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Editorial Miscellany

Norwich Pharmacal  In Guernsey

Elsewhere in this issue of the Review[1] readers will find an article by Advocate Nicolas Journeaux on the way in which the Norwich Pharmacal jurisdiction[2] has been developed in Jersey.  Here we briefly note a recent Guernsey decision on the same jurisdiction.  It is the case of Novo Nordisk A/S v Banco Santander (Guernsey) Limited[3].  The decision was made by the Lieutenant Bailiff, A R W Hancox, sitting alone. 

The plaintiffs were suing one Richard Adler in various states of the USA, alleging that he was distributing counterfeit products resembling those produced by the plaintiffs.  In aid of this litigation the plaintiffs had obtained ex parte interim injunctions against Dr Adler restraining him from disposing of his assets in Guernsey.  Subsequently the plaintiffs obtained an order against Banco Santander (Guernsey) Limited, a Guernsey bank, requiring it to disclose documents in its possession, custody or power “relating to evidencing any deals or payments made by” Dr Adler since a certain date on two specified accounts which Dr Adler maintained with the bank.  It was not alleged that any funds in the bank accounts concerned belonged to the plaintiffs, or represented assets belonging to the plaintiffs.  There was no proprietary claim at all.  The argument was that the bank had become mixed up in the wrongdoing of Dr Adler and hence should assist the plaintiffs in obtaining the necessary evidence to trace and bring actions against Dr Adler’s alleged co-conspirators and those who had actually produced the counterfeit goods.

Dr Adler intervened in these proceedings to apply for the order to be set aside.  No objection was taken to this course.  Plainly, Dr Adler, as a person prima facie entitled to confidentiality in his banking affairs, was entitled to be heard in relation to an order which would force the bank to break that confidence[4]. 

Dr Adler argued that although the order obtained in this case looked in form like that granted in Bankers Trust Co v Shapira[5] (effectively a tracing order in relation to monies to which a proprietary claim was made), the reality was that this was not a tracing order (because the plaintiffs did not made a proprietary claim to any other funds in Dr Adler’s bank accounts).  Instead it was a Norwich Pharmacal order, seeking discovery from a non-party.  The problem was that the facts of this case did not fit the Norwich Pharmacal jurisdiction.  Whilst it was perfectly possible that the bank had information that might enable the plaintiffs to discover the identities of other wrong doers, the bank had not got itself involved in the wrong doing and was a “mere bystander”.

The plaintiffs cited a number of English and Jersey cases, including IBL Limited v Planet and Legal Services Limited[6], Grupo Torras SA v Royal Bank of Scotland[7], and argued that just as these cases extended the Norwich Pharmacal principle in Jersey, so the same extension should be made in Guernsey.

The Lieutenant Bailiff declined to make the extension sought.  He first held that there were other sources of information which might enable the plaintiffs to find out the identities of the wrong doers.  In particular, just as in Norwich Pharmacal itself, the plaintiffs could ask the US customs authorities.  Secondly, the Lieutenant Bailiff was clear that there was no sufficient connection between the bank’s activities and the alleged wrongdoings.  He noted the extension in Jersey but did not think that Guernsey should go further than the English authorities.  Accordingly, he discharged the order against the bank.

The decision reveals an unwelcome diversity of practice between the Jersey and Guernsey courts in relation to an important procedural point.  It may well be that, as argued elsewhere by Advocate Journeaux, the Jersey courts have gone too far in ordering non-parties to give discovery where the conditions set out in Norwich Pharmacal are not satisfied.  It is true that the English case of P vT  Limited[8], referred to by Advocate Journeaux, goes further than Norwich Pharmacal, but even so the position there was stronger than in the present case, where the bank was not the only source of possible information and its only possible involvement with the wrongdoing was being the conduit by means of which Dr Adler would have paid his co-conspirators for their actions.  Those actions would have taken place whether the bank was involved or not. 

It remains to be seen, therefore, whether the Court of Appeal of Jersey or Guernsey (which of course share a common membership) will be called upon to make a decision reuniting these twin streams of jurisprudence.

The Statutory Nuisances (Jersey) Law 1999 was registered before the Royal Court on December 24th, 1999.  It significantly expands the area of nuisance in Jersey law and is worthy of comment.

If the local media and the States’ debate over the Law are anything to go by, the origin of the Law is public disquiet at the interference with their private living space and enjoyment by third parties, particularly by noise emanating from motor vehicles and hi-fi units.  As we shall see, the Law places a statutory duty on the Health and Social Services Committee of the States of Jersey to investigate and, if appropriate, take action to prohibit a nuisance.

On one level, the law could be said to be a further evolution of the so called “nanny state”, but the apparent strength of feeling as to the ability to enjoy one’s own private space without interference has historical roots in this Island.  Writing in the middle of the twentieth century, the French sociologist, Pierre Dalido noted the propensity for privacy amongst Jersey folk.  He called this a self-imposed “imperméabilité”.[9]  Architecturally, the desire for privacy can be seen in the very design of the Jersey farming unit with its high surrounding walls and thick oak doors.  It also explains the lack of a vigorous communal life.  It may also explain the lack of villages in the Island.  Set in this context, the origins of the Law are clear.

The Law means that questions of nuisance may now arise in three contexts:

(1)        under the Law;

(2)        within the parameters of voisinage;

(3)        in the context of criminal law as a matter of public nuisance.

Dealing first with the Law, the Health and Social Services Committee in its report accompanying the draft Law stated that it wished to promote legislation which would-

(1)        confer powers on the Committee to require statutory nuisances to be abated;

(2)        make it an offence for a person causing the nuisance to contravene or fail to comply with an abatement notice.

The core of the Law can be found in Articles 2 & 4.  Article 2 defines a “statutory nuisance”.  It includes a wide range of potential nuisances: smoke, fumes or gas, light energy, dust, steam, smell, accumulations or deposits, animals kept in a manner prejudicial to health, noise (in certain circumstances), water supplies or water courses and temporary habitations that are prejudicial to health or a nuisance.  In relation to noise there are some exceptions, notably aircraft noise, traffic noise and noise arising from a political demonstration.  In the latter case there may be a degree of wishful thinking by local politicians!

Article 4 places a duty on the Committee to deal with statutory nuisances and to investigate a complaint of a statutory nuisance made to it.  The Committee is also able to initiate inspections where no complaint has been made.  Where the Committee is satisfied that a statutory nuisance exists, is likely to occur or re-occur, it is required to serve a notice (known as an “abatement notice”) which may require the abatement of a nuisance, the execution or works and/or the taking of such other steps as may be necessary to abate the nuisance.

The Law then goes into some detail as to the service of an abatement notice in respect of a noise in the street.

It is also noteworthy that persons aggrieved by a statutory nuisance committed by the Committee itself, may make a representation to the Royal Court under Article 8(1) seeking action to be taken.  On first analysis, Article 8(1) strikes the reader as slightly ambiguous.  It is worded as follows:

“The Court may act under this Article on a representation made by any person on the ground that he is aggrieved by the existence of a statutory nuisance for which the Committee is responsible”.

Does this mean that the representation may be made where the Committee itself has caused the nuisance or where the Committee has failed to take action for a statutory nuisance which comes within its duty under Article 4 (i.e. for which it is “responsible”).  Some clue may be given by the title to the Article, “Proceedings by persons aggrieved by statutory nuisances by Committee”.  It remains to be seen how this Article will be interpreted.

Voisinage has been examined in Jersey case law over a number of years and has also benefited from the analysis in Matthews and Nicolle, The Jersey Law of Property[10].  Pothier’s definition in his Traité du contrat de Société (which was cited in Searley v Dawson[11])provides the usual clarity:

“Le Voisinage oblige les voisins à user chacun de son héritage, de manière qu’il ne nuise pas à son voisin”.

So far as public nuisance is concerned, this is an offence at customary law; it has been invoked most frequently in relation to noisy events.  The offence itself remains without definition in local case law.  However the States of Jersey Police Manual notes that it may arise where “any person does an act not warranted by Law, or omits to discharge a legal duty if the effect of the act is to endanger the life, health, morals or comfort of the public”.  The author of the manual gives, as an example of the offence, a noisy party which interferes with the comfort of the neighbours[12].  It further notes that to establish the effects of public nuisance, it must be shown that more than one person (other than the investigating police officer) was affected.

One might add, as a final note, how the use of the word ‘nuisance’ reflects on the development of local law.  Of course the draftsman of the Law simply draws on the most appropriate word to describe a person, thing or circumstances.  The causing of annoyance by yet the echo of the English text of ‘nuisance’ is there for all to hear.