Benest v Kendall [2003] JRC 144 (05 August 2003)

judgment the commissioner: 1. This case raises a narrow but difficult point. 2. The applicant seeks an inventory and account of the moveable estate of Mr. Peter Edward Langlois (deceased). The executor named in the will is the respondent, Mr. John Philip Kendall, who is an Ecrivain partner at Voisin & Co. 3. Article 24 of the Probate (Jersey) Law 1998 says that - "The Court may, on the application of any person interested in the moveable estate of a deceased person, order the executor or the administrator, as the case may be, to exhibit on oath in court a true and perfect inventory and account of the moveable estate of the deceased person". 4. On July 16 th , 1993 the Royal Court gave a very detailed judgment, after a trial which had lasted for thirteen days: Benest-v-Langlois [1993] JLR 117 . The plaintiff (the applicant in this case) succeeded in his action on the question of liability. He was awarded costs, but the Court left over the question as to damages and other matters sought by the plaintiff. This was by consent. 5. On 15 th November 1994, the costs were eventually taxed and the plaintiff was allowed his costs of £34,062.30. He actioned for these costs. The summons, issued on th November 1994, was signed by Advocate Begg who was then acting for Mr. Benest. It actions Mr. Kendall, as executor, to pay the £34,062.30 awarded on 15 th November with interest and costs. On 9 th December, the defendant was condemned to pay these costs but again there was a stay. Mr. Kendall had brought a representation to the Court asking that he might convene the creditors because the estate was insolvent and Article 4(2) of the Bankruptcy (Désastre) (Jersey) Law 1949 precludes the declaration of an estate "en désastre". 6. The case was adjourned until 8 th January and then further adjourned to 27 th March 1995. On that day the Court gave no written judgment but gave directions. We have the Greffier's notes. 7. The plaintiff was directed to issue an Order of Justice claiming damages against whomsoever he thought should pay damages. Any parties claimed against would then plead in the usual way. 8. There was to be a later summons for directions before a single judge (after pleadings had been filed) to decide, inter alia - "whether the costs of the trial which have been taxed by the Assistant Judicial Greffier and allowed in the sum of £34,062.30 and for which judgment was granted by the Royal Court on 9 th December 1994, subject to a stay of execution pending outcome of the Court's decision in relation to the Executor's representation should be dealt with as a separate issue, or as part of the main claim for damages". 9. An Order of Justice was duly prepared and served (95/232). It is a very detailed pleading. The first of its five prayers is that the Court shall order that - "The defendant shall pay unto the plaintiff the sum of £34,062.30 being the amount which the Royal Court ordered the defendant to pay unto the plaintiff by Act of Court dated 9 th December 1994". 10. We now come to the point at issue. In or about March 2001 the Master issued a circular warning that this and other actions were to be struck out for want of prosecution. Advocate Begg issued a summons to resist the strike-out. No action was taken to apply to a single judge in the terms of the directions order (although the pleadings had been filed). 11. A consent order was agreed. The consent order falls to be interpreted by us today. It is signed by two advocates. It reads - "We, the Advocates for the above named parties, hereby agree by consent - (1) That the action instituted by way of summons on 29 th November 1994 bearing Court reference 95/232 be withdrawn. (2) That the plaintiff shall pay the defendant's costs in relation to the above matter up to and including 9 th March 2001 to be taxed on the standard basis if not agreed. (3) That from 10 th March 2001 to date the plaintiff shall pay the defendant's costs on an indemnity basis, which costs shall not exceed £750. 12. On 26 th September 2001 the Master issued an Acte (PL95/232). It merely incorporates the words of the consent order - "by consent IT IS ORDERED that the above action be withdrawn on the terms of the consent order a copy of which is annexed hereto". 13. Advocate Landick has referred us to Pothier and to several rules in his "Traité des Obligations". His first two arguments are based on Articles 1 and 3 - "On doit, dans les conventions, rechercher quelle a été la commune intention des parties contractantes, plus que le sens grammatical des termes » and again « Lorsque, dans un contrat, des termes sont susceptibles de deux sens, on doit les entendre dans le sens qui convient le plus la nature du contrat ». 14. He also cited the « contra proferentem » rule contained in Article seven - "Dans le doute, une clause doit s'interpéter contre celui qui a stipulé quelque chose, et à la décharge de celui qui a contracté l'obligation ». 15. On the face of it the act is perfectly clear but now that we have witnesses called by each side there is no « commune intention des parties contractantes » " 16. Mr. Kendall gave evidence before us. Advocate Preston, who was also on the respondent's billet, did not. 17. Mr. Kendall took his advice on the litigation from Advocate Preston. He relied entirely on that advice. He was told that the consent order would bring about the end of the dispute against him, as Executor, and personally. He was told that because the consent order had been signed he was free to wind up the estate and he was under no obligation to repay the £34,062.30. The only matter outstanding was the £5,383.40 due to him under the consent order and upon which he has now actioned Mr. Benest. He pointed out to us that the entire action had lasted seven years until the consent order was finalized. He had left all the matters of litigation to his firm and to Advocate Preston and he was relieved to know where he stood in the knowledge that the estate could finally be wound up. When Advocate Landick put to him the very real situation that Mr. Benest faced by reason of the consent order, that is, writing off £34,062.30 and paying out £5,383.40, he said, in as many words - "Tant pis". The Judicial Greffier has no way of telling whether an estate is closed. The Executor is appointed until the administration is completed. We say this because Mr. Kendall informed us (and we accept his word) that the estate has been wound up and the only matter outstanding, so far as he is concerned, is taxed costs of £5,383.40 under the consent order for which proceedings have been issued. 18. Mr. Benest gave evidence before us, as did Mr. Ashcroft-Norwicki, who, as an employee of Crill Canavan, was the case manager for Mr. Benest who had come to his firm on a legal aid certificate. Mr. Ashcroft-Norwicki had drafted the summons. He had never intended to lose Mr. Benest the benefit of his costs order. He had never taken instructions from Mr. Benest to prejudice the costs action. There is, apparently, no correspondence regarding the costs order in the correspondence leading up to the consent order. 19. Mr. Benest, in his evidence, was somewhat critical of Advocate Begg, whom he said had sat on the judgment for nearly five years. That may seem harsh but certainly this outrageous muddle has not been brought about by Mr. Benest or any action instigated by him. 20. We must analyze the facts with great care and remember at all times that the consent summons was signed by two advocates, neither of whom was under any compulsion to sign. 21. The action instituted by summons on 29 th November 1994 resulted in the judgment of the Court on 9 th December 1994. The plaintiff in that case was Mr. Benest and the defendant was Mr. Kendall, the Executor of Peter Edward Langlois. 22. This action was commenced by simple summons. It was not placed on the pending list or adjourned sine die . Judgment was given on the return date. For that reason, it has no reference number on it. The consent order is wrong when it states that the action instituted by summons dated 29 th November 1994 bears the Court reference 95/232. It does no such thing. Court reference 95/232 refers to the action commenced by Order of Justice dated 3 rd November 1995 which Mr. Benest served personally on Mr. Kendall. This Order of Justice seeks payment from Mr. Kendall as executor of the costs of £34,062.30p, the quantification of which was left over by the Court in its judgment of 16 th July1993. There were, of course, other ancillary financial claims. 23. Paragraph 1 of the consent order is an anomaly. It asks that the action commenced on 29 th November be withdrawn. That, as both Counsel should have recognized, was an impossibility. Judgment had already been given by the Court with a stay pending the resolution of Mr. Kendall's representation. There was no "action" before the Court that could be withdrawn. It would have been perfectly proper, albeit somewhat surprising, for the parties to have declared that the plaintiff abandoned the benefit of his judgment of 9 th December 1994 or that the judgment be set aside. If the consent order relates to the simple summons, then of course the true action 95/232 still has outstanding matters such as claims for general damages, exemplary damages and indemnity costs. 24. If the consent order does relate to Action 95/232 as a whole then all the claims in that Order of Justice fall away. That would include the claim for costs which Commissioner Le Cras said that the plaintiff had to seek to recover by issuing the Order of Justice. The summons and the billet are dated 29 th November 1994. 25. The problem is compounded by paragraph 2 of the consent order which was signed by the two advocates - "That the plaintiff shall pay the defendant's costs in relation to the above matter up to and including 9 th March 2001 to be taxed on the standard basis if not agreed". 26. It is difficult for the Court to see why this date should have been mentioned for the withdrawal of a simple summons since no costs were incurred by the defendant on that summons subsequent to 9 th December 1994. 27. The defendant's lawyers prepared a detailed bill of costs. On 11 th December 2002 the Assistant Judicial Greffier sent a letter to Voisin & Co. returning the bill of costs duly taxed and allowed in the reduced sum of £5,383.40. 28. The bill of costs is comprehensive. It commences in November 1995 and terminates in November 2001. It is perfectly clear that the details of the bill of costs deal with all the matters that arose from the Order of Justice of 3 rd November 1995 and nothing before that date. The taxation correspondence was all before Mr. Ashcroft and his firm, Crill, Canavan. They could not have been taken by surprise and it is clear from the correspondence that both sides were dealing with the withdrawal of the Order of Justice proceedings. 29. The Order of Justice proceedings are withdrawn. For the reasons that we have stated, the summons cannot be withdrawn. It is inconceivable that, however inelegantly the consent order is drawn, the applicant intended to lose for himself the costs order which had been the result of a long fought case in which he had succeeded. 30. His judgment costs could never have been intended to have been thrown away. 31. In an attempt to curtail this appallingly long drawn-out procedural battle, we shall treat this hearing as the summons for directions that never took place. We direct that the costs of the original trial be treated as a separate issue and not part of the main claim for damages and which main claim has been withdrawn by consent. 32. Accordingly, we order Mr. Kendall to exhibit on oath a true and perfect inventory and account of the moveable estate of the deceased within ten days of this date. 33. The parties shall within seven days thereafter arrange with the Bailiff's Judicial Secretary for a further hearing date, should that be necessary. Authorities. Probate (Jersey) Law 1998: Article 24. Probate (General0 (Jersey) Rules 1998; Rule 17 Royal Court Rules 1992: Rule 6/20(2). Le Ruez-v-Le Ruez (1980) JJ 229. 4 Halsbury 17(2); paragraph 375. Rossdale: Probate and Administration of Estates: A Practical Guide (1991): pp.233-4. Benest-v-Langlois [1993] JLR 117 . Bankruptcy (Désastre) (Jersey) Law, 1949; Article 4(2). Pothier: Traité des Obligations (1821 Ed'n): Vol 1; Part 1; Ch 1: Articles 1, 3, and 7. Page Last Updated: 27 Mar 2017 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII