Connétable has discretion to choose
Chef de Police—
coûtume of automatic appointment of most senior Centenier replaced—now inappropriate to changed role of Chef and widely disregarded in practice:
St. Helier (Constable) v. Gray (Royal Ct.),
2004 JLR 360elements of valid contract governed by Jersey common law as interpreted in light of ongoing developments:
Selby v. Romeril (Royal Ct.),
1996 JLR 210if French contract law remedy of
résolution applicable in Jersey, cannot be sought if insufficient time to apply to court:
Hotel de France (Jersey) Ltd. v. Chartered Institute of Bankers (Royal Ct.),
2002 JLR N [5]in absence of Jersey authority, court will look to common law of Normandy as source of Jersey common law rather than to principles of English law:
Warner (née Rimeur) v. Hendrick (Royal Ct.),
1985–86 JLR 366Jersey authority to be applied if possible—in absence of Jersey authority, principles to be adopted from other jurisdictions and then become part of Jersey contract law—not battle between French and English law—Pothier best guide but law must develop:
Grove v. Baker (Royal Ct.),
2005 JLR 348Jersey law to follow English law principle that innocent party may rescind contract without recourse to court when other party commits fundamental breach—parties may agree lesser breach entitles innocent party to rescind,
e.g. by making time of essence—not to follow French law:
Hamon v. Webster (Royal Ct.),
2002 JLR N [30]maxim
nemo plus juris ad alium transferre potest quam ipse haberet applies in Jersey law to sale of movables, since customary law of contract derives from Roman law—maxim
en fait de meubles, possession vaut titre not part of Jersey law—articles of
Code Civil not derived from Norman law, and English statutes without Jersey equivalent, unhelpful in determining Jersey law:
Mendonca v. Le Boutillier (Royal Ct.),
1997 JLR 142common law of Normandy source of Jersey’s common law of crimes—since based on Roman law, court may be guided by development of common law in other Roman law-based jurisdictions:
Att. Gen. v. Foster (Royal Ct.),
1989 JLR 70customary law offence of attempt (and other inchoate offences) applies to statutory as well as customary law offences—no difference in principle between statutory and customary law offences—Drug Trafficking Offences (Jersey) Law 1988, art. 1(1) recognizes customary offence of attempt—offence to attempt to acquire proceeds of drug trafficking, contrary to art. 38(1):
Martins v. Att. Gen. (C.A.),
2008 JLR 183Norman customary law traditional basis of Jersey criminal law as modified and developed by subsequent Jersey authority—foreign legal systems having root in common with Jersey not to be consulted if influenced by factors not affecting Jersey law:
Foster v. Att. Gen. (C.A.),
1992 JLR 6sodomy is customary law offence despite amendment by Sexual Offences (Jersey) Law 2007, art. 12:
Benyoucef v. Att. Gen. (C.A.),
2008 JLR N [48]déception d’outre moitié de juste prix
principle of Jersey customary law affecting property rights to which English principles inapplicable,
e.g. undue influence—situations to which doctrine applies:
Beadle (née Silcock) v. Snell (C.A.),
1999 JLR 1principle of Jersey customary law may be judicially clarified by reference to Norman authorities and Roman law—current French law and principles of other civilian jurisdictions not of direct assistance—English legal principles inapplicable:
Snell v. Beadle (née Silcock) (Privy Council),
2001 JLR 118development of common law
in absence of Jersey authority court to consider first Norman law then French law—English law may be relevant particularly if adopted in Jersey—court inclined to follow Norman law but may choose to adopt different law if preferable for modern community:
In re Amy (Royal Ct.),
2000 JLR 80inappropriate to create common law remedy if statutory remedy exists or about to come into force—co-existence of different remedies would cause chaos—may be appropriate to develop common law remedy if change of law merely at consultation stage in States:
McDonald v. St. Helier (Parish) (Royal Ct.),
2005 JLR 212“
donner et retenir ne vaut”
maxim in force as part of modern customary law—applies to trusts created before Trusts (Jersey) Law 1984 wherever settlor fails irrevocably to dispossess self of trust assets and vest ownership and possession in trustee:
Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd. (Royal Ct.),
1991 JLR 103court may consider commentaries on customary law of neighbouring French provinces,
e.g. Paris, Orléans and Brittany, to explain Jersey law if no explanation in customary law of Jersey or Normandy—Pothier’s
Coutumes d’Orléans particularly appropriate, as his works on Norman law and on contract highly regarded:
Gale v. Rockhampton Apartments Ltd. (Royal Ct.),
2007 JLR 27court may consider Pothier’s
Coutumes d’Orléans as to meaning and extent of quasi-contractual doctrine of
voisinage, as no explanation in Jersey law—especially appropriate source as well respected in Jersey in other areas of law:
Rockhampton Apartments Ltd. v. Gale (C.A.),
2007 JLR 332in absence of Jersey judicial authority, greater weight given to writers on law of Jersey,
i.e. Poingdestre and Le Geyt, than to French legal texts in connection with law of Jersey,
i.e. Pothier and Domat—modern French law of limited assistance:
In re Esteem Settlement (Royal Ct.),
2002 JLR 5330-year prescriptive period for
action personnelle mobilière under the
Coûtume Reformée not applicable in Jersey:
Jersey Fin. Servs. Commn. v. A.P. Black (Jersey) Ltd. (Royal Ct.),
2002 JLR 294development of
coûtume in Guernsey not necessarily same as in Jersey,
e.g. application of maxim
non valenti agere non currit praescriptio:
Maynard v. Public Servs. Cttee. (Royal Ct.),
1995 JLR 65in absence of Jersey authority, court not bound to accept Pothier and often looks to alternative source for guidance—law must be appropriate for modern times—principles for creation of partnership follow Pothier—Pothier’s principle that partnership of unspecified duration may not be terminated at “unseasonable time” probably no longer appropriate:
Cannon v. Nicol (Royal Ct.),
2006 JLR 299authorities on
ancienne coûtume of Normandy better evidence of modern Jersey land law than English authorities:
Kwanza Hotels Ltd. v. Sogeo Co. Ltd. (Royal Ct.),
1981 J.J. 59original Norman common law modified by Jersey custom sources of modern law of real property:
Romeril v. Davis (Royal Ct.),
1977 J.J. 135in absence of Jersey authority, court will look to common law of Normandy in interpretation of will as source of Jersey common law rather than to principles of English law:
In re Vibert (Royal Ct.),
1987–88 JLR 96interpretation of wills—in absence of Jersey authority court to consider first Norman law then French law—English law also to be considered particularly if adopted in Jersey—court inclined to follow Norman law but may choose to adopt different law if preferable for modern community:
In re Amy (Royal Ct.),
2000 JLR 80possible to adopt common law on rectification of wills as more liberally interpreted in Canada rather than as more restrictively interpreted in England:
In re Vautier (née McBoyle) (Royal Ct.),
2000 JLR 351ratification of will—Norman practice of ratification of invalid will by heirs applicable in Jersey:
In re Ruellan (Royal Ct.),
2001 JLR 286En fait de meubles, possession vaut titre. See
Common law
Interference in trial by third party. See
Justicenot in interests of justice or parties to proceedings or to credit of legal system that litigation proceeds for many years—final determination of issues between parties to be set down for trial as soon as possible:
Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd. (C.A.),
1994 JLR 123everyone who anticipates or suffers loss or damage under obligation to mitigate by taking reasonable steps:
Bisson v. Gibbins (Royal Ct.),
1963 J.J. 329application for bail to Magistrate’s Court to be heard in open court as quickly as possible, giving both sides opportunity to be heard:
In re Douglas (Royal Ct.),
1987–88 JLR N–9Attorney General’s decision to prosecute despite previous notification of accused by Centenier that proceedings not to be instituted not breach of natural justice:
Att. Gen. v. Devonshire Hotels Ltd. (Royal Ct.),
1987–88 JLR 577bias—although judge’s treatment of party may be unfair, if party robust and little dispute on primary facts, appeal court able to order new trial but need not:
Veka A.G. v. T.A. Picot (C.I.) Ltd. (C.A.),
1999 JLR 272bias—apparent bias—application for
récusation—although
récusation refused, judge may decline to sit if applicant’s advocate has given applicant serious concern about trial:
Hirschfield (née Shalome) v. Abacus (C.I.) Ltd. (Royal Ct.),
2000 JLR 420bias—apparent bias––application for
récusation—application is “cause or matter” within Court of Appeal (Civil) (Jersey) Rules 1964, r.12(2)—no fresh evidence to be adduced if available at trial unless special grounds:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (C.A.),
1998 JLR 173bias—apparent bias—application for
récusation—expression in interlocutory proceedings of views as to prospects of success at full hearing, however inappropriately strong, not to preclude judge’s sitting on substantive appeal—substantive appeal issues entirely different from those in interlocutory proceedings:
In re Esteem Settlement (C.A.),
2001 JLR 169bias—apparent bias––application for
récusation to be made on substantial grounds—movement of head by members of court in agreement or disagreement with advocates’ statements not substantial—insubstantial applications to be refused and may be punished by indemnity costs:
States Greffier v. Les Pas Holdings Ltd. (C.A.),
1998 JLR 196bias—apparent bias—application for
récusation—judge to determine issue of own
récusation—although prudent not to do so in exceptional circumstances, normally wrong for others to resolve issue:
In re Esteem Settlement (C.A.),
2001 JLR 169bias—apparent bias—application for
récusation—judge’s criticism of advocates for conduct falling below expected high standards insufficient, without more, as basis for application for
récusation in later cases:
Hirschfield (née Shalome) v. Abacus (C.I.) Ltd. (Royal Ct.),
2000 JLR 420bias—apparent bias—application for
récusation—objective test—whether all material circumstances would lead fair-minded and informed observer to conclude that real possibility or danger that judge biased—subjective opinion of party alleging bias irrelevant:
In re Esteem Settlement (C.A.),
2001 JLR 169bias—apparent bias—application for
récusation—“reasonable suspicion” test most appropriate—whether reasonable, objective and informed person, having regard to all facts, considers that real suspicion or apprehension of bias,
i.e. judge might unfairly favour or disfavour one party—court to regard with caution—burden on applicant to establish:
Hirschfield (née Shalome) v. Abacus (C.I.) Ltd. (Royal Ct.),
2000 JLR 420bias—apparent bias—application for
récusation—where
récusation refused, wrong in principle for judge nevertheless to decide not to sit, unless some personal or other difficulty:
In re Esteem Settlement (C.A.),
2001 JLR 169bias—apparent bias––appropriate that same Court of Appeal judges hear appeals against conviction and sentence––single judge hearing application for leave to appeal against conviction not
récusé merely because heard appeal against sentence—not objectively biased under European Convention on Human Rights:
Att. Gen. v. Young (C.A.),
1998 JLR 387bias—apparent bias—Bailiff or Deputy Bailiff may hear case in which States or other Government body interested—not necessarily conflict between judicial and legislative/executive functions:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (Royal Ct.),
1997 JLR 304 Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (C.A.),
1998 JLR 173
bias—apparent bias—Bailiff or Deputy Bailiff may hear case involving conduct of member of States Committee—not apparently biased merely because also preside over States—no infringement of European Convention on Human Rights, art. 6:
Eves v. Le Main (C.A.),
1999 JLR 44bias—apparent bias—Bailiff or Deputy Bailiff not precluded from hearing case argued by advocate previously acting for party bringing action against Bailiff or Deputy Bailiff—no apparent bias if no link between cases:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (Royal Ct.),
1997 JLR 304bias—apparent bias—correspondence between Judicial Greffier and party to proceedings to be copied to other parties—important that when acting in administrative capacity, avoids giving impression that when in judicial capacity, will decide issues in particular way:
Bower v. Planning & Environment Cttee. (Royal Ct.),
1997 JLR N–5bias—apparent bias––court not to appear to endorse either party in litigation—no power to order Viscount to supervise transmission of offer to settle proceedings from one party to non-parties investing in other party, financing litigation and with interest in outcome—their interest irrelevant to matter at issue between parties:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (C.A.),
1998 JLR 173bias—apparent bias—even if objectively no apparent bias, judge may still recuse himself if appropriate,
e.g. if party may retain sense of grievance—preferable for advocate representing aggrieved party to approach judge informally before making formal application:
Mayo Associates S.A. v. Anagram (Bermuda) Ltd. (Royal Ct.),
1998 JLR N–7bias—apparent bias—inevitable that Jurats sometimes broadly interested in subject-matter of case heard in Island—Jurats to excuse themselves from sitting when might appear biased:
Drew v. Att. Gen. (C.A.),
1994 JLR 1bias—apparent bias—interest of Jurat in outcome of
dégrèvement not necessarily fatal,
e.g. if director of party becoming
tenant, since if procedure correctly followed, court bound to make order:
Eves v. Hambros Bank (Jersey) Ltd. (Privy Council),
1995 JLR 344bias—apparent bias—interventions by judge at
Newton hearing render sentence unsafe if (a) statement to Jurats that they must decide for themselves insufficient to overcome judge’s comments adverse to defence; (b) counsel prevented from presenting defence properly; or (c) accused prevented from giving own version of events:
MacKenzie v. Att. Gen. (C.A.),
1995 JLR 9bias—apparent bias—Jurat of Royal Court
récusé if has financial interest in subject-matter of case in which sits:
Drew v. Att. Gen. (C.A.),
1994 JLR 1bias—apparent bias—magistrate not to give impression before evidence for defence given that has made up mind on questions of contested fact on prosecution evidence alone:
Comer v. Att. Gen. (Royal Ct.),
1995 JLR N–12bias—apparent bias—no appeal against composition of court if issue could have been raised at trial—failure is acquiescence in composition:
Drew v. Att. Gen. (C.A.),
1994 JLR 1bias—apparent bias—no established test in Jersey—“reasonable apprehension” test may be preferable to “real danger” test as places greater emphasis on how matter would be viewed by ordinary, rather than legally qualified, citizen:
In re Sinel (C.A.),
2000 JLR 18bias—apparent bias—no “reasonable suspicion or apprehension” that fair trial not possible because Bailiff presides over criminal case prosecuted on behalf of his brother, the Attorney General, where both simply performing regular duties of office—if some other relevant fact,
e.g. Attorney General called as witness or credibility otherwise in issue, potential for apparent bias:
Barra Hotel Ltd. v. Att. Gen. (C.A.),
2000 JLR 370bias—apparent bias—objective test—whether reasonable and well-informed person might apprehend real danger that judge will unfairly regard with disfavour party’s case—test to be applied in context of small jurisdiction:
Att. Gen. v. Barra Hotel Ltd. (Royal Ct.),
2000 JLR 150bias—apparent bias––party alleging apparent bias to approach judge informally before making formal application for
récusation—application to be heard by judge himself—appeal lies to Court of Appeal against that decision:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (C.A.),
1998 JLR 173bias—apparent bias—single judge who refused application for leave to appeal may sit on plenary appellate court—not
récusé for bias as fair-minded and informed observer would not consider real possibility of unfair hearing:
Simpson v. Att. Gen. (C.A.),
2003 JLR N [1]bias—apparent bias––test for apparent bias: whether, in circumstances, reasonable person would consider real danger of bias on part of judge in relation to party before him:
Mayo Associates S.A. v. Cantrade Private Bank Switzerland (C.I.) Ltd. (C.A.),
1998 JLR 173bias—judges of Royal Court who receive report of Order in Council not barred from sitting in subsequent proceedings concerning registration of order and not
per se evidence of bias—limited number of judges in Jersey makes overlap inevitable and effects to be judged on facts:
Cooper v. Att. Gen. (C.A.),
1987–88 JLR 51bias—magistrate may be informed of accused’s previous convictions after counsel’s address and before conviction if necessary to determine whether to remit for trial by Royal Court:
Att. Gen. v. Griffin (Royal Ct.),
1968 J.J. 1001bias—may be improper for Attorney General to act personally as
amicus curiae in case in which allegation of misconduct against him, but nominated Crown Advocate may still appear:
In re Sinel (C.A.),
2000 JLR 18dismissal of centenier for misconduct requires observance of all rules of natural justice
i.e., notice of charges, unbiased hearing and opportunity to be heard:
In re Pearce (Royal Ct.),
1987–88 JLR 109duty to act fairly—Executive, Board and Jersey Financial Services Commission as whole under duty to act fairly throughout application process—includes duty to inform applicant of general nature of case against him and provide him with adequate opportunity to respond:
Interface Ltd. v. Jersey Fin. Servs. Commn. (Royal Ct.),
2003 JLR 524duty to act fairly—if explanation offered to rebut allegation of dishonesty of applicant, Director General of JFSC either to modify report in relation to allegation or explain why unconvinced by it:
Interface Ltd. v. Jersey Fin. Servs. Commn. (Royal Ct.),
2003 JLR 524interference by third party—duty of Attorney General as
partie publique to safeguard public interest in widest sense and to ensure offenders get their just deserts—entitled to relay influential information to judge in case being tried:
Le Cocq v. Att. Gen. (Royal Ct.),
1991 JLR 169opportunity to be heard—accused to be given opportunity by Magistrate’s Court to be heard in mitigation of sentence—if no opportunity, Royal Court on appeal will consider afresh, to avoid possible sense of grievance:
Smaller v. Att. Gen. (Royal Ct.),
2001 JLR N [12]opportunity to be heard—application for leave to appeal involving serious allegation of unprofessional conduct against advocate to be supported by affidavit—should be given opportunity to appear or put in own affidavit in reply:
Vekaplast K.G. v. T.A. Picot (C.I.) Ltd. (Royal Ct.),
1989 JLR 269opportunity to be heard—civil servant has right to be heard at disciplinary hearing before decision taken to dismiss—right to remain silent until criminal trial unaffected but failure to give explanation may justify dismissal:
Wood v. Establishment Cttee. (Royal Ct.),
1989 JLR 213opportunity to be heard—denying party opportunity to be heard when granting
ex parte injunctive relief against it extreme measure requiring proper justification:
Milner v. Milner Labs. Ltd. (Royal Ct.),
2000 JLR 266opportunity to be heard—disqualification from driving not generally imposed without opportunity for accused to provide mitigation, and preferable to obtain relevant sentencing information first—may disqualify immediately if in public interest,
e.g. if accused alcoholic on drink-driving charge:
Hansford v. Att. Gen. (Royal Ct.),
1999 JLR N–13opportunity to be heard—expert arbitrator in adversarial arbitration to base award solely on evidence and arguments of parties and not to use his own evidence—fairness requires parties have opportunity to be heard on all new evidence:
Planning & Environment Cttee. v. Lesquende Ltd. (C.A.),
2003 JLR 405opportunity to be heard—if disqualification proposed for significant period, accused to be allowed opportunity to make prior submissions:
Reid v. Att. Gen. (Royal Ct.),
1994 JLR N–11opportunity to be heard—if reason for decision of Committee of States makes adverse imputation on applicant’s professional conduct, entitled to opportunity to be heard:
Anderson v. Finance & Econ. Cttee. (Royal Ct.),
1987–88 JLR 178opportunity to be heard—Island Development Committee to give applicant opportunity to be heard before making decision refusing to renew consent:
Blackall & Danby Ltd. v. Island Dev. Cttee. (Royal Ct.),
1963 J.J. 273opportunity to be heard—no denial of justice to hear defendant’s strike-out application in absence of plaintiff if properly notified of time of hearing—no breach of European Convention on Human Rights, art. 6(1)—court has discretion not to hold hearing,
e.g. if plaintiff genuinely absent from Island and likely to appeal:
Eves v. Le Main (C.A.),
1999 JLR 44opportunity to be heard—not contrary to natural justice that order to reinstate company under Companies (Jersey) Law 1991, art. 213 obtained by
ex parte representation—advocate to give all information to court to allow order for
inter partes hearing if necessary:
In re Independent Maritime Servs. Ltd. (C.A.),
1996 JLR 294opportunity to be heard—not contrary to rules of natural justice if other party not given opportunity to be heard if order only provisional—order is provisional if subject to challenge, even if effective until challenge:
Rumasa S.A. v. W. & H. Trademarks (Jersey) Ltd. (Royal Ct.),
1985–86 JLR 308opportunity to be heard—not contrary to rules of natural justice if other party not given opportunity to be heard if statute expressly provides for
ex parte application:
Rumasa S.A. v. W. & H. Trademarks (Jersey) Ltd. (Royal Ct.),
1985–86 JLR 308opportunity to be heard—not obligatory for court to offer accused opportunity of legal advice or representation—if not represented, court to ensure has full opportunity to be heard:
Veloso v. Att. Gen. (Royal Ct.),
1996 JLR N–10opportunity to be heard—person with pecuniary interest in proceedings not necessarily party,
e.g. family member of creditor suing for repayment of debt—no rule that anyone affected by decision in case to which not party has right to be heard:
Picot v. Att. Gen. (C.A.),
2008 JLR 69opportunity to be heard—preferable but not necessary for judge to invite submissions and give reasons for refusal to award costs to acquitted or discharged defendant under Costs in Criminal Cases (Jersey) Law 1961, art. 2(1)(
c)—if no evidence discretion not properly exercised, failure not sufficient failure of natural justice to warrant petition of
doléance:
In re Lagadec (Royal Ct.),
1996 JLR N–9opportunity to be heard—retrial if miscarriage of justice caused by denial of representor’s right to be heard after decision to dismiss representation:
Skinner v. Le Main (C.A.),
1989 JLR 161principle that justice to be seen to be done outweighs right of litigant to choose own advocate when court deciding whether advocate faced with conflict of interest—small size of Jersey Bar irrelevant:
Les Pas Holdings Ltd. v. Receiver Gen. (Royal Ct.),
1995 JLR 163reasons for decision—appellant to know basis and reasoning for administrative decision against him—entitlement not to be subordinated to procedural rules, since in interests of justice and for convenience of court that full explanation of issues available:
Finance & Econ. Cttee. v. Bastion Offshore Trust Co. Ltd. (C.A.),
1994 JLR 370reasons for decision—court to give reasons for recommendation that offender be deported—absence of reasons not fatal to recommendation and appeal court may supply own reasons:
De Carvalho v. Att. Gen. (Royal Ct.),
2007 JLR N [33]reasons for decision—Jurats’ failure to give reasons for guilty verdict not contravention of European Convention on Human Rights as (a) position analogous to jury; (b) no evidence that verdict arbitrary; (c) safety of convictions examined on appeal; and (d) judge gives reasons for sentences passed:
Snooks v. United Kingdom (E.C.H.R.),
2002 JLR 475reasons for decision—statement of reasons under Financial Services (Jersey) Law 1998, art. 10(2) must be in sufficient detail to enable applicant to know exact case against him—entitled to know (a) which of Executive’s reasons for recommending refusal of registration relied on by Board; and (b) findings of fact made:
Interface Ltd. v. Jersey Fin. Servs. Commn. (Royal Ct.),
2003 JLR 524right to know opposing case—applicant for,
e.g. planning permission entitled to be informed of relevant objections and have opportunity of refuting them:
Le Maistre v. Island Dev. Cttee. (Royal Ct.),
1980 J.J. 1right to know opposing case—failure to give notice of change of circumstances denies other party opportunity to be heard properly on determination if application to review rent—fundamental breach of natural justice nullifying determination of application:
Tett v. States (C.A.),
1972 J.J. 2249risk of prejudice—where defect procedural, test not whether person affected was prejudiced but whether risk of prejudice—unnecessary to prove decision would have been different had proper procedure been followed:
In re Pearce (Royal Ct.),
1990 JLR N–1tribunal’s decision not to adjourn proceedings on party’s ill-health not denial of justice if prejudice to party by continuing hearing in his absence outweighed by need to avoid delay—excessive delay (
e.g. 2½ years) over discipline of doctor by Health Services Disciplinary Tribunal contrary to public interest and interests of parties:
In re Paul (Royal Ct.),
1994 JLR 333Nemo plus juris ad alium transferre potest quam ipse haberet. See
Common law
applicability of English doctrine in Jersey
may decline to follow English authority, particularly if invalidated by subsequent legislation:
Gosselin v. All Sports (Royal Ct.),
2004 JLR 74rigid doctrine of precedent in English law not applicable in Jersey for historical reasons—modern developments in Jersey make doctrine stronger:
State of Qatar v. Al Thani (Royal Ct.),
1999 JLR 118binding force of House of Lords decision
Jersey court bound by House of Lords decision on common law of negligence, even though expressly based on changeable English public policy considerations—Jersey courts’ power to develop law to be exercised so that decisions consistent with law in higher courts:
T.A. Picot (C.I.) Ltd. v. Crills (C.A.),
1995 JLR 33not strictly binding but treated with greatest respect:
State of Qatar v. Al Thani (Royal Ct.),
1999 JLR 118persuasive but not strictly binding:
Channel Islands Knitwear Co. Ltd. v. Hotchkiss (C.A.),
2001 JLR 570binding force of own previous decision
although no collateral attack on subsisting judgment (
e.g. by suing advocate for negligent handling of case), principle not applicable where judgment obtained by consent:
T.A. Picot (C.I.) Ltd. v. Crills (C.A.),
1995 JLR 33court entitled to depart from previous decision given
per incuriam—to be satisfied that previous decision given in advertance to binding authority and that if previous court had been advertent would have decided differently:
Att. Gen. v. Weston (Royal Ct.),
1979 J.J. 141Inferior Number of Royal Court normally to follow carefully considered earlier decision of differently constituted Inferior Number as matter of comity unless convinced wrong:
Att. Gen. v. Weston (Royal Ct.),
1979 J.J. 141Royal Court bound by own previous decision unless convinced wrong:
State of Qatar v. Al Thani (Royal Ct.),
1999 JLR 118Royal Court bound by own previous decision unless convinced wrong—court not to accept precedent merely because of small size of jurisdiction and small number of precedents—Court of Appeal to resolve resulting inconsistencies between judgments:
Att. Gen. v. Hall (Royal Ct.),
1995 JLR 102Royal Court may depart from own previous decision if convinced wrong,
e.g. may change previous Jersey test of occupiers’ liability to foreseeability test, as applied in Commonwealth and Guernsey:
Knight v. Thackeray’s Ltd. (Royal Ct.),
1997 JLR 279Royal Court to follow own previous decision unless convinced wrong—if so convinced, court may depart from decision even though contradicts established procedure,
e.g. obtaining defence costs from public funds under Costs in Criminal Cases (Jersey) Law 1961, art. 2:
Santos Costa v. Att. Gen. (Royal Ct.),
1996 JLR 87Royal Court will follow previous decision of differently constituted court as matter of judicial comity unless convinced wrong:
Abdel Rahman v. Chase Bank (C.I.) Trust Co. Ltd. (Royal Ct.),
1991 JLR 103binding force of Privy Council decision
generally bound by decision on appeal from Jersey, though decision may be invalidated by subsequent legislation or compelling change of circumstances—not strictly bound by decision on appeal from another jurisdiction, though persuasive depending on difference in law and social and policy considerations in Jersey:
State of Qatar v. Al Thani (Royal Ct.),
1999 JLR 118Privy Council decision on appeal from other jurisdiction persuasive only—degree of persuasiveness depends on similarity to Jersey law:
Hall v. Att. Gen. (C.A.),
1996 JLR 129case management decisions
case management—essential strategy of Court of Appeal to be followed by Royal Court unless subsequent events make departure necessary—substantial further evidence may justify altering procedure laid down by Court of Appeal:
In re Esteem Settlement (Royal Ct.),
2000 JLR N–6decision of Guernsey Court of Appeal
decision of Guernsey Court of Appeal highly persuasive because Jersey Court of Appeal similarly constituted:
Knight v. Thackeray’s Ltd. (Royal Ct.),
1997 JLR 279may be highly persuasive, especially where court considering legislation in very similar terms to relevant Jersey legislation:
Acturus Properties Ltd. v. Att. Gen. (Royal Ct.),
2001 JLR 43jugement motivé without detailed reasons, commonly delivered by Royal Court before 1950, not authoritative guide to principles, law or procedure which may have been applied:
Att. Gen. v. Weston (Royal Ct.),
1979 J.J. 141
court reluctant to overrule long-standing and unchallenged decision likely to have been relied upon, unless contrary to earlier authority or causes injustice:
In re Barker (C.A.),
1985–86 JLR 186previous decision
per incuriamRoyal Court entitled to depart from
per incuriam decision of Court of Appeal,
e.g. where no proper argument and failure to cite relevant texts meant court misunderstood law:
Att. Gen. v. Mallet (Royal Ct.),
2000 JLR 155when determining whether criminal verdict reasonable under Court of Appeal (Jersey) Law 1961, art. 25(1) inappropriate to refer to concepts of reasonableness in civil decisions—citation of such cases by counsel to cease:
Lloyd v. Att. Gen. (C.A.),
2004 JLR N [28]counsel to cite only previous decisions showing guidelines, principles or general approach to common factual situation—misleading to try to quantify weight given to each factor in earlier cases as sentencing always exercise of discretion:
Rimmer v. Att. Gen. (C.A.),
2001 JLR 373counsel to cite only previous decisions showing guidelines, principles or general approach to common factual situation, not those containing irrelevant aggravating factors,
e.g. guidelines on theft in breach of trust not relevant to every case of theft:
Channing v. Att. Gen. (C.A.),
2001 JLR N [46]Court of Appeal rarely to review sentencing guidelines without support of Attorney General or Royal Court—apart from Bailiff and Deputy Bailiff, members not resident in Jersey and less familiar with domestic social and penological issues:
Styles v. Att. Gen. (C.A.),
2006 JLR 210need for consistent sentencing does not require that previous sentencing decisions followed indefinitely—increasing prevalence of offence justifies Royal Court in increasing sentence severity:
Lynch v. Att. Gen. (C.A.),
1994 JLR N–13reference to previous decisions appropriate to see range of sentences for particular type of offence—not appropriate to rely on single previous case as indicative of proper sentence:
Gill v. Att. Gen. (C.A.),
1999 JLR N–18reference to previous decisions made to follow principles and guidelines, not to follow precise reasons for sentence—sentencing discretion to be exercised upon particular facts of instant case:
Wood v. Att. Gen. (C.A.),
1994 JLR N–15reference to previous decisions (other than guideline cases) only helpful when illuminate, preferably expressly, proper general approach to common form factual situation:
Kenward v. Att. Gen. (C.A.),
2000 JLR 251reference to previous decisions to be made only for guidance as to principles, not to give detailed analysis of weight given to individual factors—sentencing remains discretionary:
Miah v. Att. Gen. (Royal Ct.),
2003 JLR N [36]reference to previous decisions useful to check passing roughly appropriate sentence but other cases not precedents and sentencing not to proceed by detailed comparison with them:
Att. Gen. v. Mallet (Royal Ct.),
2000 JLR 155use of reported cases limited to showing guidelines for sentencing of particular crime and possible aggravating circumstances—court to balance competing interests of expression of public revulsion at crime, need to deter others and mitigating factors:
Dykes v. Att. Gen. (C.A.),
1999 JLR 146when sentencing for drugs offence, court not required to compare weights and circumstances of previous cases:
Heskin v. Att. Gen. (C.A.),
2007 JLR N [35]Jersey arbitration governed by principles of contract law, determined according to customary sources and English and Jersey case law:
L.C. Pallot (Tarmac) Ltd. v. Gechena Ltd. (Royal Ct.),
1996 JLR 241Bills of Exchange Act 1882 and related English decisions followed unless incompatible with Jersey case law or legislation:
Burke v. Sogex Intl. Ltd. (Royal Ct.),
1987–88 JLR 316Bills of Exchange Act 1882 and related English decisions followed unless significant difference in local conditions justifying different approach:
Burke v. Sogex Intl. Ltd. (C.A.),
1992 JLR 202discovery—discovery and inspection of documents in Jersey regulated primarily by Royal Court Rules 1982, r.6/16—Royal Court to develop own practice on challenges to affidavits of documents—wrong to rely on English guidelines on specific discovery based on practice rules with no Jersey counterpart:
Victor Hanby Associates Ltd. v. Oliver (C.A.),
1990 JLR 337in absence of Jersey authority, English decisions of assistance in considering application of customary or common law principles—English decisions turning on construction of statutes helpful if similar statutory wording in Jersey but less so if wording different:
Boyd v. Pickersgill & Le Cornu (Royal Ct.),
2000 JLR 310may apply rule encapsulated in English statute not in force in Jersey—principle in Companies Act 1985, s.726(1) applied to require security for costs to be given by Jersey resident company:
D.B. Installations Ltd. v. Vaut Mieux Ltd. (Royal Ct.),
1987–88 JLR N–5Jersey law to follow English law principle that innocent party may rescind contract without recourse to court when other party commits fundamental breach—parties may agree lesser breach entitles innocent party to rescind,
e.g. by making time of essence—not to follow French law:
Hamon v. Webster (Royal Ct.),
2002 JLR N [30]English criminal law guide to current Jersey law—may apply English authorities even though based on English legislation not in force in Jersey:
Att. Gen. v. Makarios (Royal Ct.),
1979 J.J. 85principles behind Larceny Act 1916 applicable to law of fraud in Jersey only in so far as compatible with Jersey common law—Jersey common law, based on Roman law and later Norman customary law, recognizes general crime of fraud:
Att. Gen. v. Foster (Royal Ct.),
1989 JLR 70receiving stolen property—English common law principles applicable in Jersey and not Larceny Act 1916, s.43(1) and Theft Act 1968, s.27(3):
Manning (R.E.) v. Att. Gen. (C.A.),
2000 JLR 32equitable jurisdiction of Royal Court allows adoption of estoppel by convention as principle of Jersey law—if adopted, English equitable principles to be applied consistently:
West v. Lazard Bros. & Co. (Jersey) Ltd. (Royal Ct.),
1993 JLR 165may consider contributions of spouse to welfare of family, specified in English Matrimonial Causes Act 1973, s.25(c), even though no comparable provision in Jersey statute:
Lidster v. Lidster (née Compton) (Royal Ct.),
1999 JLR N–8principles behind Larceny Act 1916 applicable to law of fraud in Jersey only in so far as compatible with Jersey common law—Jersey common law, based on Roman law and later Norman customary law, recognizes general crime of fraud:
Foster v. Att. Gen. (C.A.),
1992 JLR 6English procedure appropriate in absence of Jersey rules:
Mayo Associates S.A. v. Finance & Econ. Cttee. (Royal Ct.),
1996 JLR 281although English statute may not be applied, principle of law encapsulated in such statute may be used as guideline to exercise of judicial discretion:
Davest Invs. Ltd. v. Bryant (Royal Ct.),
1982 J.J. 213details of modern English statute not relevant to interpretation of Jersey statute if contains dissimilar provisions,
e.g. Fatal Accidents (Jersey) Law 1962:
Vezier (née Lebreton) v. Bellego (Royal Ct.),
1996 JLR 105Jersey courts may have regard to English statute codifying common law, or enacting rule enabling development of common law principle, as persuasive authority:
In re Vibert (Royal Ct.),
1987–88 JLR 96in absence of Jersey authority, court may apply principles of English maritime law:
In re Intersub Ltd. (Royal Ct.),
1985–86 JLR 202English law principles inapplicable to Jersey law relating to property rights:
Snell v. Beadle (née Silcock) (Privy Council),
2001 JLR 118no need to harmonize Jersey and English sentencing guidelines—citation of English sentencing decisions unhelpful and to be discouraged:
Whyte v. Att. Gen. (C.A.),
1999 JLR 79court may look to English law principles particularly if approved in Jersey but inclined to adopt Norman law principles instead:
In re Amy (Royal Ct.),
2000 JLR 801985 English principle of party and party costs to be applied in Jersey—likely to yield lower figure than current English principle of taxation on common fund basis:
Furzer v. Island Dev. Cttee. (Royal Ct.),
1990 JLR 179English tort of nuisance not assimilated into Jersey law—only Jersey tort of negligence specifically follows English law and other torts based on Jersey common law—landowner’s obligation not to use property so as to damage neighbouring property founded on quasi-contractual doctrine of
voisinage, not tort of nuisance:
Rockhampton Apartments Ltd. v. Gale (C.A.),
2007 JLR 332Jersey tort law developed separately and remains distinct from English tort law—availability of damages as remedy not essential element of Jersey tort action:
Jersey Fin. Servs. Commn. v. A.P. Black (Jersey) Ltd. (Royal Ct.),
2002 JLR 294Jersey torts share essential characteristics of English tort law,
i.e. duty, breach of duty and damage giving rise to action:
Jersey Fin. Servs. Commn. v. A.P. Black (Jersey) Ltd. (C.A.),
2002 JLR 443modern Jersey tort law based on English law, not French:
Arya Holdings Ltd. v. Minories Fin. Ltd. (Royal Ct.),
1995 JLR 208no general reception of English tort law in Jersey though duty, breach of duty and damage common to both systems—landowner’s duty not to use property so as to damage neighbouring property founded on quasi-contractual doctrine of
voisinage, not English tort of nuisance—similarly,
action possessoire to be pleaded instead of trespass to land—other Jersey torts not founded on duties in contract, quasi-contract, trust or land law:
Gale v. Rockhampton Apartments Ltd. (Royal Ct.),
2007 JLR 27constructive trust established by Trusts (Jersey) Law 1984, art. 29 based on English jurisprudence—settled principles of English law apply—principles set out in detail:
Fiduciary Management Ltd. v. Sheridan (Royal Ct.),
2002 JLR N [11]general equitable jurisdiction of Royal Court enables consideration of English principles on creation of trusts if no specific Jersey authority:
In re Malabry Invs. Ltd. (Royal Ct.),
1982 J.J. 117déception d’outre moitié de juste prix is principle of Jersey customary law to which English principles inapplicable,
e.g. undue influence—situation to which doctrine applies:
Beadle (née Silcock) v. Snell (C.A.),
1999 JLR 1
if statute silent on particular point not for court to legislate:
In re Lampaert (Royal Ct.),
1990 JLR 290inappropriate to create common law remedy if statutory remedy exists or about to come into force—co-existence of different remedies would cause chaos—may be appropriate to develop common law remedy if change of law merely at consultation stage in States:
McDonald v. St. Helier (Parish) (Royal Ct.),
2005 JLR 212words of statute not to be overruled by judge—reform of law to be left to legislature:
Jersey Maincrop Potato Mktg. Bd. v. de Gruchy (Royal Ct.),
1971 J.J. 1819
