Return to Contents

A Note On Sources Of Jersey Law

Richard Southwell QC

In an earlier article ^[1] I tried to set out some views as to the sources of Jersey Law.

We now have the advantage of the work of Stéphanie Nicolle QC, HM Solicitor General, in her recent volume on the Origin and Development of Jersey Law, which is reviewed elsewhere in this issue by the Bâtonnier. In this Note I seek to take further the debate to which she has contributed so much.

The first point is to emphasise that the Norman origins of Jersey law remain of essential importance. This can be seen, for example, from the recent decision of the Court of Appeal in Snell v Beadle ^[2] , one of the last judgments delivered by Collins JA, and from Public Services Committee v Maynard ^[3] (it should be noted that the headnote is seriously inadequate and does not guide properly as to the contents of this Court of Appeal judgment). In both these cases the Court of Appeal went back to the earliest sources in the Ancienne Coûtume and the commentaries, especially Terrien, to determine the law of Jersey today.

The second point is that, in relation to French law, Stéphanie Nicolle at section 14 cautions against a too ready acceptance of the views expressed by me, judicially when delivering the Court of Appeal judgment in Maynard at pages 350-351, and non-judicially at [1997] 1 JL Review pages 226-228. At page 351 in Maynard the Court of Appeal ended its consideration of French law with this sentence:

"Accordingly, no great weight can be placed on French law as it exists today [my emphasis] in ascertaining what is Jersey law, except perhaps on a comparative basis as showing how the same problems have been treated in another legal system".

Stéphanie Nicolle counters this by stating at paragraph 14.2 that:

"The history of French influence on Jersey law over the centuries suggests that the conclusion embodied in the final sentence is an over-simplification. The continuous grafting of post-separation developments in Norman law onto the Jersey legal system, where they took root and flourished, was a recognised feature of Jersey’s legal development from an early date,……"

Because of the words emphasized in the quotation from Maynard, there is probably less of a difference between the view expressed by the Court of Appeal and Stéphanie Nicolle’s view than she recognises in this passage. It will be rare that modern French law as codified today in the French Codes or as stated in the current jurisprudence (e.g. in Le Receuil Dalloz-Sirey, or Mazeau & Tunc, Responsabilité Civile) can be used as a direct source of Jersey law, and it is likely more often to be used on a comparative basis; see the reference in Snell v Beadle (above), when considering the ancient Norman doctrine of déception d’outre moitié du juste prix, to the present day provision of a similar kind in the French Code Civil based on sale at less than five-twelfths of the fair price.

At the same time Stéphanie Nicolle is right to emphasise that throughout the period since 1204, despite the separation of mainland Normandy and these Islands, there has been a continuing influx into Jersey law of doctrines developed on the mainland of France. The law of Jersey would be far poorer if this influx had not continued after the Napoleonic Codes had replaced the customary laws of France, and down to recent times as for example in Amy v Amy ^[4] and Kwanza Hotels Ltd v Sogeo Co Ltd ^[5] . However, the Court of Appeal was perhaps right to warn in Maynard against arbitrary dipping into French law by the courts of Jersey to use whatever titbits they might think suitable. In each case it is for the courts to ascertain what is the law of Jersey, and to rely on the French Codes and jurisprudence in their modern form only to the extent that they are shown to be continuous with the customary law before codification as stated by for example, Domat or Pothier, or by way of comparative analysis as in Snell v Beadle.

The third point is that in section 15 Stéphanie Nicolle sets out at helpful length the ways in which English law has been relied on in the development of Jersey law in the different fields of criminal and civil jurisdiction. This is a section of particular value with references to many of the main Jersey authorities. In relation to tort, a reference to the judgment of Le Quesne JA in T.A. Picot (CI) Ltd v Crills and another ^[6] might perhaps be added, and perhaps on a comparative basis also the decision of the Guernsey Court of Appeal in Morton v Paint ^[7] , followed by the Royal Court of Jersey in Knight v Thackerays Ltd. ^[8]

The fourth point is that, although the influence of English law has been and continues to be profound, the courts of Jersey will undoubtedly wish to examine also developments of the common law elsewhere than in England and Wales so as to ensure that the law of Jersey develops rationally and in a way consonant with the needs of the Island. This can be seen in Maynard ^[9] in Solvalub Ltd v Match Investments Ltd ^[10] (declining to follow the House of Lords in The Siskina ^[11] ), and in the decision of the Bailiff in Knight v Thackeray’s Ltd. At a time when the common law is being developed so effectively in the leading Commonwealth jurisdictions, to the extent that common law decisions are relevant in Jersey there is advantage in a wider citation of relevant authorities from those jurisdictions. Such citation has greatly enriched English law, and will in the future equally enrich the law of Jersey.

The fifth point is that the European Convention on Human Rights is likely soon to be assimilated into the law of Jersey. It is already being cited frequently, before assimilation. Once assimilated, it will work in Jersey a quiet revolution in legal approach no less than the revolution which will affect England and Wales from October 2000. This will be material for future notes and articles in this Review.

Richard Southwell QC is an ordinary judge of the Courts of Appeal of Jersey and Guernsey.