Representation of Sheppard re Powell [2021] JRC 061 (02 March 2021)

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BAILII >> Databases >> Jersey Unreported Judgments >> Representation of Sheppard re Powell [2021] JRC 061 (02 March 2021) URL: https://www.bailii.org/je/cases/UR/2021/2021_061.html Cite as: [2021] JRC 061, [2021] JRC 61 [ New search ] [ Help ] Clameur de Haro [2021]JRC061 Royal Court (Samedi) 2 March 2021 Before : R. M. MacRae , Esq. , Deputy Bailiff, and Jurats Ronge and Dulake

IN THE MATTER OF THE REPRESENTATION OF

D J SHEPPARD SEEKING AN ORDER SETTING ASIDE AN INJUNCTION IMPOSED BY A CLAMEUR

DE HARO RAISED BY CAROLINE POWELL Advocate M. L. A. Pallot for the Representor. Mrs Powell appeared in person. M. Jowitt Q. C., HM Solicitor General for the Attorney General. EXTEMPORE judgment the deputy bailiff: 1. We will give the full reasons for our decision in due course. Last Thursday the criant , Mrs Powell, raised or purported to raise the Clameur de Haro at the property in St Brelade which she occupies.

2. All actions resulting from the raising of the Clameur de Haro must be dealt with as a cause de breveté i.e. as quickly as possible.

3. The reason that these matters must be heard swiftly is that unlike a usual application for an interim injunction which is accompanied by, for example, an undertaking in damages and where the Court needs to weigh carefully whether or not the injunction should be granted, which will usually involve considering the merits of the claim made by the party applying for the injunction, the Clameur de Haro , so long as the formal requirements are met by the criant when they declaim the words of the Clameur , has immediate effect. It is a self-help remedy and, although ancient, is a useful one and a significant feature of our customary law.

4. Further, owing to the fact that the Clameur can be easily raised, it needs to be considered by the Court quickly because, as the history of the Clameur shows, it is frequently raised in circumstances where it cannot or should not have been raised. That is not to criticise either the Clameur de Haro procedure or to those who raise the Clameur , as generally they will not have taken legal advice before raising the Clameur .

5. In this case, the Clameur was raised by Mrs Powell when officers, acting on behalf of the Viscount, visited the premises she occupies for the purpose of discussing her vacating those premises and handing her a letter in relation to the same, a copy of which we have been given today.

6. The premises that Mrs Powell occupies were, until recently, owned by her and have been the subject of insolvency proceedings over a number of years. During those insolvency proceedings, Mrs Powell applied for a remise des biens by way of representation dated 1 st June 2016, and those proceedings are considered in a judgment of the Royal Court reported at Representation of Powell [2018] JRC 073 .

7. The remise was granted on 31 st January, 2017, for six months and thereafter extended at the request of Mrs Powell for a further period of six months.

8. The point of the remise des biens , which Mrs Powell asked for, was for the property to be sold so as to pay off any creditors with loans secured against the property, with any balance after those loans were paid off being paid to Mrs Powell.

9. According to the judgment of the Royal Court, which Mrs Powell disputes today, the main reason for the failure of the remise was that Mrs Powell did not cooperate with the Jurats and did not let any potential purchasers even view the property. Accordingly, after the remise failed, which itself delayed matters by over a year, the Court refused to extend the remise further as set out in its judgment dated 11 th April 2018. From the date of the end of the remise , 31 st January 2018, Mrs Powell was deemed to have made cession générale of all her property, including the premises in which she still resides, for the benefit of her creditors. Accordingly, since 31 st January 2018, over three years ago, Mrs Powell has had no interest in the property save for what the Court of Appeal described in Re Super Seconds Limited [1997] JLR 112 as a " precarious interest ". In that case Jonathon Sumption (later of course Lord Sumption) Judge of Appeal, giving the judgment of the Court said that from this time (the making of cession) the debtor merely has the " bare title to the property but no valuable interest" .

10. Even this " bare title " was extinguished in this case pursuant to the order of 27 th November, 2020, when the Royal Court vested the property, pursuant to the dégrèvement proceedings that took place in 2018, in its new owners Mr and Mrs Sheppard.

11. The Court on that date authorised the Viscount to put the tenants apres dégrèvement , Mr and Mrs Sheppard, into possession of the property and ordered that the criant vacate the property by 31 st January 2021.

12. Accordingly, from 27 th November 2020 the criant Mrs Powell had no interest in the property at all and no right to reside there, subject to the Court permitting her additional time, which it did, expiring on 31 st January 2021, in order to vacate the property.

13. The facts of this case bear some similarity to the decision of the Royal Court in 2000 in Representation of Sarre re Clameur de Haro 2000/61 . In that case the Viscount was putting into effect an eviction order made by the Petty Debts Court when the Clameur was raised. The Royal Court Birt , Deputy Bailiff presiding, held that in those circumstances it was not open to the criant to raise the Clameur de Haro and the injunction that had been secured by the Clameur was discharged. The Court also directed that it was not open to the criant to raise the Clameur again on the same facts.

14. We have listened with care to what the criant has said in this case and, although unrepresented, Mrs Powell has put forward her arguments with clarity and skill. She has raised various points, some of which we will deal with in our written judgment in due course, but she said that the case of Sarre can be distinguished from her case on the footing that legal title was wrongly transferred to Mr and Mrs Sheppard in this case and that she has been subjected to a long history of unjust treatment, including judgments delivered by this Court. But all those judgments have stood, and none have been successfully appealed.

15. The orders made on 27 th November, 2020 were served upon Mrs Powell at the time and the Court specifically adjourned the hearing that took place on 27 th November, 2020 to that date so that she had notice of it, and provided a longer period for her to vacate the premises than was sought by the parties to the application that the Court heard on that day.

16. In any event, this was a case of the Viscount putting into effect a lawful order of the Court and, in the circumstances, the injunction obtained by the criant by virtue of the Clameur must be discharged. We direct that it is discharged and we further direct that the criant and any other person residing at the property is prohibited from raising the Clameur again in respect of the giving effect by the Viscount to the order of the Royal Court dated 27 th November 2020, or any subsequent orders which are made for the purpose of putting the tenants apres dégrèvement , Mr and Mrs Sheppard, into possession of the property. Authorities Representation of Powell [2018] JRC 073 . Re Super Seconds Limited [1997] JLR 112 . Representation of Sarre re Clameur de Haro 2000/61. Page Last Updated: 04 Mar 2021 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/je/cases/UR/2021/2021_061.html