Barker -v- Myles and Ors [2004] JRC 053A (18 March 2004)

judgment the COMMISSIONER: 1. On 16 th February, 2004, Mr Barker appeared in Court having summoned seven parties including the Crown to appear. Mr Barker represented himself. He had no papers for the Court and seemed surprised that papers should be necessary. He also suffers from a serious hearing defect which made communication between him and the bench extremely difficult. 2. In the circumstances we adjourned the application to today and asked Advocate Hawgood (despite the fact that he was opposing several of Mr Barker's applications) to assist Mr Barker to find a lawyer to represent him and to advise him on the correct procedures required by the Rules of Court. 3. We have ascertained that Advocate Hawgood did so assist Mr Barker. Advocate Gilbert was appointed under the legal aid scheme and we now sit anew to consider the applications. We must at this stage express our gratitude to Advocate Gilbert for preparing affidavits and a comprehensive bundle of documents at very short notice. She has greatly assisted our understanding of what can only be described as a tortuous matter. 4. We are dealing with seven actions, Court File Nos. 89/15, 91/74, 91/184, 93/317, 95/182 95/195 and 96/85. Mr Barker seeks an extension of time under Rule 1/5 of the Royal Court Rules 1992 within which to file a notice of appeal against the Order made by the Master on the 30 th April, 2003, striking out Mr Barker's actions (as plaintiff) under Rules 6/20 and 6/21(3). 5. He also asks that the Orders of the Master be set aside so that Mr Barker, following the directions of the Court, can progress his litigation all of which has lain dormant for years. 6. By way of background to this hearing, on 24 th January, 2003, the Master issued his circular to say that a list of cases would be struck out unless a summons were filed for a hearing on the matter. Mr Barker, not apparently represented at the time, was out of the Island. His son wrote to the Master to explain the situation and by letter dated 24 th February, 2003, the Master wrote to the son to allow an extension of time until st March, 2003, under the strict condition that if by that time the terms of the circular had not been complied with and a summons issued, Mr Barker's actions would be struck out. 7. It was a generous extension. On 20 th March, 2003, Mr Barker wrote to the Master on the misunderstanding that the actions had in fact already been struck out. They had not. The Master wrote on 26 th March, noting that Mr Barker was "in touch" with Advocate Colley, the Acting Bâtonnier, but reminding him that the 31 st March deadline still applied. The Acting Bâtonnier was still seeking clarification from Mr Barker on 27 th March, when the act was finally made. It is dated 30 th March, 2003. It is explicit, and states: "Pursuant to Rule 6/20 and pursuant to Rule 6/21(3) of the Royal Court Rules 1992 , not less than 28 days notice in writing having been given to all the parties listed in the schedule hereto, IT IS ORDERED that the said actions and any related counterclaim and third party claim be dismissed". The actions in the schedule are the seven actions before us today. 8. On 15 th May, 2003, Mr Barker wrote to the Master to say that he now had "advocates" appointed and somewhat blithely asking the Master to "adjourn this matter". The Master, " functus officio" of course, could not revive matters. The cases were struck out. On 30 th June, 2003, the Deputy Judicial Grefier wrote to Mr Barker advising him, with great clarity, that his only recourse was to appeal by way of summons to the Royal Court. 9. Mr Barker has filed an affidavit which explains why he was unable to progress matters before the Master's deadline was reached. On 12 th March, 2004, shortly before this hearing, Mr Barker, now capably advised by Advocate Gilbert, filed a supplemental affidavit. This affidavit explains the delay from Mr Barker's point of view, and particularly the difficulties he faced in obtaining legal representation. We now have a complete overview of Mr Barker's difficulties and understandings. That is, from one point of view, acceptable. We have, however, of course another point of view. That of the numerous defendants and we must weigh each in the procedural balance. Action 89/15 - Barker -v- Jurats Vint and Myles, Advocate F. J. Benest, Advocate M. C. Birt, Advocate M. L. Sinel, Advocate M. S. D. Yates, Advocate S. Nicolle, Advocate K. Hooper Valpy and the Viscount . 10. This action was commenced by Mr Barker on 16 th December, 1988. His application is dated the previous day. The Court adjourned the representation to the 6 th January, 1989, and allowed the defendants to be served and convened. 11. The relief sought on that day, some 15 years ago, was that the respondents surrender all Mr Barker's legal files and documents to him as he was going to appeal to the Privy Council, presumably from the decision of the Jersey Court of Appeal on 20 th September, 1985, in the matter of the dégrèvement of the immoveable property of Barker (Hoffman, Calcutt and Collins JJA). 12. The respondents filed answers to the representation. Firstly, with regard to the respondents Jurats Vint and Myles have retired as Jurats, Advocate Birt is now Deputy Bailiff, Advocate Valpy is deceased, Advocate Nicolle, is, and was, the Solicitor General. Miss Nicolle has sworn an affidavit to say that she has never had any files or documents belonging to Mr Barker. She did not act for the Jurats or the Viscount in that action. The late Advocate Valpy acted solely as Bâtonnier. It is clear that such papers as the respondent had cause to believe belonged to Mr Barker were returned to him by Advocate Benest who advised the Jurats in the remise on 14 th December, 1984. There is a denial by all the respondents who hold papers that any of them belong to Mr Barker. 13. Mr Barker did not progress the matter. He served an appeal from a decision of the Royal Court on 6 th January, 1989. The appeal is convoluted but even if it showed a compelling cause of action, which in our view it does not, the President of that Court, the then Deputy Bailiff Mr V. A. Tomes has died, the then Bâtonnier Advocate J. C. K. Hooper Valpy has died, the Judicial Greffier, Mr John Le Cornu has long retired. These three are sought to be convened to explain their actions at the Samedi Court hearing. The request is singular: "That the Judicial Greffier be called before the Court of Appeal. That the Deputy Bailiff V. A. Toomes, (sic) Esquire be required to explain in person his conduct of the adjourned case heard on 6 th January, 1989 and to explain his actions to the Court of Appeal. That the Bartonnier (sic) Advocate J. C. K. Valpy be conveened (sic) before the Court of Appeal." 14. In one of Mr Barker's many prayers in the purported appeal is that fact that the retired Greffier is asked to explain in person why he failed to issue a written Act of Court following the hearing. As this matter was placed on the pending list, no Act of Court issued. The answer is as simple as that. It does not require an officer of the Court to explain it to us. 15. Mr Barker in his supplementary affidavit says: "That it would be unjust to prosecute this action until the investigation which I have been actively seeking is carried out, as this action related to documents which were required and ordered to be served up in order to petition the Queen. The documents were not made available." 16. We shall make our conclusion on this and the other cases at the end of this judgment. Action 91/74 17. Mr Barker brought this action by way of representation on 22 nd March, 1991, 13 years ago. It was an ex parte representation against the Viscount, P. de Gruchy, Advocate F. J. Benest, Advocate M. L. Sinel, Advocate M. C. Birt and Advocate M. S. D. Yates The representation requested the parties to place their files into the custody of the Greffier's Department so that Mr Barker could inspect them. The files that Mr Barker required related to the en désastre proceedings on 10 th August, 1984, to 13 th December, 1984, the files in the dégrèvement proceedings from 11 th January, 1985 to 21 st March, 1986 and the files of the remise de biens from the 21 st March 1986 to the same date in 1987. 18. The representation came before Court on 22 nd March, 1991, and was adjourned to 5 th April, 1991, when it was placed on the pending list. Answers were filed by the Viscount on 8 th May, 1991, and by Advocate Benest on 8 th May, 1991. The Answer of the Viscount bears repeating. What he said was this: 1. The application discloses no cause of action and is therefore 'informe'. 2. That I claim ownership, privilege and/or confidentiality in respect of all documents relating to désastre proceedings re James Barker, save those documents which have already been disclosed to the said James Barker. All documents and property belonging to the said James Barker which I had taken into possession were collected by him from my department on the 14 th day of December, 1984. 3. I have no files in my possession of the dégrèvement proceedings relating to the said James Barker. 4. That all documents relating to the conduct of the Remise de Biens of the said James Barker were prepared and collated by my officer, Peter de Gruchy, for the benefit of the Autorisés appointed by the Court in order to discharge their duty under the Loi (1839) sur les remises de biens and are held to their order. 5. In the premises I am not at liberty to disclose the contents of such documents referred to in paragraph 4 hereof without the consent of the Autorisés or the Order of the Court." 19. In any event once the Answer is filed the rest is silence. Court No 91/184 20. This action against Barclays Bank plc was served by way of Order of Justice in July 1991, nearly 13 years ago. The action was placed on the pending list on 9 th August, 1991, and the Bank filed an answer on 25 th September, 1991. 21. Sadly the manager mentioned throughout the Order of Justice, Mr E. W. Stoker has died. Mr Barker has taken no steps to pursue his claim. He feels that he cannot progress the matter until the documentation that he is seeking is to hand. Court No. 93/317 22. A representation was brought by Mr Barker against Jurats Vint and Myles and Ann Street Brewery Company Limited on 18 November, 1993, 10 years ago. The case came to Court on 3 rd December, 1993, and was placed on the pending list. Ann Street Brewery Company Limited sought and were given leave to intervene and both the Jurats and the Company filed answers. 23. This followed an action brought by Mr Barker against Ann Street Brewery Company Limited to which Jurats Myles and Vint were convened as parties. The action sought recovery from the company of monies received by it following a remise de biens and other relief and (b) the quashing of the decision by the Jurats as Autorisés in the remise de biens; this despite the fact that the matter had been fully adjudicated by the Court of Appeal in 1987. 24. On 6 th October, 1993, the Royal Court stayed the action against the Company and in a detailed judgment ordered that, if Mr Barker wished to challenge the decision of the Autorisés he should do so by way of judicial review, but first seeking the Court's consent to the judicial review in a detailed representation. Nothing further has happened on 93/317. Court No 95/182 25. This action was brought against Advocate Begg by way of an ex parte application which was adjourned on 15 th September, 1995, so that Advocate Begg could be convened. He appeared on 22 nd September, 1995. The case was put on the pending list and an Answer was filed on 15 December, 1995. The representation was not advanced. 26. The argument which is the nub of the representation is that Advocate Begg should cease to act for Mr John Joseph Barker, Mr Barker's brother. The action brought by Mr John Barker was withdrawn by consent in court on 11 th June, 1999. Advocate Begg no longer acts for Mr John Barker in any event. 27. Mr John Barker is precluded in the Act from any action against his brother and, of course, the contrary applies. That litigation has not been progressed for over eight years. Court No 95/195 28. While 93/317 was comatose, Mr Barker brought a representation against Jurat Myles alone on 14 th August, 1995. It sought a Judicial Review as suggested by the Royal Court on 6 th October, 1993. It contains a series of allegations including one that the construction of the Appeal Court in February, 1987, was unlawful. There was a vast out-pouring of complaints against all and sundry. 29. On 6 th October, 1995, eight and half years ago, the action was placed on the pending list and HM Solicitor General filed the answer of Jurat Myles on 26 th October, 1995. The representation dated 4 th October, 1995, if we set it out, shows the obsessive, but in our view, muddled thinking of Mr Barker. What it says is this: "1. The Representor's Complaints made to Sir Frank Ereaut by the Representor on 2nd July 1985. 2. The Representor's Complaint is stated in a letter of October, 1985, to Lord Hailsham the Lord Chancellor of England. 3. The Representor's Complaint on the Superior Number of the Royal Court on 20th March, 1985. 4. The Representor's Complaint against the interpretation of the judgment of the 21st March, 1986, as by the Act of Court (21st March, 1986), and thereafter stated. 5. The Representor's Complaints of gross negligence against the Autorisés 19th July, 1986. 6. The Representor's Complaint against the judgment 2nd October, 1986. 7. The Representor's Complaint against the judgment of 4th December, 1986 and the Constitution of all Royal Court Sittings thereafter. 8. The Representor's Complaint is stated in the Doleance registered in the Privy Council on 31st December, 1986. 9. The Representor's Complaints are against Ann Street Brewery Co. Ltd., Barclays Bank Plc, Lazard Merchant Bankers and all of their legal Representors. 10. The Representor's Complaint is against the extension of the 'Remise de Bien' 19th January, 1987. 11. The Representor's Complaint is stated in a letter dated 26th January, 1987, presented to the Royal Court of that date. 12. The Representor's Complaint is against the Constitution of the Court of Appeal, 4th and 5th April, 1987, as supported by an Affidavit signed by the Representor on 2nd February, 1987. 13. The Representor's Complaint is against the investigation of the Representor's medical certificate of 26 th January, 1987. 14. The Representor's Complaint is against the eviction of the Representor and the Emergency Act signed by the Judicial Greffier at 8 a.m. on 6 th February, 1987 . 15. The Representor's Complaint is against the Autorisés disposing of assets in excess of £200,000.00 (Two Hundred Thousand Pounds) unnecessarily. 16. The Representor's Complaint is that he did not get the protection in the 'Remise de Bien' Law. 17. The Representor's Complaint is against the obstruction of Appeal of Doleance to the Privy Council by the Judicial Greffier. 18. The Representor's Complaint is the obstruction of Advocate Begg by retaining files and documentation. 19. The Representor's Complaint is against judgments of Barclays Bank Plc Appeal Court 1 st and 5 th February, 1989. 20. The Representor's Complaint is against judgments of 4 th , 6 th and 7 th October 1993. 21. The Representor's Complaint is against Advocate Benest, Crown Officer Nicole, (sic) the attorneys in the Dégrèvement, and the Autorisés in the Remise for not releasing important documents so that the Representor could pursue justice. 30. It is noted that there is no specific request for a judicial review of the decision of the Autorisés. When the Court, by its Act of 6th October, 1993, suggested that the only way that the plaintiff could proceed would be by way of a judicial review, it gave no intimation that such a course would be approved. Even then, the Remise had been concluded for 6½ years and it took Mr Barker one year and ten months to bring the representation. Court No. 96/85 31. Mr Barker appeared before us as an authorised director of St Aubin's Wine Bar Limited. We had his personal assurance of that fact. The Company issued an Order of Justice on 17 th May, 1996, against the Housing Committee. As events turned out, the Court only allowed an action for damages and costs but on 1 st July, 1996, the Judicial Greffier made an order striking out the Order of Justice but giving Mr Barker leave to file, an amended Order of Justice, within forty-two days. 32. In the supplemental affidavit that was filed Mr Barker says that: "This action went as far as the Court of Appeal in 1997". That, however, was the action brought by the Attorney General when Mr Barker appealed successfully on his sentence. 33. On 22 nd November, 1996, the Attorney General obtained an injunction restraining the Company and Mr Barker from conducting a business in the course of which lodging, with or without board, was provided to more than five people for reward. In any event 55 Esplanade has now been demolished. 34. These then are the basic facts of this astonishing series of actions. Mr Barker clearly does not accept that the Court of Appeal reached a correct decision in 1987. He has his own views of the way the Jurats conducted the remise de bien. We find it surprising, - and we must say this, - that Advocate Begg acted for him in the appeal and was later prepared to act for his brother against him but that is now water under the bridge. Mr Barker (and this thread runs though all his actions) would like to peruse documents which he feels are essential to progress an appeal to the Privy Council. Whether the Privy Council would entertain an appeal some seventeen years after the Court of Appeal gave its judgment is a very moot point. 35. On 31 st October, 2003, the Master issued a circular letter on case management. Three years is mentioned as a cut-off period where actions have not been progressed. 36. The remise de bien was concluded in March 1987 - nearly seventeen years ago. We have had regard, of course, to the difficulty of witnesses remembering matters. We have had regard to the fact that many of the witnesses have died. We can see no reasonable excuse for the delays which are by any standards inordinate. 37. We are, therefore, refusing Mr Barker his relief and the actions remain struck out. [The Court refused Mr Barker leave to appeal] Authorities Royal Court Rules 1992. 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