Jersey Unreported Judgments

Fraud - appeal from a Judgment of the Royal Court dated 23 March 2012, with the leave of the Royal Court.

[2012]JCA094

Court of Appeal

11 May 2012

Before     :

Dame Heather Steel, D.B.E., President; M. S. Jones, Q.C., and; Sir Hugh Bennett.

 

Appeal from a Judgment of the Royal Court dated 23 March 2012, with the leave of the Royal Court

Advocate D. S. Steenson for the Appellants.

Advocate S. M. Baker for the Respondents.

JUDGMENT

THE PRESIDENT:

1.        This is the judgment of the court in an appeal against a decision of the Commissioner (H. W. B. Page, Q.C.), given on 23 March 2012.  The salient background facts are set out in paragraph 2 of the judgment of this court, dated 27 January 2012.

2.        The decision appealed in this sitting was in respect of an application by the present appellants (to whom we shall refer as "the appellants") to exclude from evidence at the trial of this matter, due to take place in July of this year, certain written statements made by three persons whom the plaintiffs had anticipated being able to call as witnesses but who, as matters appear to stand at present, will not be giving evidence in person.  The witness statements had been served much earlier in the course of the proceedings below but, on 26 January 2012, the plaintiffs intimated their intention to rely on them at trial by way of a hearsay notice served in terms of Article 4 of the Civil Evidence (Jersey) Law 2003.  On the preceding day, this court had allowed an appeal, the result of which was to reinstate an earlier refusal by the court below to allow the oral evidence of two witnesses for the plaintiffs (Mr. Santoro and Mr. Alves) to be given by video-link from Brazil.  The notice served on 26 January covered witness statements of those two individuals and also Mr. Fernandes.  The reasons given for the notice were that the persons in question were all overseas, that they were not within the control of the plaintiffs and that they were not prepared to come to Jersey to give oral evidence. 

3.        By summons, dated 20 February 2012, the defendants sought an order excluding these witness statements from being admitted in evidence at trial and that summons was the subject of the hearing below, the judgment in respect of which is now being appealed. 

4.        By their notice of appeal the defendants set out the following grounds.  It is unjust in the circumstances for witnesses who were supposed to be giving evidence by video-link to have their statements read at trial.  The Commissioner erred as to the prejudice caused to the defendants and erred insofar as the circumstances did not constitute factors sufficiently exceptional to justify the court exercising its inherent jurisdiction to exclude evidence.  The Commissioner was mistaken as to the defendants' argument which was that the evidence was so prejudicial that it should not be put before the Jurats.  He failed to give sufficient weight to the uncontroversial point that the plaintiffs claimed that their case would be proved on the documentary evidence.  He also erred insofar as it was not the role of the defendants to perfect witness statements filed by the plaintiffs.  He was plainly wrong in not applying the earlier reasoning of this court with regard to the position of Dr. Marques; and was plainly wrong in taking into account the plaintiffs' offer to provide a video-link for their witnesses at trial. 

5.        The Commissioner granted leave to appeal, as he indicated, not because he had any reservations about the correctness of his decision, but because it would be desirable for this potentially important matter to be "laid to rest one way or the other in advance of the trial".  Even so, the decision under review is a case management decision and these are conventionally respected by this court unless they are plainly wrong: see Alhamrani and Others v Alhamrani and Others [2009] JLR Note 50.  As the words "plainly wrong" indicate, this is a very high hurdle for an appellant.

6.        Arguments to the effect that a first instance court has failed to perceive the lack of justice in a case management decision, or the likely level of prejudice to a party, or the weight to be given to individual points of argument or as to the true role of parties are, ordinarily, not grounds upon which an appellate court will interfere with such administrative decisions. 

7.        It seems to us that the only grounds on which it might be demonstrated that the decision below had been plainly wrong are (a) that the circumstances were without doubt so exceptional that the court, properly instructed, could only have determined that the hearsay evidence should be excluded, (b) that the decision not to exclude the evidence was inconsistent with the reasoning of this court in regard to Dr. Marques and (c) that the Commissioner would not have reached the decision which he reached had he left out of account the issue as to the plaintiffs' offer to provide a video-link for their witnesses at trial. 

8.        The starting point is that Article 3(1) of the Civil Evidence (Jersey) Law 2003 provides that "Evidence shall not be excluded on the grounds that it is hearsay".  Hearsay evidence, accordingly, falls into the same category as other types of evidence and the general position, as accepted by both parties, is as stated by the Commissioner at paragraph 7 of his judgment (2) of 22 December 2011 in the following terms:-

"While I accept therefore, that the court does in principle have jurisdiction to exclude otherwise admissible evidence in advance of trial, it remains, as Baroness Hale observed in Polanski, 'A strong thing indeed to do to use such case management powers to exclude the admissible evidence of one of the parties on the central facts of the case.'"

9.        It is clear from recent authority that the fact that hearsay evidence is the only evidence or is the only evidence that goes to a central question, is no sufficient basis upon which to determine that it should be excluded: see Welsh v Stokes [2007] EWCA Civ 796, at [22] and [23], J G Pears (Newark) Limited v Omega Proteins Limited [2009] EWHC 1070 (Comm) at [31] and Al-Khawaja and Tahery v United Kingdom (Judgment of the Grand Chamber of the European Court of Human Rights dated 15 December 2011, paragraphs 147 - 158). 

10.      The nub of the defendants' contention that the circumstances were sufficiently exceptional to lead to a refusal to allow such evidence to be led appeared to be a combination of the lateness at which the hearsay notice was lodged and its practical purpose in attempting to circumvent the decision of this court that the Commissioner's original view (that video-link evidence was not appropriate) must stand.  That decision of this court was, of course, the result of the determination of the res judicata issue.  Leave to appeal on the general jurisdiction point had been refused by McNeill J.A., as was leave to appeal on the exercise by the Commissioner of his discretion to allow evidence by video-link; and this court has not ruled that cross examination by video-link would, in principle, be inappropriate in the circumstances of this case. 

11.      It seems to us, therefore, that the whole circumstances affecting the application below could not lead, ineluctably, to a determination that the hearsay evidence should be excluded.  In any event, as the Commissioner indicated in paragraph 22 of his judgment below, it had, to him, long been plain that the alternative to the plaintiffs being permitted to adduce evidence by video-link was that they would seek to rely on the witness statements of those whom they would otherwise have wished to call.  This was, he said, not only always predictable but also stated in terms by the plaintiffs at their renewed video-link application.  In our opinion, the defendants have not made out a case that, on this ground, the Commissioner was plainly wrong in his appraisal of the relevant circumstances. 

12.      We turn now to the ground of appeal to the effect that the Commissioner was plainly wrong in not applying, to the witness statements in question, this court's earlier reasoning with regard to Dr. Marques. 

13.      The reasoning of this court in relation to Dr. Marques is to be found at paragraphs 21 to 32 of the judgment dated 27 January 2012.  It is plain from paragraph 31 of that passage that the critical point, in the opinion of this court, was that Dr. Marques had stated that he was unable, as a State Prosecutor, to be a witness for the plaintiffs in relation to the matter in question.  As was made clear in paragraph 32, it was that consideration which led this court to the view that the plaintiffs could not rely upon his affidavit to any extent.  That circumstance does not apply to the hearsay evidence which is the subject of the present appeal and it follows that the Commissioner was not plainly wrong in not applying the reasoning of this court with regard to Dr. Marques. 

14.      We turn now to the ground of appeal that the Commissioner was plainly wrong in taking into account the plaintiffs' offer to provide a video-link for their witnesses at trial.  This is a curious matter.  As we have noted, the three witnesses in respect of whom hearsay notices were served were Messrs. Santoro, Alves and Fernandes.  The evidence of each had been the subject of the Commissioner's refusal, in November 2011, to give the plaintiffs leave for such evidence, and that of a fourth witness, to be given at trial by video-link from Brazil.  Two of the four (Messrs. Santoro and Alves) were the subject of the later application in respect of which this court upheld the argument of res judicata.  Accordingly, only in respect of a material change of circumstances could the plaintiffs have now applied, again, for the evidence of these witnesses to be given by video-link.

15.      The manner in which the Commissioner dealt with this matter was to refer to the history which we have related, to identify that the practical possibility of cross examination of Mr. Santoro and Mr. Alves by video-link remained a viable option, and to observe that, whether or not to take advantage of that possibility, was something that rested in the hands of the defendants.  In our opinion, the Commissioner was not plainly wrong in addressing matters in this way.  True it is that the defendants had succeeded in rebuffing the plaintiffs' renewed application for video-link evidence to be allowed, but the Commissioner also indicated, as we have said, that it had long been plain that the plaintiffs' alternative course would be reliance on the witness statements (necessarily, by way of a hearsay notice).  In our view, it was, therefore, perfectly open to the Commissioner to identify that it remained in the hands of the defendants to take advantage of the option of video-link cross examination.  We consider that it was also open to him to take the view that it was an acceptable part of the tactics of adversarial litigation for the defendants to maintain their opposition to the use of video-link evidence; but that, in weighing up the level of any prejudice to the defendants in not refusing the adducing of the hearsay evidence, he was entitled to have regard to the availability to them of the option of video-link evidence.  In our opinion, therefore, the Commissioner was not plainly wrong in having regard to the possibility of video-link cross examination within his reasoning. 

16.      A central theme of the defendants' oral argument in the hearing before us on 23 April 2012 was the assertion that the admission of the hearsay evidence would inevitably render the trial unfair. We disagree. It will be the duty of the court below, at customary law and under the provisions of the Human Rights (Jersey) Law 2000, to take such steps within its powers as it considers necessary to safeguard the defendants' right to a fair trial. The provisions of Article 6 of the Civil Evidence (Jersey) Law 2003, for example, are directed to that purpose. There is no proper basis on which this court can determine at this stage that the forthcoming trial will not be fair.

17.      For the foregoing reasons, we refuse the appeal.    

Authorities

Republic of Brazil v Durant [2012] JRC 062.

Civil Evidence (Jersey) Law 2003

Alhamrani and Others v Alhamrani and Others [2009] JLR Note 50.

Republic of Brazil v Durant [2011] JRC 238.

Welsh v Stokes [2007] EWCA Civ 796.

J G Pears (Newark) Limited v Omega Proteins Limited [2009] EWHC 1070 (Comm).

Al-Khawaja and Tahery v United Kingdom (Judgment of the Grand Chamber of the European Court of Human Rights dated 15 December 2011.

Human Rights (Jersey) Law 2000.

Bass Taverns Limited v Carford Engineering Limited [2002] EWCA Civ 671.

Lloyds Investment (Scandinavia) Limited v Ager-Hanssen [2003] EWHC 1740 (Ch).