Jersey Unreported Judgments

Property - reasons for dismissing the Plaintiff's application.

[2024]JRC132

Royal Court

(Samedi)

12 June 2024

Before     :

M. J. Thompson, Esq., Commissioner, and Jurats Averty and Opfermann

 

The Plaintiff appeared in person.

Advocate D. R. Wilson for the Defendant.

judgment

the commissioner:

Introduction

1.        This judgment contains the Court's decision in relation to an application by the Plaintiff ("Mr Booth") relating to the refusal of the Viscount to allow Mr Booth to pursue a claim against David O Reynolds Limited, trading as Reynolds Chartered Surveyors, ("Reynolds") in respect of a valuation of a property known as King's Oak dated 4 March 2013 ("the 2013 King's Oak Valuation").  Mr Booth has issued proceedings against Reynolds alleging that the 2013 King's Oak Valuation was produced in breach of duty and / or negligently ("the Reynolds Proceedings").  The Reynolds Proceedings have however been stayed pending determination of the present application.  It is also right to record that the Reynolds Proceedings were issued by Mr Booth to prevent any prescription issues arising in those proceedings.

Background

2.        The present proceedings are the latest in a series of disputes between Mr Booth and the Viscount.  The general background to these disputes was set out in the judgment of the Court of Appeal between Mr Booth, the Defendant and Reynolds, reported at Booth v Viscount [2022] (2) JLR 141 ("the Court of Appeal 2022 Judgment") at paragraphs 6 to 32 as follows:

"6-�Mr. Booth is a chartered surveyor. An affidavit filed on behalf of Reynolds exhibits certain extracts from the website of his business, ABA Chartered Surveyors. It describes his business as having "more than forty-four years' experience in the construction industry, including quantity surveying, property valuations, construction defects, contract advice, arbitration and mediation, property and contract management."

7-�In August 2003, Mr. Booth and his late wife acquired a property known as King's Oak on which they built a substantial house with two cottages. The work on the main house was completed in April 2005. By May 2011, the debts secured on King's Oak amounted to approximately £2.62m., of which £1m. was due to be repaid to a company called Eret Ltd. in July 2011. Mr. Booth therefore needed to refinance his borrowings.

8-�He initially proposed to do this by obtaining a loan from Fairbairn Private Bank Ltd. ("Fairbairn"). In that connection, a valuation report dated May 10th, 2011 was provided to Fairbairn by Reynolds. It valued King's Oak at £4.4m. The report was addressed to Fairbairn, and it was expressly stated to be for their "sole use." It also stated that it was "confidential to the Client and his professional advisers and the Valuer accepts no responsibility to any other person." The court notes in passing that Mr. Booth initially exhibited to his affidavit in these proceedings a copy of this valuation from which the title page and all references to Fairbairn were missing. He has since said that this was "a mistake" but he has not provided any satisfactory explanation as to how the mistake came to be made.

9-�It will be apparent that the valuation of King's Oak was obtained from Reynolds by Fairbairn not in the context of Mr. Booth seeking to raise any new borrowing, but rather in the context of his efforts to refinance an existing liability. In the event, the lending by Fairbairn did not proceed. It is accordingly important to recognize that Reynolds valuation of King's Oak did not form the basis of any lending.

10-�Instead, Mr. Booth and his late wife obtained a replacement offer from Investec Bank (Channel Islands) Ltd. ("Investec"). Pursuant to the terms of a letter dated July 28th, 2011, Investec agreed to grant Mr. and Mrs. Booth a facility of £2.95m. secured on King's Oak, but only on condition that the property had a minimum market value of £4.4m. Investec instructed CBRE to value the property. CBRE's valuation, dated August 25th, 2011, valued King's Oak at only £4m. As a result, Investec reduced the amount of facility offered from £2.95m. to £2.8m. It proceeded to lend that amount to Mr. Booth, and an hypothèque was registered on King's Oak on September 2nd, 2011. This enabled Mr. Booth to pay off the existing loans and raise an additional sum of approximately £200,000 on more advantageous interest terms.

11-�In early 2012, Mr. Booth proposed acquiring another property, called Beaumont Hill House, for development. His pleaded claim against Reynolds in these proceedings is that the property was "in a distressed condition requiring improvement" at the time. Following a "walk-through," Reynolds provided a letter dated January 30th, 2012 expressing the opinion that its market value would be "in the order of" £1.3m. The letter noted that the property had lacked any real maintenance work for a period of time, resulting in it then being in a tired and poor condition and quickly deteriorating.

12-�A further valuation of Beaumont Hill House was also obtained on April 19th, 2012 from a separate firm of chartered surveyors, NSP, at £1.38m., and at £1.75m. on completion of the property.

13-�Mr. Booth acquired Beaumont Hill House on February 10th, 2012 for £1m. from Jersey Home Loans with an initial borrowing from the vendor of £1m. charged on the property. On August 17th, 2012, Mr. and Mrs. Le Cornu registered a billet for a loan of £1.7m. to Mr. and Mrs. Booth (jointly and severally), which loan was registered as a first hypothèque on Beaumont Hill House and a second hypothèque on King's Oak, enabling Mr. Booth to pay off the loan due to Jersey Home Loans.

14-�Reynolds produced a further valuation of Beaumont Hill House on March 4th, 2013, giving it a current market value of £1.5m., and an expected market value of £1.8m. on the completion of works being carried out. Mr. and Mrs. Le Cornu registered two more billets, the first on April 12th, 2013 for a loan of £165,000 and the second on September 27th, 2013 for a loan of £90,741. Mr. Booth's pleaded case in these proceedings is that he spent some £300,000 on improving the property.

15-�As part of the chronology we should mention at this stage that Mr. Booth remarried in September 2013.

16-�Following the purchase of Beaumont Hill House, Mr. Booth's financial position deteriorated and he was unable to meet the payments due to Investec, or to Mr. and Mrs. Le Cornu. In due course, judgment was obtained against him by Investec on February 20th, 2015 in the sum of £2.91m. On March 27th, 2015, Investec obtained an Acte Vicomte Chargé D'écrire, and on June 2nd, 2015 it gave notice that it would be applying for an adjudication of renunciation in respect of King's Oak. In response, Mr. Booth applied for a remise de biens.

17-�The secured creditors at that stage comprised Investec for about £2.9m., secured by a first hypothèque over King's Oak, and Mr. and Mrs. Le Cornu for about £2.3m., secured by a first hypothèque over Beaumont Hill House and a second hypothèque over King's Oak, making a combined total of about £5.2m. There were in addition unsecured creditors in the sum of about £330,000.

18-�The Viscount, acting on behalf of the Jurats who were reporting to the court on Mr. Booth's application for the remise, obtained reports on the value of King's Oak and Beaumont Hill House from two different firms. Le Gallais valued King's Oak in the region of £2.6m. and Beaumont Hill House in the region of £800,000. Gaudin & Co. were a little more optimistic: they valued King's Oak in the region of £2.75m. and Beaumont Hill House at £850,000. This produced a combined value for the two properties of between £3.4m. and £3.6m. This amount was insufficient to clear the secured claims. Mr. Booth's application for the remise was accordingly refused by the court on July 17th, 2015.

19-�Two applications then came before the Royal Court on October 16th, 2015. The first was an application by Mr. Booth for his property to be declared en désastre, and the second was an application by Investec for a dégrèvement. In support of his application, Mr. Booth relied on the CBRE and Reynolds valuations of King's Oak from 2011 and claimed that the "correct value" of the property was £4m.: see this court's judgment in Investec Bank (Channel Islands) Ltd. v. Booth (A.P.) (2016 (1) JLR 101, at para. 67). He also claimed that Beaumont Hill House was worth £1.7m., although he did not produce any valuations to the court in support of that assertion: ibid.

20-�In the event, the Royal Court acceded to Mr. Booth's application, declaring his property to be en désastre ("the declaration"), although it did not give any reasons. Its decision was appealed by Investec. The appeal was dismissed by this court for the reasons set out in a detailed judgment dated January 27th, 2016, mentioned in the previous paragraph.

21-�Following the declaration, the Viscount and Investec jointly procured a valuation of King's Oak from Wills Associates, Chartered Surveyors. In their report of March 21st, 2016, Wills Associates valued the property at £2.4m. They also retrospectively valued King's Oak as at August 2011 at £2.3m.-in other words, about half the valuations given in 2011 by Reynolds and by CBRE.

22-�In the meantime, Mrs. Booth made an application under art. 12 of the Bankruptcy (Désastre) (Jersey) Law 1990 ("the 1990 Law") seeking to remain in the matrimonial home until it was sold, and also seeking to recover from the proceeds of sale certain payments she claimed to have made to assist Mr. Booth in meeting his loan repayments. Her application was dismissed by the Royal Court in a judgment dated March 22nd, 2016 (Booth (J.A.M.) v. Viscount and Investec, 2016 (1) JLR 201). The court noted (ibid., at para. 10) that reliance was placed on the CBRE valuation of King's Oak at £4m.

23-�The Viscount then took advice on the marketing of both properties. Having advised that Beaumont Hill House had a value of £800,000, Le Gallais suggested an asking price of £925,000. Gaudin & Co. had advised that it had a value of £850,000, and they indicated a "fire sale" value of £750,000. The Viscount marketed Beaumont Hill House in December 2015 through Le Gallais at an asking price of £925,000.

24-�In relation to King's Oak, Le Gallais advised on April 5th, 2016 that it should be marketed for £2.85m. with the aim of achieving a price of perhaps £2.6m., while Thompson Estates advised on April 6th, 2016 that the property should be marketed at £3m. with a view to achieving a price as close to that figure as possible. Both firms were instructed to market the property at a price of £2.95m. A third agent, Broadlands, was appointed in November 2016 at the request of Investec to examine King's Oak. They thought that a sale in the region of £2m. could be obtained and the asking price should be £2.49m. After consultation with all three estate agents, the asking price was reduced to £2.65m., and on April 7th, 2017 it was reduced again to £2.3m.

25-�Mr. Booth did not accept these valuations of either property. He accordingly applied by way of representation seeking the court's intervention in relation to three aspects of the désastre. The first was in relation to Beaumont Hill House, in respect of which Mr. Booth challenged the Viscount's decision to accept an offer of £800,000. In support of his application, Mr. Booth relied on the NSP and Reynolds valuations from 2012-2013: see the Royal Court's judgment dated February 25th, 2016 (Booth (A.P.) v. Viscount, [2016]JRC049, at para. 3; noted at 2016 (1) JLR N [8]). Mr. Booth claimed that "if correctly valued" the sale of Beaumont Hill House (together with King's Oak) could result in the secured creditors being paid in full, with a surplus becoming available for unsecured creditors (see ibid., at paras. 7-8). In the event, Mr. Booth's application was dismissed by the Royal Court, and Beaumont Hill House was duly sold for £800,000.

26-�The second claim in Mr. Booth's representation was for an order requiring the Viscount to attempt to sell King's Oak for at least £4m. In support of that application, Mr. Booth relied on the CBRE and Reynolds valuations from 2011: see the Royal Court's unpublished judgment of September 13th, 2016 (Booth (A.P.) v. Viscount, at paras. 5-6). That application was dismissed. At the time when the representation was considered by the Royal Court, no offer had been received for King's Oak. By the following year, the best offer that had been received was £1.85m. The Viscount accordingly applied to the Royal Court for authority to sell the property at that price. Once again, Mr. Booth opposed the application. Once again, he relied on the CBRE valuation from 2011 at £4m.: see the Royal Court's judgment dated December 19th, 2017 (Viscount v. Booth (A.P.), [2017]JRC215, at para. 17). He also sought to persuade the court to prefer his estimate of the property's value over that provided by the estate agents instructed by the Viscount, saying: "He was a fellow of the Royal Institute of Chartered Surveyors with 49 years of experience in the buildings trade" (ibid., at para. 18). In the event, the Royal Court upheld the decision of the Viscount, and King's Oak was duly sold for £1.85m.

27-�The third element in Mr. Booth's representation to the court related to three sets of legal proceedings which he had commenced on various dates in 2015, before the declaration was made. One was a claim against Zenith Trust Co. Ltd. ("Zenith"); one was against Collas Crill; and one was against a Mr. Bults (together, "the three claims"). By virtue of art. 8 of the 1990 Law, the three claims had vested in the Viscount on the making of the declaration. She decided not to continue any of them, or to assign them to Mr. Booth so that he could continue them personally. Mr. Booth challenged those decisions. The Royal Court dismissed that challenge in a judgment dated April 19th, 2016 (Booth v. Viscount, [2016]JRC086; noted at 2016 (1) JLR N [20]), holding that the Viscount had acted reasonably in deciding not to pursue the claims herself, and that it was not open to her to assign them to Mr. Booth by virtue of the 1771 Code. For the avoidance of doubt, the Royal Court also held that, if it had been open to the Viscount to assign the three claims, she had not acted unreasonably in refusing to do so.

28-�Mr. Booth did not appeal the Royal Court's judgment regarding the Viscount's decision not to pursue the three claims herself, but he did appeal against the ruling on the 1771 Code and in relation to the reasonableness of the Viscount's refusal to assign the three claims to him. He also sought to invoke his rights under art. 1 of the First Protocol ("A1P1") to the European Convention on Human Rights. That appeal led to the November 2016 judgment. The detailed reasoning of this court in that judgment will be discussed below. For present purposes it is sufficient to record that this court overturned the Royal Court's decision both in relation to the 1771 Code and also in relation to the reasonableness of the Viscount's refusal to assign the three claims to Mr. Booth.

29-�The three claims were accordingly assigned to Mr. Booth on November 30th, 2016. No express provision was made in the terms of the assignment for Mr. Booth to account for any recoveries to the Viscount for the benefit of the creditors in the désastre, although the Royal Court observed, in para. 15 of the judgment below ([2022]JRC062), that it was implicit that the claims would be pursued for the benefit of the creditors.

30-�In the event, the claims against Zenith and Collas Crill resulted in settlement payments being agreed on confidential terms, while the claim against Mr. Bults went to trial where it was ultimately unsuccessful. The Viscount then made a claim against the sums resulting from the two settlements, initially as representing after-acquired property pursuant to art. 9(1) of the 1990 Law. A process of negotiation then followed, and the Royal Court was informed that an agreement was reached that 38.5% of the settlement sum received in respect of one claim and 34.6% of the other would be paid by Mr. Booth to the Viscount. The Viscount thereby received a total of £95,000 for distribution to the creditors in the désastre after deduction of her expenses and fees. The Royal Court observed, in para. 17 of the judgment below, that the relatively small percentages accepted by the Viscount might reflect the fact that the assignment of the three claims to Mr. Booth had been made unconditionally, and that as a result there was a difficulty in establishing that the settlement sums constituted after-acquired property, the actions having been on foot before the date of the declaration.

31-�Having relied on the valuations of King's Oak and Beaumont Hill House produced in 2011/13 to try resisting their sale, Mr. Booth decided to change tack in late 2016. Instead of relying on the earlier valuations as evidence of the true value of the properties in 2015/16, Mr. Booth decided instead to allege that those valuations had been incorrect all along. On that basis, he contended that the loan agreements with Investec and with Mr. and Mrs. Le Cornu and the hypothèques granted in their favour had been entered into on the basis of mutual mistakes, and that the transactions should therefore be declared void ab initio. He met with the Viscount in October 2016 and explained that he had claims based on erreur. Mr. Booth subsequently wrote to the Viscount setting out his arguments in more detail. The Viscount considered those arguments on advice, and wrote back in April 2017 explaining why she considered that the proposed claims based on erreur were unlikely to succeed. The Viscount also decided not to investigate further the causes leading up to Mr. Booth's bankruptcy.

32-�In late 2017, Mr. Booth learned from Investec that it had made a claim against CBRE over the valuation of King's Oak. That development may have encouraged him to present a representation to the court in November 2017 seeking to set aside the loan agreements and hypothèques on the basis of an alleged mistake as to the value of the properties. However, those proceedings were subsequently overtaken by the Viscount agreeing to issue an application to the court for a review of her own decision in relation to Mr. Booth's claim based on erreur and also her decision not to investigate further the causes leading to the bankruptcy. That application by the Viscount led to a judgment given by the Royal Court on September 12th, 2018 (Viscount v. Booth (A.P.), 2018 (2) JLR 253). In short, the Viscount's decisions were upheld. Mr. Booth appealed unsuccessfully to this court, leading to a judgment given on July 2nd, 2019 (Booth (A.P.) v. Viscount, 2019 (2) JLR 1). Mr. Booth's claim in erreur was dismissed by both courts essentially because they held that there was no mistake about the two essential elements of the transactions, namely the loans and the security (see ibid., at para. 35)."

3.        However, in relation to this chronology which we gratefully adopt, it is right to note that the 2013 King's Oak Valuation in respect of which Mr Booth is now pursuing Reynolds, was produced on the same date as Reynolds produced a further valuation of Beaumont Hill house, referred to at paragraph 14 of the Court of Appeal chronology.

4.        We also think it helpful to summarise the previous proceedings that have come before this Court.  These are as follows:

(i)        Mr Booth's application for his property to be declared en désastre reported at Booth v Viscount [2016] 1 JLR 101 ("the 2016 Désastre Proceedings").

(ii)       The application by Mrs Booth (Mr Booth's second wife) seeking to remain in the matrimonial home pursuant to Article 12 of the Bankruptcy (Désastre) (Jersey) Law 1990, reported at Booth v Viscount [2016] (1) JLR 201.  This application was dismissed.  It is right to record that since this decision, Mr and Mrs Booth have separated.

(iii)      A challenge by Mr Booth to the Viscount's decision to accept an offer of £800,000 for Beaumont Hill House reported at Booth v Viscount [2016] JRC 049.  This application was dismissed.

(iv)     An application by Mr Booth seeking to require the Viscount to attempt to sell King's Oak for at least £4 million - see the Royal Court's unpublished judgment of 13 September 2016 ("the 2016 King's Oak proceedings").  This application was dismissed.

(v)      Also in 2016, Mr Booth challenged a decision of the Viscount not to assign three sets of legal proceedings that Mr Booth had commenced on various dates in 2015 before the declaration of désastre was made.  Those claims, as noted by the Court of Appeal, were against Zenith, Collas Crill and a Mr Bults.  The Royal Court dismissed that challenge in a judgment dated 19 April 2016 Booth v Viscount (En desastre) [2016] JRC 086.

(vi)     Mr Booth successfully appealed the Royal Court's decision leading to the Court of Appeal's judgment reported at Booth v Viscount [2016] (2) JLR 473 ("the Court of Appeal 2016 Judgment").

(vii)     The claims against Mr Bults failed as reported at [2018] JRC 027 (Royal Court) and at Booth v Bults [2018] JCA 135 where the Court of Appeal dismissed Mr Booth's appeal.

(viii)    In 2017, the Viscount applied to the Royal Court for authority to sell King's Oak at £1.85 million ("the 2017 Proceedings" reported at Viscount v Booth [2017] JRC 215).  The Viscount's application was granted. 

(ix)      The next set of proceedings concerned an application by Mr Booth in November 2017 seeking to set aside loan agreements and hypothèques Mr Booth had entered into on the basis of erreur.  Those proceedings were taken over by the Viscount, agreeing to issue an application to the Court for review of her own decision in relation to Mr Booth's claim based on erreur and the Viscount's decision not to investigate further the causes leading to the bankruptcy of Mr Booth.  That application led to the Royal Court's judgment reported at Viscount v Booth [2018] 2 JLR 253.  Mr Booth appealed that decision unsuccessfully to the Court of Appeal leading to the judgment reported at Booth v Viscount [2019] 2 JLR 1 ("the Court of Appeal 2019 Judgment").

(x)      In 2022, Mr Booth sought a direction from the Court that the Viscount revest in him a cause of action against Reynolds for alleged negligence in the provision of property valuations.  As Master Cadin noted in his judgment in the present proceedings dated 12 April 2023 and reported at Booth v Viscount [2023] JRC 055, Mr Booth sought orders in respect of valuations produced by Reynolds in respect of King's Oak dated 10 May 2011 ("the 2011 King's Oak Valuation") and two valuations in respect of Beaumont Hill House.  The first valuation was dated 30 January 2012 ("the 2012 Beaumont Hill Valuation") and the second valuation was dated 4 March 2013 ("the 2013 Beaumont Hill Valuation").

(xi)      The Royal Court, in its judgment reported at Booth v Viscount [2022] JRC 062, refused Mr Booth's application.  The Court of Appeal in the Court of Appeal 2022 Judgment dismissed Mr Booth's appeal against the 2022 decision of the Royal Court.

(xii)     We refer later in this judgment, where relevant, to the detailed reasoning of different parts of these judgments.

Relevant correspondence and documents

5.        The 2013 King's Oak Valuation included the following statements:

"Purpose

The purpose of the inspection and this report is to advise upon our opinion of its current market value.

....

Market Value

Having regard for the nature of the property and its apparent condition, on 1 March 2013, we estimate, with vacant freehold possession, a Market Value of £3,900,000 (Three Million Nine Hundred Thousand Pounds).

.....

General Observations and Commentary

Kings Oak is a well-proportioned private residence situated in secluded grounds which includes formal garden areas and a nature valley with lake. The property benefits from two integral units which can be used as guest suites or let out. Permission has also been granted for the construction of a large garage block with accommodation above. Works have commenced on construction of the garaging with preparation of the foundations and laying of oversite. Comparable properties which have been considered for this valuation include: Bouilly House - Transacted March 2012 for $3,600,000 A modern detached dwelling with sea views but lacking the same privacy and land as Kings Oak. Le Val Lodge - Transacted July 2011 for $4,000,000 A traditional residence with ancillary accommodation, pool and tennis court. Good sized grounds but relatively close to a main road.

....

We have not carried out a building survey, nor have we inspected those parts of the property which are covered, unexposed or inaccessible and such parts have been assumed to be in good repair and condition. We cannot express an opinion about or advise upon the condition of uninspected parts and this Report should not be taken as making any implied representation or statement about such parts. This Valuation Report is provided for the stated purpose and for the sole use of the named Client. It is confidential to the Client and his professional advisers and the Valuer accepts no responsibility whatsoever to any other person. This report has been prepared in accordance with the practice statements in the RICS Appraisal and Valuation Manual."

6.        The client in the report was described as Mr Booth. 

7.        On 1 November 2022, Mr Booth wrote to Mrs Allo of the Viscount's Department as follows:

"1 November 2022 at 14:47

[email protected]

Dear Mrs Allo,

I would like the Viscount to release a claim against Reynolds to me regarding a valuation of King's Oak of £3.9 million dated 4 March 2013. Unlike the valuation provided by Reynolds in May 2011, that valuation was specifically addressed to me and I obtained further borrowing based on the information it contained."

8.        Mrs Allo replied the same day at 16.32 by email and made the following request:

"In order for the Viscount to consider your request, please submit in writing the argument on the merits of your case. Please also provide a copy of the valuation you are referring to."

9.        Mr Booth replied later the same day, also by email, as follows:

"My argument is that having recently lost a legal argument against the Viscount, and thereby been prevented from taking direct action against Reynolds regarding a valuation provided on King's Oak in May 2011, because that report was specifically addressed to Fairbairn Private Bank and it would have been difficult to establish causation.

Having gone through that exercise and lost for that reason, I have another valuation, again prepared by Reynolds, that I commissioned after my wife's death so that I could establish my financial position with that valuation being specifically addressed to me.

That valuation was used to support a further loan application I had made to Advocate & Mrs Le Cornu and confirmed that I had sufficient equity across King's Oak and Beaumont Hill House to cover the loan already provided by Investec as well as the loans provided against Beaumont Hill House, that itself had insufficient equity to cover the full loan value by increasing the amount of their second charge against King's Oak which had, according to Reynold's valuation, more than sufficient equity to accommodate any shortfall that might have existed on Beaumont Hill House and still provide some equity for myself.

 Accordingly, I relied upon Reynolds valuations on King's Oak and Beaumont Hill House to obtain that further funding.

I attach a copy of the Reynolds valuation concerned for your information."

10.     Advocate Swan, who then held the office of Viscount, replied on the following day on 2 November 2022 at 15.34.  It is appropriate to set out his letter in full:

"Lynda Allo has been copying your emails of 1 November 2022 to me.

As I understand it, you are looking for my agreement to assign to you a claim against Reynolds Chartered Surveyors (the "Claim") stemming from a valuation of King's Oak dated 4 March 2013, putting it at a market value of £3,900,000. I have seen a copy of the valuation which is addressed to you and stated to be for the purpose of advising upon Reynolds' opinion of the then current market value of King's Oak. I assume that you are arguing that there is a claim in negligence against Reynolds, in that the valuation was over the actual market value, leading you to take on additional financing that you would not have otherwise taken.

Initial points

I would make the following initial points:

1. Given the judgment in the most recent Court of Appeal case (Booth v The Viscount ([2022] JCA200) (the "CA Judgment")), it is clear that the Claim vested in my predecessor upon the declaration of désastre made in respect of your property on 16 October 2015. It did not revert to you on your discharge, and so remains vested in me.

2. It is also clear from the CA Judgment that, when considering whether to assign such a claim, I am "not only entitled but positively required to consider the merits" of such a claim (at paragraph 81). Paragraph 82(ii) also makes it clear that, if the litigation in respect of such claim "appears [to me] to be utterly hopeless", there would be no justification for me pursuing it and I would be entitled not to assign such a claim.

3. I would also note that the CA Judgment (at paragraph 84) makes it clear that I have to consider my status as a public official and an officer of the court. This may mean not assigning a hopeless claim that a pragmatic defendant may choose to settle by way of a nuisance payment, even though such an assignment may financially benefit creditors in the désastre.

Turning to the Claim, I am curious as to why none of the judgments of the Royal Court and the Court of Appeal dealing with the issue of assignment of claims (([2016]JRC2016), ([2016]JCA218), ([2022]JRC062) and the CA Judgment) refer to the 4 March 2013 Reynolds valuation of King's Oak. Paragraph 14 of the CA Judgment earlier this year refers only to a valuation of Beaumont Hill House by Reynolds also dated 4 March 2013. I would be grateful if you could provide any background on this.

Merits

Subject to any further information that you wish to provide, my assessment of the merits of the Claim is as follows:

1. A valuation is not an exact science and it would be problematic to prove negligence in 2022 by reference to valuations given in 2013 (see paragraph 96(i) of the CA Judgment);

2. While you did not appear to rely specifically upon the 4 March 2013 Reynolds valuation of King's Oak in earlier court hearings, you would still have to confront the fact that you sought to rely on valuations for similar amounts (such as the 2011 CBRE and Reynolds valuations), and would have justify the inconsistency in your arguments (see paragraphs 19, 26 and 96(ii) of the CA Judgment);

3. You are qualified as a chartered surveyor and this would be deployed against you in any arguments of negligence or reliance (see paragraph 96(vi) of the CA Judgment); and

4. The Court of Appeal in the CA Judgment was clear that similar valuations were not the cause of your insolvency (see paragraph 96(xv) of the CA Judgment).

I note that, on the face of the 4 March 2013 valuation of King's Oak, the purpose was not expressed to be for the purpose of further financing. There was further financing provided by the Le Cornus in April 2013 and, given the timing, it might be arguable in court that there was a causal link. However, I am still of the view that the Claim does not have sufficient merit to justify an assignment to you based upon the other reasons above. This is without prejudice to any arguments that could be made to rebut a claim that the valuation was indeed linked to the further financing.

Conclusion

On the basis of my assessment of the merits of the Claim (subject to any further information you may provide), my view is that the Claim is hopeless and I do not agree to assign it to you. To do so could be seen to be furthering potentially frivolous and vexatious litigation, in conflict with my role as a public official and officer of the court. I also note the decision of and the comments made by the Court of Appeal in its recent costs judgment (Booth v The Viscount ([2022]JCA231).

Your initial email to Lynda Allo (14:48 on 1 November 2022) referred only to the 4 March 2013 Reynolds valuation of King's Oak. Your email to Lynda Allo (16:56 on 1 November 2022) refers also to the Beaumont Hill House valuation by Reynolds, presumably meaning the one also dated 4 March 2013. In my view, the same analysis as to merits above applies equally to that valuation.

Please let me know if you have any comments.

Kind regards"

11.     It is right to add at this stage that at the outset of the hearing the Commissioner disclosed that he and Advocate Swan had been in partnership at Ogier until July 2013.  This disclosure did not lead to any party raising any objection to the Commissioner presiding. 

12.     Mr Booth replied to Advocate Swan on 1 December 2022 as follows:

"01 December 2022

Dear Viscount,

Re :- Your actions regarding legal matters relating to Alan Paul Booth.

Further to your email to me, dated 2 November 2022 and timed at 15:36, this communication is sent pursuant to Royal Court Practice Direction RC 17/01 that requires you to be provided with a 'letter before action' prior to the commencement of legal proceedings against you.

Summary of Claim

The complaint against you relates to the following matters:-

·      Your department, that operates as a Public Authority under the HUMAN RIGHTS (JERSEY) LAW 2000, has failed to act in accordance Articles 6; 7; 8; 10 and 14 of that law and instead sought to deprive me of the rights conferred by that law.

·      Because of those failures, my human rights have been breached.

Allegations of Fault

·      The Human Rights (Jersey) Law 2000 states, at paragraph 7

(1)      "Public authorities and the States Assembly (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)      In this Article "public authority" includes -

(a)   a court or tribunal; and

(b)   any person certain of whose functions are functions of a public nature, but does not include the States Assembly or a person exercising functions in connection with proceedings in the States Assembly."

·      The refusal by you to release a claim I wish to pursue against Reynolds Chartered Surveyors is, in my opinion, a breach of my human right to receive justice under Schedule 1, Part 1, Article 6.

·      Furthermore, the action of refusing to release that claim to me establishes a position whereby an arbitrary decision to prefer the rights granted to you, under the Bankruptcy (Désastre) (Jersey) Law 1990, falls into direct conflict with the rights granted to me, under the Human Rights (Jersey) Law 2000.

·      This is a situation needs to be addressed and resolved, as my rights are inviolable and cannot be overridden by the application of a law that is not intended to punish.

·      The fact that you rely upon a law that provides you with an authority to examine the merits of a claim cannot replace the presentation of that claim to a properly convened and impartial court of law.

·      You are aware of my contentions that the principal reason for my having to declare that désastre was due to Reynold's substantial overvaluation of my principal property that, had it not been so overvalued would have prevented me from being placed in a situation that led to the désastre.

Losses

·      As a consequence of your action, I remain in an impoverished financial condition that would not have existed had Reynolds not provided such negligent valuations.

·      If the claim, I wish to make, is not released to me then I shall seek recovery from your department to recompense me for losses arising out of Reynold's negligence, and your refusal to provide me with the means to address that situation.

I have attempted to discuss this situation with you, in a responsible manner, however those attempts have been frustrated by your continued refusal to comply with my human rights.

General

In compliance with practice direction RCR 17/01, I provide you with the statutory 14 days from the date of this communication to acknowledge receipt of this letter in writing and to provide any contact details of the person dealing with this letter before action, as required under RC17/01 section 8. If you do not do this, please note the Practice Direction permits me to issue proceedings without having to take any further steps pursuant to it.

Any substantive response after acknowledging this letter should be provided as soon as reasonably practical. I invite you to confirm the timescale within which you expect to do so.

I would expect your reply to this letter to set out in full any defence you would propose to raise. If you fail to do so, then that failure will be brought to a subsequent Court's attention when it considers the question of costs. Furthermore, your response should provide a clear summary of the facts and legal basis set out in this letter which are agreed or not agreed, including whether or not you agree to submit to the jurisdiction of a future court.

I reserve all rights, including the right (without further reference to you should that prove necessary) to commence proceedings against your department in respect of your actions and intend to seek damages as a result thereof."

13.     Advocate Swan responded to Mr Booth on 9 December 2022.  The section containing his substantive response is as follows:

"My position is:

1. The principles underlying the question of whether it is appropriate for me to assess the merits of a claim when considering whether to assign it to the debtor in a désastre have already been determined in the Court of Appeal (Booth v The Viscount and others [2022] JCA200) (the "CA Judgment"). The conclusion was clear as set out in paragraph 81: "the Viscount is not only entitled but positively required to consider the merits of a claim when deciding to assign it".

2. My decision not to assign the Claim to you was not made arbitrarily. The reasoning was set out in some detail in my email to you sent at 15.34 on 2 November 2022. For ease of reference, the relevant section is as follows:

"Subject to any further information that you wish to provide, my assessment of the merits of the Claim is as follows:

1.     A valuation is not an exact science and it would be problematic to prove negligence in 2022 by reference to valuations given in 2013 (see paragraph 96(i) of the CA Judgment);

2.     While you did not appear to rely specifically upon the 4 March 2013 Reynolds valuation of King's Oak in earlier court hearings, you would still have to confront the fact that you sought to rely on valuations for similar amounts (such as the 2011 CBRE and Reynolds valuations), and would have justify the Inconsistency in your arguments (see paragraphs 19, 26 and 96(ii) of the CA Judgment);

3.     You are qualified as a chartered surveyor and this would be deployed against you in any arguments of negligence or reliance (see paragraph 96(vi) of the CA Judgment); and

4.     4.The Court of Appeal in the CA Judgment was clear that similar valuations were not the cause of your insolvency (see paragraph 96(xv) of the CA Judgment)."

3. You have not been denied a fair trial. The principles underpinning your claim have already been considered at some length by both the Royal Court and the Court of Appeal. My view is that the basis of your claim is materially similar to claims that you have brought before and these have already been firmly determined against you. I cannot see how you can say that you have not received a fair and public hearing.

4. Paragraph 96(xv) of the CA Judgment notes that "[i]n all the circumstances, Mr Booth's insolvency had been caused by his inability to service his borrowings, not the provision of any valuation (negligent or otherwise) from Reynolds"."

14.     The reply then threatened a strike out-application and also that Advocate Swan was considering an application to restrain civil proceedings being brought by Mr Booth by reference to the Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001. 

Procedural History, pleadings and evidence

15.     Mr Booth's Order of Justice was served on 10 January 2023 on the Viscount.  The issue of proceedings led to a strike-out application brought by the Viscount, which was determined by Master Cadin as reported at Booth v Viscount [2023] JRC 055.  Master Cadin concluded that the Court of Appeal 2022 Judgment did not extend to the 2013 King's Oak Valuation.  At paragraph 19, he stated:

"19. The claims in the 2021 Order of Justice were identified in the body of that pleading and comprised a valuation of King's Oak dated 10 May 2011, and valuations of Beaumont Hill House dated 30 January 2012 and 4 March 2013 (the "Three Valuations"). Service of that pleading initiated the proceedings before the Court and the pleading itself defined the issues to be determined by the Court. Accordingly, I find that it was the Three Valuations (and only those valuations) which were before the Royal Court and the Court of Appeal and were determined by those proceedings. The 2013 King's Oak Valuation was not part of the subject matter of the previous litigation. It is not therefore the case that "the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter" such that the issues in relation to the Viscount's decision in respect of the 2013 King's Oak Valuation have already been determined."

16.     Master Cadin then went on to consider whether or not the current set of proceedings brought by Mr Booth amounted to a collateral attack or issue estoppel.  This led him at paragraph 29 to require Mr Booth to file further particulars "...to clarify exactly what he is alleging and why and to confirm that he is not seeking to raise any matter or issue that is or might be tainted by a cause of action estoppel, issue estoppel or might otherwise amount to a collateral attack on a judgment of the Royal Court or the Court of Appeal" leading to an order requiring Mr Booth to provide, by way of an Amended Order of Justice, particulars of:

"...(a) each and every alleged obligation and responsibility to which it alleges the Viscount is subject under paragraph 1.9 of the 2023 Order of Justice;

(b) each and every provision of the Human Rights (Jersey) Law 2000 relied on;

(c) each and every Convention right relied upon;

(d) Mr Booth's status as a victim within the meaning of Article 8(1) of the Human Rights (Jersey) Law 2000 given amongst other things, the quantum of the alleged claim against Reynolds and the deficit to creditors in his désastre;

(e) each and every alleged breach on the part of the Viscount."

17.     Pursuant to these orders, Mr Booth filed a Revised Order of Justice.  The reference to Convention rights is a reference to the European Convention on Human Rights ("the Convention"). Mr Booth in his revised Order of Justice alleged in summary that the following Convention rights were breached:

(i)        The procedural requirements of Article 3 which is the prohibition against torture or inhumane or degrading treatment or punishment.  Mr Booth contends that he is subject to constant mental torture by being unable to pursue Reynolds in breach of the rights to a fair trial because Mr Booth is prevented by the Viscount from pursuing Reynolds;

(ii)       Mr Booth criticises the Viscount for failing to carry out an analysis of the factual case relating to the claim against Reynolds; coupled with the Viscount's refusal to release the claim against Reynolds to Mr Booth means that there is a breach of Article 6 and the right to a fair trial. Mr Booth argues that he is being deprived of his right to hold Reynolds to account.

(iii)      The Viscount's refusal also amounts to interference with the private life of Mr Booth within the scope of Article 8(1) of the Convention;

(iv)     The lack of an effective remedy under Article 13 of the Convention. 

(v)      Certain observations in the Viscount's letters of 2 November 2022 and 9 December 2022 amounted to discrimination in breach of Article 14 of the Convention because they "exhibit an unambiguous discrimination against the Plaintiff that, because the Plaintiff also happens to be a chartered surveyor, the standard of professional service and duty of care provided by Reynolds should be lower than that provided to their other clients. This is discriminatory". 

(vi)     The refusal to assign also amounts to an abuse of rights and therefore is in breach of Article 17 of the Convention;

(vii)     Mr Booth also gave the confirmations that he was not looking to re-open matters previously determined by the 2022 Court of Appeal Judgment or earlier proceedings.  He also confirmed that he was not contending that the Viscount had no discretion and had to reassign the claim because of the provisions of the Human Rights Law relied upon by Mr Booth.

18.     The Viscount filed an Amended Answer, where in summary it is contended that:

(i)        No relevant civil right under Article 6 is engaged;

(ii)       The right of the Royal Court to review the Viscount's decision means that there is a process that is fully compliant with Article 6;

(iii)      The Viscount's refusal to make the assignment does not amount to ill treatment for the purposes of Article 3;

(iv)     As the effect of the désastre is to vest Mr Booth's property in the Viscount by operation of law, the Defendant's decision to refuse to assign any claim to Mr Booth could not violate Article 8 because the property is owned by the Viscount;

(v)      There is no breach of Article 13;

(vi)     In relation to Article 14, the Viscount denies any discrimination;

(vii)     In relation to Article 17, this prohibits the invocation of a Convention right to undermine the rights of another.  The Viscount contends he is not invoking any right pursuant to the Convention and so Article 17 is not engaged.

19.     The above is a summary of the pleadings only.  We have considered the pleadings in full in coming to our decision.

20.     Mr Booth's application was supported by an affidavit sworn on 11 August 2023.  The Viscount filed an affidavit in response, sworn on 5 October 2023.  Mr Booth filed an affidavit in reply on 5 October 2023.  We refer to the relevant parts of these affidavits where it is necessary to do so later in this judgment.  However, as with the pleadings, we have considered the same in full in reaching our decision.

Submissions

Submissions of Mr Booth

21.     Mr Booth made the following written and oral submissions. 

22.     The Court of Appeal 2022 Judgment related to the 2011 valuation by Reynolds of King's Oak, not the 2013 King's Oak Valuation.  While he was disappointed with that decision, he was not challenging it. 

23.     His claim was therefore limited to the 2013 valuation only.  What was at the heart of Mr Booth's claim was that the differences between the valuations produced by Reynolds, both in 2011 and 2013, caused his bankruptcy. 

24.     Mr Booth drew the Court's attention to the approach to be taken as set out by the Court of Appeal at paragraph 57 of the Court of Appeal 2022 Judgment.  The Royal Court was not therefore dealing with the question of whether or not the 2013 King's Oak Valuation was a negligent valuation.  Rather, the question was whether or not the Viscount's decision to refuse to assign to Mr Booth a claim against Reynolds was reasonable. He accepted that the 2011 King's Oak Valuation was addressed to Fairbairn Bank. This was why his previous request to assign a claim against Reynolds in respect of the 2011 valuation failed.

25.     The effect of the 2013 Kings Oak valuation was that Mr Booth borrowed further monies.  Mr Booth obtained the 2013 King's Oak Valuation to appraise his financial situation as at that time. The borrowings that followed the 2013 King's Oak Valuation were the straw that broke the camel's back and led to Mr Booth's bankruptcy.  Mr Booth described the argument as a 'but for' argument, i.e. but for the valuation, he would not have ended up being made bankrupt.  What he therefore wanted the Viscount to investigate were the reasons behind the over-borrowing and how that over-borrowing came about. 

26.     Mr Booth wanted to hold Reynolds to account because he argued that they were responsible for creating the circumstances that led to the loss of his family home, the break-up of his marriage and subsequent financial losses.  He wished to hold Reynolds to account for their actions.

27.     It was clear from the valuation provided by Wills to Investec on 21 March 2016, that the Reynolds 2013 valuation was negligent.  The Wills valuation was a valuation of King's Oak and contained a retrospective market value of the property as at August 2011 in the sum of £2,300,000.  This meant there was £1.6 million difference between the 2013 King's Oak valuation of £3.9 million and the Wills valuation of £2.3 million.  What the Court was being asked to do was to require the Viscount to release that claim to pursue Reynolds for the variance of £1.6 million.

28.     Wills also provided a valuation to the Viscount on the same date which placed a value on Kings Oak in 2015 at £2.4 million; this valuation did not include the retrospective valuation of £2.3 million which was provided to Investec.

29.     It was the scope of the difference between the Reynolds 2013 King's Oak Valuation and the Wills valuations that demonstrated that there was an arguable claim against Reynolds.  While Mr Booth accepted that any property valuation involves an exercise of judgment (see paragraph 96(i) of the Court of Appeal Judgment), an error of 10% to 15% took that into account.  In the present case, the error was 70%, i.e. the 2013 King's Oak Valuation was 70% higher than the Wills 2016 valuation.

30.     Mr Booth accepted that he had to deal with the criticism that he had previously submitted in earlier stages of the désastre that the 2013 King's Oak Valuation was correct and reliable.  Mr Booth candidly stated that when he was arguing for a remise, he had faith in Reynolds and believed their judgment.  Once the Royal Court had ruled otherwise, Mr Booth was entitled to make allegations that Reynolds were negligent.  Mr Booth also contended that the present action he wished to bring against Reynolds in respect of the 2013 King's Oak Valuation was not contradictory as he was seeking to make allegations of negligence in respect of a different loan.

31.     Mr Booth also relied on the fact that Investec had pursued CBRE (see paragraph 10 of the Court of Appeal 2022 Judgment).  He likewise wished to pursue Reynolds on the same basis that CBRE had been held to account.  He wished to hold Reynolds to account and to share the proceeds with the Viscount as he had done with other litigation reassigned to him where he had been successful. As a result of settlements of two of the claims, Mr Booth transferred £95,000 to the Viscount for distribution to the creditors in the désastre, which after the deduction of her expenses and fees, left £39968.57 for distribution to creditors.

32.     Mr Booth also explained that the 2013 King's Oak Valuation was important to him because, due to his first wife's cancer and her subsequent demise, his own business had suffered and his income had reduced from £140,000 a year to £40,000 a year.  He therefore had wanted to complete the development of Beaumont Hill House and sell it and repay his borrowings.  If he did not have enough equity to borrow, Mr Booth would have taken a different course of action.  He explained he could have had the option of selling King's Oak and moving into Beaumont Hill House.

33.     Mr Booth also drew a distinction between a fire sale value of £1.8 million and the valuation carried out by Wills, which was £2.4 million in 2015 and £2.3 million in 2011.  The differences in either case meant there was an arguable case for Reynolds to answer. The case of Lincoln v C B Richard Ellis Hotels [2010] PNLR 31 supported Mr Booth's decision.

34.     Mr Booth also confirmed that he was willing to enter into negotiations with the Viscount to agree a split of any monies recovered.  In earlier cases, Mr Booth repaid £95,000 from the successful litigation into the bankruptcy. 

35.     Mr Booth felt that the observations of the Court of Appeal 2022 Judgment at paragraph 96(vi) were discriminatory.  His position was that he relied on another pair of eyes and the fact that another valuer had professional insurance which he could have recourse to.

36.     In relation to the paragraph 96(viii), those findings related to Beaumont Hill House.  The additional borrowings, however, were secured against King's Oak only, which was why he relied on the 2013 King's Oak Valuation to enter into the additional borrowings.

37.     Mr Booth was also critical of Advocate Millar as Viscount in refusing to negotiate with him.  By the time Advocate Swan as Viscount came to consider the matter, his hands were effectively tied, although he could have reconsidered matters.

38.     In relation to why Mr Booth did not respond to Advocate Swan's letter of 9 December 2022, he felt he had no choice but to issue proceedings. 

39.     Mr Booth also sought to argue that the Viscount was in collusion with Reynolds.  He was however prevented from making this submission because it was not pleaded and Mr Booth had elected in a directions hearing before Master Cadin in October 2023 not to seek discovery in relation to communications between the Viscount and Reynolds' advisers, or to challenge any claim that such communications were privileged.  The Jurats were therefore directed to ignore this argument as was made clear to the parties in open court.

40.     The refusal of the Viscount to allow Mr Booth to pursue Reynolds was not proportionate to fairness or justice.

41.     Mr Booth's Article 3 rights were breached because of the anguish he had suffered as a result of the désastre and the denial of a remedy against Reynolds.

42.     In refusing to assign the claim back to Mr Booth, the Viscount had to have reasons of substance for keeping Mr Booth out of the property right he previously owned, i.e. the right to sue Reynolds.  There were no reasons of substance.  By reference to the approach taken by the Court of Appeal in the Court of Appeal 2016 Judgment, Mr Booth should be allowed to pursue Reynolds.

43.     In this case, the Viscount's failure to look at the merits of the case or the fact that the 2013 King's Oak Valuation was substantially different to the 2016 Wills valuation was a breach of Mr Booth's right to a fair trial, leading to a disproportionate approach being taken. In this case, the Viscount's decision affected the fundamental right of Mr Booth to pursue Reynolds.  By reference to J v Lieutenant Governor [2018] JRC 027A, Mr Booth relied on the assertion that the more substantial the interference with human rights, the more the Court would require by way of justification before it was satisfied that the decision was reasonable.

44.     Mr Booth disputed that any form of estoppel arose.  The claim against Reynolds in respect of the 2013 King's Oak Valuation had not been adjudicated upon.  Nor had the latest request to assign a claim to Mr Booth against Reynolds, for the reasons set out by Advocate Cadin referred to above. 

The Viscount's submissions

45.     Advocate Wilson for the Viscount made the following written and oral submissions.

46.     In relation to the claim that Mr Booth wished to bring against Reynolds, Mr Booth had failed to produce any legal opinion on the merits of the claim.  Nor was there any expert opinion in relation to why the 2013 King's Oak Valuation was a negligent valuation.

47.     Advocate Wilson was critical of Mr Booth for not raising the request to assign the claim earlier and not raising it in the previous proceedings.  The chronology before the Court of Appeal made no reference to the 2013 King's Oak Valuation.  However, Mr Booth should have disclosed a possible claim against Reynolds much earlier because of the duties upon him, contained in Article 18(1) of the Bankruptcy (Désastre) (Jersey) Law 1990 (As Amended) ("the Désastre Law") requiring the debtor to aid the Viscount in the realisation of a debtor's property.  The fact that Mr Booth did not refer the Viscount to the 2013 King's Oak Valuation at the time he was declared en désastre or during its course or subsequently until November 2022 suggested that he did not place any reliance on it.  This meant he would face an uphill battle in any claim against Reynolds.

48.     To the extent that Mr Booth did rely on the 2013 King's Oak Valuation, Mr Booth was now changing his position from the proceedings brought in 2022 in which he sought to rely only on the 2013 Beaumont Hill Valuation.  Both 2013 valuations were carried out on the same date, adopted the same style, contained the same definition of their purpose, and the same approach as can be seen by the opinions on market value, the assumptions, general observations and commentary.

49.     Advocate Wilson also criticised Mr Booth for not providing an explanation in response to the request made by Advocate Swan in his email of 2 November as to why the question of the assignment of the 2013 King's Oak Valuation was not raised earlier.  No response had ever been received to this request.  Nor did Mr Booth respond to the points on the merits raised by Advocate Swan in that email.  Similarly, Mr Booth did not respond to Advocate Swan's letter of 9 December.

50.     Advocate Swan's position, as the then Viscount ,was that while he had not altered the conclusions set out in his email of 2 November 2022 and letter of 9 December 2022, he had kept matters under review as was clear from his affidavit sworn on 5 October 2023. Nothing had been received which justified any alteration to those conclusions.

51.     The approach of Mr Booth was also inconsistent with arguments that Mr Booth had raised in the 2016 Désastre Proceedings, reported at Investec v Booth [2016] 1 JLR 101.  Paragraph 67 of this judgment states as follows:

"67 Mr. Booth accepts that the two independent valuations of both properties obtained by the Jurats in July 2015 would have this result. However, he exhibits to his affidavit a valuation obtained in August 2011 which was produced for Investec at the time of the original loan. This valued King's Oak at £4m. He asserts that that is its correct value, although he gave a figure of €3.5m. in his affidavit in support of the application for a remise. We were also referred to an earlier valuation dated May 2011 by Reynolds Chartered Surveyors prepared for another proposed lender which gave a valuation of £4.4m. He also asserts that Beaumont Hill House is worth more than the figure of £825,000 given to the Jurats. In his affidavit accompanying his application for remise, he valued Beaumont Hill House at £1.7m. but no valuation has been produced in support of that assertion." [Emphasis added]

52.     Advocate Wilson accepted that this submission related to the 2011 King's Oak Valuation but that was for a higher figure than the 2013 King's Oak Valuation.

53.     In the 2016 King's Oak Proceedings where Mr Booth was seeking to require the Viscount to attempt to sell King's Oak for at least £4 million, the judgment at paragraph 27 recorded Mr Booth's criticism of the valuation of Wills Associates.  Paragraph 27 states as follows:

"27. The representor, who is a Chartered Surveyor, filed a lengthy affidavit which contained a detailed critique of the work of Wills Associates, who he suggested were not impartial, and in which he argued that the 2011 valuations were to be preferred or the discrepancy between those valuations and the valuations received more recently at least investigated by the Viscount. There Is on the face of it no explanation, that we can see, as to the discrepancies between the 2011 valuations and those obtained more recently. An investigation into those discrepancies (at the cost of the creditors) might be of benefit to the representor, but it would be of no benefit to the creditors, and in particular the secured creditors, whose only interest was in the sale of King's Oak in the market as it is today. The Viscount had acted upon the advice she had received and the secured creditors, who have the greatest interest in the matter, had no issue with the way she was marketing King's Oak; nor were they asking for any kind of investigation."

54.     Mr Booth was therefore now seeking to rely on the valuation of Wills to allege that Reynolds was negligent, when in 2016 he had provided a detailed critique of their valuations and contended that the 2011 King's Oak Valuation should be preferred.  The Court rejected this approach and there was no appeal against the same.

55.     In the 2017 Proceedings, Mr Booth sought to argue that £1.85 million was well below the true value of King's Oak.

56.     The same judgment at paragraph 19 also noted that Mr Booth had sought to assert that he had only agreed to take the loan and Investec had only agreed to grant a loan in 2011, because of their mutual mistake that King's Oak was worth £4 million.  If that was incorrect, then the contract and accompanying judicial hypothèque should be void on the grounds of erreur.  The Royal Court at that stage noted that whether Investec and Mr and Mrs Le Cornu were secured creditors or unsecured creditors, in practice this would make no difference to Mr Booth because the money was still owed.  It also observed at paragraph 22(vii) that there were "considerable difficulties" with the challenge that Mr Booth had brought on the basis of erreur. 

57.     The assertions by Mr Booth in relation to erreur were determined by the Royal Court in 2018, leading to the 2019 Court of Appeal Judgment.  Advocate Wilson emphasised paragraph 33 of the Court of Appeal Judgment quoting from the judgment of first instance, where Mr Booth stated that he relied on the £4 million CBRE valuation in borrowing funds from Investec.  In other words, he had not relied on the 2011 King's Oak Valuation produced by Reynolds.  This position was also inconsistent with the case now being advanced that Mr Booth's difficulties flowed from the 2013 King's Oak Valuation. 

58.     Advocate Wilson also relied on the Court of Appeal's summary in the Court of Appeal 2022 Judgment of the findings at first instance at paragraph 33(iii) in the erreur proceedings as follows: "(iii) As to causation, the Royal Court held (ibid., at para. 58) that in 2011 Mr. Booth wished to borrow money from Investec and was content to grant security over King's Oak. The court held that, if a lower valuation had been produced at the time, Mr. Booth would have disagreed with it, and it would not have dissuaded him from refinancing his existing borrowing or taking on the small additional borrowing to secure an interest advantage".  What Advocate Wilson contended this summary indicated was that Mr Booth's need was to borrow funds, not to rely on the valuations.

59.     The erreur judgment at first instance, reported at Viscount v Booth [2018] (2) JLR 253 at paragraph 68, also addressed the duty of the Viscount to investigate as follows:

"The Law is silent as to whether or not the Viscount has a duty to investigate but we can well see that in certain circumstances it would be appropriate, perhaps where there was a particular class of creditors, for the Viscount to expand her investigation beyond that necessary to realize the debtor's assets and to distribute the proceeds of that realization among the company's creditors according to law. Generally speaking, however, such an investigation will simply be that necessary to enable the Viscount to discharge her primary function of getting in the assets and distributing them according to law. It will not normally extend in our view to an investigation of the detailed financial dealings of any debtor to identify with precision precisely what went wrong and when. A more general assessment will normally suffice and it would often not be cost effective, or indeed in the interests of creditors, to carry out a detailed investigation."

It was contended that Mr Booth's current approach was inconsistent with this decision.

60.     The Court of Appeal in 2019, rejected at paragraph 40 Mr Booth's appeal against the scope of the investigation required. Advocate Wilson also the emphasised the final part of paragraph 40 where the Court of Appeal commented on the Viscount's approach as follows:

"....In all other respects, she properly conducted investigations into the financial state of Mr. Booth's désastre. She was not obliged to investigate why it was that Mr. Booth had come to overextend himself to such a degree that he was unable to avoid bankruptcy, since to do so would produce no benefits to his creditors. There is no question of any breach of Mr. Booth's Convention rights."

61.     Advocate Wilson also referred to paragraph 41 of the Court of Appeal 2019 Judgment which states as follows:

"41 For the sake of completeness, I refer to Mr. Booth's complaint that Investec had apparently been able to obtain compensation from CBRE, whereas he had no claim in respect of what he said was a negligent valuation that he had paid for. The obvious difference, however, is that Investec could justifiably claim to have suffered loss as a result of the valuation, since it had lent more than it would have done had the true value been known and was left without adequate security, but Mr. Booth suffered no loss at all."

62.     The question of the difficulties of making assertions of a negligent valuation arose in the challenges brought by Mr Booth in 2022.  The Royal Court's judgment reported at first instance at Booth v Viscount [2022] JRC 062.  The Royal Court at paragraph 11 stated as follows:

"11.      We note in this respect the range of possible prices that the agents thought might be achieved on the sale of King's Oak from £2 million at the lowest to £3 million at the highest, which shows, as the Royal Court commented later, that any valuation is at best an expression of judgement and opinion."

That remained the position.

63.     Advocate Wilson drew our attention to paragraph 9 of the Court of Appeal 2022 judgment, which states as follows:

"9 It will be apparent that the valuation of King's Oak was obtained from Reynolds by Fairbairn not in the context of Mr. Booth seeking to raise any new borrowing, but rather in the context of his efforts to refinance an existing liability. In the event, the lending by Fairbairn did not proceed. It is accordingly important to recognize that Reynolds valuation of King's Oak did not form the basis of any lending."

64.     Advocate Wilson also relied on the Court's findings at paragraph 96.  We set out these findings later in this judgment. In relation to the Court of Appeal's reasoning in 2022, Advocate Wilson made a series of points. 

65.     He emphasised that there were serious issues with the claim Mr Booth now wished to be assigned to him which were not materially different to those issues identified by the Court of Appeal at paragraph 96.

66.     The fact that valuation was an exercise of judgment could be seen from the fact that Beaumont Hill House was sold by the Viscount in February 2016 for £0.8 million, whereas in November 2018 (some two and a half years later) Beaumont Hill House was divided into two separate dwellings and sold for £2.5 million.

67.     In relation to the overall approach as to whether a valuer had been negligent, Advocate Wilson referred the court to Charlesworth & Percy on Negligence 15th edition at paragraph 10-354 as follows:

"10-354 Where the complaint made is as to figures included in a valuation the court must first consider whether the figure falls outside the range permitted to a nonnegligent valuer. If there has been some error in the working process adopted by the valuer, that may be evidence that the figure contains an unacceptable degree of error. But if the court, notwithstanding such evidence, concludes that, by whatever means, the valuer has arrived at a result within the bracket, negligence cannot be found. A second stage is involved if the figure is outside the permissible bracket. The claimant should be regarded as having discharged an evidential burden and it is for the defendant to show that he or she nonetheless exercised the care and skill appropriate in the circumstances.

.....

It has been opined that a valuer could have a margin of error of 15% before being held to have fallen short of the standard of care to be expected from an ordinary skilled valuer giving a site valuation against a falling market but it seems likely that the permissible margin of error is not a fixed quantity and will reflect the facts and evidence in each case. In many cases the evidence will disclose a bracket within which it is said the relevant value lies and in such cases having first decided the bracket, the court must go on to decide whether the valuation in question lies within it. However, it is worthwhile noting that not all cases can be decided by reference to a bracket, as where, for instance an ongoing business is being conducted from the premises, or where they are arguably so distinctive as to render comparison otiose."

68.     He also referred to Zubaida v Hargreaves [1995] 1 EGLR 127 at page 128 as follows:

"In bringing this appeal, Mr Zubaida faces a formidable difficulty in the standard which the law requires of a professional man conducting a valuation like this. In an action for negligence against an expert, it is not enough to show that another expert would have given a different answer. Valuation is not an exact science; it involves questions of judgment on which experts may differ without forfeiting their claim to professional competence. The fact that a judge may think one approach better than another is therefore irrelevant. Speaking for myself, and therefore irrelevantly, the valuation strikes me as having been somewhat on the high side. But that is by no means enough to show that Mr Hargreaves did not perform his duty with reasonable professional competence. The issue is not whether the expert's valuation was right, in the sense of being the figure which a judge after hearing the evidence would determine. It is whether he has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession: see Bolam v Friem Hospital Management Committee [1957] 1 WLR 582 at p587, a well-known citation."

69.     In relation to the Lincoln v CB Richard Ellis case referred to by Mr Booth, Advocate Wilson drew our attention to the following observations at paragraph 143 and 144:

"143....A valuation that falls outside the permissible margin of error calls into question the valuer's competence and the care with which he carried out his task: ibid. But not only if, but only if, the valuation falls outside that permissible margin does that enquiry arise.

144 It seems to me plain from that analysis that Buxton L.J., with whom, on this point, Nourse L.J. agreed, was making it plain that a discrete breach of duty in arriving at the valuation figure would not give rise to liability, unless the valuation figure produced by the breach was outside the permissible bracket. Subject to the next issue, I consider that that conclusion is binding on me."

70.     What the claim needed was some evidence to establish parameters and whether grounds were within or outside those parameters.  Mr Booth however had failed to adduce any such expert evidence.

71.     While Advocate Wilson fairly accepted that if it were proved at trial that the 2013 King's Oak Valuation fell outside the permissible margin of error, then ultimately it would be for Reynolds to prove that they had acted in accordance with the reasonable practice of valuers and whether it was appropriate to rely on the comparable sales they referred to, it still remained significant that Mr Booth had agreed with the valuation.  The general point was made at paragraph 96(ii) of the 2022 Court of Appeal Judgment.

72.     Advocate Wilson also referred to the Order of Justice filed by Mr Booth against Reynolds.  At paragraph 12 Mr Booth had made a link between the 2011 King's Oak Valuation and the 2013 King's Oak Valuation where Mr Booth pleaded that both valuations "were comparable in value".  This linking was contrary to the position being advanced in this claim against the Viscount and justified the approach taken by the Viscount.

73.     Mr Booth's position was also contrary to the previous statements referred to above in which Mr Booth had said that he relied on the CBRE valuation, rather than the 2011 King's Oak Valuation, as the Court of Appeal noted at paragraph 96(v) of its 2022 judgment.

74.     Mr Booth's experience was relevant to the findings of negligence against Reynolds and how far Mr Booth relied on Reynolds.

75.     The general approach to be taken by the Viscount was set out at paragraphs 81 to 84 of the Court of Appeal 2022 Judgment.  In particular, if the claim was strong but the Viscount could not fund it, the Viscount did not necessarily have to assign that claim to a debtor.  Whether or not such an assignment should be made for such a claim depended on the terms that could be agreed.  In the Court of Appeal 2022 Judgment, the Court of Appeal observed at paragraph 95 that Mr Booth "had no business seeking to profit in the circumstances of the case".

76.     Advocate Wilson also emphasised paragraph 103 of the Court of Appeal 2022 Judgment which stated as follows:

"103 All we can and need to say is that, in the circumstances of this particular case, there was a wealth of material readily available to the Viscount from the previous litigation in this particular insolvency for the purpose of making an informed assessment of the likely prospects of the claim without having to conduct any new or detailed investigations. It would have been perverse of the Viscount not to consider that material, and the Royal Court did not go wrong in declining to interfere with her decision to do so. Furthermore, since the Viscount chose (entirely reasonably) to undertake that exercise, it cannot now be persuasively argued that the Royal Court was wrong in refusing to overturn the Viscount's evaluation of that material: the accumulation of reasons listed in para. 96 above provide a more than adequate basis for the judgment below."

77.     He contended that this reasoning applied by analogy to the present case.

78.     He also emphasised the observations at paragraph 105, which again he contended applied in the present case.  Paragraph 105 states as follows:

"105 On the second issue mentioned in para. 94 above, i.e. the point about inconsistency within the désastre regime which compliance with Mr. Booth's request would generate, we consider that the Royal Court was not "wrong" in holding that the Viscount was not "wrong" to take this into account. Contrary to Advocate Mière's submissions, this point has nothing to do with the size of the insolvency, nor does it reflect any kind of moral disapproval of Mr. Booth simply on the basis of his insolvency. Rather, it is no more than a reflection of the fact that in these proceedings he is seeking to make a personal gain from an asset that existed before the désastre was declared, while to that extent denying the benefits of the claim to the creditors. In our judgment, it was entirely reasonable to regard that as being antithetical to the désastre regime. In particular, the Royal Court was entitled to conclude that, if Mr. Booth could require an assignment of the claim in this case, it could produce a significant adverse result in other cases by encouraging other debtors not to comply fully with their obligations under art. 18 of the 1990 Law, by suppressing the existence of assets during the course of a désastre in the hope of securing an assignment after their discharge. That would clearly be repugnant to the whole regime."

79.     In this case, the Viscount contended that the only benefit of an assignment was for Mr Booth. 

80.     The overall test to be applied by the Royal Court in reviewing the decision of the Viscount was set out at paragraph 57 of the Court of Appeal 2022 Judgment.  The Royal Court did not have to agree with the Viscount.  Rather, the Royal Court was required to consider whether the Viscount had acted unlawfully or had taken a decision that no reasonable decision-maker could take.

81.     In relation to the human rights arguments where a public authority had a very significant discretion whether or not to grant a benefit, there was no "civil right" that was engaged for the purposes of Article 6. He also referred to the observations of the Court of Appeal at paragraph 70 of the Court of Appeal 2022 Judgment that no Article 1 Protocol 1 rights of Mr Booth were engaged by virtue of a refusal to assign.  Mr Booth could ask for an assignment but that was not an A1P1 right.  To the extent that the Court of Appeal 2016 decision suggested that Mr Booth had a legal right to be assigned any of the assets of an insolvent estate, the Viscount contended there was no authority for such a proposition and that such a proposition did not sit with the Court of Appeal's observations in 2022 at paragraph 70.

82.     The best that Mr Booth could be said to enjoy was a right to challenge the Viscount's decision, including the right to bring matters before the Royal Court if the Viscount refused to assign claims as had occurred.  That did not mean that he had any proprietorial right.  The property was held by the Viscount for creditors.

83.     The only right the debtor enjoyed was under Article 37(6) of the Désastre Law which was a right to any surplus once all creditors, secured or unsecured, had been repaid in full.  Otherwise, Mr Booth did not have any other civil right to compel an assignment of the claim.  All the Viscount had to do was look at the merits of the claim and to act in the interests of creditors. 

84.     The allegation of a violation of Article 1 of the Convention did not arise unless Mr Booth could establish the violation of another Convention right.  As he could not do so, there was no violation of Article 1. 

85.     In relation to Article 3, the allegation of a breach of Article 3 was untenable.  Firstly, Article 3 was generally negative in nature.  To refuse to give Mr Booth that to which he was not entitled could not constitute any harm for the purposes of Article 3.

86.     Secondly, it was only in an exceptional case where there was a flagrant denial of Article 6 rights putting an individual at risk of serious harm that Article 3 might become engaged.  This did not arise in the present case.

87.     As criminal proceedings do not generally give rise to a breach of Article 3, the same analysis applies to a refusal by a public authority to take a particular course of action.  Something over and above such disappointment and frustration as a result of any refusal is called for.

88.     In relation to Article 8, Mr Booth's complaint about the Viscount's decision occurred after the vesting of Mr Booth's property in the Viscount on the declaration of désastre.  Any challenge therefore fell to be considered by reference to Article 6 and there was no basis to assert an Article 8 violation.

89.     In relation to Article 13, the Viscount contended that Mr Booth had no basis for asserting either a violation of a Convention right or non-provision of effective remedy.

90.     In relation to Article 14, Mr Booth's complaint of discrimination was fundamentally misconceived.  Firstly, there had to be a Convention right at issue that might be denied.  There was no Convention right at issue in this case. 

91.     Secondly, both the Viscount and the Court of Appeal in the Court of Appeal 2022 Judgment did no more than point to the substantive law of negligence which takes account of a claimant's attributes when assessing issues of reliance.  Such analysis could not place either the Viscount or the Court of Appeal in breach of Article 14. 

92.     The reliance by Mr Booth on the 2013 King's Oak Valuation should have been raised in the previous proceedings, and Mr Booth's reliance on it in the present proceedings was contrary to the public interest in the finality of litigation. 

93.     Secondly, Mr Booth's "but for" argument (see paragraph 25 above) was a collateral attack on the Court of Appeal's finding in 2022 that Mr Booth was not forced into bankruptcy as a result of any valuation by Reynolds. 

94.     Finally, in relation to the prayer of the Viscount's Answer, the Viscount chose not to pursue the relief sought of debarring the plaintiff from bringing any other proceedings.  This arose following the Court giving the Viscount liberty to file submissions on the question of whether the Royal Court had jurisdiction to make an order of the type sought in paragraph 2 of the prayer to the Amended Answer.

Mr Booth's submissions in reply

95.     Mr Booth made the following submissions in reply. 

96.     Firstly, Mr Booth emphasised that he was a litigant in person and that the law was not his area of expertise. From his perspective as a litigant in person, if the right of action against Reynolds was not assigned to him, then Reynolds would escape any responsibility for their actions.  Ultimately it was for Reynolds to answer to the claim.  At this stage there was an arguable case for Reynolds to answer which could only be dealt with once the matter came to Court. The fact that CBRE had settled with Investec confirmed it was arguable that Reynolds were negligent in relation to their valuations. 

97.     He disagreed that he did not make the Viscount aware of the 2013 King's Oak Valuation.  He referred the court to an email dated 25 November 2015 sent to Mrs Belinda Cave of the Viscount's Office as part of correspondence in relation to the value of the properties once Mr Booth had been made bankrupt.  Included within this email, Mr Booth stated:

"As a consequence of the above, further issues would arise whereby  if the estate agents opinions are proven correct, an argument arises regarding potential professional negligence by the Chartered Surveyors in having placed higher values on the properties than should have applied. This eventuality would also have a direct bearing on the outcome of the désastre."

98.     By the time he made the request for the other assignments, he had forgotten about the 2013 King's Oak Valuation until after the Court of Appeal hearing was determined in October 2022. 

99.     He did not reply to Advocate Swan's communications of 2 November 2022 and 1 December 2022 because he needed to prepare for the issue of proceedings against Reynolds to avoid any prescription issues.  The Order of Justice issued against Reynolds was signed by the Bailiff on 24 February 2022. 

100.   In relation to the additional borrowing from the Le Cornus, it was their second charge over King's Oak that was extended; hence the importance of the 2013 King's Oak Valuation.

101.   He disputed that any inference could be drawn from the fact that the 2013 Beaumont Hill valuation and the 2013 King's Oak Valuation were similar.  This was not surprising because they were produced by the same firm.

102.   In relation to the criticism that he was making inconsistent stances, once the Royal Court made its rulings as to the price at which King's Oak should be sold, Mr Booth accepted that decision.  He did not see any difficulty in relying on a valuation that he had previously challenged.  Up to that point, he had relied on the history of Reynold's knowledge of the site because they had carried out valuations since 2004 and, at that stage, he had no reason to think that Reynold's valuation was wrong.  He does not believe that to be the position anymore. 

103.   In relation to the Viscount's reliance on the Court's criticisms of Mr Booth in the Bults case, those circumstances were very different and did not prevent a claim against Reynolds.

104.   Mr Booth also maintained that he had suffered losses as set out in his main submissions. 

105.   He disputed the criticism of him by the Court of Appeal in its costs judgment.  In that regard, Mr Booth accepted he made a mistake in producing the 2011 King's Oak Valuation without showing that it was addressed to Investec.  Once he realised his mistake, he corrected the same.  However, the valuation did not need to be addressed to Mr Booth because it was to enable Investec to lend funds to Mr Booth.

106.   In terms of what steps Mr Booth could have taken in 2013, he had a number of options.  While he accepted it was a difficult situation, a désastre was avoidable.

107.   In relation to paragraph 82(ii) of the Court of Appeal 2022 Judgment, the Court of Appeal's observation ignored the position that in respect of the earlier claims assigned to Mr Booth, the Viscount had determined these were hopeless; yet Mr Booth managed to obtain recoveries in two of them for the benefit of the estate.  This led to the submission that the refusal to assign the claims meant that there would be no further recovery for creditors.  The only person able to pursue proceedings was Mr Booth because any claims brought by the Viscount were now out of time.

Discussion and decision

108.   The starting point for our decision is the relevant test that the Royal Court has to apply in reviewing decisions of the Viscount.  This was set out in the Court of Appeal 2022 Judgment at paragraph 57 as follows:

"57 Our attention has been drawn to a number of earlier decisions where the test has been described in slightly different language: Eves v. Viscount (2); Booth (A.P.) v. Viscount ([2016]JRC049, at paras. 14-19; noted at 2016 (1) JLR N [8]); Booth (A.P.) v. Viscount ([2016]JRC086, at para. 26; noted at 2016 (1) JLR N [20]); and the judgment below in this case ([2022]JRC062, at para. 35). We would suggest that the correct approach for the Royal Court can be derived from these earlier decisions, from first principles, and from a proper understanding of the context in which this supervisory jurisdiction falls to be exercised. That correct approach may be conveniently summarised as follows:

(i) The court will intervene if the Viscount acts unlawfully, in the sense of exercising a power he does not have, or acting fraudulently or in bad faith, or violating the obligation which rests on the Viscount as a public authority under art. 7 of the Human Rights (Jersey) Law 2000 ("the 2000 Law").

(ii) The court will also intervene if the Viscount takes a decision that no reasonable decision- maker, properly taking into account materially relevant factors and ignoring materially irrelevant factors, could have reached. In the November 2016 judgment (2016 (2) JLR 473, at para. 8), this court suggested that the question could be captured by asking whether the Viscount's decision was "within the range of reasonable responses." We would not disagree, so long as that is correctly understood as a short-hand label for describing the test we have outlined in this sub-paragraph."

109.   As to the duties of the Viscount where there is a claim which has been, or might be, brought for the benefit of an insolvent estate, the Viscount, as the Court of Appeal noted at paragraph 81 of the Court of Appeal 2022 Judgment, is "positively required to consider the merits of deciding whether to assign it".  This led the Court of Appeal to state the following at paragraphs 82 and 83:

"82 In any case where it appears that a claim has been, or might be, brought for the benefit of an insolvent estate, there will be a range of options open to the Viscount. Most obviously, he might decide to pursue the claim, discontinue it, or assign it. In properly deciding what to do, the Viscount will necessarily need to consider the merits of the claim:

(i) If it appears to be a really strong case with a likelihood of substantial recoveries that would exceed the attendant costs, then there may well be good grounds for the Viscount to pursue it, so long as there are sufficient resources in the désastre for doing so, or to try persuading the creditors to fund any necessary litigation if there are insufficient assets in the Viscount's hands.

(ii) On the other hand, if the litigation appears to be utterly hopeless, then there would plainly be no justification for the Viscount pursuing it. Furthermore, in that situation, the Viscount would also be entitled not to assign the claim, whether to the debtor or to any third party, as this court implicitly recognized in the November 2016 judgment (2016 (2) JLR 473, at para. 29).

(iii) If it appears that a claim is neither bound to succeed nor bound to fail, the Viscount may consider assigning the cause of action to a third party, or to the debtor. In deciding whether or not to make such an assignment, and if so on what terms (for example, as to payment up front or as to the division of any proceeds) the Viscount will again need to take a view as to the likely prospects of success. If the claim appears likely to succeed, the Viscount will obviously be well placed to negotiate better terms for the benefit of creditors than if the claim is more doubtful.

83 For these reasons, it is in our judgment self-evident from the very nature of the choices facing him that the Viscount can and must take into account the merits of a claim when deciding what to do with it, including whether to assign it to the debtor. This conclusion is reinforced when proper account is also taken of the function and the status of the Viscount. In the context of a désastre, his function is to gather in the assets, advertise for creditors, adjudicate on claims, realise the assets, distribute the assets pro rata among the creditors, and account for any surplus to the debtor: see this court's judgment on the appeal by Investec against the making of the declaration (Investec Bank (Channel Islands) v. Booth (A.P.), 2016 (1) JLR 101, at para. 28). In performing these functions in a désastre, the Viscount is discharging a public duty by exercising powers which impact on both creditors and debtors of the estate, and quite possibly other third parties too. As such, his decisions cannot either be taken or judged by reference only to commercial considerations."

110.   In the same judgment, the Court of Appeal made the following observations about the challenges facing the Viscount in deciding whether or not to assign a claim and as to the merits.  The Court of Appeal therefore stated the following at paragraphs 101 and 102:

"101 It is, in that context, important to keep in mind that the circumstances facing the Viscount from one case to another will be varied and unpredictable. Within the broad category of cases in which the outcome of any actual or proposed litigation is uncertain, there will obviously be a range of different degrees of uncertainty, and different degrees of complication. The Viscount's handling of any particular case will inevitably need to be responsive to those particular features. For example, if there is a claim which turns on a short point of contractual interpretation, it may well be appropriate for the Viscount to take external legal advice on the likely prospects of success before deciding what to do. On the other hand, if there is a claim which is likely to turn on complex issues of law, or matters requiring expert evidence, or disputed issues of fact which depend on witness credibility, then it is unlikely that the Viscount would need to explore in detail the likely prospects of success before deciding whether to assign the claim, if a suitably beneficial offer is made by a proposed assignee.

102 In short, it would be inappropriate for this court to be unduly prescriptive with regard to the discharge by the Viscount of his functions in a désastre. As a matter of general practice, the court should respect the Viscount's judgment, recognizing both the fact that he is a public official discharging a public function with access to both a specialist team and also professional external advice, and also the fact that litigation is a blunt instrument for resolving disagreements over the kind of evaluative judgments that the Viscount is called upon to make in the course of performing his duties."

111.   These are the principles we have followed in this case and there is nothing we can usefully add to the observations of the Court of Appeal, both as to the approach this Court should take in reviewing the Viscount's decision and in relation to how the Viscount should review the merits of the claim that Mr Booth wishes to have assigned to him. 

112.   In applying these tests, it is clear that the Advocate Swan did look at the merits as he is required to.  As set out at paragraph 8 above, Mrs Allo's immediate response to Mr Booth's request for an assignment was an invitation to Mr Booth for him to "submit in writing the arguments on the merits of your case". 

113.   In his reply of 2 November, Advocate Swan referred to the extracts from the Court of Appeal judgment to which we have just referred in assessing the merits.

114.   Advocate Swan clearly also had regard to the conclusions of the Court of Appeal in the Court of Appeal 2022 Judgment at paragraph 96.  While those conclusions related to the 2011 King's Oak Valuation, the 2012 Beaumont Hill Valuation and the 2013 Beaumont Hill Valuation, Advocate Swan's position was that a number of the conclusions were relevant to the request to assign a claim in respect of the 2013 King's Oak Valuation. It is easiest to set out the whole of paragraph 96 which states as follows:

"96 On the first issue (i.e. that in para. 94(i) above), it is (or should be) common ground that the Viscount's decision in fact fell within the category of cases contemplated in the November 2016 judgment - that is (ibid., at para. 29), where "the Viscount considered that there were no circumstances in which [the claim] could succeed." And, as noted in para. 93 above, the question in this court is not whether we agree with the Viscount's assessment that the claim against Reynolds was "hopeless," but whether we are entitled to rule that the Royal Court was "wrong" in holding that the Viscount was not "wrong" in taking that position. The short answer is that we consider the Royal Court was not "wrong" to conclude that the Viscount was not "wrong" in regarding the claim as hopeless. Whilst emphasizing again that this is not a judgment on a strike- out application, and as such this court is not itself making a definitive ruling on the merits of the claim, we consider that the Royal Court was fully entitled to take into account the fact that the Viscount had, in turn, been fully entitled to take into account the fact that there were fundamental problems with the claim:

(i) It is self-evident that any property valuation involves an exercise of judgment: it is not an exact science, and any attempt in 2022 (or later, whenever the trial takes place) to prove negligence by reference to valuations as at 2011 and 2012, would be singularly problematic at the best of times.

(ii) In seeking to make good his claim against Reynolds for negligently valuing both properties, Mr. Booth would have had to confront the fact that he had previously and repeatedly sought to persuade the court in the earlier stages of the désastre that those valuations were correct and reliable. He would accordingly have to explain away the inconsistency in his arguments.

(iii) Mr. Booth's problems in that regard were compounded by the fact that the Reynolds valuations of both King's Oak and Beaumont Hill House were supported by contemporaneous valuations by other firms that were in the same order of magnitude.

(iv) The valuation of King's Oak by Reynolds was provided in the context of a refinancing in 2011, not in the context of a forced sale in 2016.

(v) Mr. Booth had not sought to rely on the Reynolds valuation of King's Oak in the course of the earlier proceedings in the désastre, and indeed his pleaded position had previously been that he relied on the CBRE valuation instead.

(vi) To the extent that Mr. Booth sought to contend in the claim that he relied on the Reynolds valuations, the fact was that he is not merely qualified as a chartered surveyor, but he was also a practitioner who relied, in his business's marketing material, on his own experience and expertise in the field of valuation. That would be deployed against him in relation to any arguments of negligence or reliance, because it would be said against him that he, as an expert, must have agreed with the Reynolds valuations at the time.

(vii) The court had, in the course of the erreur proceedings, made clear findings that Mr. Booth did not rely on any of the 2011/13 valuations as the basis for entering into the transactions with Investec or Mr. and Mrs. Le Cornu. Although those earlier rulings were not made in proceedings to which Reynolds was a party, and as such no issue estoppel might formally arise, nevertheless the Royal Court in this case was entitled to take the view that the Viscount had been entitled to take the view that any claim in negligence that might now be brought against Reynolds would constitute a collateral attack on those earlier rulings.

(viii) The Reynolds valuation of King's Oak was prepared for and addressed exclusively to Fairbairn, and its express terms precluded any other party relying on it.

(ix) In the event, no lending was made by Fairbairn, so it was difficult to see how Mr. Booth could now contend that any relevant reliance was placed on the Reynolds valuation of King's Oak, even if it had been addressed to him.

(x) The March 2013 valuation of Beaumont Hill House post-dated the bulk of the borrowing, which had been incurred in early 2012.

(xi) Whilst the valuation of the same property in January 2012 was "in the order of" £1.3m., Mr. Booth had in fact been able to acquire the property for only £1m.

(xii) In contrast with the position regarding King's Oak, when these proceedings were issued there was no retrospective valuation of Beaumont Hill House as at early 2012 that even ostensibly impugned the Reynolds valuation.

(xiii) The valuations of Beaumont Hill House produced in 2016 reflected its then deteriorated condition and were not obviously reflective of its true value four years earlier.

(xiv) All of the Reynolds valuations had been procured in the context of Mr. Booth seeking to refinance his existing borrowings, not for the purpose of incurring any new liabilities.

(xv) In all the circumstances, Mr. Booth's insolvency had been caused by his inability to service his borrowings, not by the provision of any valuation (negligent or otherwise) from Reynolds."

115.   It is  clear to us that Advocate Swan in particular had regard to sub-paragraphs (i) to (vi), (xiv) and (xv).

116.   The first issue Advocate Swan considered was the fact that any property valuation involves an exercise of judgment and was not an exact science, by reference paragraph 96(i).  In relation to his approach to this question, we accept the submissions from Advocate Wilson about the overall approach to be taken as to whether a valuer has been negligent as explained in Charlesworth and Percy on Negligence set out at paragraph 67 above.  By reference to the discussion at paragraph 10/354, in this case, the critical question and the thrust of Mr Booth's argument was that the 2013 King's Oak Valuation was outside the permissible bracket.  The basis for this argument was that, because the Royal Court accepted the Wills valuation in 2016 of £2.3 million, the 2013 King's Oak Valuation of £4 million was 70% higher than the valuation accepted by the Royal Court.  Accordingly, the 2013 King's Oak Reynold's valuation was outside the permissible bracket.

117.   Where a valuation is outside such a permissible bracket, as the extract from Lincoln v CB Richard Ellis cited at paragraph 69 above shows, this calls into question the valuer's competence and the care with which he carried out his task. 

118.   This does not mean that simply because a valuation is outside a permissible bracket that negligence is established.  The question that then arises is that formulated in Zubaida at paragraph 68 above, namely whether the valuer "has acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession": see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at page 587.

119.   We have referred to the applicable test when assessing whether a property valuation has been carried out negligently because Advocate Swan did not have the benefit of the arguments Mr Booth has now laid before us as to why Reynolds were negligent in producing the 2013 King's Oak Valuation.  This is because Mr Booth chose not to respond to Advocate Swan's invitation to set out the merits of his claim against Reynolds by reference to the 2013 King's Oak Valuation. We therefore have to consider whether Advocate Wilson's response to those arguments for the Viscount is one that is lawful or one that a reasonable decision-maker could reach applying the test at paragraph 57 of the 2022 Court of Appeal Judgment. For shorthand we refer to this part of the test as being whether the decision made was irrational in the sense of a failure to have regard to a relevant matter. We also have to deal with the human rights arguments raised by Mr Booth as part of assessing the Viscount's decision and current submission.

120.   Before we do so we wish to make it clear that we were not satisfied with the explanation that Mr Booth gave us for not responding to Advocate Swan's requests, mainly that he needed time to draft an Order of Justice.  The King's Oak Valuation was dated 4 March 2013.  Mr Booth therefore had until March 2023 to commence proceedings to avoid any questions of prescription.  In our judgment, he had plenty of time to respond to Advocate Swan's email of 2 November and letter of 9 December 2022 and to provide the sort of analysis that has now been provided to us for the purposes of this appeal.

121.   In relation to that analysis, it is right to recognise that it advances the position beyond the general statement made by the Court of Appeal at paragraph 96(i) of the Court of Appeal 2022 Judgment which Advocate Swan adopted in his email of 2 November.

122.   What we are left with now is a valuation that differs significantly from another valuation which the Royal Court accepted as one which it was reasonable for the Viscount to rely on in the 2016 Kings Oak Proceedings. This does not mean however that the Viscount was not entitled to and is still not entitled to conclude it would be problematic to prove negligence. In particular, Reynolds will also be entitled to rely on the fact that the CBRE valuation reached similar conclusions to Reynolds at least in 2011. 

123.   In addition, assuming that the 2013 King's Oak Valuation is outside a permitted bracket, and so triggers an enquiry as to whether the valuer has exercised reasonable care and skill, the Viscount was entitled to note that the methodology in the 2013 King's Oak Valuation involves comparators with other properties. A negligence claim would therefore have to establish whether the methodology used by Reynolds was an exercise of reasonable care and skill. In our view this means that an allegation of negligence at this stage is therefore arguable.

124.   The Viscount also relied on the inconsistencies between Mr Booth's current arguments and those cases where Mr Booth relied on valuations similar to the 2013 King's Oak Valuation and argued that they were correct.  We have set out above Mr Booth's responses to those arguments.  We have also reminded ourselves of the applicable test.  It is this Court's function to decide whether the Viscount was reasonable in taking into account those inconsistencies in reaching the decision not to assign the claim.  The fact that the explanations Mr Booth now wishes to advance might be accepted at a trial or are arguable is not enough and does not make the Viscount's decision irrational in taking those inconsistent arguments into account.  Ultimately, it would only be cross-examination of Mr Booth at a trial of this claim against Reynolds that would enable a trial court to determine whether or not to accept Mr Booth's explanations.  However, that is an expensive exercise and one which carries a great deal of uncertainty.  The Viscount, and those providing legal advice to him, are entitled to have regard to the fact that evidence from a witness who has made inconsistent statements may well not be accepted and the evidence of other witnesses preferred instead.  This risk was recognised by the Court of Appeal in 2022 and the Viscount was therefore reasonable in having regard to it in his communications in November and December 2022 and in his position before us.

125.   The reply of Advocate Swan also referred to the qualifications of Mr Booth as a chartered surveyor.  At trial, Mr Booth would be cross-examined on whether he agreed with the valuations when they were provided.  Again, only a trial court could determine whether or not to accept Mr Booth's evidence and his position is no more than arguable.  On this point, we have concluded it was not unreasonable for Advocate Swan to note the findings of the Court of Appeal at paragraph 96(vi) that Mr Booth was a practitioner who relied on his own marketing material and his own experience and expertise in the field of valuation as part of his decision making.  This is not discrimination. 

126.   The claim is also no more than arguable because Reynolds would be entitled to contend that it was Mr Booth making decisions about what property to acquire and what monies to raise.  In other words, Mr Booth was forming his own judgment about the properties he had acquired and the value in them.  Again, this risk is something the Viscount was entitled to have regard to as affecting the merits of a claim against Reynolds.

127.   We next deal with the Court of Appeal's conclusion in 2022 that similar valuations were not the cause of Mr Booth's insolvency.  The Court of Appeal's summary of the background noted that in 2011, Mr Booth borrowed £2.8 million from Investec to finance existing indebtedness of £2.6 million.  In 2012, Mr Booth then acquired Beaumont Hill House for £1 million and borrowed a further £1.7 million from Mr and Mrs Le Cornu, secured against both King's Oak and Beaumont Hill House.  By the time of the 2013 King's Oak Valuation, Mr Booth therefore owed £4.5 million plus interest that was accruing.  Mr Booth submitted that his annual income from his surveying practice fell significantly in 2013 after his first wife's death from around £140,000 to approximately £40,000.  The latter figure is referred to in his affidavit in reply at paragraph 33. Mr Booth did not therefore have the income to service the interest payable on existing borrowings at the time he obtained the 2013 King's Oak Valuation.

128.   In addition, if Mr Booth is correct in his assertion that the  2013 King's Oak Valuation was negligent and the true value was £2.3 million by reference to the Wills Associates' valuation produced in 2016, then in March 2013, Mr Booth was hopelessly insolvent.  The combined value of King's Oak and Beaumont Hill House was £3.8 million (relying on the 2013 Beaumont Hill Valuation).  It may even have been lower given the price at which Beaumont Hill House was ultimately sold.  Either way, Mr Booth's liabilities exceeded the value of his assets (based on his allegation of negligence against Reynolds) before he borrowed additional sums from Mr and Mrs Le Cornu in 2013.  This is entirely consistent with the Court of Appeal's conclusion at paragraph 96(xv) that "Mr Booth's insolvency had been caused by his inability to service his borrowings not by the provision of any valuation (negligent or otherwise) from Reynolds".  By March 2013, Mr Booth did not have enough income to service existing borrowings and did not have any other assets against which to raise funds.  Ultimately, Mr Booth was in over his head in terms of the property he had acquired and the borrowings he had entered into. 

129.   In our judgment, the Viscount was fully entitled to have regard to this position in refusing to assign any claim to Mr Booth. The financial position of Mr Booth at the time of the 2013 King's Oak valuation was hopeless. A claim against Reyolds is therefore bound to fail. It was not the 2013 King's Oak Valuation that was the cause of Mr Booth's désastre as he alleges in his claim against Reynolds at paragraph 18. This is so even if we are incorrect in the conclusions we have reached about the reasonableness of the Viscount's other conclusions about the claim against Reynolds that Mr Booth now wishes to assert. The Viscount concluded he was already insolvent on both a balance sheet and cashflow basis.  We can only agree.

130.   The Viscount was also not acting unlawfully or irrationally in his decision to refuse to assign when he had no information from Mr Booth as to how the claim might be put. Even if Mr Booth had set out to Advocate Swan the arguments he has now set out before us, the Viscount would not have been acting unlawfully or irrationally in refusing to assign the claim.  As we have set out above, the allegation of negligence faces real challenges especially in relation to causation  The Viscount as a public official concluded that he did not have to assign claims that are, putting it at its highest, no more than arguable. He was also entitled to have  regard to not allowing a claim to be made in the hope of extracting some offer to make the claim go away. There was nothing unlawful or irrational in the position adopted before us.

131.   In relation to Mr Booth's argument that no one will hold Reynolds to account, assuming that negligence can be proved, the flaw with this submission, is that any such negligence was not causative of Mr Booth's losses.  Mr Booth was already insolvent by the time of the 2013 King's Oak Valuation. In addition, as Advocate Wilson put it to us, Mr Booth's need was to borrow funds, not to rely on the valuations. This is not an unreasonable or irrational conclusion.

132.   The analysis by the Court of Appeal in 2019 set out at paragraphs 60 and 61 above, to which Advocate Wilson also referred, is also pertinent to this question and recognises that Mr Booth had over-extended himself.

133.   The fact that Mr Booth was also successful in making some recoveries for two of the claims assigned to him does not alter the above conclusion.

134.   We next deal with the submission that the present request to assign the 2013 King's Oak Valuation should have been raised in the previous proceedings and alternatively was a collateral attack on the Court of Appeal's finding in 2022 that Mr Booth was not forced into bankruptcy as a result of any valuation by Reynolds.  We are persuaded by both of these submissions by the Viscount.

135.   In relation to the reliance by Mr Booth on the 2013 King's Oak Valuation, at paragraph 17 of his Order of Justice against Reynolds, he pleaded "The remise application was unsuccessful because King's Oak and Beaumont Hill House failed to achieve the values advised by the defendant" (emphasis added). While Mr Booth argued before us that only the 2013 King's Oak Valuation was relevant to obtain further funding, that is not how matters have been put in his claim against Reynolds. Yet the Court of Appeal 2022 Judgment prevented Mr Booth from relying on the 2013 Beaumont Hill Valuation. His claim against Reynolds is therefore clearly a collateral attack on that judgment and so, for this reason also, his challenge to the Viscount's decision fails.

136.   While we accept for the purposes of this application that the failure to make the request of the Viscount earlier was an oversight, in our judgment the present request by Mr Booth also amounts to issue estoppel because it is an issue common to the earlier proceedings (see Dubai Islamic Bank PJC v Ridley [2016] JRC 102 and [2017] JRC 204).

137.   Alternatively, Mr Booth in the present claim is seeking to raise a matter which could and should have been raised in the earlier proceedings, contrary to the approach in Henderson v Henderson, also considered in Dubai v Ridley.

138.   The rationale underpinning both issue estoppel and the Henderson v Henderson principle lies in the public interest in finality in litigation.  In this case, we consider that Mr Booth, by trying to raise an argument in respect of a very similar valuation, is misusing the processes of the Court when he could have raised the issue earlier.

139.   We also accept the submission that Mr Booth's "but for" argument, i.e. but for the valuation he would not have ended up being made bankrupt, is also a collateral attack on the conclusions reached by the Court of Appeal at paragraph 96(xv).  For this reason also, Mr Booth's request to overturn the Viscount's decision is refused.

140.   We next deal with the human rights arguments raised by Mr Booth because these were raised in his response of 1 December 2022 to Advocate Swan and in his Revised Order of Justice produced pursuant to the directions issued by Master Cadin dated 4 July 2023.  It was the human rights arguments that were at the heart of the Revised Order of Justice.

141.   As a starting point, it was common ground that the Viscount was a public authority for the purposes of the Human Rights (Jersey) Law 2000 ("the Human Rights Law") which gave effect to the European Convention on Human Rights ("the Convention"). 

142.   Mr Booth firstly referred to Article 1 of the Convention and contended that the Bankruptcy Désastre Law should be read and given effect in a way which avoids violation of a Convention right.  Article 4(1) of the Human Rights Law states "so far it is possible to do, principal legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights".  In our judgment, this gives effect to the obligation to interpret the Désastre Law in accordance with the Convention rights. It is not however a freestanding ground on which Mr Booth can rely.

143.   Dealing with each of the rights raised by Mr Booth, we are satisfied for the reasons advanced by the Viscount that Mr Booth's Convention rights have not been breached.

144.   In relation to Article 3, Article 3 states "No one shall be subjected to torture or inhuman or degrading treatment or punishment".

145.   The Viscount's refusal to allow Mr Booth to pursue Reynolds is not torture or inhuman or degrading treatment or punishment.  As to the type of the conduct that amounts to a breach of Article 3, see Ireland v UK [1978] 2 EHRR 25.  Mr Booth is very far removed from the descriptions contained in that case.

146.   That is not to say that a party taking part in litigation does not have to deal with significant stress arising as a result of that litigation.  The Courts frequently see parties who find the litigation process very stressful or difficult.  This stress may arise from the process they have to go through or individuals or organisations having to come to terms with what has happened that has led to the litigation or a combination of both.  Mr Booth is no exception to this type of stress.  However, such stress or pressure does not meet the requirements of Article 3.  While it may be extremely upsetting for someone not to be able to pursue a particular legal right they believe they have, that is not torture or inhuman or degrading or punishment.

147.   In relation to the right to a fair trial under Article 6 of the ECHR, Mr Booth's focus was on him being deprived of a right to a fair trial against Reynolds.  The Viscount's position was that the Viscount's decision was subject to review by the Royal Court and so the Viscount's refusal was subject to a fair trial and thus complied with Article 6.

148.   Advocate Wilson's first submission was that Article 6 was not engaged because Mr Booth did not have any civil right which engaged Article 6.  Article 6(1) starts with the words "In the determination of his civil rights and his obligations".  In this case, the cause of action by virtue of the provisions of the Désastre Law is vested in the Viscount.  This was the conclusion reached in the 2022 Court of Appeal Judgment at paragraph 70 where the Court of Appeal stated:

"We are not persuaded that any decision taken by the Viscount thereafter (whether to assign or disclaim or otherwise deal with any property vested in him) engages any Article A1 P1 rights of the debtor.  The property which has been vested in the Viscount is by operation of the 1990 Law no longer the debtor's property."

149.   While the Court's reasoning focused on Article 1 Protocol 1 of the Convention, we accept Advocate Wilson's submissions that the same analysis applies to Article 6.

150.   We should add that the only right that Mr Booth enjoys in relation to Article 6 is the right to request the Viscount to consider assigning claims to him.  However, he has a remedy in respect of that right, which is compliant with Article 6, if the Viscount refuses a request to assign a claim, as is demonstrated by this appeal.  A right to request an assignment of a claim is however different from a right to pursue Reynolds.  Mr Booth has no such right.  Accordingly, Article 6 does not apply to the claim that Mr Booth wishes to bring against Reynolds because he has no right to bring such a claim. We add for the sake of completeness that the fact that the Viscount is subject to review by the Royal Court is a sufficient safeguard for the process of Article 6 (see Ali v UK [2016] 63 EHRR 20 where it was accepted that judicial review was an adequate safeguard to review an original decision by an independent decision-maker, where that decision-maker was not a Court).

151.   Also in relation to Mr Booth's reliance on Article 6, we refer to paragraph 59 of the Court of Appeal 2022 Judgment, where the Court of Appeal stated:

"Questions of procedural fairness tend to arise where a decision-maker is exercising an adjudicative function or is determining issues which impact on a person's rights and property, which is not what the Viscount is doing where dealing with property vested in him under Article 8 of 1990 Law."

152.   We are bound by this reasoning which further confirms why Article 6 is not engaged in respect of the claim Mr Booth wishes to bring against Reynolds.

153.   Insofar as Mr Booth referred to whether it was proportionate for the Viscount to refuse to return the claim to him in light of the Viscount's obligations, as the Court of Appeal noted at paragraph 58 of the Court of Appeal 2022 Judgment, proportionality arises where the Court is called upon to determine whether the Viscount has violated any Convention right.  Mr Booth however used the term proportionate to mean fair or just.  That is not the applicable test.  Rather, the test we are required to consider is whether a Convention right is engaged and has been violated.  Only then is it necessary to consider whether any interference with a Convention right if there has been a violation is proportionate.  In this case, we are satisfied that no Convention rights are engaged apart from Article 6 in relation to the request by Mr Booth to the Viscount to assign the claim to him. In relation to this request, there has been no violation of Article 6. Accordingly we do not need to consider the test of proportionality.

154.   In relation to the arguments under Article 8, we agree with the Viscount that Article 8 is not engaged.  Article 8(1) states "Everyone has the right to respect for his private and family life, his home and his correspondence".  However, the property which is the subject of the application has vested in the Viscount on the making of the désastre for the reasons set out above.  Accordingly, we agree with the Viscount that Article 8 is not engaged.  Mr Booth's complaints about the Viscount's decision are capable of challenge by way of judicial review, which right of challenge is Article 6 compliant as we have noted above.

155.   Article 13 provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

156.   Mr Booth's submissions are that he has been deprived of a remedy because he cannot pursue Reynolds.  Article 13 however firstly is not a right in itself because, like Article 1, it is given effect to by the enactment of the Human Rights Law. In any event, it only comes into play where there is no domestic remedy.  In this case, Mr Booth has a remedy to challenge the Viscount's decision and accordingly there is no breach of Article 13.

157.   In relation to Article 14, Article 14 states:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

158.   However, Article 14 only applies if there is another Convention right at issue that may be denied on discriminatory grounds.  In relation to Article 6, anyone can ask for judicial review of a refusal by the Viscount to assign a claim to a bankrupt. No question of discrimination therefore arises. In relation to the other convention rights invoked by Mr Booth, as they are not engaged for the reasons set out in this judgment, then Article 14 is not engaged.

159.   Mr Booth's specific complaint under this head was the Viscount's reference to Mr Booth's status as a surveyor and that this amounted to discrimination.  However, for the reasons set out above, we accept the Viscount's submission that this represents a misunderstanding of the Viscount's reasoning which was itself based on the Court of Appeal's reasoning.  What the Court of Appeal was referring to was how far Mr Booth, as a surveyor, relied on the opinion of Reynolds, which the Court of Appeal was entitled to do as a matter of substantive law.

160.   In relation to Article 17, Article 17 states:

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

161.   However, Article 17 is of no application because the Viscount is not invoking any Convention right.

Conclusion

162.   For all these reasons, we are satisfied that the Viscount, in reaching his decision, has not acted unlawfully, has not reached a decision that no reasonable decision-maker could have reached, and has not breached any of the provisions of the European Convention on Human Rights or the Human Rights Law to the extent they apply.  Accordingly, Mr Booth's challenge to the Viscount's decision to refuse to assign to him a claim against Reynolds based on the 2013 King's Oak Valuation is refused.

Authorities

Booth v Viscount [2022] (2) JLR 141.

Booth v Viscount [2016] 1 JLR 101. 

Bankruptcy (Désastre) (Jersey) Law 1990. 

Booth v Viscount [2016] JRC 049. 

Booth v Viscount (En desastre) [2016] JRC 086. 

Booth v Viscount [2016] (2) JLR 473. 

Booth v Bults [2018] JCA 135. 

Viscount v Booth [2017] JRC 215. 

Viscount v Booth [2018] 2 JLR 253. 

Booth v Viscount [2019] 2 JLR 1. 

Booth v Viscount [2023] JRC 055. 

Booth v Viscount [2022] JRC 062. 

Civil Proceedings (Vexatious Litigants) (Jersey) Law 2001. 

Booth v Viscount [2023] JRC 055. 

Lincoln v C B Richard Ellis Hotels [2010] PNLR 31. 

J v Lieutenant Governor [2018] JRC 027A. 

Bankruptcy (Désastre) (Jersey) Law 1990. 

Investec v Booth [2016] 1 JLR 101. 

Charlesworth & Percy on Negligence 15^th edition. 

Zubaida v Hargreaves [1995] 1 EGLR 127. 

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. 

Dubai Islamic Bank PJC v Ridley [2016] JRC 102. 

Dubai Islamic Bank PJC v Ridley [2017] JRC 204

Human Rights (Jersey) Law 2000

Ireland v UK [1978] 2 EHRR 25. 

Ali v UK [2016] 63 EHRR 20.