Advocates and Solicitors Examinations

Common Examinations

Jersey Legal System (including the history of Jersey Law, its sources, Customary Law, the writers on Jersey Law and the relevance of Norman Customary Law and English Common Law), Constitutional Law and Administrative Law

October 2005

IMPORTANT NOTES

1. Please write legibly - unreadable papers may result in lost marks.

2. Your written paper will have to be photocopied so please:-

write in black ink

write well within reasonable margins, i.e., 1" all round each page.

3. Write your assigned number at the top left hand corner of each page and the page number in the top right hand corner of each page (remembering to keep within photocopy margins, i.e., 1" all round each page).

4. Number your answers and start each new answer on a new page.

5. Write on one side of the paper only.

6. Answer 6 questions, two from each of parts A, B and C.

7. Each question carries equal marks. Where a question is divided into parts, each carries the marks shown in brackets.

8. Support your answers wherever possible by reference to statutory judicial or other authority. Give reasons for your answers.

9. Time allowed: 3 hours

PART A

QUESTION 1

(a) What are:-

(i) La Charte aux Normands;

(ii) The Coutume Reformée? [ 2 ½ ]

(b) What is the extent and limit of their authority in the Royal Court? [ 2 ½ ]

(d) Who were:-

(i) Le Rouillé

(ii) Flaust

and what was the major work of each? [ 2 ½ ]

QUESTION 2

You are invited by a visiting French academic to give him an introduction to the works of Jean Poingdestre. Write him an essay on Poingdestre's works, what he wrote about and his approach to the law. [ 10 ]

QUESTION 3

The Jersey Centre Party states as a part of its current manifesto as follows:

"The present system in Jersey allows only Jersey advocates a right of audience in the Jersey courts. This means that the most experienced UK lawyers in a particular field are denied the opportunity to represent you in a Jersey Court. The Centre Party will help to address this problem by changing the law to allow UK barristers a right of audience in the Jersey Courts.

Jersey lawyers will reply that this should not be allowed. In particular they will say that UK barristers are not experienced in Jersey Law. There is little force in that argument. Most law in Jersey is now UK statute based. UK cases are mainly cited by Jersey lawyers as authorities in regard to Jersey litigation."

Is it a correct assertion to claim that most law in Jersey is now UK statute based and that UK cases form the main part of authorities cited before the Jersey? [ 10 ]

PART B

QUESTION 4

(a) Describe the powers of the Lieutenant Governor and the Bailiff in relation to “projets” debated in the States; [ 5 ]

(b) Assess both powers against the constitutional relationship with the United Kingdom. [ 5 ]

QUESTION 5

As a result of chronic understaffing in the Law Officers’ Department, your firm has been retained by the States to provide legal advice as follows –

(i) Six months ago the Health and Social Services Committee made an Order under the Hypochondria (Jersey) Law, 2002, entitling all registered hypochondriacs to six weeks’ holiday abroad every year at public expense. The Order is intra vires but the Finance and Economics Committee thinks that it will place an unacceptable burden on the public purse and would like to see it revoked. What if anything can it do to achieve its objective? [ 5 ]

(ii) The Health and Social Services Committee wishes to empower any duly authorised officer of the Committee to confiscate the cigarettes of any person found smoking in a public place. It is reluctant to bring a Law to the States until the scheme has had a trial run. Is there any other course open to it and if so what? [ 5 ]

In each case, describe in full any procedures the relevant Committee should follow.

QUESTION 6

Provide an explanation for the benefit of a client who has no previous knowledge of the subject of the extent to which regulations emanating from the European Community may affect Jersey. Your client is very interested in the subject and would like you to include a clear analysis of the background to and legal basis of the present day legal position. [ 10 ]

PART C

QUESTION 7

Your client was born in Jersey and has lived here all his life. For the past ten years he has worked for a leading local garage chain and is an expert in servicing cars. He believes the time is right to set up his own business.

He is the owner of a property in St Brelade owned by a Company which bought the property in 1999. He inherited the Company from his father. It consists of a large double garage, with a flat built above it. The garage would be perfect for the installation of the necessary equipment and the carrying out of the servicing. He will do the administration from the flat above. The owner of the farm across the road from his property has agreed to let him have a tenancy of part of a field, presently used for grazing cows (as it has been since the owner bought it in 1975), upon which he will park cars awaiting service or once serviced awaiting collection by their owners. He will need staff by way of an apprentice mechanic and a book-keeper/secretary.

He asks you whether any approvals are required because he believes as a Jersey man born and bred and operating from his own home everything should be simple. Advise him as to what if any approvals will be required and whether in your view they will be granted. Do you need any further information from him, and if so, what? [ 10 ]

QUESTION 8

You are consulted by the Le Brocq-Costa family a motley crowd of folk being the children of the late Alphonse Costa. Alphonse was born in Spain of a Spanish born father Juan Costa and a Jersey mother Marie Le Brocq who had been born in the Island and had lived here until she married Juan on her 25 birthday. Alphonse had travelled the world but spent substantial time in Jersey over the years staying with Marie’s mother at her farm in Trinity and living there himself with his Russian born wife after his grandmothers death when the farm was left to him. If you count up the years Alphonse lived in Jersey as a child then as an adult both before and after his marriage you find not less than 10 years ordinary residence. Alphonse still owned the farm at the date of his death and it was inherited by his three children.

The family who consult you consists of Alphonse’s three children Tom, born in Russia, Dick, born in Jersey and Harry, legally adopted by Alphonse and his wife as an infant in Russia. Alphonse’s wife is dead. Tom has spent very little time in Jersey but is to marry a Jersey born life long resident of the Island shortly and wants to make his permanent home here. Dick reckons he has lived here in total for about 9 years on and off and Harry has lived in Jersey for a couple of years more than Dick. Neither Dick nor Harry is married or has any expectation of marriage at present.

They ask you what their respective rights are under the Housing (Jersey) Law 1949 with respect both to living in the family farm or as to buying alternate property if it were sold by all of them or bought by one of them from the others. Tom would want to transfer his share in the family home into the joint names of himself and his wife as soon as possible and would acquire any other Jersey property jointly with her.

Advise on the position of each. [ 10 ]

QUESTION 9

"Here a second distinction arises. What is meant for this purpose by “reasonable”? Lord Greene [in Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223] gave this answer (ibid., at 230): “[I]f a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.... I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.” The Royal Court is a court of appeal under art. 21. As Lord Greene observed in the first of the passages which we have quoted, the power of an appellate body is to override the decision of the inferior body. He contrasted this with a power to see only whether the inferior body had exceeded its powers. The Royal Court, as an appellate body, must consider not merely whether the inferior body has followed the correct procedure, but also whether its own view is that the decision was unreasonable. It may allow whatever weight it thinks proper to the experience and knowledge of the inferior body, but it cannot escape the responsibility of forming its own view."

Le Quesne JA, Island Development Committee v Fairview Farm Ltd 1996 JLR 306

How has Le Quesne JA's test on administrative appeals been interpreted by the the Jersey Courts?[ 10 ]

Page last updated 10 Mar 2006