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	Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/78 - Barker v Barker	 [1998] UR 78 (20 April 1998) URL: http://www.bailii.org/je/cases/UR/1998/78.html Cite as: [1998] UR 78

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ROYAL COURT

(Samedi Division)

20 April 1998

Before: Sir Philip Bailhache, Bailiff, and

Jurats Myles and de Veulle

Action PL95/148

Between:John Joseph BarkerPlaintiff

And:James BarkerDefendant

And:Elizabeth Daisy Barker, née BrooksFirst party Cited

And:Kerry BarkerSecond Party Cited

And:St. Julians Hall

(Jersey) Properties LimitedThird Party Cited

And:Beech LimitedFourth Party Cited

AND

Action PL 95/260

Between:John Joseph BarkerPlaintiff

And:James BarkerDefendant

And:Beech LimitedParty Cited

Application by the Defendant to discharge the interim injunctions in Order of Justice

in each of the above actions.

Jonathan Christian Barker, son of the Plaintiff, on behalf of the Plaintiff.

The Defendant on his own behalf

Advocate JP Speck, convened as Amicus Curiae.

JUDGMENT

THE BAILIFF: On 13 July 1995, the Deputy Bailiff granted, ex parte, an application by the Plaintiff for an interim injunction restraining the Defendant, and a number of parties cited, in the following terms:

The Order of Justice was amended on the 28 July 1995, but nothing turns on those amendments.

It subsequently came to the notice of the Plaintiff that the States planned to acquire the property Highbury House by compulsory purchase. On the 7 December 1995, the Plaintiff accordingly sought, and obtained, ex parte, a further interim injunction restraining the Defendant and Beech Limited, the fourth Party Cited in the first action, from dissipating or paying away any of the monies receivable in respect of the compulsory purchase of Highbury House.

Other pleadings have since been filed and leave given to amend those pleadings, but none of that is relevant for present purposes. The Defendant now applies by representation to discharge those injunctions. The Defendant has appeared on his own behalf, and the Plaintiff has been permitted to appear by his son, Mr Jonathan Barker; both parties are effectively litigants in person.

The Court has, accordingly, appointed Advocate Speck, as amicus curiae and is grateful for the very considerable assistance which he has rendered. In support of his application the Defendant has filed two affidavits, from which the following grounds may be extracted:

1. It is complained that the Plaintiff was originally represented by Advocate Begg, who had also represented the Defendant in relation to different proceedings, some years ago, when the Defendant was in grave financial difficulties. The Defendant asserts that there was a conflict of interest, and that Advocate Begg used confidential information obtained by reason of representing the Defendant, to the advantage of the Plaintiff.
1. The Defendant asserts that the affidavits filed in support of the original application for interim injunctions were defective.
1. The Defendant relies upon Rule 15/6(2) of the Royal Court Rules, 1992, to support the argument that an Order of Justice remains in force only for one year from the date of issue, and that the injunctions have accordingly lapsed.

We deal with those grounds in turn. The first is clearly not relevant to the question of whether the interim injunctions should be lifted. It may be relevant in the context of any action for breach of confidence, but it is not material today.

Turning to the second ground, the defendant addressed us at some length on alleged inaccuracies in the affidavits sworn by Advocate Begg and by the Plaintiff. Suffice it to say, that, in our judgment, none of the matters of which complaint is made, could be said to be material, in the context of the Deputy Bailiffs exercise of discretion.

Turning to the third ground, Rule 15/6(2) provides as follows:

The purpose of that rule is to limit the life of an order of justice, which has been signed by the Bailiff, or Deputy Bailiff, but not served. In this case, however, both orders of justice were duly served upon the Defendant and Parties Cited. The actions were tabled, and the injunctions have continued in force by virtue of subsequent orders of the Court, and have not lapsed.

We find no substance, therefore, in any of the grounds put forward by the Defendant in support of his application. The present position therefore is that two and a half years ago, the Deputy Bailiff was persuaded to exercise his discretion in favour of the Plaintiff to order that these injunctions should issue. As Mr Speck rightly submitted, it is apparent from the papers, that the Plaintiff is faced with some difficulties, particularly in relation to the issues of prescription, and estoppel, following the bankruptcy proceedings in which the Defendant was involved. None the less there does exist a form of partnership agreement, signed in December,1970, the terms of which the Defendant has admitted in the pleadings.

We are satisfied that there is a serious issue to be tried. So far as the balance of convenience is concerned, the Defendant conceded in argument that nothing had changed since the injunctions were granted. At that time the Deputy Bailiff found that there was a risk of dissipation of assets. It rests on the Defendant to show that that risk no longer exists. In our judgment, the Defendant has failed to discharge that burden. In the exercise of our discretion the balance of convenience falls on the side of the Plaintiff, and this application is accordingly dismissed.

Authorities

Alpha Print -v- Alphagraphics [1989] JLR 152

Trasco -v- R.M. Marketing (29 October 1986) Jersey Unreported

A.C. Mauger -v- Victor Hugo [1989] JLR 295

Walters -v- Bingham [1985/6] JLR 439

Abbott Industries -v- Warner (18 September 1986) Jersey Unreported

Johnson Matthey -v- Arya Holdings [1985/6] JLR 208

Talika -v- Olec Properties Limited [1990] JLR 200

12 & 13 Britannia Place -v- J & G Properties [1989] JLR 34

De Geulle -v- Le Nosh (8 February 1990) Jersey Unreported

De Geulle -v- Le Nosh (7 March 1990) Jersey Unreported

Jackson -v- Jackson (1965) JJ 463; (1966) JJ 579; (1970) JJ 1285

Racz -v- Bois Labesse (1979) JJ 151

Goldrein: Commercial Litigation: Pre-emptive Remedies (1997) (3^rd Ed’n): pp. 5-6; 61-83; 184