Landowner ‘not entitled to sledgehammer when a nutcracker will do’

Earlier this year, Sebastien Moerman was successful in his legal action to get Sark Electricity to sign a court consent order agreeing to remove the cables and infrastructure, cutting off mains electric to 19 other neighbouring homes.

Sark’s government had to ship in an emergency generator so that power could be maintained to the downstream homes, a move that Chief Pleas described as not sustainable or cost-effective.

The civil case was back in court because Mr Moerman wanted to retrieve the costs he had incurred.

The court heard that the hourly cap on advocates’ fees in these cases was £273 and there were no known advocates who did it for less. Mr Moerman’s legal fees were about £27,000 to £28,000.

Lieutenant-Seneschal Hazel Marshall ruled that he was entitled to the recoverable costs, with an uplift of 15%, but not the full indemnity costs, at which she said she was aghast.

‘You are not entitled to a sledgehammer when a nutcracker will do.’

Lt-Seneschal Marshall said the large bills were not relative to the problem, and the matter could have been resolved more easily, especially since the electrical equipment had been on the land for about 70 years.

The legal test for indemnity costs to be awarded is whether ‘unreasonable’ conduct can be proved, and Lt-Seneschal Marshall decided that while there should have been better communication, it did not cross the bar into full unreasonableness because Sark Electricity had wider issues to consider.

In September this year Sark Electricity director Alan Jackson agreed to remove cabling and ancillary equipment from Mr Moerman’s tenement in order to comply with the law.

It was stressed in court that this was done with a ‘heavy heart’ because it would leave people downstream of Mr Moerman without electricity and could also establish a ‘difficult precedent’.

The court order stated that the equipment should be moved ‘forthwith’ and Lt-Seneschal Marshall took umbrage at the word because it was ‘not specific’.

She urged the advocates not to use that word any more.

At the core of the case was the fact that Sark currently has no wayleave law, which is the legally binding agreement between a land owner and utility providers.

Therefore Sark Electricity came to the conclusion that the legal action could not be defended.

The plaintiff’s case was that Sark Electricity had since been dragging its feet in doing the work and that there had been a ‘complete lack of engagement from the company’.

Advocate Robin Gist, for the plaintiff, said some work was done in early November, and two men with sledgehammers had shown up on Tuesday, but much of the equipment was still in place.

Mr Moerman had even considered employing electrical contractors himself because he felt so frustrated and he wanted to apply for planning permission to erect a shed.

The point about deliberate slowness was disputed by Advocate Mark Dunster, for the defendant, and a number of logistical issues were outlined, including the small labour force in Sark, the need for a digger, and wet weather making it a dangerous project.

Agreement was reached in court that Sark Electricity would remove all the surface equipment by 23 December and a schedule of works for the underground cables would be drawn up later.

The case was adjourned until Friday 11 December.

n It was explained in court that Sark’s government is hurrying through new legislation, the ‘Electricity Law 2020’, so that the problem does not arise again.