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The Jersey Law Review - June 2004
SHORTER ARTICLES AND NOTES
NO LEGAL SYSTEM IS AN ISLAND, ENTIRE OF ITSELF
Timothy Hanson
1 Eight hundred years ago, the French King Philippe-Auguste conquered Normandy from King John leaving the Channel Islands as the last vestige of the Duchy of Normandy in the hands of the English Crown. In the 21st century, with the Islands’ language and culture so substantially anglicised, it is tempting to look back and assume that the catastrophic loss of continental Normandy, must similarly have wrought a sudden and dramatic end to Norman influence in the Islands. The reality is, of course, very different, and a close connection between the Channel Islands and Normandy endured throughout the Middle Ages and beyond. The significance of this influence, particularly, upon the development of the law and customs of the Islands has been observed by a number of learned authors; as have the factors that enabled the Channel Islands to preserve their law and customs from English abrogation. In this article, I do not propose to give, what would inevitably be, an inferior rendition of such works but rather to develop, in the modern context, an important point made by one such author, Professor JH Le Patourel. In his work The Medieval Administration of the Channel Islands 1199 – 1399,Le Patourel expresses the opinion that the cessation of regular judicial visits by English judges in the Islands after 1331, was significant because it meant that “local law was left to develop, unhindered, in its own way.” Implicit in this comment was the view that judges inevitably influence the way that law develops, and that English judges would have imparted English ideas and methods into the law and customs of the Channel Islands.
2 This article explores the more recent influence of English thinking and, in particular, the Civil Procedure Rules, upon the Jersey legal system. It further seeks to illustrate the dangers of grafting on to the Jersey legal system, procedural values that have only come to fruition in England as part of an overall, radical package of reform.
3 The Civil Procedure Rules (“CPR”) were introduced into England and Wales in 1999 as a result of the report of Lord Woolf entitled Access to Justice. CPR Part 1 lays down an “overriding objective” that requires the Court to have regard to a number of considerations, inter alia, the need for expense to be saved; the need for the case to be dealt with in ways which are proportionate to such matters as the amount of money involved, or the importance of the case; and the need for the case to be dealt with expeditiously. In England and Wales, the overriding objective, was heralded as putting right the failures of the past -
“The rules in this Part have no equivalents in the former Rules of the Supreme Court (RSC) and the County Court Rules (CCR). In terms, they are unusual. Their principal purpose is to signal a substantial change in the handling of civil cases in the courts whilst at the same time reinforcing “procedural values” which, although acknowledged in the past, were not always put into effect.”
4 It was no coincidence that only a year after the introduction of the CPR in England, the Court of Appeal (Southwell JA presiding, Nutting and Vaughan, JJA) delivered its judgment in In re Esteem. In essential respects, this repeated the overriding objective contained in CPR Part 1. The Court of Appeal was critical of the parties playing interlocutory games and, in particular, unjustifiably seeking to strike out parts of their opponent’s pleading. The Court declared that such games were unacceptable in the 21st century. Instead, all those who are involved in civil proceedings should have as their object -
“…..to progress to trial in accordance with an agreed or ordered timetable, at a reasonable level of cost, and within a reasonably short time.”
5 The Court of Appeal emphasised that failure to adhere to such a course might result in costs being disallowed to the legal adviser concerned or even costs being awarded against such an adviser. The relevant part of this judgment was subsequently issued as a circular letter to the legal profession. In the later Guernsey Court of Appeal case of Pirito v Curth, Southwell JA (who again delivered the Court’s judgement), reiterated the comments that he had earlier expressed in In re Esteem.
6 The objective set out in In re Esteem has actually been expressed to be an “overriding objective” in one Jersey case. It is an aim, moreover, that has been repeated on a number of occasions but appears frequently not to have been met when dealing with the smaller type of claims.
7 In Sinel v Goldsteinthe Royal Court was concerned that the costs of a hearing to strike out part of the defendant’s pleading had already eclipsed the sum that was then in dispute. The Court stated at paragraph 7 -
“The legal profession has apparently not yet entirely come to terms with the overriding objective of bringing proceedings to trial at a level of costs which is reasonable and commensurate with the sum in dispute”.
8 More recently, in Luce v Manning, the Royal Court was similarly critical of costs in the sum of £13,000, that had been run up before trial, when the claim was limited to some £8,000. This case was an appeal from the Master who, upon the plaintiff’s acceptance of a payment into Court, awarded only £750 in costs. The Royal Court allowed the appeal, albeit only permitting the plaintiff 50% of his costs to be taxed. The Court emphasised that it was a matter for the taxing officer to apply the overriding objective when considering what costs ought to be allowed as reasonable.
9 There can be no justifiable complaint at an overriding objective being applied to the conduct of proceedings in Jersey. However, at the time of the judgment in In re Esteem, the Jersey practitioner might have been forgiven for failing to appreciate that such an objective was, in fact, such a significant part of the procedural values which he or she should espouse. The practitioner now knows that an overriding objective exists in Jersey and that it must be applied to the conduct of proceedings in the Island. However, the difficulty in achieving this lies not merely in altering the previous culture of litigation in the Island: the civil justice system, itself, similarly needs to change.
10 Upon the introduction of the Civil Procedure Rules in England and Wales, Lord Saville of Newdigate remarked upon the need for a package of new and radical procedural rules which would help reduce delay and unnecessary expense. In the foreword to the first edition of the Civil Court Service, he made the following statement -
“This century is ending with a new beginning for our civil justice system. We have long been proud of our tradition of judicial independence and impartiality and the judgements of our courts are admired across the world. But unless we can successfully tackle the twin evils of delay and unnecessary expense, we will not in fact be providing justice, and thus will be failing properly to provide an essential element for a truly democratic society.
Lord Woolf accepted without reservation the principle that justice delayed, or justice that costs too much, is in truth no justice at all. Thus his reforms are designed to deal head on with delay and unnecessary expense. They do so by making fundamental changes to our present system.”
11 It may seem that the author is merely excusing the tradesman by blaming his tools, but it cannot help the attainment of the relatively new overriding objective, whilst the Jersey civil justice system itself remains geared to an old way of doing things. Admittedly, there has been progress in this respect, but it has been on a small scale, and incremental, rather than the wholesale reform that was seen as necessary in England and Wales.
12 The importance of active “case management” is, for instance, something that was brought to the fore with Part 1.4 of the Civil Procedure Rules. This sets out a duty on the part of the Court to further the overriding objective by actively managing cases. Whilst Jersey has been, apparently, firmly wedded to an overriding objective since the decision in In re Esteem, it was only later that some strides towards case management were made with, for example, the relatively recent introduction of the summons for directions procedure (RCR 6/21) and, only last year, the issuing of Practice Direction 2003/12.
13 The tension between an overriding objective and other, more long established Jersey customs, is possibly best exemplified in the Vue de Vicomte. This is a procedure to be followed when the boundary between two properties is in dispute and requires delimitation. The procedure is now contained in RCR 11/1. In essence, six expert adjudicators, the Viscount and an arpenteur, are all involved in the discovery of the true boundary line. If the finding reached by the six experts is subsequently challenged, a Vue de Justice then takes place, but this time with an additional six experts, the Bailiff and two jurats. Thankfully, the Grande Vue de Justice (which involved twenty-four experts) has now been abolished. Nevertheless, the contrast between this process and the desire under the CPR to limit expert evidence, (for instance, by the use of a single, jointly instructed expert), is stark.
14 It therefore might appear to the Jersey practitioner that he or she has been ticked off about non-compliance with a recently discovered Civil Procedure Rule, in the form of the overriding objective, but only to find that the process of the Court is failing to achieve the very standards that it has set. It is also important to appreciate that even with all the appropriate reforms in place, there would still need to be other measures introduced in support. Lord Saville identified three basic requirements upon the introduction of the Civil Procedure Rules -
“First, there is and will remain a vital need for all those who work in the civil justice system to be properly educated and trained and to have a proper understanding of the new system, for all human institutions are only as good as the people who operate them.
Secondly, those who wish to use the civil justice system must also have a ready and inexpensive means of learning about it, for otherwise justice will remain largely unavailable to most of our society.
Thirdly, the reforms themselves call for the most efficient means possible for the proper management of justice”.
15 For a small jurisdiction such as Jersey, the process of significant change, perhaps, appears daunting. This may, in part, explain why changes to the civil justice system have been chewed over slowly with only bite size reforms effected. However, if we wish to maintain and enhance our reputation abroad, we surely need to embrace change or risk being left behind. However, the manner in which such change is effected requires careful consideration and, above all, a co-ordinated vision to be fully successful.
16 In 2004, we celebrate, in effect, eight hundred years of Channel Islands’ law. Le Patourel was surely correct in noting the significance of English judges ceasing to adjudicate in the Islands from the fourteenth century. It is, therefore, somewhat ironic to note that in the midst of such celebration, the Channel Islands now utilise the services of a number of Commissioners and members of the Court of Appeal who are drawn from the English Bar, some of whom hold part-time judicial positions in England. They are, moreover, trained in the application of the CPR and, accordingly, the exercise of their discretion is bound to be informed by the “procedural values” enshrined within the Rules that they apply in another jurisdiction. Whether it is an “overriding objective”, the use of witness statements, or greater case management, the influence of the Civil Procedure Rules can already be felt in the Jersey legal process. Perhaps, the options open to the Channel Islands have now come full circle and, centuries after their separation from Normandy, they face once more the real prospect of being drawn ever closer to the law and procedures of England.
Timothy Hanson is a barrister called to the English Bar in 1989 and is a senior associate in Carey Olsen, 47, Esplanade, St. Helier, Jersey, JE1 0BD.
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