Jersey Unreported Judgments

Striking out - detailed reasons for granting defendants' application to strike out the plaintiff's order of justice.

[2019]JRC051

Royal Court

(Samedi)

28 March 2019

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	Enrico Verga		Plaintiff
And	Nedbank Private Wealth Limited		First Defendant
	Lina Da Costa		Second Defendant
	Cameron Walker		Third Defendant
	Angela Mary Davies		Fourth Defendant

Advocate H. B. Mistry for the Plaintiff.

Advocate O. A. Lindop for the Defendants.

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-13
3.	The Limitation question	14-24
4.	Other arguments	25-26
5.	Absolute privilege immunity	27-46

judgment

the master:

Introduction

1.        This judgment contains my detailed written reasons for granting the defendants' application to strike out the plaintiff's order of justice. 

Background

2.        The proceedings commenced by the plaintiff were by way of order of justice signed by the Deputy Bailiff on 14^th December, 2018 and served by the Viscount's Department on 20^th December, 2018.  I refer to the chronology of events leading to the signing of the order of justice by the Deputy Bailiff and its subsequent service later in this judgment. 

3.        The allegations of the plaintiff in the order of justice follow on from an assize trial in the matter of AG v Caruso, Siracusa and Verga leading to not guilty verdicts on 16^th December, 2015.  The plaintiff and his co-accused were charged with conspiracy to commit fraud. 

4.        The charges related to an alleged attempt by the co-accused including the plaintiff to use a forged document to obtain money from bank accounts maintained by the defendant. 

5.        The plaintiff's case in summary is that one or more of the defendants are liable to the plaintiff in damages for reporting various matters to the Jersey Police leading to the arrest of the plaintiff and the criminal proceedings.  In particular, the plaintiff was remanded in custody until his acquittal between 5^th February, 2015 and 16^th December, 2015.  The plaintiff alleges that as a result of being remanded in custody he was dismissed from his employment in Italy and also lost the opportunity of advancing other commercial projects where he would have received financial reward. 

6.        The order of justice also alleges the following duties of care were owed:-

(a)       A duty of care by the first defendant to carry out comprehensive enquiries in relation to certain accounts in the name of a Mr Alemi.  It was in respect of these accounts that a Mr Siracusa sought to obtain information where the plaintiff pleads that he was acting as an interpreter.  In the course of oral argument, Advocate  Mistry clarified that this duty arose as a result of the duty not to make negligent misstatements (see the well-known case of Hedley Byrne v Heller 1964 A.C.465 as explained in Henderson v Marrett Syndicates Limited [1995] 2 AC 145). 

(b)       The plaintiff further alleges that the defendants owed a duty of care to ensure the contents of affidavits used in the criminal proceedings were true and were not uttered or published maliciously and that any anything reported was true and accurate. 

7.        It is common ground between the parties that the claims brought by the plaintiff are all claims in tort and therefore a three year limitation period applies by reference to Article 2(1) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.  Article 2(1) provides that the limitation period for torts is 3 years from the date upon which the cause of action accrued.  I address later when the cause of action accrued in this matter. 

8.        In relation to the history of the proceedings, it is also right to set out in more detail the steps taken by the plaintiff to issue proceedings.  This is because the plaintiff was acting in person and therefore proceedings could only be issued by the Bailiff or the Deputy Bailiff agreeing to sign an order of justice (see Rule 20/5(1) of the Royal Court Rules 2004, as amended).  This history is taken from emails sent between the plaintiff and the Court prior to the Deputy Bailiff signing the plaintiff's order of justice on 14^th December, 2018. 

9.        The plaintiff emailed the Bailiff's Judicial Secretary on 7^th December, 2018 applying for an order of justice to be signed.  In his email the plaintiff set out that he was aware that he needed to make arrangements for any order of justice, once signed, to be served on each of the defendants. 

10.      On 11^th December, 2018, the Judicial Greffier (Advocate Adam Clarke) emailed the plaintiff with certain observations on the order of justice provided on 7^th December, 2018.  The email also noted that the plaintiff had previously been in the correspondence with Advocate Paul Matthews (Advocate Clarke's predecessor as Judicial Greffier) as recently as June 2018.  The email also encouraged the plaintiff strongly to obtain legal representation and contained the following statement :-

"Moreover, the obtaining of local counsel will satisfy two immediate pressing issues namely:-

............

(2)       Your local counsel will be able to seek to obtain a standstill agreement with the defendants to suspend the time limit within which to issue proceedings and, if that is not forthcoming, ensure that the order of justice is issued at the appropriate time."

11.      The plaintiff replied on 14^th December, 2018, enclosing a revised order of justice which was signed by the Deputy Bailiff later that day. 

12.      On 14^th December, 2018, at 17:48 the Judicial Greffier informed the plaintiff that the order of justice had been signed by the Deputy Bailiff.  The Judicial Greffier's email was copied to Mr Paul Stephens at the Viscount's Department to enable the latter to effect service on the defendants who were all resident in Jersey.  The Judicial Greffier in the interim retained the original order of justice signed by the Deputy Bailiff. 

13.      Emails then followed between the plaintiff and the Judicial Greffe to enable the plaintiff to transfer the appropriate fee for the issuing of the order of justice and service.  It appears that the plaintiff transferred fees on or around 17^th December, 2019.  Service was then effected on 20^th December, 2019.  Given that all the defendants are based in Jersey, I have assumed for the purposes of this judgment that service was effected as soon as the fees payable by the plaintiff for the issuing of the order of justice and service were received in Jersey. 

The limitation question

14.      The primary ground the defendants relied upon to strike out the plaintiff's claim was that the proceedings were out of time.  This was said to be because more than 3 years had elapsed since the cause of action accrued. 

15.      The defendants' argument was that, at the latest, the cause of action accrued when the second and third defendants gave evidence and repeated their allegations that the plaintiff and his co-excused were acting suspiciously.  This occurred on 23^rd November, 2015. 

16.      The defendants' submission was therefore that at the latest all the ingredients of the claims the plaintiff was pursuing by his order of justice had come together by 23^rd November, 2015.  This meant that the 3 year limitation period commenced on that date and therefore the claim became time barred by 22^nd November, 2018, before the date upon which the order of justice was served on the defendants. 

17.      I should record that it was not in dispute that under Jersey Law and procedure what is required to interrupt the limitation period is service of proceedings rather than issue. 

18.      In relation to question of when the plaintiff's cause of action accrued, in my judgment the cause of action did not accrue until the plaintiff was acquitted on 16^th December, 2015.  I have reached this conclusion because, had the plaintiff been convicted, there would be no cause of action because the conviction would lead to at least the implicit position that evidence filed by the defendants with the police and later with the court had been accepted and so no question of negligent misstatement could apply.  The alternative analysis, assuming a duty of care was owed to the plaintiffs as alleged for the purposes of this part of the judgment, had the plaintiff been convicted of conspiracy to defraud, he could not be said to have suffered any loss.  Any losses he claimed to have suffered were as a result of being party to a conspiracy to defraud rather than arising from breach of any alleged duty of care.  Only once the issue of whether or not the plaintiff was a party to a conspiracy to defraud was resolved by the jury reaching a decision in the criminal proceedings could the plaintiff be have said to have suffered any loss (or not as the case may be).  It was only therefore upon acquittal could the plaintiff be said to have suffered loss and have an arguable cause of action (subject to the other issues I will deal with later in this judgment).  On this analysis any cause of action did not therefore accrue until 16^th December, 2015.  This means that the limitation period for any claims in tort expired on 15^th December, 2018 and accordingly the plaintiff's claim is out of time. 

19.      The potential difficulty with this conclusion that the order of justice was signed on Friday 14^th December, 2018.  Confirmation of the Deputy Bailiff's signature was only provided by email by the Judicial Greffier to the plaintiff after the court offices had closed which meant that service of the order of justice could not take place before the limitation period expired.  This gives rise to the question of whether in such circumstances the limitation period should be suspended because the plaintiff was not in a position to effect service until after the limitation period had expired. 

20.      In my judgment on the facts of this case, I do not regard it as appropriate to conclude that there is any arguable case to suspend the limitation period because the plaintiff was not in a position to effect service before expiry of the limitation period once the Deputy Bailiff had signed the amended version of his order of justice on 14^th December, 2018. 

21.      This is because the plaintiff firstly had been in previous communications with Advocate Paul Matthews (the previous Judicial Greffier) about bringing proceedings in June 2018.  Secondly, he was warned explicitly on 11^th December, 2018 by Advocate Clarke as Judicial Greffier, of the need either to reach an agreement to suspend prescription or to take steps to ensure that proceedings were served in time.  Despite having been considering issuing proceedings for some months and despite the express warning, the plaintiff did not engage legal representation and left matters too late to enable proceedings to be served within time.  The difficulty the plaintiff finds himself in is therefore of his own making because he left matters too late and in my judgment is not one where the court would suspend prescription. 

22.      Advocate Mistry argued that I should give latitude to the plaintiff because he was a litigant in person.  I addressed a similar argument in Powell v Chambers & Anor [2018] JRC 169 at paragraphs 85 and 86 as follows:-

"85.    It is also not a relevant factor that the first plaintiff is a litigant in person.  The position was summarised by Sumption JSC in Barton v Wright-Hassall at paragraph 18 where he stated as follows:-

"18 Turning to the reasons for Mr Barton's failure to serve in accordance with the rules, I start with Mr Barton's status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f) . The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him."

86.      Lord Briggs made a similar observation where he stated as follows:-

"...there cannot fairly be one attitude to compliance with rules for represented parties and another for litigants in person, still less a general dispensation for the latter from the need to observe them.""

23.      I consider that the same analysis applies to service of proceedings.  Indeed the very issue in the Barton case referred to in Powell v Chambers was whether Mr Barton's claims should be allowed to continue because they were not served in accordance with the rules and therefore had not been served within the applicable limitation period. 

24.      I should also deal with the argument that no cause of action had accrued.   Advocate Mistry argued although the plaintiff was acquitted, that time did not start to run until either the time limit for any appeal in relation to the costs orders made by the Royal Court had expired and that the quantum of any costs had been determined.  In relation to any appeal he clarified that it was open to the Attorney General to challenge the costs order made in favour of the plaintiff and therefore until the time limit for any appeal had expired.  His client did not know the extent of any damage he had suffered.  In addition, even if there was no appeal, the precise limit of damage suffered could not be ascertained until a taxation was completed.  However, in Lapidus v Le Blancq, Voisin and Seven Others [2013] 2 JLR 308 at paragraph 49 I addressed this question.  Difficulty in quantification of damage does not mean that a cause of action has not arisen in tort.  Rather the cause of action arises when damage has been suffered even if the precise extent of that damage is not easily ascertainable.   It is clear from the plaintiff's order of justice that he was remanded in custody between February and December 2015.  Furthermore it is alleged that the plaintiff lost his employment and other opportunities to earn a living.  The plaintiff therefore clearly suffered damage in 2015 even if the precise amount of that damage was not necessarily quantifiable until a later date.  In relation to the question of costs, in addition, the plaintiff's claim is for damages for lost employment not for irrecoverable costs, but even if his claim was amended, he still suffered damage already due to losing his employment while in custody. 

Other arguments

25.      In view of my decision that the plaintiff's claim is out of time, strictly speaking it is not necessary for me to consider the alternative grounds advanced by the defendants in support of the application to strike out the plaintiff's claim.  However, I propose to do so for two reasons:-

(a)       in case I am wrong on my analysis of the applicable prescription period; and 

(b)       the other grounds advanced are in any event separate reasons which justify the plaintiff's claim being struck out even if it was brought within time, contrary to the conclusion I have reached. 

26.      The alternative grounds advanced by the defendants are as follows:-

(a)       there is absolute privilege from any defamation action covering all matters reported to the police by the defendants; 

(b)       all witness testimony provided by the defendants in the criminal proceedings is subject to criminal proceedings immunity; 

(c)       the claims are contrary to the statutory immunity confirmed by Article 32(5) and (6) of the Proceeds of Crime (Jersey) Law 1999 (the "POCL") relating to communications between the second and third defendants on the one hand and the fourth defendant on the other hand as money laundering reporting officer of the first defendant. 

(d)       The statutory immunity confirmed by Article 32(1) and (2) of the POCL also covers information disclosed by the defendants for the purposes of a criminal investigation or criminal proceedings in Jersey to the Jersey States of Police. 

Absolute privilege/immunity

27.      The first issue that arises is whether the law of defamation in Jersey follows English Law principles.  Advocate Mistry for the plaintiff argued that where the law of Jersey was not well settled then it was not appropriate to determine on a strike out application, a developing or arguable principle of law.  While I agree with Advocate Mistry that it is not appropriate to deal with arguable development of principle of law on a strike out application, in my judgment it is well established as a matter of Jersey law that the law of defamation in Jersey is the same as the English law of defamation at common law (see Horsfall v Sinel & Ors [1997] JLR 41 at paragraph 50 and Freeman and Anor v Leveille [2018] JRC 235 at paragraph 23). 

28.      In relation to the defence of absolute immunity, in my judgment as a matter of English Law this is clearly settled and I see no reason why a trial is required in Jersey to determine a clearly settled principle.  The English law position was summarised after a careful review of the authorities in the Court of Appeal decision of Westcott v Wescott [2008] EWCA Civ 818 at paragraphs 32 to 36 as follows:-

"32 The authorities recited above have made it clear that the justification for absolute immunity from suit will depend upon the necessity for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that the person accused will subsequently involve the complainant in costly litigation. There is a countervailing public interest in play which is that no-one should have his or her reputation traduced, certainly not without affording him or her a remedy to redress the wrong. A balance has to be struck between these competing demands: is it necessary to clothe the occasion with absolute privilege in which event even the malicious complainant will escape being held to account, or is it enough to allow only the genuine complainant a defence? Put it another way: is it necessary to protect from vexatious litigation those persons making complaint of criminal activity even at the cost of sometimes granting that impunity to malicious and untruthful informants? It is not an easy balance to strike. We must be slow to extend the ambit of immunity.

33 Even if, for I have my doubts about it, Shufflebottom is seen as an authority that the informant is only protected by qualified privilege, nevertheless there are powerful modern authorities - Daniels v Griffiths and Buckley v Dalziel - expressing the contrary view. Since public policy provides the answer, it is the public policy considerations of the 21st century not those of the 19th century which prevail. In any event Mahon v Rahn has left the question open.

34 In my judgment the answer is to be found in Taylor. That establishes that immunity for out of court statements is not confined to persons who are subsequently called as witnesses. The policy being to be enable people to speak freely, without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and, when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors. The answer to the argument that immunity should not give protection to a malicious informer was tellingly given by Lord Simon of Glaisdale in D. v National Society for the Prevention of Cruelty to Children [1978] AC 171, 233:

"I cannot leave this particular class of relevant evidence withheld from the court" [the identity of the informant who gave information of ill treatment of children to the N.S.P.C.C.] "without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public interest lies in generally respecting it."

35 The test proposed by Drake J. in Evans v London Hospital Medical College received endorsement from their Lordships in Taylor. Thus the question is whether the oral statement made by the defendant and her subsequent written statement can each fairly be said to be part of the process of investigating a crime or a possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated.

36 The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. Mr Craig's distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigours of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged." [Emphasis Added]

29.      Lord Justice Stanley Burnton also added at paragraph 42 the following:-

"In my judgment, a number of inter-related matters have particular relevance to the issue raised on this appeal. First, at the present date the public interest in victims or witnesses of crime coming forward to the police is more pressing and more important than the protection of the reputation of the person accused of the crime. It would be very undesirable, for example, if victims of rape, particularly where the alleged perpetrator is a man with substantial resources, were to be deterred by the risk of defamation proceedings from complaining to the Police."

30.      And subsequently at paragraph at paragraph 44 he stated:-

"...the distinction between the first report of an alleged crime and a statement made during its investigation is liable to be arbitrary. If the latter is protected, so should be the former."

31.      Advocate Lindop also referred me to the case Singh v Reading BC [2013] EWCA Civ 909 where the relevant principles were summarised as follows:-

"66 Summarising this part of the case:

i) The core immunity relates to the giving of evidence and its rationale is to ensure that persons who may be witnesses in other cases in the future will not be deterred from giving evidence by fear of being sued for what they say in court;

ii) The core immunity also comprises statements of case and other documents placed before the court;

iii) That immunity is extended only to that which is necessary in order to prevent the core immunity from being outflanked;

iv) Whether something is necessary is to be decided by reference to what is practically necessary;

v) Where the gist of the cause of action is not the allegedly false statement itself, but is based on things that would not form part of the evidence in a judicial enquiry, there is no necessity to extend the immunity;

vi) In such cases the principle that a wrong should not be without a remedy prevails.""

32.      In relation to the suggestion that the plaintiff's claim is based on a duty not to make negligent statements, assuming such a duty arises, I regard any such claim as a "flank attack" designed to circumvent the clear principles that are set out in Westcott and Singh.

33.      Such a claim would also not arise out of facts already pleaded and would require new allegations to be made to plead why statements made to the police were negligent (see the discussion Neal v Kelleher [2014] JRC 233 at paragraphs 61 to 69 and Voisin Executors Limited v Kelleher [2016] JRC 51 at paragraph 66). 

34.      Advocate Lindop in his helpful submissions (both written and oral) accepted that absolute immunity does not apply to actions for malicious prosecution.  However, as he also correctly observed there is no pleaded case of malicious prosecution in the order of justice.  There is only a reference at paragraph 13 of the order of justice that any statements made to the police should not be made maliciously.  Therefore there is also no pleaded case that the reports to the police and later written statements were made maliciously.  

35.      In any event, it is difficult to see how any prosecution could be malicious because such a claim in respect of a complaint filed by an organisation or individual could only succeed where the circumstances were such that the facts relating to the alleged crime were exclusively within the claimant's knowledge.  Based on my knowledge of the reporting regime under the POCL and the resources available to the police to obtain information in respect of matters reported to them, this is not a case where the decision to prosecute could be said to be based exclusively on matters within the knowledge of the defendants only, but where any decision to prosecute will have been based on the independent discretion and judgment of both the States of Jersey Police and the Attorney General.  Mr Mistry did not contend otherwise. 

36.      If I am wrong on such a conclusion in any event it is too late to bring such an allegation of malicious prosecution because it is clearly out of time, the limitation period for such an allegation being three years which therefore also having expired on 15^th December, 2018, following the plaintiff's acquittal on 16^th December, 2015. 

37.      Insofar as the plaintiff's claim concerns evidence given at his trial, this is also immune from suit by reference to Westcott and Singh decisions case so cannot be the subject of civil proceedings. 

38.      In addition, I am not persuaded in any event that any claim could be advanced on the basis of negligent misstatement.  Such a claim firstly requires a voluntary assumption of responsibly.  The problem with this is that the relationship between banker and customer is generally an arm's length and governed by the law of contract.  Each party should therefore generally have regard to its own interests subject to any overriding statute to the contrary in deciding whether or not to enter into a contractual relationship.  By way of illustration in Toothill v HSBC Bank Plc [2008] JRC 046 the Royal Court clearly accepted that "a bank does not owe any duty to advise a borrower on the financial wisdom of entering into the loan".  By analogy a bank also does not owe a duty of care to a customer in relation to that customer's decision to open a bank account.  Rather the duty only arises to operate the mandate properly once a banker and customer relationship is created. 

39.      In the present case the plaintiff and the co-excused were not even customers.  Rather they were individuals purporting to represent customers.  I do not see how a voluntary assumption of responsibility can arise in respect of individuals purporting to represent customers.  The question for the bank is whether anyone purporting to represent a customer has the requisite authority.  If a duty of care does not arise in respect of individuals becoming customers, I do not see why it arises in respect of individuals purporting to represent customers when there is no assumption of responsibility.  There are also no facts pleaded to set out why any assumption of responsibility took place. 

40.      Advocate Lindop argued that there is insufficient proximity between the plaintiff and the defendants to give rise to any duty of care being owed applying Caparo Industries Plc v Dickman (1990) 2 AC 605.  I agree and do not see how proximity can exist between someone purporting to represent a customer and a financial services institution trying to ascertain the bona fides of that person and their authority to represent the individual they claim to represent. 

41.      In addition, the obligation to know your customer is to prevent and forestall money laundering and arises out of the POCL.  The aim of seeking information from those who see to deal with organisations covered by the POCL and related legislation is ultimately to protect the Island's reputation.  Breaches can lead to criminal or regulatory sanction against financial services business and their employees.  The obligations do not on the face of the relevant legislation create duties of care owed to potential customers or their representatives and the legislation is not for their benefit.  Indeed, as argued for by the defendants, Article 32(2) provides the opposite.  Article 32 states as follows:-

"32      Protection for disclosures, and defence of intended disclosure[44]

(1)     Paragraphs (2) and (3) apply where a person makes a disclosure to a police officer -

(a)       of a suspicion or belief that any property constitutes or represents proceeds of criminal conduct and of any matter on which such suspicion or belief is based; or

(b)       of information, for the purposes of a criminal investigation or criminal proceedings in Jersey.

(2)       The disclosure -

(a)       hall not be treated as a breach of any restriction upon the disclosure of information imposed by any enactment or contract or otherwise; and

(b)       shall not involve the person making it in liability of any kind.

(3)       Where the person making the disclosure does any act, or deals with the property in any way which apart from this provision would amount to the commission of an offence under Article 30 or 31, the person shall not be guilty of such an offence if the conditions set out in paragraph (4) are fulfilled.

(4)       The conditions mentioned in paragraph (3) are that the disclosure is made in good faith and either -

(a)       if the disclosure is made before the person does the act in question, the act is done with the consent of a police officer; or

(b)       if the disclosure is made after the person does the act in question, it is made on the person's own initiative and as soon as reasonably practicable after the person has done the act in question.

(5)       In the case of a person ("P") who was in employment at the time of making the disclosure, a disclosure by P to an appropriate person shall be treated as though it were a disclosure to a police officer, and paragraphs (1) to (3) shall have effect as though references to the police officer were references to the appropriate person.

(6)       In paragraph (5) and in Article 34B, the "appropriate person" is the person designated by P's employer in accordance with the procedure established by the employer for such disclosures to be made.

(7)       In proceedings against a person for an offence under Article 30, it shall be a defence to prove that -

(a)       the alleged offender intended to disclose, to a police officer, the suspicion or belief that property constitutes or represents proceeds of criminal conduct; and

(b)       there is reasonable excuse for the alleged offender's failure to make such a disclosure." [Emphasis Added]

42.      It is clear from Article 32 therefore that any disclosure made under POCL or related secondary legislation does not involve the person making disclosure in liability of any kind whether the disclosure is to the police Article 32(1) or to a financial services business money laundering reporting officer under Article 32(5) and (6). 

43.      The argument advanced by the plaintiff, if allowed to prevail, would drive a coach and horses through the immunity granted by Article 32. 

44.      Advocate Mistry argued that the immunity is subject to a duty to act in good faith by reference to Article 32(3) and (4).  However, Article 32(3) only applies in relation to a person taking any steps to deal with the proceeds of crime.  The good faith requirement does not however apply to the decision to report in the first place.   Even then the order of justice does not plead bad faith or set out material facts relied upon to justify such an allegation. 

45.      Advocate Mistry also argued that I should allow him more time to take instructions to see whether any other material facts could be pleaded.  There were difficulties with this argument.  Firstly, no material facts had been identified at all to justify allowing time to produce an amended pleading.  Secondly, any amended facts would be new matters which would be out of time in any event.  There is no point therefore in allowing leave to amend in respect of allegations that are bound to be themselves out of time. 

46.      In conclusion, if the plaintiff's claim is within time, contrary to the view I have reached, the plaintiff's claim is in any event struck out for the reasons set out in the second part of this judgment. 

Authorities

Hedley Byrne v Heller 1964 A.C.465

Henderson v Marrett Syndicates Limited [1995] 2 AC 145)

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960

Royal Court Rules 2004, as amended

Powell v Chambers & Anor [2018] JRC 169

Lapidus v Le Blancq, Voisin and Seven Others [2013] 2 JLR 308

Proceeds of Crime (Jersey) Law 1999

Horsfall v Sinel & Ors [1997] JLR 41

Freeman and Anor v Leveille [2018] JRC 235

Westcott v Wescott [2008] EWCA Civ 818

Singh v Reading BC [2013] EWCA Civ 909

Neal v Kelleher [2014] JRC 233

Voisin Executors Limited v Kelleher [2016] JRC 51

Toothill v HSBC Bank Plc [2008] JRC 046

Caparo Industries Plc v Dickman (1990) 2 AC 605