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The Jersey Law Review - February 2003
EDITORIAL MISCELLANY
PRESCRIPTION PROBLEMS
Questions of prescription seem to have been all the rage last year. In Re The Esteem Settlement[1]the Deputy Bailiff found that the prescription period for a Pauline action was ten years. In Jersey Financial Services Commission v A.P. Black (Jersey) Ltd[2]the Bailiff held that an action brought pursuant to Article 20(7) of the Collective Investment Funds (Jersey) Law 1988 was an action founded on a tort and was therefore subject to a prescription period of three years pursuant to Article 2(1) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960. The Court of Appeal took a different view and concluded that the application in question was not subject to a limitation period.[3] The cases make for interesting legal arguments, but they reflect a lack of clarity and consistency in our law.
In Esteem, the Deputy Bailiff noted with perception that “The Jersey law of prescription is, by and large, based upon judicial precedent and it is hard to find a consistent theme or principle which underlies the various prescriptive periods.”[4] The observation is reflected in the fact that in both of the above cited cases, which at their core are claims for significant sums of money, the parties viewed the question of prescription as in issue.
The reality is that Jersey’s law on prescriptive periods is a diverse hotchpotch of case law and statute. It ranges from forty days (for the droit de suite of landlord to distrain on goods once the goods have been removed from the demised premises[5]) to forty years (to acquire immovable property by peaceful possession[6]). Whilst the lengthier periods are generally enshrined in customary law or nineteenth century statutes,[7]some are sanctioned by high authority, such as the period of 30 years for déception d’autre moitié which was approved by the Privy Council in 1880 in Godfray v Godfray.[8]Extant statutes which set out prescription periods range from, at least, the Loi (1862) relative au partage d’héritage[9]to the Criminal Procedure (Prescription of Offences)(Jersey) Law, 1999. But whilst an educated guess might correctly presume that the prescription period for a claim arising out of a fatal accident might be set out in the Fatal Accidents Act 1962, you could be forgiven for failing to spot the period for an action founded on a tort in the verbose and unhelpfully entitled Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.
In Esteem the Deputy Bailiff, grappling with a choice between Poingdestre’s choice of 30 years and Le Geyt’s ten years on the point in issue, decided to take the bull by the horns and in what must be an obiter dictum stated “We think that the time has come to hold that the ten year period referred to by Le Geyt is a general period which should be taken to apply to all personal actions and all actions concerning movables, save to the extent that they have already been held to be subject to a different period (e.g. tort, actions concerning estates etc) or that some other period is, by analogy, clearly more applicable. The 30 year period should be confined to actions for déception d’outre moitié and other actions (if any) where that period is already established by judicial decision or by statute…We are in no doubt that policy considerations point strongly in favour of the lesser period. The whole thrust of litigation nowadays is that litigants should get on with matters.”[10]
Law should provide certainty. The legislature has clearly seen the need for certainty about limitation in the context of criminal law and the above cited 1999 Law is much welcomed. One can easily see that bringing such clarity in the civil jurisdiction is a much larger task. Nonetheless, the advantage of rolling all periods into one appropriately entitled statute are surely self-apparent. Not only would we all know where to look for the applicable period, but issues of classification of such things as causes of action could also be tackled. In addition, it would also give the legislature a much needed opportunity to bring prescription periods into line with modern practice in litigation, which as the Deputy Bailiff noted, places emphasis on speedy resolution.
BANKRUPTCY LAW
An article on the application of Article 48 of the Bankruptcy (Désastre) (Jersey) Law 1990 was printed in this Review in June 2002. Two further developments relating to this provision have occurred in the Royal Court since that publication of which practitioners may not be aware.
In June 2002 a circular was issued by the Viscount’s Department at the request of the Deputy Bailiff following a case over which he had presided which involved the presentation to the Court of an Order in Aid which did not fall within the ambit of Article 48. The circular confirmed that a previous circular issued in November 2000 relating to Orders in Aid in Bankruptcy and Insolvency matters should be interpreted as applying to all such applications, that is to say whether brought under the provisions of Article 48 or under the rules of comity. This, in practice, means that all such applications should be passed before the Viscount’s Department[11]for comment before presentation to the Royal Court.
The second development relates to an Article 48 application which was brought before the Court[12]and in which leave was sought to trace assets in a bank account situate in the Island on behalf of a trustee in bankruptcy. The key issue for consideration by the Court was the fact that the petitioner in bankruptcy was the Inland Revenue and the amount of the claim of the Inland Revenue greatly exceeded any of the other known three claimants. The Bailiff gave a brief judgment in which he referred to the need to consider the rules of private international law in such applications. However the Court ruled that it should not refuse the assistance sought solely because the major claimant in the bankruptcy was the Inland Revenue. To do so would unfairly disadvantage the other claimants in the bankruptcy.
It is suggested that this ruling further clarifies the earlier decision of the former Bailiff, Sir Peter Crill in the case of Re Tucker[13] and will be assistance to practitioners when advising clients where this issue of private international law falls to be considered.
PRECEDENT UNLIMITED
It seems difficult to contemplate a superfluity of judgments of the Jersey courts when the problem has always been the dearth of authoritative decisions. In 1861 the Royal Commissioners recorded in their report[14] at page (iii) –
“There is no system of published Reports such as exists in England, the demand in a small jurisdiction like Jersey being too limited to make an undertaking of the kind remunerative. From the constitution of the tribunals, (except the Supreme Court of Appeal before your Majesty in Council) and the want of means of notoriety, judicial precedents are less consistent, and altogether of less weight than in England.”
Over a century later in Re a Debtor[15]Goulding J observed that “Important parts of the law still reside in the breasts of the judges and legal practitioners of the Island”.
Yet it does now seem possible that, even in a small jurisdiction such as Jersey, the number of unreported decisions available for citation to the courts could begin to pose a problem. The change has been brought about by the Internet. Every decision of the Jersey courts since 1997, good or indifferent, relevant or irrelevant, can be accessed on the website of the Jersey Legal Information Board.[16] In time a relatively large number of judgments, many of them not regarded as being sufficiently important to be reported or noted in the Jersey Law Reports, will be available for citation. Should some thought be given now to a problem which cannot be far away? In England it seems that the problem has already arrived. In Michaels v Taylor Woodrow Developments Ltd and others Laddie J stated –
“Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their clients’ case must be drawn to the attention of the court. This is so even when it is likely that the court which gave the judgment probably never intended it to be taken as creating a new legal principle. A number of consequences flow from this. First, of course, it is the client who eventually has to pay for all this searching. This growing costs burden runs counter to the environment being promoted by the Woolf reforms. Further it is a fact of life that sometimes courts go wrong, or at least not conspicuously right. That is why we have a system of appeals. A poor decision of, say, a court of first instance used to be buried silently by omission from the reports. Now it may be dug up and used to support a cause of action or defence which, without its encouragement, might have been allowed to die a quiet death. Thirdly, it is a common experience that the courts are presented with ever larger files of copied law reports thereby extending the duration and cost of trials, to the disadvantage of the legal system as a whole. It seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material, not just from this country but from other jurisdictions, particularly common law ones.”[17]
Other jurisdictions face similar difficulties. In Australia a suggestion has recently been made that the courts should be prepared to define a category of case – say Not for Publication or Not for Citation – and confine the circulation to the parties and the court file. Such a judgment would not be published on the Internet. The proposal fell on stony ground partly because it was felt that all decisions in eg personal injuries cases and sentencing are helpful to advocates in establishing data about trends. Following the decision in Jersey Evening Post Ltd v State of Qatarand others[18] it may be that the media might have something to say about keeping certain judgments in effect secret.
In the State of Victoria in Australia the Supreme Court has issued a Practice Note that the leave of the court must be obtained before an unreported authority is cited. It appears however that this has become a dead letter because it is usually easier and quicker to let counsel refer to the case than argue over whether or not it should be cited.
In the USA the Court of Appeals for the Federal Circuit has adopted a rule of practice in the following terms:-
“Non precedential Opinion or Order. An opinion or order which is designated as not to be cited as precedent is one unanimously determined by the panel issuing it as not adding significantly to the body of law. Any opinion or order so designated must not be employed or cited as precedent. This rule does not preclude assertion of claim preclusion, issue preclusion, judicial estoppel, law of the case, or the like based on a decision of the court designated as nonprecedential.”[19]
This appears to be moderately effective because, as one American professor has put it, if counsel tried to cite a nonprecedential judgment to the Federal Circuit, “the court arranges for his hanging right on Lafayette Square”. This seems a more promising approach (even without the hanging) than either of the other two options described above. It would however require a degree of modesty on the part of judges by making them decide whether or not they had said anything worthy of note. Perhaps it is asking too much.
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[1][2002] JLR 53
[2][2002] JLR 294
[3][2002] JCA 168
[4]Ibid at para. 252
[5]Le Sueur v Goulle (1889) 213 Ex 313
[6]Known as possession quadragenaire. The period is set out in the Code of 1771, but is established in customary law before then.
[7]For example thirty years for an action en garantie pursuant to article 44 of the Loi (1880) sur la propriété foncière.
[8][1865] 3 Moo P.C.N.S. 316. The thirty year was recently restated by the Privy Council in Snell v Beadle [2001] JLR 119, though the context suggests that this was done with a raised eyebrow: see page 140.
[9]Article 5 of which prescribes the time within which a secured claim may be obtained against an estate in certain circumstances.
[10]Ibid paras.257 and 258
[11]The Department of the Court Service responsible for the administration of bankruptcy and insolvency matters
[12]In Re Bomford [2002] JRC 164
[13]1987-88 JLR 473
[14]Report of the Commissioners appointed to inquire into the Civil, Municipal, and Ecclesiastical Laws of the Island of Jersey, together with Minutes of Evidence Command Papers, 1st series, No 2761, 1861
[15][1981] Ch 384; [1980] 3All ER 665
[16]www.jerseylegalinfo.je
[17][2000] Ch 645 at 669
[18][2002] JRC 228
[19]Cited by Laddie J op cit at 671
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