks fit in relation to the Plaintiffs and the Fourth Third Party having already made use of documents disclosed to them on discovery by Cantrade in actions 94/6 and 94/254 in breach of the implied undertaking as to confidentiality for the purposes of commencing and/or prosecuting the New York proceedings without Cantrade’s prior consent or the prior leave of the Court.

4.That the costs of and occasioned by this application be Cantrades in any event.

Advocate PC Sinel for the Plaintiffs in both actions.

Advocate DF Le Quesne for Anagram (Bermuda) Ltd,

Robert Young, Maureen Young

Advocate D Wilson for Cantrade Private Bank

Switzerland (CI) Ltd.

Advocate NF Journeaux for Touche Ross & Co

THE BAILIFF: This is a challenge to my presiding over the hearing of two summonses in connection with this tortuous litigation. The ground of the challenge put forward by Mr Sinel on the instructions of his clients is that there would be an appearance of bias. I gave a judgment on 1 December 1997, dismissing a similar challenge in relation to a different aspect of these proceedings when different grounds were put forward based upon the dual functions of the Bailiff as President of the Royal Court and the President of the States. Mr Sinel would have advanced similar arguments today but accepted that the matter was, so far as this court is concerned, res judicata. I need say no more therefore on that point.

Mr Sinels ground of challenge this morning related to a speech given by me at a private dinner on 16 November 1996, but which was, nevertheless, published in part by the media. In that speech I criticised some reporting by the media outside the island of certain issues which were controversial at that time and which touched tangentially upon this litigation. In summary, I had expressed the view that the reporting had been less than fair and even handed. I was then, as Mr Sinel rightly submitted, speaking in my capacity as Civic Head of the island to defend the island in broad terms against what seemed to me to be misguided criticism. That speech has now been drawn to the attention of the Plaintiffs who have examined it in the context of their own allegations not only in these but also in related proceedings. Their perception is that the journalists criticisms of the island were generally justified and not unfair.

Taken in the round I am not satisfied that on any objective view the comments which I made in that speech could be fairly construed as giving the appearance of bias in relation to the issues which have to be tried in these proceedings. Nevertheless there is, in my judgment, a margin of appreciation which lies within the judges discretion when challenges of this kind are under consideration. I was referred to a book entitled ‘The Politics of the Judiciary’ where the author refers at page 12 to a decision in 1978 by Lord Denning MR to accede to a request from counsel not to sit when told that the Church of Scientology of California felt that in his court there was an unconscious influence operating adversely to the church.

In the exercise of my discretion I propose to accede to Mr Sinels argument and to disqualify myself from presiding over the hearing of these summonses.

I wish, however, to add a few words on a question of practice. Particularly in a small jurisdiction there will always be instances where objection is taken to a particular judge presiding in circumstances which may be understandable but which are legally unsustainable. In this jurisdiction the traditional way of making such objection is for counsel first to make an informal approach to the judge in chambers in order to appraise him of the concerns felt by his clients. Provided that the concerns are proper the judge will often respond to such an approach. If he does not respond then clearly an application can be made in open court. The traditional way appears to me to have the merit of encouraging courtesy and mutual respect between the bench and bar and assisting the smooth administration of justice. The alternative will sometimes, as in this case, involve wasted time and costs as the arguments are deployed in the presence of other parties who are neutral on the question of the challenge. I express the hope that in future counsel will revert to the traditional manner of mounting challenges of this kind. Costs will be in the cause.

Bibby Bulk Carriers Ltd -v- Cansulex Ltd & Ors. "The Cambridgeshire" (1988) 2 All ER 820; (1989) QB 155

K. Skinner & B.J. Skinner (née Edlin) -v- T. Le Main, J.P. Le Main (née Brady) and St. Bernard’s Garage & Hire Cars Ltd (1990) JLR N-13

Jyske Bank (Gibraltar) Ltd -v- Spjeldnaes and Récolte Investments Ltd [1993] JLR 99

Church of Scientology of California -v- Department of Health and Social Security [1979] 1 WLR 723.

Mayo Associates SA -v- Cantrade Private Bank Switzerland (CI) Ltd (16 January 1995) Jersey Unreported

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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/12a - Mayo Associates and Ors v Anagram (Bermuda) Ltd an [1998] UR 12a (12 January 1998) URL: http://www.bailii.org/je/cases/UR/1998/12a.html Cite as: [1998] UR 12a

Jersey Unreported Judgments