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The Jersey Law Review - October 2003

SHORTER ARTICLES AND NOTES

IN OUR VUE (THE VUE DE VICOMTE EXPLAINED)

Michael Wilkins and Frederick Benest

1       Since one of the writers took office as Viscount in 1981 there has only been a handful of Vues de Vicomte. However, during the last few months, several have been initiated. Most lawyers will not therefore have had any practical experience of the process. Finding oneself in the darkness cast by the shadow of a Vue, various questions will arise:  How is a Vue convened? What are the interlocutory processes?  What happens at the Vue itself? How much will it cost?  Is there an appeal? And is any alternative available?

2       In seeking to assist practitioners in resolving these questions, this note will first look to the law and practice underpinning the Vue de Vicomte. It will then present a fictional case-study.

Le Gros’ footprint

3       Le Gros[1], in his chapter, Du Bornage[2], gives a flavour of the background and nature of the procedure to be followed when the boundary between two adjoining properties is in need of delimitation. For present purposes, the essential points he makes may be taken to be that the demarcation proceeds in contested proceedings by virtue of an Act (order) of the Royal Court.  The Viscount presides; the parties produce their deeds and evidence (notwithstanding any difficulties  - such as in interpreting contracts - the Vue is obliged to effect the demarcation); a panel of six experts – conveyancing professionals drawn, essentially, from unconnected law firms -  makes the demarcation assisted by an arpenteur public (public surveyor);  a record of demarcation is drawn up and registered in the rolls of the Royal Court; and  the  costs of the procedure are shared.

The Court Rules

4       The Court Rules[3] have added structure to, and somewhat refined, the procedure explained by Le Gros. So written pleadings may be required; ten experts are initially selected – of these, six will actually serve at the Vue (experts related to each other in a degree closer than, and including, uncle and nephew cannot serve on the same panel; each party may challenge one expert peremptorily and any other for cause); and where the experts are divided in opinion, the demarcation will be by decision of the majority.

The practice of the Viscount

5       When a Vue is ordered[4], the Viscount will convene the parties before him, via their lawyers. This meeting is effectively a first directions’ hearing. The background to the suit and nature of the dispute having been explained, pleadings will always be ordered (usually twenty one days are accorded to the plaintiff to file a statement of claim; a further twenty one days for the defendant to file any answer; and a final twenty one days for the plaintiff to file any reply).

6       Once the pleadings are complete, a further directions’ hearing will take place. A variety of issues will then be addressed: When, approximately, is the Vue to take place? Are any of the possible Experts conflicted? Which, of the small number of qualified Arpenteurs[5], should serve as such at the Vue? Where will the Vue be accommodated?  Will the parties be able to agree a joint bundle of deeds, correspondence and exhibits? Will witness lists need to be exchanged and filed? Will witnesses need formally to be summoned? How will the Viscount’s necessary disbursements be discharged, pending the making of any costs’ order following the Vue?

A fictional Case-Study:  Les Héritages Limited (‘H Ltd’) v Immeubles Limited (‘I Ltd’)

The dispute

7       I Ltd owns land in St. Mary on which a house, ‘Le Champart’ stands and which is occupied by  its current beneficial owner. I Ltd has undertaken development in recent years. This  includes the construction of a new garage vers (towards) the southern  extremity, and of a wall vers the northern extremity, of Le Champart’s western boundary, which abuts[6] an unkept and  undeveloped plot of land belonging to H Ltd. H Ltd claims that the overhang of  I Ltd’s new garage (to the south) encroaches upon the eastern extremity of its plot of land, as does the entire length of I Ltd’s new wall (to the north); also that a rear access door (fully glazed) to the garage, while admittedly within I Ltd’s western boundary, is in fact too close to H Ltd’s eastern boundary. I Ltd claims that all construction is permissibly within its western boundary and, in any event, that it has acquired possession propriétaire(proprietary possession)  to several feet of  H Ltd’s plot of land, running north/south and coextensively with its own western boundary (and, thus, with H Ltd’s eastern boundary).

The action

8       H  Ltd has brought an action in the Héritage Division of the Royal Court seeking: a declaration that the overhang of I Ltd’s garage and the wall itself both encroach upon the eastern extremity of its plot of land; a declaration that the door to the rear of the new garage is in breach of the customary law requirement that an ouverture (aperture) must not be created within three feet[7] of a neighbouring property[8]; and, consequential orders that the overhang of the garage be removed, its rear door blocked and sealed, and the wall likewise removed; also damages. I Ltd denies any encroachments or breach of the customary law and is additionally seeking a declaration that a tract of land, six feet[9] in width, running the entire length (i.e. from north to south) of the east/west boundary of the two properties has been acquired by it by possession quadragénaire (prescriptive acquisition). At an interlocutory hearing, the Master of the Royal Court has ordered that a Vue de Vicomte take place.

Reference to the Viscount.

9       When the matter came before him, the Viscount duly adopted the processes already described under the Viscount’s usual practice. However, it should be noted that the Viscount only became seized of the matter upon being notified by the parties of the Master’s order[10] which it fell to the parties to bring to his attention. The second point to add here is that, as said, the Viscount  ordered the parties to file pleadings. At first sight this may seem duplicative and even wasteful but the declarations and consequential orders sought by H Ltd (relating to the location of the garage overhang, the situation of the door to its rear and the placement of the wall) were not issues for the Vue; nor was the matter of prescriptive acquisition asserted by I Ltd: all such matters[11] (and the issue of damages) fell to be resolved by trial before the Royal Court. The function of the Vue was solely to establish and proclaim the boundary in dispute: matters consequential to and flowing from its demarcation were not within its remit, and were thus extraneous to it. Hence, the Viscount wished the experts to have the benefit of pleadings shorn of matters not of relevance to the Vue (and, indeed, which could have complicated or even misled it).

Directions and communications

10     The Viscount was available to give further directions as preparations for the Vue proceeded. Once the pleadings were closed, a date for the Vue was agreed upon and formally allocated. The experts and arpenteur were formally convened. All communications (other than any direction hearing itself) were to be conducted electronically (i.e. by e-mail) with the Viscount and the legal representatives of both parties always being copied in.

Empanelment of the experts and final directions

11     Two days before the Vue was due to take place, the ten experts initially convened and the arpenteur, together with counsel, appeared before the Viscount. At that short hearing, the experts were asked if any of them were related by prohibited degree. Counsel made any formal challenges – peremptory or for cause. The remaining experts were then duly reduced to a panel of six, and these six were sworn to serve at the Vue.[12]  (The  arpenteur was not sworn afresh, being permanently sworn to his office.[13]) The parties’ joint-bundle, including pleadings and deeds (contrats) and evidences were distributed to the experts and arpenteur for use at the Vue. Final directions were given.

The Vue convened

12     The Vue assembled on the appointed day at 9:00 a.m.[14] at La Campagne Hotel, St Mary, where a room had been reserved.[15] The room had been set up in the style of a Court (though robes were not worn) and recording equipment was in situ.  After the witnesses were sworn and each side had opened (summarised) its case, a ‘silent’ visit[16] to the site of the dispute took place. Following the silent visit, counsel for H Ltd fully presented H Ltd’s case and called its witnesses (who were examined, cross-examined and re-examined in the normal way). Thereafter, the same process was duly followed by counsel for I Ltd. Closing speeches were then made by counsel. Upon completion of the closing speech for I Ltd the Viscount summed up[17] the evidence. In doing this he particularly emphasised two matters; first, that (as stated by Le Gros) whatever the difficulties the experts might encounter, they were required to proceed to make a demarcation; secondly, that the experts’ task was principally to interpret the contrats put before them in evidence from the written word.  Generally the oral (and therefore extrinsic) evidence adduced by the parties would assist them only insofar as this aided the construction of the documents.

Sur-le-champ (At the site)

13     The experts, accompanied by the arpenteur and Viscount then returned to the site to proceed with the demarcation. After some two hours’ deliberation, the boundary in question was unanimously agreed upon by the experts, the arpenteur being instructed to take and record all relating measurements, descriptions and decisions.[18] Counsel and the parties’ representatives were then invited to attend upon site[19] so that the demarcation could be explained to them, temporary markers (ranging poles) having been put in place by the arpenteur at the experts’ direction.

After the Vue

14     The day following the Vue, the arpenteur again attended on site, this time accompanied by a building contractor.  The arpenteur recovered his temporary markers and, under the supervision of the arpenteur, the contractor planted (cemented) two boundary stones (technically, pierres ou devises, these being newly established stones), as previously instructed by the experts.[20]Thereafter, the arpenteur produced a draft Record of the experts’ determination (demarcation)[21] and submitted this to the Viscount for consideration. The draft Record then formed the basis of the Viscount’s own Record in the proceedings.

Hearing on costs (and how much did it cost?)

15     Two weeks following the Vue, counsel again appeared before the Viscount to address the issue of costs.[22]  In awarding these, the Viscount was empowered to exercise the discretion accorded by Part 1 of the Civil Proceedings (Jersey) Law, 1956.[23]  The Viscount reported that at the time that the experts had determined the demarcation he had consulted them, informally, as to any view the panel might have on the payment of costs: the opinion was that all costs should be shared. Evaluation of this informal and unanimous view (shared, again informally, by the arpenteur) was however suspended, and the hearing on costs proceeded in the normal way (the hearing’s outcome could not of course be prejudiced or predetermined by this consideration). At this hearing’s conclusion, the Viscount observed that Le Gros’ observation that the costs should indeed be shared (each side having gained from the certainty established by the demarcation) remained the proper starting-point (Romeril v Rogers[24]). However, in the specific circumstances of this case, while each side would meet its own legal costs, the actual demarcation had been marginally in favour of the case alleged by H Ltd.  Disclosed without prejudice correspondence had also shown H Ltd’s greater willingness to settle the dispute on terms. Accordingly, I Ltd would pay 70% of the Viscount’s own fees and disbursements while H Ltd would pay the remaining 30%.

16     (The writers estimate that each side incurred legal costs of some £15,000. The Viscount’s fees and disbursements totalled approximately £5,000.[25] On such a determination, I Ltd’s costs in the procedure (Vue only) would thus have been in the region of £18,500. H Ltd’s costs would have been proportionately less, at c. £16,500.)

17     At the conclusion of the costs’ hearing the Viscount provided to counsel his finalised Record of the Vue. 

Was there an appeal? (or what happened next?)

18     No appeal was lodged[26] against the outcome of the Vue. Any appeal would have been by way of Vue de Justice[27] in which the experts who sat with the Viscount would be joined by a further six, on this occasion with the Bailiff (Chief Justice), assisted by two Jurats, presiding.

19     The Viscount did notify the outcome of the Vue, and of the costs’ hearing, to the Master of the Royal Court. This was to inform the Master’s own case-management following his initial decision to order a Vue. While the writers would not have knowledge of any further, or consequential, proceedings before the Master, they did note that a summons in due course issued at the instance of H Ltd requesting the Court duly to register the Viscount’s Record in the rolls of the Court (i.e. in the Public Registry).[28]

Was there an alternative?

20     In his cited work Le Gros discusses the alternative of a demarcation dispute proceeding à l’amiable (by agreement). Here, the parties to the dispute agree to abide by the outcome of a demarcation to be undertaken by an arpenteur (or, it might be added, by another suitably qualified and independent conveyancing expert). The arpenteur’s own Record should, we suggest, then be registered, as above.[29] As indicated, this alternative was highlighted in 1943. While the Vue de Vicomte might still be deployed in appropriate circumstances - especially having regard to the certainty it establishes – an alternative procedure directly engaging with considerations of cost, speed and form, as well as the desirability of preserving relationships between neighbours[30] seems more likely to be consistent with modern needs and expectations in terms of effective dispute resolution.

Appendix 2

 Summons for Appearance before Court - Vue de Vicomte

Monsr. XY

A la requête de Monsr. AB

Je vous signifie de  comparaître devant la Cour Royale, Royal Court House, St Hélier, vendredi le…..jour de…….., 2003, à ……………………. afin loyal devis demeure termé par devant le Vicomte, qui appellera des experts auxquels il administrera serment entre lui et ledit…………………………..pour borner leurs terres discordables se tenant et joignant ensemble situées en la Paroisse de………….la Vingtaine de…………………………

Ce….. jour de ………. 2003.

Michael Wilkins is a barrister-at-law and was appointed Viscount of the Royal Court in 1981 and Judicial Greffier in 1997.  Frederick Benest is an advocate of the Royal Courtand arpenteur public.  He is a partner of Benest and Syvret, 10 Hill Street, St. Helier, Jersey.

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