BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Representation of the Amy Desastre [2013] JRC 193 (02 October 2013) URL: http://www.bailii.org/je/cases/UR/2013/2013_193.html Cite as: [2013] JRC 193 |
||
[New search] [Help]
Desastre - further issues regarding the sale of various life interests and properties.
|
Before : |
W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Marett-Crosby and Milner. |
IN THE MATTER OF THE REPRESENTATION OF THE VISCOUNT RE MRS ANGELA CLAUDETTE AMY (NEE HORMAN) EN DESASTRE
AND IN THE MATTER OF ARTICLE 31(7) OF THE BANKRUPTCY (DESASTRE) LAW 1990.
Advocate D. R. Wilson for the Viscount.
Advocate D. A. Corbel for Bedell Cristin.
Advocate C. M. Fogarty on behalf of the Amy Children and for Messrs Ogiers.
Mrs Amy, the Debtor, appeared in person.
judgment
the deputy bailiff:
1. The property of Angela Claudette Amy ("Mrs Amy") was declared en désastre on 11th November, 2011, on the application of her children Anastasia, Marianna and Philip ("the Amy Children") for whom Advocate Fogarty appeared on this application. As a result, Mrs Amy's property vested immediately in the Viscount.
2. The Viscount advertised for claims in the usual way. There were a number of secured claims which have priority against the estate of Mrs Amy in the total sum of £664,225.28. The secured claims should on present calculations be paid at 100p in the pound. Ordinary claims have also been filed - by the Amy Children, individually, in differing sums but which amount in aggregate to £772,934.03, and claims for legal fees by Messrs Sinels in the sum of £103,807.72 and Messrs Viberts in the sum of £59,668.72. The ordinary claims were adjudicated, and allowed at an aggregate total of £336,736.89. We will come to the detail of these claims later. The Viscount's representation shows that the assets available to meet the ordinary claims, after payment of the secured charges, amount to approximately £65,600, being 50% of the approximate net equity in two properties in Jersey, formerly jointly owned by Mrs Amy and a Mr Charles Barnett plus whatever can be realised from the sale of Mrs Amy's life interest in Hastingue Farm. The valuations of the two properties owned by Mr Barnett were obtained in May 2012 and have been given gross of legal fees, estate agent's commission and other selling costs. The Viscount and Mr Barnett did not agree upon a sale methodology. As a result the Viscount brought an action en licitation in order to realise the assets in Mrs Amy's désastre, which concluded on 1st March, 2013, when the Royal Court made orders for the sale of the two properties. The other assets which form part of the estate of Mrs Amy include her life interest in the property Hastingue Farm, which is of uncertain value for the reasons set out later in this judgment at paragraph 40, and the choses in action represented by potential claims for negligence against Messrs Philip Sinel and Co, Messrs Viberts and other lawyers who have acted for her from time to time.
3. In relation to the life interest in Hastingue Farm, the Viscount's approach has been to defer any attempts at realisation in the hope that Mrs Amy and the Amy Children might resolve upon the sale of the various life interests and the reversion together to enable the property as a whole to be conveyed to a purchaser at full value. The alternative would appear to be an arrangement by which the Amy Children might buy out the life enjoyment which Mrs Amy has. It appears that the parties are not close to reaching any agreement on either approach, and indeed the Amy Children have issued a representation seeking an order that the Viscount should proceed to realise the value of Mrs Amy's life enjoyment for whatever price can be obtained for it. That representation was not argued before us on 17th May, in sufficient detail for us to adjudicate upon it. We regard it as adjourned and for the reasons set out at paragraphs 38-41 we think it is currently unclear whether it is to be pursued.
4. In accordance with the procedure envisaged by the Bankruptcy (Désastre) Rules 2006, the Viscount gave notice of his adjudication of the various claims to the creditors, and pursuant to Article 31(7) of the Bankruptcy (Désastre)(Jersey) Law 1990 ("the Law") the Amy Children, Messrs Ogier and Messrs Viberts objected to the Viscount's determination and sought a review of it. Messrs Bedell Cristin, who appeared before us, albeit it is not entirely clear what status they have to do so, accepted the Viscount's determination. We considered that Messrs Bedell Cristin had a claim against Anastasia, and that therefore that firm's claim for costs fell within Anastasia's claims in the désastre and should not have been argued as an independent claim, but as we say, in any event the Viscount's adjudication was accepted. We add that Jurat Milner, whose daughter is an associate advocate employed by the partners of Messrs Bedell Cristin, declared that interest and no party objected to her sitting.
5. Messrs Sinels raised no objection against the Viscount's determination.
6. It is now necessary to review more directly the nature of the claims which were inserted in the désastre.
7. There are three component parts to this claim:-
(i) A judgment debt in the sum of £86,134 pursuant to the Order of the Court of Appeal of 27th July, 2011;
(ii) the costs of Messrs Bedell Cristin under the Court of Appeal Order of 27th July, 2011, in the sum of £74,150.88. These costs included fees of £67,026.02 which included a Factor B Uplift, plus disbursements plus GST; and
(iii) additional claims as set out in the Order of Justice dated 22nd October, 2010, in the nominal sum of £100,000.
8. Marianna also submitted claims under the same three headings:-
(i) A judgment debt of £86,134;
(ii) costs of Messrs Ogier in the sum of £130,323.15 (comprising £123,714.81 fees including the Factor B Uplift, plus disbursements and GST); and
(iii) Marianna's additional claims as set out in her Order of Justice of 3rd November. 2010.
9. The submission to the Viscount from Messrs Ogier dated 21st December, 2011, indicated that both Bedell Cristin and Ogier were entitled to charge private client rates plus a Factor B Uplift of at least 35%, but would nonetheless restrict their claims to legal aid rates plus 35% Factor B Uplift if the Viscount was prepared to agree. The firms reserved their rights to claim a higher Factor B Uplift if the Viscount did not agree.
10. Philip claimed also the sum of £86,134 which Anastasia and Marianna claimed pursuant to the Court of Appeal Order of 27th July, 2011, upon the basis that his claims were the same as those of his sisters, although the Court of Appeal Orders had only been in respect of summary judgment applications made by Marianna and Anastasia. Philip had an additional claim as set out in his Order of Justice of 17th February, 2011, in the sum of £105,029.
11. This firm was clearly retained by Mrs Amy. Some of the paperwork which has been put before us - which is incomplete and rather haphazard, which has not assisted the Court's consideration of this matter at all - would suggest that the firm was also retained by Mr Charles Barnett on the same issues. According to Messrs Ogier, Messrs Philip Sinel and Co. billed Mrs Amy a total of £175,847.11 for their services between July 2010 and August 2011. On the basis that the claim in the désastre was in the sum of £103,807.72, (fees of £90,026.53 plus GST plus disbursements) we assume that the sum of £72,040 approximately was paid on account. We have not seen the bills of Messrs Philip Sinel and Co and it is therefore impossible to evaluate what that firm did or did not do. We note that they appeared for Mrs Amy both before the Royal Court and in the Court of Appeal in connection with the claims for summary judgment by two of the Amy Children, Anastasia and Marianna.
12. Messrs Viberts advised Mrs Amy in relation to questions of dower, the application by the Solicitor-General to remove her from her office as tutrice of her son Philip, and in relation to an application by Marianna for forensic accountants to examine the accounts at her expense. Before us, Mrs Amy contended that Advocate Thacker gave advice to her in her capacity as tutrice, although there is no evidence before us that that was so and Advocate Thacker denied it. The claim by Messrs Viberts inserted in the désastre was in the sum of £59,668.72, including disbursements and GST, the fee element being £58,057.97). Once again, the papers put before us do not include the claim as inserted, and we do not know precisely what work was done, by whom and over what period.
13. The Viscount determined that he would treat all claims for legal fees in the same way having regard to all the circumstances of the désastre. Accordingly the Viscount applied Factor A rates to the claims made by all the lawyers, whether those lawyers were retained by Mrs Amy or by one or more of the Amy Children. As a result, the claims of each of the legal firms was reduced, which can be shown in tabular form as follows:-
Legal Firm Fee Claim (excluding disbursements) Fee Adjudicated
Bedell Cristin £67,026.02 £49,648.90
Ogier £123,714.81 £91,640.60
Sinels £90,026.53 £67,629.60
Viberts £58,057.97 £34,961.00
14. In the case of each of the legal firms set out above, there were disbursements and GST to be added to the overall amounts claimed and awarded respectively, but these are not relevant to the current dispute.
15. It is clear from the Viscount's approach to the question of legal fees that he did not distinguish between fees incurred by lawyers for the Amy Children and fees incurred by Mrs Amy, nor did he distinguish between any fees which might be claimed against Mrs Amy or those which might be claimed against Mr Charles Barnett. Furthermore, to the extent there was a claim against any firm of lawyers, whether earlier advisers to Mrs Amy or Messrs Sinels or Viberts, he disregarded it.
16. The Viscount dealt with these by applying a 25% reduction to the summary judgment claims of £86,134, resulting in an award to each of the Amy Children in the sum of £64,600.50 being admitted in the proceedings. In relation to each of the supplementary claims, these were rejected upon the basis that the proof of claim was insufficiently developed to enable any formal adjudication process to be carried out.
17. Article 31 of the Law is, in so far as relevant to the present proceedings, in the following terms:-
18. No procedural complaint is raised in relation to this matter, and the only question for us therefore turns on the language of Article 31(7) which provides for the Viscount to ask the Court "to review the decision."
19. It is contended by Advocate Thacker, on behalf of Messrs Viberts, that this means that the decision is subject to judicial review - in other words it can only be reviewed on the ground of illegality, irrationality or impropriety. He contends that as there is nothing illegal in what has been done, nothing procedurally improper and nothing irrational, the decision of the Viscount to allow the Viberts fees in the amount provided for cannot now be challenged. Furthermore, to the extent that there was a suggestion that the Viscount should investigate and if necessary proceed with claims on behalf of Mrs Amy against her previous legal advisers, a decision not to do so was in effect final.
20. Advocate Wilson contends that the nature of the Court's investigation is that of an appeal, and is not judicial review. He relies upon Shirley-v-Deputy Viscount [1999] JLR 256 at page 268, where Southwell JA, when considering Mr Shirley's submission that the statutory right under what was then Article 31(4) (in effectively the same terms as what is now Article 31(7)) involved a judicial review on Wednesbury principles, said this:-
21. We think we are bound by the Court of Appeal's decision in Shirley-v-Deputy Viscount, and we apply it. Accordingly, although the statute describes the application to the Court as being for a review of the Viscount's decision, it is in effect an appeal at large. Even if we had not regarded ourselves as bound by the decision of the Court of Appeal, we would have reached the same conclusion. The Viscount is the executive officer of the Court, and in administering the désastre, is doing so in that capacity. It is clear to us that when questions arising out of the Viscount's administration are referred to the Court, the Court has a free discretion to exercise unless there should be express statutory provision to the contrary.
22. Before we go on to the way in which we adjudicate on the present objections before us we note also the provisions of Articles 29 and 30 of the Law. By virtue of Article 29, all debts and liabilities of the debtor at the time of the declaration of désastre, whether those debts and liabilities be present, future or contingent, are provable in the désastre. By Article 30, it is for the creditor to prove his debt, and he is required to do so at his cost unless the Court decides otherwise.
23. Advocate Fogarty objected the payment of the fees claimed by Messrs Viberts and by Messrs Philip Sinel and Co. Insofar as the claim of Messrs Viberts was concerned, she submitted that they advised Mrs Amy that she could take her life enjoyment under the will and in addition take her dower right. She said this advice was basically wrong, and it led to all the problems being litigated, including the defence of summary judgment. Her objection to the costs claim by Messrs Sinels was on the same basis. In fact he spent an enormous sum of money on defence of a summary judgment application without understanding appropriately what the claim of dower amounted to.
24. Advocate Sinel, of course, was not present to defend his position. Advocate Thacker was, and he contended that there was nothing in the judgment of the Royal Court in April 2010, (In the matter of F [2010] JRC 067) upon which Advocate Fogarty relied, which criticised the advice which he had then given. At that time the Court said this:-
25. On this basis Advocate Thacker submitted that the Viscount had taken a pragmatic view of the claim for legal fees and indeed of any possible claim against the lawyers for negligence, and it was not unreasonable to do so.
26. Advocate Wilson submitted that there was no intention on the part of the Viscount to waive for Mrs Amy any claim in negligence which she might have against either Messrs Viberts or Messrs Sinels. The Viscount's sole responsibility was to make a determination of the claims and objections made in relation to the administration of the désastre.
27. In reply, Advocate Fogarty submitted that it was absolutely plain that Mrs Amy, as widow, was obliged to make a clameur de douaire if the dower was to be claimed, and she had not done so. There was accordingly a breach of duty because no such claim had been brought. It was a simple mathematical exercise to ascertain if the life interest was greater or less than the claim for dower. In this case, she contended that the value of the matrimonial home, which was the subject of the life interest, was greater than one third of the residue and accordingly Mrs Amy had not claimed it.
28. The haphazard paperwork put together by all parties in relation to this matter makes the Court's task on this appeal against the Viscount's determination very difficult. We have not seen the original bills of costs for the amounts claimed. We are asked to review claims for legal fees in circumstances where we do not know what was done or by whom or how long it took, but simply by reference to the apparent results. Advocate Fogarty contends that simply by looking at the results, one can tell that the fees were wrongly claimed. At first glance that might seem to be a not unreasonable view to take, but then one looks at the fees which have been charged to the Amy Children, and it is not obvious that those charged to Mrs Amy are materially different.
29. We uphold the Viscount's determination. We do so because:-
(i) The Viscount contends through Advocate Wilson that he took a pragmatic view of the claims in relation to legal fees. While it is true that it might have been open to him to deny those claims and to bring himself a claim for the assessment of damages for wrongful advice, that would have required an investment of funds which were simply not available to him. With only some £65,000 in the pot to split between the unsecured creditors, it would have been irresponsible for the Viscount to embark upon potentially costly litigation which, if unsuccessful, would have left the public of the Island to subsidise some further litigation in this matter. We have not seen all the material upon which no doubt the Viscount based that decision, but it does not seem to us to be unreasonable, in the circumstances to conclude it was not in the interests of creditors to challenge claims for legal fees on the grounds of allegedly negligent advice.
(ii) The nature of the process under the review is that the burden of proof lies on the party who requires the matter to come to court for a review. In the case of a creditor whose claim has been denied, the creditor must establish his claim. In the case of a creditor who objects to another creditor's claim, the objector must establish the objection. Advocate Fogarty has made various submissions which might have been justifiable if she had put together the paperwork to support them. She did not and the objection fails. We simply do not have the information to reach a conclusion that the Viscount's assessment was incorrect.
30. We do add this. The circumstances surrounding the affairs of this family since the death of Mr Amy in 2000 do not reflect well upon the legal profession. We have not seen all the paperwork which might be relevant to any claims and it would be undesirable therefore go into any great detail other than to say that it is obvious to us that matters in relation to the various tutelles went wrong from the very beginning, long before the lawyers before us today were involved. One could not expect Mrs Amy to have been aware, back in 2000, of the legal and procedural formalities involved in claims for dower. One would not expect her as a lay person to focus upon potential conflicts of interest between herself as tutrice and her own interests, in circumstances where she was as a result of her husband's death a single mother bringing up, for at least part of the time, three relatively young children on her own. This was not helped by the already fractured relationships within the family, which one can understand her thinking led to the change by Mr Amy of his will so that she no longer inherited the property on his death. The arrangements which were then made were clearly deficient and should have been better thought through and documented. Nonetheless, the lapse of time makes it very likely that any complaint which Mrs Amy might make in relation to those arrangements would today be difficult and face objections on limitation grounds, the merits of which we cannot for obvious reasons explore now.
31. These problems of the fractured family relationships were then compounded by the litigation in 2010/2011. Huge sums of money have been spent on legal fees on both sides for relatively negligible reward as far as the clients are concerned.
32. We have considered the Viscount's approach to the claims for historic negligence against the lawyers for the tutelles, and for Mrs Amy respectively in the early years of this century. The Viscount's approach is that there is no money to fund any such action, in similar way as there is no money to fund claims in negligence against Advocates Sinel and Thacker. If such claims were brought, and an adverse costs order were made, the tax payer would have to pay the bill. The limitation arguments appear to us, on the face of it only because we have not seen all the documentation, to justify that approach. There may be other defences. Mrs Amy contended that the Viscount should incur costs in pursuing such negligence claims, but it appears to us that he took an appropriate practical view in that respect.
33. The second issue related to the quantification of the Amy Children claims. As we have indicated earlier, these fell into three categories.
34. Dealing first of all with the summary judgment of the Court of Appeal, this was for £21,533.50. The Court of Appeal gave conditional leave to defend the balance of the claim on payment of money into Court. As this money was not paid into Court, there was on the face of it, a good claim for £86,134, but equally, as noted by the Royal Court and the Court of Appeal, there was the possibility of an offset against this claim of sums which were applied by the tutrice for the benefit of the Amy Children respectively. The Viscount took these observations into account in applying a 25% reduction on the claim of the Amy Children to the monies identified in the Grant Thornton report, and we consider that he was right to do so. We note that no objections to the contrary were raised by Advocate Fogarty on behalf of the Amy Children.
35. The next part of the adjudicated claim relates to the sums claimed for hitherto un-quantified losses. In the Orders of Justice which have been issued by Anastasia and Marianna, there were claims for an account in respect of the activities of the tutrice, and various other claims. The Viscount's approach had been that such claims had to be rejected because the claim was insufficiently developed to enable it to be formally adjudicated upon. In doing so, the Viscount was no doubt implicitly recognising that it would be difficult to justify to other creditors an allowance of a sum in respect of un-quantified losses without at least some basis for the claim being put forward. It appears none was advanced to the Viscount, and none was certainly advanced to us. Accordingly we reject the claims of the Amy Children that allowance for these sums should have been included. Had Advocate Fogarty included some assessment of how the claims could have even justified, no doubt the Viscount and the Court would have found it easier to deal with them.
36. Finally, Advocate Fogarty contended that she wished to appeal against the Viscount's decision to reduce the claim for Ogier fees from £130,232.15 to £98,248.94. Once again, in argument before us, very little was put forward to support the claim on behalf of the Amy Children that these fees were justified. We recall that these claims for costs are not in respect of legal services that were provided to Mrs Amy, the debtor. They are claims for legal services provided to the Amy Children, and it is to them that Messrs Ogier must look for payment of their fees. The Amy Children only have a claim against their mother in respect of those fees which form the subject of orders for costs. In the absence of the Amy Children having the Ogier bills taxed, the Viscount was obliged to make some assessment as to what would be an appropriate amount to allow, had there been a taxation. He has allowed Factor A rates without Uplift, without seeking to contend that some fees were incurred which are not the subject of the costs awards in Court, or that there should be a reduction in respect of fees which were liable to be taxed as opposed to those awarded on an indemnity basis.
37. It is for the applicants - the Amy Children, and not Messrs Ogier - to justify their claim. They have not discharged that burden because they have not put before us either a taxed bill of costs or indeed any bill of costs, showing what was done and by whom and when, and in those circumstances we cannot regard the Viscount's approach as unreasonable.
38. The final issue which was raised before us concerns the life interest in Hastingue Farm. That life interest must clearly have some value. There is a point at issue, notwithstanding the provisions of the Law by which the property of the debtor vests in the Viscount, as to whether the value can be realised against the will of the life tenant Mrs Amy. The Court has received no substantial argument on this issue and does not adjudicate upon it. It follows that anything said in relation to it would be obiter. Until it is adjudicated upon, the Amy Children's application for orders to the Viscount to ascertain the value of and realise Mrs Amy's life interest in Hastingue Farm must itself be adjourned. If it is to be pursued, there should be a Summons for Directions involving the Amy Children, Mrs Amy and the Viscount so that the Court can lay down procedural guidelines for the hearing of the issue. The right timetable for a summons for directions is left over for argument, given the contents of paragraph 41 below.
39. The Court has pending before it an application by the Amy Children for an order that the Viscount obtain a valuation of the life enjoyment and realise it thereafter. It is clear from an answer filed by Mrs Amy that, inter alia, she wishes the désastre to be recalled and the en licitation proceedings struck out, and also have struck out the other claims of the Amy Children. No answer appears to have been filed by the Viscount.
40. Advocate Fogarty, for the Amy Children, has argued that the life interest has a definite value of £345,000, relying upon a valuation in the Court bundle to this effect. It is an understatement for us to say that we do not find this valuation convincing. The valuer conducted what he described as a "drive by" valuation. He was not able to gain access to the interior of the property. He made assumptions as to what the property comprised, and as to its condition. He did not know the internal floor area and calculated the domestic curtilage from the Digimap plan. He does not appear to have assessed the current rental value of the property, unsurprisingly in the light of his limited "drive by" inspection. It seems he was unaware of Mrs Amy's age or state of health. No actuarial tables are directly referred to. We emphasise that we do not say the valuer was incompetent. Subject to receiving other information, we assume he did the best he could on the instructions he had. However, we do say that the valuation, as it stands, is not one to which we could give any weight in reaching a decision. It is simply not fit for purpose.
41. On several occasions so far both the Royal Court and the Court of Appeal have indicated that this family dispute cries out for proper mediation. It appears that the parties are unwilling to proceed along such a line. It may well be that the proper approach at this stage would be for the Court's processes to work in such a way as more positively encourages that approach. It is considered appropriate that following delivery of this judgment if in final form and not reversed or varied on appeal, and after any interim dividend has been paid and all other assets other than the life interest in Hastingue Farm have been realised, the Viscount or Mrs Amy should apply to the Court for an order reducing the period which must expire before an application can be made to discharge the désastre. If it is then discharged, the remaining claims fall away and the protagonists can get on with their lives without the spectre of litigation hanging over them. At that point, if either the Amy Children or any of the lawyers are insistent upon taking further steps by way of legal process, they can take them, and Mrs Amy can defend them. If such steps are taken, they will have to be assessed on their merits. But it may well be that at such a time, the Court will use its own process to enforce proper attempts at mediation. It may well be that at such a time, the Court will show its exasperation with the lawyers and their clients by confirming that, save in absolutely exceptional circumstances, no orders for costs will be made in the proceedings.
42. We have no doubt that Mrs Amy and those close to her have from time to time acted unreasonably. Indeed some of the Court's judgments so far make it plain that that is the position. Nonetheless, in the round, there is no doubt in this Court's opinion that Mrs Amy has been as much sinned against by her and the tutelle's early legal advisers as sinning. She took advice from different lawyers at different times and none of them was, it appears, sufficiently astute to see that the arrangements put in place in relation to Hastingue Farm were a recipe for disaster. The Amy Children are now old enough to recognise that and furthermore to recognise that, regardless of whatever the strict position might be in law, on which the Court will have to adjudicate if necessary, enough is enough. We earnestly hope that these obiter views, trenchantly and robustly expressed, find their mark with Mrs Amy and with the Amy Children and that we have indicated a way forward which will bring an end to the suffering which this litigation has caused all parties, and enable them to get on with their lives with dignity.
43. In accordance with the usual practice, a draft of this judgment (containing 41 paragraphs and not including what is now paragraph 40) was circulated to the parties for comment. The intention was to allow the parties to signal whether any further hearing was necessary for consequential applications, and to enable minor errors to be corrected. Most parties responded appropriately. Mrs Amy did not, taking what she perceived to be an opportunity to strengthen her position by requesting further orders or language which would increase her prospects for success in further applications. Those requests for change have not been accepted. The circulating of a draft judgment does not have as its purpose an invitation to the parties for further substantive submissions.
44. The response from Advocate Fogarty, on behalf of the Amy Children raised a number of issues, some of which have been reflected in changes to the draft judgment, hopefully so as to clarify what was, and what was not, being decided. It appeared to us, however, that there is at least a risk that the arguments which were being put forward were more a defence of Messrs Ogier's handling of the matter than of the Amy Children's interests. Despite the comments in this judgment, we have made and we make no criticism of that firm's legal advice to the Amy Children. We have not seen the relevant paperwork to express any opinion on that subject. We have, however, criticised the result of the approaches taken by all the lawyers in the case, which has seen the spending of huge sums of money disproportionate in our view to the value of what was in dispute. The apparent inability of the lawyers over the years to find a sensible solution to the problems which Mrs Amy may have exacerbated by her own conduct but which she did not personally cause in the first instance has led the Court to give the guidance it has to her and the Amy Children as set out in paragraphs 41 and 42 of this judgment.
45. Mrs Amy raised one other point in her submissions after receiving the draft judgment. It is a point that received only scant attention at the hearing on 17th May, when, almost in passing, Advocate Wilson, in referring to the affidavit sworn by Mr Edward Shorrock, mentioned that he is the husband of Advocate Nina Benest, one of Mrs Amy's former legal advisers. Mr Wilson went on to say that Advocate Millar in the Viscount's Department was looking independently at the aspects of the case which involved a potential claim against Advocate Benest. In her recent approach, Mrs Amy contends that there is a serious conflict, and that advice to her from Advocate Benest, which was wrong, has put Mr Shorrock in a very difficult position. Accordingly she contends that Advocate Wilson is conflicted because he works intimately with Mr Shorrock in relation to this case, and she asked that the Court remove Mr Shorrock and Advocate Wilson from the case altogether.
46. Mr Shorrock is a chartered accountant who is director of regulatory services at Messrs Baker and Partners, which has been instructed by the Viscount, to advise on matters of Jersey law and to assist in the asset realisation and creditor adjudication process. On 28th February, 2013, Mr Shorrock swore an affidavit, ostensibly at the request of the Viscount, to provide details of a number of adjudication decisions which the Viscount had made, and to provide "further clarity to the Viscount's reasons behind his decisions". Mr Shorrock then sets out the disputed decisions in relation to legal fees and other claims the Amy Children might bring, but he does not tackle in his affidavit the Viscount's decisions in relation to any potential claims against Advocate Kelleher, Advocate Nina Benest and Advocate Whittaker. Indeed we assume that Mr Shorrock cannot have had in mind the possibility of his affidavit being treated as material evidence of the Viscount's decision not to pursue his wife, Advocate Benest, because of the obvious conflict of interest that would arise. We are told by Advocate Wilson as an Officer of the Court that the Viscount, for whom Advocate Wilson acts, has made other arrangements for assessing the value or otherwise which might be attributable to a potential claim against Advocate Benest, and of course we accept that. While we think it would have been better if Mr Shorrock had not participated in any way in this particular désastre, given the nature of the claims that might be run, we do not find that Advocate Wilson has such a conflict in all the circumstances that we should require him to withdraw as advocate for the Viscount. However, he will no doubt have already put in place such Chinese walls as are necessary to ensure that his firm's employee, Mr Shorrock, does not have access to information which might be of interest to a potential defendant in respect of any proceedings issued either by the Viscount on behalf of the bankrupt, or by Mrs Amy at a subsequent date in her own name.
