Jersey Unreported Judgments

Boundary Dispute

[2025] JRC 070

Royal Court

(Samedi)

12 March 2025

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Dulake and Opfermann

 

Advocate R. J. McNulty for the Plaintiff.

The Defendant appeared in person.

judgment

the bailiff:

1.        This is a further application in the boundary and encroachment dispute between Timo Stefan Schlaefer ("the Plaintiff") and Professor Howard Redfern Morris ("the Defendant").

2.        We do not propose to set out any of the background as this has been fully explored so far as it was necessary to do so in the judgments handed down by this Court on 9 March 2023 Schlaefer v Morris [2023] JRC 038 ("the RC Judgment"), by the Court of Appeal (single judge) on 17 July 2023 Morris v Schlaefer [2023] JCA 120 ("the CA Judgment") and on 7 March 2024 ("the File and Parties Judgment").

3.        The application before us is that of the Plaintiff who seeks the orders necessary to give effect to the RC Judgment and the File and Parties Judgment in which various declarations and findings were made relating to the encroachments from the Defendant's property over the Plaintiff's property.

4.        In particular, the Plaintiff seeks orders that the Viscount give effect to those orders with such enforcement powers as are necessary to do so.

5.        We are grateful that Mr Paul Stephens of the Viscount's Department appeared before us to explain what directions the Court might give, were it minded to make the orders sought by the Plaintiff.

6.        It is clear from the correspondence that the Plaintiff has sought to secure the agreement of the Defendant for the removal of items that the Court has found to encroach upon the Plaintiff's property.  The Defendant does not agree and consequently an agreement has not been reached, hence the application today by the Plaintiff.

7.        The Defendant's objection to the orders sought by the Plaintiff fundamentally strike at the basis of the findings of the Vue de Vicomte on 24 February 2021 as upheld in the RC Judgment.

8.        The Defendant has, following the RC Judgment of the Court, sought to petition His Majesty in Council alleging, although we have not seen the application, that the proceedings in the Vue de Vicomte were -�corrupted' inasmuch as the experts had been fundamentally misled by the contents of an affidavit tendered in support of the Plaintiff, which suggested that certain concrete steps had been established by the Deponent's father and therefore formed part of the Plaintiff's property and did not belong to the Defendant.  The Defendant pointed to certain parts of the transcript of the Vue de Vicomte as supporting that argument but also informed us that the statements contained in the challenged affidavit were subsequently recanted (to use the Defendant's own words) when the Deponent accepted that someone else could have established and built the steps and his recollection may not be correct.

9.        The Defendant also before us made some very serious statements which included, amongst other things:

(i)        That the evidence contained in the affidavit had been procured corruptly or by a fraud by the Plaintiff's legal team including Advocate McNulty, who appeared before us, and that there had been a conspiracy to pervert the course of justice; and

(ii)       That the courts had wished to protect the legal profession and therefore those allegations had not been given any due weight.

10.     In response to that allegation, Advocate McNulty pointed out sections from her client's affidavit confirming that the Law Society had, in connection with the allegations of fabrication of evidence, already considered the matter and had determined that there was no breach of professional conduct case to answer and that nothing improper had been done and, secondly, with regard to the allegation of a conspiracy to pervert the course of justice, the police had considered the matter as far as the Deponent was concerned and had determined that there was no case to answer (see the Plaintiff's affidavit of 3 August 2022 paragraphs 31-36).

11.     It is clear that the Defendant feels very strongly that he has been thwarted at every turn and arguments in which he has complete confidence have not been listened to.  He believes that he has been denied certain fundamental rights guaranteed by Magna Carta including trial by a jury of his peers.  These matters were considered by Sir William Bailhache JA as a single judge in the CA Judgment and were rejected during the course of the Defendant's application for leave to appeal.

12.     The Defendant has informed us that whilst he has received acknowledgement from the Ministry of Justice of receipt of his petition to The King in Council which he estimated had been provided in July or August of 2024 (having first been lodged with a direct and recorded delivery letter to His Majesty The King at Buckingham Palace in October 2023) he had not yet heard anything further.

13.     We have no application before us for a stay of these proceedings on the basis of a petition to His Majesty in Council nor, indeed, any arguments as to whether such a stay could be properly applied for on correct legal principles.

14.     In our view, the Defendant has been afforded opportunities, some of which he has chosen not to take, to present his arguments.  These may be summarised as:

(i)        He did not appeal against the findings of the Vue de Vicomte although he was legally represented both at the time of the Vue de Vicomte and at the time of the registering of the Record of the Viscount and a subsequent alteration of the Record was agreed by him;

(ii)       He sought unsuccessfully to appeal the RC Judgment;

(iii)      In a further application in which the Plaintiff sought precise orders as to what needed to be removed, the Defendant elected not to attend; and

(iv)     Notwithstanding this non-attendance, he was afforded the opportunity, having provided complaints as to the evidence before the Court in writing, to fix a date to argue his points before the Court.  He elected not to do so, notwithstanding being provided with a further opportunity by the Plaintiff's legal advisors in correspondence to do so.

15.     In our view, the Plaintiff has been kept out of his rights identified in the judgments of the Court.

16.     In the circumstances, we make the orders sought in the Plaintiff's summons and direct the Viscount to take all steps necessary by agreement with the Defendant if possible, but otherwise without such agreement, to effect access to, so far as it is necessary, the Defendant's property and to procure the removal of the structures identified in the orders of the Court as encroachments.  We stay this order for 28 days to enable agreement to be reached.

17.     We understand that the Viscount has sought an indemnity and an initial payment from the Plaintiff to cover the costs of doing so and we see no difficulty with that.  The Plaintiff agrees to make the payments sought by the Viscount and offer the ongoing indemnity which we note he intends to claim back from the Defendant as part of the costs of the enforcement of his rights.  We make no observations about this.

18.     We hope that the Defendant will now take steps to permit the Viscount to carry out the orders of this Court.  Should he not do so and should the Viscount encounter particular difficulties in enforcing the orders that the Court hereby makes, we authorise the Viscount to revert to this Court for further directions as to enforcement.

Authorities

Schlaefer v Morris [2023] JRC 038.

Morris v Schlaefer [2023] JCA 120