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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Jeanne v Jersey Telecoms [2009] JCA 138 (08 July 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_138.html Cite as: [2009] JCA 138 |
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[2009]JCA138
COURT OF APPEAL
8th July 2009
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Before : |
M. S. Jones, Esq., Q.C., President; |
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Between |
Colin Dennis Jeanne |
Appellant |
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And |
Jersey Telecom Limited |
Respondent |
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The Appellant in person.
Advocate D. M. Cadin for the Respondent.
JUDGMENT
pleming ja:
Introduction
1. This is an appeal against a decision of the Royal Court on 19th December 2008 ("the Decision"). The Commissioner's decision was to strike out the whole of the Plaintiff's claim contained in the Order of Justice, save for the refund of the employer's contributions under the Occupational Pension Scheme. That aspect of the Appellant's claim continues and is not considered further in this judgment.
2. The Appellant appeals on the following grounds (taken from the Notice of Appeal):-
(i) The Commissioner of the Royal Court has completely ignored the Plaintiff's statutory Contract of Employment as well as contractual statutory Terms and Conditions Agreement; and
(ii) The Commissioner has denied the Plaintiff his right to use the same principles applied to his Contract, as used by the Defendant, to compile the Contract considering the local Laws are silent on this issue; and
(iii) That common law rights of the parties are restricted by the terms of the agreement made between the Defendant and the Plaintiff; and
(iv) That the Plaintiff believes there is clearly a conflict of interest in the case.
3. The Appeal has been conducted on the basis of the following written submissions:-
(i) The Appellant's Notice of Appeal, and Grounds, together with a bundle of documents (Bundle 1);
(ii) The Respondent's contentions, together with Bundles 2, 3 and 4;
(iii) The Appellant's response to the Respondent's Bundle 4.
4. The Appellant's written arguments are also set out in some detail in his pleaded case, the Order of Justice dated 24th May 2007, the Reply dated 29th May 2008, and the Answer to Defendant's Request for Further and Better Particulars dated 7th July 2008.
The factual background
5. A brief summary of the facts relating to the Appellant's employment can be taken from paragraphs 2 to 5 of the Decision, retaining the reference to plaintiff and defendant:-
6. The test on an application to strike out is well-established. It is only where it is plain and obvious that the claim cannot succeed that recourse should be had to the court's summary jurisdiction to strike out. On an application to strike out under sub-paragraph (a) of r.6/13(1) of the Royal Court Rules 2004 (that there is no reasonable cause of action) evidence is not admissible. However, where an application is made under subparagraph (b) (scandalous, frivolous or vexatious), or sub-paragraph (d) (abuse of process), or where the application to strike out invokes the inherent jurisdiction of the court, evidence is admissible, and may be considered by the court. See Trant v Attorney General [2007] JLR 231 at paras 22 and 23. The application in this case was made under sub-paragraphs (a), (b) and (d) - and therefore evidence would be admissible. However, it seems to be that in this case the appropriate approach for the court to take is to consider the appeal broadly on the basis that the Appellant can establish his factual case at trial.
The Appellant's Arguments on Grounds of Appeal (i) to (iii)
7. In his Notice of Appeal, the Appellant takes issue with the Commissioner's decision, paragraph by paragraph. The Appellant's main complaint is that the dismissal was in breach of the Grievance and Disciplinary Procedures referred to in clause 12 of the Contract of Employment and set out in the Jersey Telecoms/AEEU Staff Agreement Book ("the Agreement") incorporated into the contract by clause 14. The Appellant relies on Section 10 of the Agreement headed Discipline and Conduct (in a later version of the Agreement with the Court's papers it is headed "Discipline Inefficiency and Conduct"), referring in particular to paragraph 2.5:-
"No employee will be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will be dismissal without notice or payment in lieu of notice".
8. The Appellant's case is that there was a breach of this paragraph (and other paragraphs) of Section 10 of the Agreement. In his pleadings, the Appellant also relies on Section 12 of the Agreement, which deals with Inefficiency, and sets out an "Inefficiency Procedure" which could, but may not, lead to dismissal. It is clear, even on the pleaded case, that this is an "inefficiency" case, not a "misconduct/discipline" case. The appropriate procedures under that heading are set out in Section 12 of the Agreement (later in Part 2 of Section 10). However, as the Appellant relies on Part 1 of Section 10, and to test the argument, I will concentrate the analysis on the discipline provisions.
9. Paragraph 1 of Section 10 of the Agreement is as follows:-
"Purpose and scope
This procedure is designed to help and encourage all employees to achieve and maintain standards of conduct, attendance and job performance. This procedure applies to all AMALGAMATED ENGINEERING & ELECTICAL UNION employees of Jersey Telecom with the aim of ensuring consistent and fair treatment for all.
THIS SECTION IS BASED ON, AND IS IN THE SPIRIT OF, THE ACAS DISCIPLINE AT WORK DOCUMENT, COPIES OF WHICH ARE HELD BY GROUP MANAGERS, SHOP STEWARDS AND IN THE LIBRARY."
10. Based on the words in capitals in Section 10 of the Agreement (although they do not appear in Section 12) the Appellant argues that there has been an express incorporation of the provisions of English statutory law into the Contract of Employment. He summarises this aspect of the appeal in the following extracts from paragraphs 6 to 9 of the Notice of Appeal:-
"(i) The Plaintiff has a statute Contract, Terms and Conditions agreement with the Defendant which is a legal document signed by both parties which should be upheld by Law.
(ii) As there was no statutory Contract Law in Jersey in 2000, the Plaintiff is basing his claim for Breach of Contract, Unfair Dismissal and Wrongful Dismissal on the UK English case Law and principles, the very same Law and principles used by the Defendant to compile its own Contract document. The UK Employment Rights Act (1996), BERR and ACAS have clear guidelines with regards to claiming damages for Breach of Contract, Unfair and Wrongful Dismissal that have been in practice for over 13 years (and now imported and adopted by Jersey in 2003) and have proved effective in settling such claims/disputes, but the States of Jersey Royal Court is refusing the Plaintiff his right to use guidelines and principles in use from the UK English Civil Courts.
(iii) In the past the States of Jersey Royal Court has "cherry-picked" guidelines and principles from other jurisdiction (mainly the UK) to settle cases where statutory Law is silent in Jersey, but is refusing the Plaintiff that right to do the same considering that Jersey did not have statutory Employment Laws to protect people with Contracts, which is both unfair and unjust and considering that these Contracts are compiled purely using UK principles and guidelines.
(iv) The Plaintiff will argue that it is a fact (and stated in the Plaintiff's Contract) that the Defendant has compiled its own Employment Contract using guidelines and principles published by Department of Trade and Industry (DTI) (now BERR), and the ACAS based on the UK Employment Rights Act (1996), therefore the relevant English case Law applies in this case."
11. The Appellant has formulated this complaint in various ways since the case commenced, but it all comes down to the following sequential steps:-
(i) There was no factual basis for the dismissal (he was not, as alleged by the Respondent, inefficient);
(ii) If the Respondent had followed the procedures in Sections 10 or 12 of the Agreement, there would have been no basis for any dismissal - and he would not, or could not, have been dismissed;
(iii) Any dismissal contrary to the set procedures was unjustified, unlawful and therefore wrongful;
(iv) By reason of this unjustified, unlawful and wrongful dismissal, the Appellant has suffered loss and damage;
(v) Under Jersey Law (current at the time of the dismissal in 2000), the Appellant accepts that his measure of damages for breach of contract (wrongful dismissal) would not exceed the payment made by the Respondent in lieu of three months' notice;
(vi) However, as the Respondent based the Agreement (in particular the Section 10 procedures) on English procedures and processes, the Appellant can and will rely on "the UK's Employee's Rights Act (1996), the very same Act used by the [Respondent] to compile its own Contract of Employment and advised by ACAS which was acceptable to the [Respondent], so must be acceptable in this case to justify the [Appellant's] damages claim" - taken from paragraph 17 of the Appellant's Answer to the Request for Further and Better Particulars.
12. The Commissioner rejected this argument, concluding that it was obviously unsustainable, and should be struck out on the grounds set out in Rule 6/13(1) - that it disclosed no reasonable cause of action, was frivolous, or otherwise an abuse of the process of the court. I am anxious to ensure that the Appellant, who is unrepresented, is given all necessary leeway in presenting his argument, but I do not find it possible to disagree with the Commissioners' decision, for the reasons set out in the following paragraphs (which are, essentially, the reasons given by the Commissioner).
13. I do not accept that the Appellant was ever party to what he refers to, repeatedly, as a "statute Contract". There was a written contract of employment, which was subject to Jersey Law - be that customary law, or statute law. The contract was made in Jersey, with a Jersey employer (wholly owned by the States of Jersey), and the law of the contract is clearly Jersey Law. It is impossible to conclude that the contract was made subject to English statute law. The Appellant relies on the words introducing section 10 of the Agreement - "this section is based on, and is in the spirit of, the ACAS Discipline at Work document ....". But this to say nothing more than that the provisions of the Agreement are "based on", or agreed and added to the contract of employment "in the spirit of" the ACAS document. It would require far clearer language to incorporate provisions and remedies of an English statute, even if there could be such incorporation as a matter of Jersey law (which I doubt).
14. The Appellant expressly confirmed (in the Reply to the Request for Further and Better Particulars, and at the hearing before the Commissioner - see paragraph 12 of the judgment), that all his claims for unfair dismissal were and are based upon English statutory law. He accepts that he has no remedy under Jersey customary or statutory law.
15. The right of an employee not to be unfairly dismissed by his or her employer is entirely a statutory right, created in Great Britain by the Industrial Relations Act 1971, and continued in the Employment Protection Act 1975, as amended by the Employment Rights Act 1996. This was a new statutory concept with new statutory remedies. The statutory right did not create an implied contractual right. An employee alleging an infringement of the statutory right not to be unfairly dismissed could take his complaint to a statutory body, the employment tribunal, but could not pursue it through the courts. The procedure is wholly statutory, with its own time limits, the Tribunal in England and Wales having power (if it does not dismiss the complaint) to award relief, including reinstatement or re-engagement, or compensation, consisting of a basic award and a compensatory award. The statutory right to seek compensation for unfair dismissal must not be confused with the common law (or customary law) claim for damages for wrongful dismissal.
16. But, as the Appellant accepts, no such statutory scheme in relation to unfair dismissal existed in Jersey until Part 7 of the Employment (Jersey) Law came into force on 1st July 2005, which also established (in Part 9) the Jersey Employment Tribunal. As noted by that Tribunal in its first Annual Report, the new law "brought a radical change to the relationship between employers and employees". The jurisdiction of Employment Tribunals in Great Britain does not extend to Jersey.
17. The Appellant refers to and relies on Jersey Steel Co Ltd v. Holdyne Ltd (1972) JJ 2009 where, at page 2020, the Royal Court in Dawnays Ltd v. F.G.Minter Ltd [1971] 1 WLR 1205 (Court of Appeal of England and Wales). This does not advance the Appellant's argument. The Royal Court, in a claim concerning a building contract using the Royal Institute of British Architects model form of contract, accepted that relevant English case law, considering the same contract terms, should be applied.
18. As noted by the Commissioner, the Courts of Jersey have no power to import English statutory law on the basis that the judges consider it would be in the interests of justice, or on the basis that statutes from foreign jurisdictions may remedy perceived defects in the laws of Jersey. It is one thing to gain assistance from English common law when developing Jersey customary law, or applying customary law principles to novel or developing situations. It is quite another thing for the Court to act, in effect, as legislator. The statutory provisions were introduced into English law because there was no pre-existing common law right to damages if a dismissal was unfair, rather than wrongful. It is for the legislature to remedy such defects, which it has subsequently done through the Employment (Jersey) Law 2003. As the Commissioner concluded, at paragraph 31 of his decision, I agree.
19. The Appellant's true complaint is that in 2000 he was dismissed by the Respondent in breach of contract, not in breach of statutory rights. It was a claim for wrongful dismissal, not unfair dismissal. A wrongful dismissal is a dismissal in breach of the relevant provision in the contract of employment. To entitle the employee to damages for breach of contract, the employee must have been engaged for a fixed period (not this case) or for a period terminable by notice and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be. Further, the dismissal must have been wrongful, that is contrary to the express or implied terms of the contract of employment. Dismissal would be wrongful where it is without sufficient cause to permit the employer to dismiss him summarily (not suggested in this case), or (relied on here) where the dismissal is contrary to a contractual condition requiring observance of a particular procedure.
20. The essence of the Appellant's complaint here is that he was dismissed without observance of the procedures set out in Section 10 of the Agreement (or, perhaps more appropriately, Section 12 of the Agreement referring to inefficiency). That appears to be accepted by the Respondent, or in any event, should form the factual basis for consideration of the application to strike out the claim.
21. As I have already concluded, there can be no possible basis for importing English statutory law into this Jersey Contract of Employment. That is a hopeless argument. This could be seen to be the end of the appeal. But, the Appellant's complaint can perhaps be presented in a different way, along the following lines:-
(i) there is here an admitted breach of contract by the Respondent;
(ii) the Appellant is entitled to damages from the Respondent for wrongful dismissal;
(iii) Jersey customary law should now be developed or refined by the Royal Court (or this Court on appeal) so that an employee who is dismissed contrary to the express procedural requirements of the contract of employment (and therefore, it could be said, dismissed in an unfair manner) is entitled to deploy in calculating his damages for wrongful dismissal an argument that if the correct procedure had been followed he would not have been dismissed at all.
22. This amounts, effectively, to an argument that in Jersey, such an employee should be allowed to claim for the loss of a chance - the chance that the Respondent would have retained his services, and could not (or at least would not) have dismissed him in any event.
23. Even when formulated in this way, I hope more favourable to the Appellant, I am unable to accept that there is any basis for the argument. I accept there is a basis for contending that Jersey customary law should, in relation to contacts of employment, follow English law addressing similar issues - or at least it should do so in circumstances where the Jersey contract makes some reference to practices and procedures in England. Jersey customary law has already been influenced in this area by English law - see, not only the cases mentioned in the Jersey Law Commission Consultation Paper No. 5 "The Jersey Law of Contract" published in 2002, but also (for example) McDonald v Parish of St Helier [2005] JLR 212. In that case, the employee's contract of employment entitled the employer to terminate the contract on a week's notice, but also provided for a disciplinary procedure to be followed if misconduct were alleged, a procedure which was ignored. Birt, Deputy Bailiff, referred to English and Scottish case law, including (at paragraph 15) Malloch -v- Aberdeen Corporation [1971] 1 WLR 1578 (HL). At paragraph 17 he addressed the situation (as alleged in this case) where an employer dismisses an employee without following the agreed disciplinary procedures:-
24. The suggestion that it should be assumed, for the purposes of calculating damages, that the employer would have dismissed on notice immediately following the conclusion of the disciplinary procedure is to be found in Gunton in the judgment of Brightman LJ at page 474. It might be thought that, in expressing the matter in that way, his Lordship intended that the court should make an assumption of fact, regardless of the evidence. Properly understood, however, that is not what was contemplated. As has been more recently explained, according to "the normal common law rules as to loss in cases of wrongful dismissal ... (t)hat loss is limited to the sums payable to the employee had the employment been lawfully terminated under the contract. Once a dismissal has taken place, it is irrelevant to consider what might have happened had a contractual disciplinary procedure been followed. An employer is entitled to dismiss on contractual notice at common law for whatever reason." (See Focsa Services (UK) Ltd v Birkett [1996] IRLR 325 per Judge Peter Clark, at page 21; Wise Group v Mitchell [2005] ICR 896 per Rimer J at page 917.)
25. In McDonald, the Royal Court also referred to English cases in which Gunton had been followed and applied, including Janciuk v. Winerite Ltd [1998] IRLR 63, in which Morison J said:-
26. The judgment in Janciuk, (set out above) represents the common law position in England shortly before the Appellant's dismissal, and if applied to the Appellant's case would not increase the quantum of the claim for damages for wrongful dismissal. The Appellant's remedies under common law for wrongful dismissal would have been limited to (1) salary in lieu of notice, (2) pension rights, and (3) additional damages representing the period which the employer would have taken to use and exhaust the dismissal procedures. There is no scope, therefore, for an assumption that the Appellant would not have been dismissed at all - if the contractual efficiency and/or disciplinary procedures had been followed through.
27. Should Jersey customary law now be developed by the Courts so that the Appellant receives what he would consider to be a more adequate remedy for the perceived injustice? There are considerable difficulties with such an approach. The court would be invited to create a customary law remedy for unfair dismissal, in parallel with a statutory claim covering the period up to the date when the legislation came into force, and offering the prospect of damages in excess of the statutory maximum. This is a course I would be reluctant to approve. It was addressed and considered in McDonald, heard when the Employment (Jersey) Law 2003 had been passed by the States but not brought into force. The employee there argued strenuously that the customary law should be developed to improve the protections available to an employee who had been the subject of high-handed or wrongful conduct by an employer. The submissions were rejected by the Deputy Bailiff:-
28. This was also the approach of the majority of the House of Lords in Johnson v. Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518, at [56], [57] and [77]-[80]. There the employee, suing for wrongful dismissal, claimed that because of the manner in which he had been dismissed he had since been unable to work, with the result that he had suffered, and would continue to suffer, a substantial loss of earnings. Their Lordships were unwilling to extend any such recovery to cases simply of wrongful dismissal (absent breach of a trust and confidence term) because they regarded any extension of the law of wrongful dismissal as being precluded by the legislation giving employees a statutory remedy for unfair dismissal. This was also the approach of the House of Lords in Eastwood v. Magnavox Electric plc, and McCabe v. Cornwall County Council [2004] UKHL 35, [2005] 1 AC 503, where Johnson was distinguished (in a claim for stress related illness and inability to work) in a case where, prior to dismissal the employee had acquired a common law cause of action against his employer in respect of the employer's failure to act fairly towards him. See, in particular, Lord Nicholls at paragraphs 12 to 14:-
Both of these cases were considered in McDonald.
29. I accept that customary law may be flexible enough to address, and if necessary construct, a suitable (or more suitable) cause of action, or remedy, to deal with the unfair manner of an employee's dismissal, but in my view, it would be wrong at this time to embark on that course. The legislation is now in place and it would be contrary to the clear intention of the Assembly of the States of Jersey that there should be such a parallel and alternative cause of action or remedy, covering the same ground.
30. In my view, the judgment of the Royal Court in Macdonald represents a correct summary of the current state of the customary law of Jersey in relation to wrongful dismissal. A wrongfully dismissed employee must normally accept the repudiation and sue the employer for damages. Exceptionally, an employee dismissed in breach of a contractually binding procedure may be able to refuse to accept the repudiation, but even in such a case the right to sue for continuing wages lasts only for the period it would have taken for the employer to have dismissed lawfully. The employee cannot go further and sue for future loss on the basis of the chance that he might have retained the job if the proper procedure had been used. Where the employee is suing for breach of contract, the correct approach is that the wrongfully dismissed employee should, so far as money can do so, be placed in the same position as if the contract had been performed - i.e. in accordance with the normal rule in the law of contract. This is done by the Court awarding as damages the amount of remuneration that the employee has been prevented from earning by the wrongful dismissal. But, if necessary, it must be assumed for the purpose of calculating this loss that the employer would have ended the contract in the way most beneficial to him (that is to say to minimise the possible damages). In the case of a contract terminable by notice, the employee is entitled to recover only the amount of remuneration during the notice period. That remuneration includes wages or salary, including a reasonable amount of any variable such as commission, loss of a vehicle and other fringe benefits and, relevant to Mr Jeanne's claim, any loss of pension rights. Where, as here, the contract of employment imposes compliance with a procedural mechanism before the employee can be dismissed, the employee is entitled to additional damages representing the shortest time in which the employer could have followed that procedure through to dismissal, but the court is not concerned to enquire as to whether or not the employee would have been dismissed at all. In other words, the court will not award damages to compensate the dismissed employee for the loss of the chance that he/she would not have been dismissed at all.
31. It could be said that there remains a basis for the Appellant to feel a sense of injustice, in that the express term of the contract "No employee will be dismissed for a first breach of discipline except in the case of gross misconduct" does not appear (in a discipline case) to offer the protection conveyed by the clear words used. An employee could be dismissed for a first breach of discipline, or could be dismissed without compliance with the agreed procedure - whether under Section 10 or Section 12 of the Agreement. But any such sense of injustice was corrected by legislation, not (in the end) by the development of customary law. Unfortunately for the Appellant this correction took effect only after he was dismissed in 2000. The Employment (Jersey) Law 2003 came into force on 1st July, 2005, and did not have retrospective effect. The Appellant registered a claim with the Jersey Employment Tribunal in October 2007, but it was not pursued. In any event even a successful claim under the statute would not have provided the Appellant with anything other than a small fraction of the damages claimed in these proceedings - a basic award limited to £10,000 and a compensatory award limited to £63,000.
32. Against this background, the question remains as to whether or not this is a suitable case for strike out. As noted in paragraph 6 above, the relevant principles to be applied in this case are not controversial, and can be summarised as follows (see, from many cases, In re Esteem Settlement [2000] JLR 119 (Royal Court), and Trant v. Attorney General [2007] JLR 231 (Court of Appeal)):-
(i) The summary process should only be exercised in plain and obvious cases:-
(ii) It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action;
(iii) Where it is alleged there is no reasonable cause of action, the claim should not be struck out if the cause of action has some chance of success, or raises some question fit to be decided by a court, when only the allegations in the pleadings are considered;
(iv) The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out;
(v) The power to strike out where it is alleged that the claim is frivolous or vexatious, is reserved for cases which are obviously frivolous or vexatious, or obviously unsustainable;
(vi) Reliance on "abuse of the process of the Court" should be reserved for cases where the Court concludes there is improper use of its machinery, for example as a means of vexation and oppression in the process of litigation;
(vii) The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose consideration of public policy and the interests of justice may be very material.
33. My only remaining concern is whether or not this claim should be allowed to proceed to trial when it may provide an opportunity for the Royal Court to consider the development of customary law in this area, and whether that development should be considered and tested against actual facts found after a trial rather than on an assumed (although broadly agreed) factual basis. It is not the role of the courts to decide, in a strike out application, whether it would find for the Plaintiff. The correct approach must be that the summary jurisdiction should be reserved for cases where the court is sure that the claim, as pleaded, will fail. Having given careful consideration to the pleaded case, and to the Appellant's lengthy written submissions (which I have treated as supplementing the pleadings) I am sure that the claim will fail. This is not merely a weak case, it is a hopeless case, and if pursued to trial it will fail.
34. For all these reasons, I would dismiss the appeal in relation to Grounds (i) to (iii)
The Appellant's Arguments on Ground of Appeal (iv)
35. The Appellant summarises his complaint under this head in paragraphs 1 of his Notice of Appeal, expanded in paragraphs 12 to 14. Paragraph 1 sets out the position succinctly, identifying two grounds:-
"Conflict of Interest
During the period of early 2004 and until May 2006 the Plaintiff was taking legal advice from the Law firm O'gier of Whitley Chambers, until O'gier decided to withdraw their services and would not act on the Plaintiff's behalf under the Legal Aid system. At that particular time, the Commissioner of the Royal Court namely Mr J A CIyde-Smith was a practicing Advocate and Senior Partner of O'gier. Therefore the Plaintiff believes that there is clearly a conflict of interest in this case and rejects the Commissioner Court judgment/decision;
There is also the issue of the States of Jersey Royal Court adjudicating between a States of Jersey Department and an unfairly dismissed employee. The Plaintiff also believes and will argue that again there is a conflict of interest in this case whereby the Royal Court has weighted this case in favour of the Defendant without obtaining the facts as to why the Plaintiff's Contract was ignored and terminated by the defendant."
36. The first ground is directed at the position of the Commissioner Clyde-Smith.
37. The question of bias was recently considered by this Court in O'Brien v Marett [2008] JCA 178 where, at paragraph 107, I summarised the law as follows:-
38. The issue in this case therefore is whether a reasonable observer aware of the facts would conclude there is an appearance of bias (a real possibility of bias) by reason of the fact that the Commissioner had been a senior partner in Ogier, at the time when the Appellant was represented and advised by that firm. There is no suggestion that he had any personal dealing with the Appellant's case, advised him, or even worked in the same department. There is no suggestion that the link between the Commissioner and Ogier was raised at the hearing, or even known to the parties, or to the Commissioner. The Respondent's central answer to this point is as follows:-
"Had Commissioner Clyde-Smith considered there to be a conflict of interest in him hearing the Respondent's Appeal he would have said so. The reality is that there was no conflict in Commissioner Clyde-Smith hearing the Respondent's Appeal and there is no conflict in proceedings being brought before the Royal Court."
The first sentence provides no answer. This court should be and is concerned with the appearance of bias, not merely actual bias. However, I do accept that on the facts known to this Court, there is no basis for concluding that a fair-minded and informed observer could form the view that there is here a real possibility of bias. In any event, as set out above, the strike out application essentially raised questions of law, not fact, and this Court is well able to reach its own conclusions. Accordingly, I reject the first ground, and would not allow this appeal on the basis of conflict of interest, or on the basis of any appearance of bias.
39. As for the second ground, this can be taken much more briefly. In every jurisdiction, including here in Jersey, where the rule of law applies, there will be a need for courts to adjudicate on disputes between the citizen and the state. In my opinion there can be no objection to the Royal Court hearing and resolving a claim by the States of Jersey against a citizen of Jersey, or vice versa. I would not allow the appeal on this ground.
40. Conclusion
41. For the reasons set out above I would dismiss this appeal.
Jones JA:
42. I agree
Montgomery JA:
43. I also agree
