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The Jersey Law Review - February 2004

SHORTER ARTICLES AND NOTES

CITATION FROM OTHER LEGAL SYSTEMS:  A REPLY

Gordon Dawes

1       In 2004 we commemorate the 8th centenary of the historical events underpinning the Channel Islands’ special constitutional position in the world; i.e. King/Duke John’s loss of mainland Normandy to the French King Philippe Auguste in the summer of 1204.  In a very real sense we will also be celebrating 800 years of Channel Island law.

2       J H Le Patourel in his great study of medieval Channel Islands’ administration said this -

“All the Islanders’ liberties may be resolved into the general principle that they should be judged by their own law.  Such a principle required guarantees in the courts, particularly since justice was administered in the island courts in the king’s name and not in the name of the community.

These guarantees were found by the Islanders in the bench of Jurats.” [1]

3       No one would dispute the importance of maintaining a distinct body of Channel Island law in the context of a harmonising Europe; but equally political considerations are not of themselves sufficiently good reasons to have different law, let alone for the sake of it.  There should be some merit in the distinctions, at least when judged locally.  Equally, these are small jurisdictions.  We have a handful of judges compared to the 3,500 or so in England and Wales.  There is no great mass of indigenous jurisprudence to which one can refer.  It is comparatively rare that there is an existing case on all fours with the current issue; or if there is, it is more likely than not to be a first instance decision and not binding, albeit very persuasive.  It is therefore unavoidable that Channel Island lawyers should consider the law of other jurisdictions when seeking to establish or develop Channel Island law.  The question is, how widely should the Channel Island lawyer’s net be cast in his or her search; or even, taking the metaphor further, for what may they lawfully fish and where?[2]

4       Southwell JA fears there are twin dangers if the net is cast so widely as to include such exotic species as Roman, South African and Scottish law.  The first is that of borrowing law without any proper understanding of the weight of its authority in the lending jurisdiction.  The second is the expense of having to conduct wide-ranging, multi-jurisdictional research on any given issue.

5       The solution to the problem is, I suggest, to be found in the word “authority”.  A Channel Island lawyer is only required (within the bounds of what is reasonably possible) to know existing Channel Island law[3] and to be able to anticipate intelligently the likely course of future legal development within each Bailiwick.  The only law which is truly authoritative in these islands comprises the relevant Bailiwick’s own legislation and case-law.  The former comprises legislation with its origins in the Bailiwick (laws, regulations, orders and ordinances, as well as statutory instruments) and legislation with its origins in the Imperial or Westminster parliament as extended to the Islands with their consent[4].  The latter comprises each Island jurisdiction’s case-law, principally first instance decisions of the respective Royal Courts[5] which do not, prima facie, bind a future Royal Court, and decisions of the respective Bailiwicks’ Courts of Appeal, which do bind the respective Royal Courts, but not future Courts of Appeal.  Again it is only the Privy Council decisions for the individual Bailiwicks which bind those jurisdictions.

6       Decisions of the House of Lords are not authoritative per se.  They may be highly influential; they may be so influential as to be barely distinguishable from truly binding authorities - but the distinction must nevertheless be maintained.  When Southwell JA appeals to Le Quesne JA’s judgment in Foster v Attorney General[6] it is as well to recall that it was also Le Quesne JA who held in the later case of Picot v Crills[7] that the Jersey Court of Appeal had “no authority” to review House of Lords decisions as to the question of an advocate’s immunity from suit.  With the greatest of respect it is suggested that this is wrong.  The Royal Courts of Guernsey and Jersey have every right to review House of Lords’ decisions.  In practice it may often be prudent to respect and follow the House of Lords, but by no means inevitably.  The case of Picot is as good an example as any of why not.  Sir Godfrey was defending the House of Lords’ decision in Saif Ali v Sydney Mitchell & Co.[8] which was itself subsequently overturned by the House of Lords in 2000.[9]  What can be said about House of Lords’ decisions applies with that much greater force to English Court of Appeal decisions.  Very often it will be sensible to follow those judgments, but not invariably.  The past and excessive deference shown to English case-law is at an end, and not just because we live in a less deferential society.  The quality of some of that case-law can rightly be called into question.

7       If Southwell JA queries the potential cost of researching the law of foreign jurisdutions then the existing cost of researching English law is hardly conducive to economic litigation.  It can be said with some justification that English judges, journals, law reports, texts, internet legal service providers and the like have combined to produce a veritable mass of law, and an incoherent one at that.  The Civil Procedure Rules have produced no more slender a white book than the Rules of the Supreme Court.  So far as I am aware, no loose-leaf English work of reference has ever knowingly become smaller.  The way things are going English jurisprudence will, one fine day, simply grind to a halt under its own weight.

8       Take the recent case of Transco Plc v Stockport Metropolitan Borough Council.[10]  Five law lords, namely, Lords Bingham, Hoffmann[11], Hobhouse, Scott and Walker pondered, yet again, the true nature and extent of the near 150 year old rule taking its name from Rylands v Fletcher.[12]  The very fact that this “rule” should still be controversial after such a time is itself something of an embarrassment to English jurisprudence.  The fact that this is the third time the House of Lords has had to consider the inter-relationship between the rule and the law of nuisance and negligence in the last ten years alone is further testament to the unhappy state of English law.[13]  When one then considers that the Transco judgment refers fully to 52 other cases the difficulty and cost of researching English law becomes apparent.  Their Lordships also felt it necessary to refer to seven learned articles, one Law Commission report, four textbooks and five Acts.  The opinions run to 35 sides of A4.  What is particularly interesting is the fact that this very recent and quintessentially English case refers to the law of not less than five other jurisdictions.  Thus their Lordships -

(1)     noted that Australian law had abandoned the rule in Rylands v Fletcher altogether, subsuming it within the principles of ordinary negligence;[14] although noting also that

(2)     van Gerven, Lever and Larouche in their text Cases, Materials and Text on National, Supranational and International Tort Law had concluded that French and German law afforded a form of strict liability in disputes between neighbouring landowners; whilst

(3)     the very suggestion that the rule formed a part of Scottish law was regarded by Lord Fraser of Tullybelton as “a heresy which ought to be extirpated”;[15] yet

(4)     citing a New Zealand case as illustrative of the potential benefits of retaining the rule, even if those benefits were not felt fully in that case.

9       All of this begs the question of what is to happen when, say, the Royal Court of Guernsey comes to consider whether the rule in Rylands v Fletcher either was, is or should be a part of Guernsey law?  If the House of Lords after 150 years of effort still feels compelled to visit five other jurisdictions when determining English law with such a mass of its own jurisprudence it seems unrealistic to restrain the Channel Islands.  In an ideal world the English courts would get it right, if not the first time, then at least eventually.  Other recent and unhappy examples include mistake in contract law and causation in tort law.

10     Where does this leave the Channel Island lawyer?  Certainly it is possible to state broad guiding principles and I suggest the following -

(1)     if the relevant Channel Island jurisdiction does have existing legislation or case-law concerning any given topic then that body of law must be looked to first and foremost, being truly authoritative to a greater or lesser degree;

(2)     if the relevant Channel Island jurisdiction does not have domestic law, but another Channel Island jurisdiction has, then that other jurisdiction’s solution will be looked to carefully.  The Bailiwicks of Jersey and Guernsey have led a parallel existence over the centuries.  They have responded to their near identical position in the world in similar, if not identical ways, and it is appropriate to consider the other’s answer, without in any sense being bound by it;

(3)     it is then appropriate, when necessary, to look to, and to be guided by, the non-Channel Island system of law most closely connected with the matter at issue.  This will, of course, vary with the area under consideration.  For example, if it is a land or succession law question then one would look to Norman customary law.  It is suggested that one would look also to modern French law, where appropriate, such as the law relating to servitudes.  It is wrong to see the Code Civil[16] as representing some sort of rupture with what went before; it was not.  If there is no obvious customary law solution to a customary law problem, then it is entirely appropriate to see what modern French law provides.  In any event it is appropriate to see how customary law has evolved rather than take a medieval solution as if it were the last word in legal thought.  It is striking how familiar the provisions of the Code Civil can appear to a Channel Island lawyer familiar with customary law.  It will also be appropriate to consider other civil law systems for possible solutions, and notably Scottish law, whose property law is very much closer to Guernsey law than, say, English property law.[17]  If, by contrast, the problem is one of tort law then plainly English law is and remains deeply influential; with the reservation that there is never any reason for Channel Island courts to follow bad English cases.  It is perfectly valid to consider developments in other common law jurisdictions.  Often one is forced to carry out such research where common law development has come to a sticky end in England, typically because English case-law has left common sense up a creek without a paddle or else there has been a politically motivated intervention.  The leading Guernsey case of Morton v Paint[18]rightly cast around the law of other jurisdictions, referring to English law, Scottish law and Jersey law.  In particular the Court of Appeal cited the development of Australian common law to support an evolution of Guernsey common law in line with the English Occupiers’ Liability Act 1957 in circumstances where there was no statutory equivalent in Guernsey law.  It would be unfair to identify the giver of the leading judgment!  Undoubtedly the right decision was reached and the case is of fundamental importance to Guernsey law.

(4)     Subject to Channel Island rules of precedent, Channel Island courts are free, and certainly as free as any English court, to consider legal solutions to legal problems adopted by any other jurisdiction.  The key point to note is that once the argument strays outside the bounds of true authority the court is simply considering legal ideas.  It is looking for the most appropriate solution to a legal problem arising in the Channel Islands.  Ultimately it does not much matter what the precise status of, say, a Scottish authority either was or is, because we do not approach Scottish law as being in any sense directly authoritative in these jurisdictions.  The only purpose in looking to such jurisdictions is to see if they can be of any help; i.e. whether a solution most closely accords with the needs of  the relevant Bailiwick.

11     In those circumstances I suggest that Channel Island lawyers should remain free to cite whatever they wish; but of course that freedom will be circumscribed by principles akin to those set out above as well as a difficult-to-define sense of what is and is not a credible authority in any given set of circumstances.

12     As to cost, it is often in fact very much cheaper to research, say, Australian common law than it is Channel Island common law.  Fleming’s The Law of Torts, 9th edn, 1998 should be readily available to the Channel Island litigation lawyer; likewise the Code Civil 2004 and other modern French texts.  I am myself about to invest in a copy of Gloag & Henderson’s The Law of Scotland.  Pothier remains indispensable, likewise texts such as Pardessus[19] and Fournel.[20]  There are also various English language studies of European legal systems.

13     By contrast it is very much harder to get hold of Guernsey law.  There are no Guernsey Law Reports.  The Guernsey Law Journal is 5 years out of date.  There is no Guernsey legal information web-site.  There are precious few Guernsey legal texts.  The problem is not so much a lack of non-Guernsey law materials but rather a lack of Guernsey materials.  Jersey is considerably better off with its law reports, review, website and various textbooks.  Equally, and thankfully, Guernsey advocates must still attend Caen University to study customary law, Norman institutions, pensée juridique and contract law.[21]  Inevitably one also learns French to a high standard; and leaves Caen with at least the ability to read French legal texts.

14     Ultimately it is the capacity of Channel Island lawyers to draw upon different bodies of law and custom that gives Channel Island law its distinct character.  If Channel Island lawyers either could not (e.g. because they did not have the linguistic skills) or were forbidden to consider a wide body of law from other jurisdictions, Channel Island law itself would become impoverished and indistinct.  The notion of codifying law artificially by reference to other jurisdictions was not a success when last tried with L’Approbation[22] in Guernsey.  Likewise, the Jersey Law Commission’s idea of importing English contract law lock, stock and barrel is doomed from the outset and would not in any event give the kind of legal certainty which the commissioners crave.

15     As to Roman law, it is ironic that in AD 426 the Law of Citations[23] conferred official status on the opinions of five of the great Roman jurists (Gaius, Papinian, Paulus, Ulpian and Modestinus).  Subject to certain qualifications, these five became the only authorities which could be cited.  Judges were required to follow slavishly when the five were unanimous.  In default of unanimity the Law required judges to follow the majority view, and in the absence of a majority, the view of Papinian alone.[24]  What in fact the great codifications of Roman law symbolised more than anything else was the moribund state of the decaying Empire’s jurisprudence.  Justinian’s Code is a great, but flawed, monument to a body of law the finest days of which were some hundreds of years in the past.  In any event Roman law, whilst being deeply influential, was not copied slavishly into “French” law.  There is nothing wrong with such influence, even today, so long as it is recognised for what it is:  legal history which may well inform, but should not dictate, contemporary legal debate.

16     It should not be too great a demand upon the Channel Island lawyer to research legal history or the law of those jurisdictions most likely to shine light on the area in question.  Given the availability of Scottish, Australian, Roman and comparative law texts this is really not a problem.  I would suggest that English law is in fact by far the most expensive area to research in practice.  If one is looking for uncertainty in law, one need go little further.  If anything is to be codified it should perhaps be Channel Island law itself.  Certainly in Guernsey law there are all manner of lacunae which could usefully be filled in anticipation of very expensive litigation; but in doing so we should not restrict our sources.

Gordon Dawes is an advocate of the Royal Court of Guernsey and partner in the firm of Ozannes.  He is the author of Laws of Guernsey published by Hart, May 2003.

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