Judge "aghast" as costs soar in Sark electricity dispute

Wednesday 25 November 2020

A judge has condemned the owner of Sark Electricity's apparently "cavalier" approach to a court order.

Since June, La Tour landowner Sebastien Moerman has been instructing the island's electricity company to disconnect him from the grid and remove all cabling and other equipment from his tenement.

The request was approved by Sark's Court and things came to a head in early September when residents were notified by SEL that 19 homes were going to have their power cut off as a consequence. 

SEL owner Alan Jackson laid the blame at the door of the island's Policy & Finance Committee for failing to draft legislation that would have prevented this kind of situation from happening, while publicly acknowledging that Mr Moerman was exercising a legal right that had not been tested in decades. 

The equipment was disconnected from the grid that month, however little to no progress has been made towards Mr Jackson's commitment to remove SEL's equipment "forthwith" from the tenement. 

In a Sark Court hearing yesterday, Mr Jackson was scolded for his lack of engagement with Mr Moerman ever since. "If nothing has been done, then nothing has been done forthwith," Lieutenant-Seneschal Hazel Marshall told Mr Jackson's lawyer, Advocate Mark Dunster.

Pictured: The dispute has proved costly for both sides, with Mr Moerman racking up £28,000 in legal fees alone.

Mr Moerman is claiming that SEL leaving the equipment on his land is unsafe, a nuisance, a trespassing of his property and a breach of the company's duty of care. 

Advocate Dunster said his client had not yet had access to the labour needed to dig up the underground cabling and remove the concrete structures, electricity boxes and other ancillary equipment. 

"These are significant construction projects in an island that is not geared up with construction crews in winter," he told the Court. 

The answer to that problem, Mrs Marshall said, was simply to tell Mr Moerman why the work had not taken place. 

"That has simply not been the case," Advocate Robin Gist said on behalf of Mr Moerman. "It is a crying shame and it flies slightly in the face of the Court."

Mrs Marshall added: "You don’t seem to have engaged when things go wrong. Instead of saying “I can’t do this and this is why” you have just not done anything and you have made comments about the peculiarity of Sark."

"It is absurd that this case should get to this stage. It is Sark Law, whether it is peculiar is neither here nor there."

Advocate Dunster said this case cannot be considered in isolation and that Mr Jackson had balanced Mr Moerman's rights as a private individual with those of the wider population. 

He also denied his client had struck a lone furrow, saying that both parties had been in correspondence in recent months. This had resulted in a "move towards a resolution" that could have seen SEL keep some of its equipment on Mr Moerman's land to supply others, however this was ultimately rejected by the tenement owner.

Pictured: Advocate Dunster said Mr Jackson has been in contact with Chief Pleas and the Ministry of Justice about the Sark Price Commissioner's order to introduce wayleaves. 

Advocate Dunster asked the Judge not to lose sight of the wider implications of this case, which has seen SEL instructed to start drawing up wayleave agreements for the first time in the island's history.

Mrs Marshall criticised the wording of the original order - in particular, the declaration that equipment should be removed "forthwith" from Mr Moerman's tenement - saying it "was not sufficiently clear" and amounted to an unfulfilled promise. 

"This ought to be capable of being agreed on a pragmatic basis," she lamented."I am aghast at the cost being expended, you cannot just put your head in the sand. 

"From a legal point of view, [Mr Jackson] has been rather cavalier about the previous consent orders he has given."

Ultimately, the two parties were able to agree upon a two-phase approach to removing the equipment. 

SEL will now use its "best endeavours" to ensure that all equipment that is "above the ground, along the ground, and, where practical, a couple of inches underneath" is removed by 23 December.

Pictured: Mr Jackson was said to have shown a "cavalier" attitude towards court proceedings.

Digging up the cabling has been pushed back to "late spring/summer" once the weather has improved and the ground is "suitably dry". Mrs Marshall described it as an incredibly useful breakthrough after the two parties appeared to be at a stalemate. 

"Your client just needs to keep people informed," she told Advocate Dunster.

He closed by saying that while Mr Jackson recognised his legal requirement to comply with the order, he did so "with a heavy heart" because of its impact on those customers whose homes previously fed into the tenement's electricity supply. 

Mr Moerman has been granted recoverable costs for the court hearing, plus an uplift of 15%, after Advocate Gist failed to convince Mrs Marshall to grant his client full indemnity. The Court was told that Mr Moerman has so far racked up £28,000 in legal fees alone 

The case has been adjourned until mid-December.