Jersey & Guernsey Law Review – June 2009
MISCELLANY
1 The decision in the Chagos Islanders case, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2),[1] confirmed that Orders in Council are subject to judicial review on standard principles. This has potentially far-reaching consequences for the Channel Islands as amply demonstrated by the case of R v Secretary of State for Justice, ex p Sir David and Sir Frederick Barclay.[2] The appellants brought judicial review proceedings in the High Court, London challenging the decisions of the Secretary of State for Justice, the Committee for the Affairs of Jersey and Guernsey and the Privy Council to recommend the draft Reform (Sark) Law 2008 for Royal Assent, seeking declarations of its incompatibility with the European Convention on Human Rights and the quashing of the resulting Order in Council. The application failed at first instance before Wyn Williams J.[3] The complaints against the Reform Law were that (i) the roles of the Seigneur and the Seneschal in the new Chief Pleas violated art 3 of the First Protocol to the Convention (the obligation to hold free elections under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature); (ii) the role of the Seneschal violated the requirements of art 6 of the Convention (entitlement to a fair hearing in the determination of civil rights and obligations or of any criminal charge); and (iii) the exclusion of non-British Sark resident EU citizens from standing for election breached both Convention rights and EU law. The English Court of Appeal granted the appeal in part and declared that the role of the Seneschal under the Reform (Sark) Law 2008 violated the art 6 Convention right. The respondents are not appealing this decision, nor will the Seigneur or Seneschal or Sark authorities intervene. Meanwhile, the case goes to the House of Lords in July 2009 when the appellants will renew their arguments as to art 3 and the rights of non-British EU citizens. While the decision has no direct application within the jurisdiction of Sark, in that the Order in Council still stands and the Law remains a part of Sark law, the English Court decision plainly undermines the Law and in practice requires it to be amended. The Sark authorities have indicated their intention to take steps to do so. Indeed, if they had refused to do so, one could have expected the UK Government to bring enormous pressure to bear to do so.
2 The case is of obvious significance for both Bailiwicks. While the Court of Appeal held there was no jurisdiction under the UK Human Rights Act 1998 it accepted the respondents’ concession that there was jurisdiction nevertheless because the international obligations of the United Kingdom were engaged and had been brought into issue as a result of the reasons given by the Committee of Council for the Affairs of Jersey and Guernsey for recommending the Reform Law for assent.
3 The judgment begs the larger political question of whether it is appropriate at all for the Ministry of Justice and the Committee for the Affairs of Jersey and Guernsey to continue to play a part in the Channel Island legislative process given (and somewhat ironically in the circumstances) their own lack of democratic accountability. There are powerful arguments for Royal Assent to be given by the Lieutenant Governor for each Bailiwick, acting on the advice of the Chief Minister or his equivalent for each of the four Channel Island assemblies (Guernsey, Alderney, Sark and Jersey). This case is a powerful catalyst for the kind of constitutional evolution which long ago took place in many Caribbean jurisdictions with much shorter histories than the Channel Islands and which is, arguably, long overdue.
Guernsey Legal Resources
4 On 2 March 2009, the Guernsey Legal Resources website was launched. It can be found at www.guernseylegalresources.gg. The website is the joint initiative of the Royal Court of Guernsey and the Law Officers of the Crown for Guernsey and gives access to Guernsey legislation published since 1998, Orders and Practice Directions of the Royal Court from 2000 onwards, judgments from 2006 onwards, and the complete run of the Guernsey Law Journal. The advent of the website together with the Guernsey Law Reports (as to which see further at www.lawreports.com/guernsey.htm) are enormously welcome developments. It is difficult to underestimate the assistance which both website and reports will be to promoting the identity and development of Guernsey law. Jersey courts and practitioners will also benefit greatly from being able to access Guernsey law. The Review extends its congratulations to all concerned.
Legal Aid Fee Disputes in Jersey – A Source of Guidance?
5 The relationship between an advocate or Jersey solicitor who has been assigned a legal aid certificate and the legally-aided client is regulated by the Law Society of Jersey Code of Conduct and, particularly, by the Legal Aid Guidelines that came into force for applications for legal aid made, and certificates granted, after 4 December 2006. Notwithstanding that the Code and the Guidelines have a great to deal to say as to what the lawyer may provide in his contract of retainer with the legally-aided client and, in particular, what may be charged, there remain a number of cases where a dispute arises between the client and the lawyer as to the payment of fees. Such disputes may be determined by the Bâtonnier or Acting Bâtonnier either personally or by delegating such role to a Jersey lawyer to adjudicate. What is interesting is that recent decisions have had to grapple with a number of complex issues and which may now provide supplemental guidance to practitioners and clients alike.
What happens if the lawyer’s contract of retainer actually conflicts with the rules?
6 The contract of retainer between a legally-aided client and the lawyer will be interpreted so as to avoid any conflict with the Code or Guidelines. Where a conflict does arise, the Code and Guidelines (constituting bye-laws pursuant to arts 16(5) and 17 of the Law Society of Jersey Law 2005 and in any event statements of accepted good practice) will take priority, falling within the exception to the principle la convention fait la loi des parties: Wallis v Taylor.[4]
What relevance is the contract of retainer?
7 The fees that a lawyer may reasonably charge are limited by reference to the contract of retainer and then by reference to the Code and Guidelines. It is always open to the lawyer to agree to charge less than would have otherwise been permitted.
What if there is no written contract or one which does not comply fully with the Code or Guidelines?
8 A lack of a written contract of retainer, or the existence of one in only partial compliance with the Code and Guidelines is not necessarily fatal to a lawyer’s recovery of some fees, although certain adjudicators have taken different stances upon this issue and refused recovery at all. Such defects are, in any event, likely to be highly influential upon the eventual result and may lead to disciplinary proceedings being instituted against the lawyer. However, in a fee adjudication, disciplinary action is not the adjudicator’s immediate task.
9 Ordinarily a legally-aided client will appreciate that the lawyer is not acting gratuitously not least by virtue of the terms of the legal aid certificate itself which declare that the lawyer is entitled to a reasonable fee and which the client will normally sign. Accordingly, even in the absence of a written contract of retainer, the lawyer is probably entitled to a quantum meruit as a matter of contract – Louis v Le Liard[5]; Parujan v Atlantic Western Trustees Ltd[6] – albeit one calculated with any doubt being resolved in favour of the client and subject at all time to a maximum calculation in accordance with the Code and Guidelines. It is not expected, however, that a lawyer would wish to seek recovery of any fees where there is no written contract of retainer or where the contract fails to comply in material respects with the Code or Guidelines. Nevertheless, such occasions still appear to arise.
10 It is hoped that the various adjudications, some of which are touched upon above, will result in supplemental guidance being given in due course. In the meantime, a variety of interesting legal points continue to arise but have not yet been discussed in a wider context.