Traversing the minefield
of the law of contract
1 A recent judgment by Le Cocq, Deputy
Bailiff, in Smith v Jersey Oak Ltd
shows that it is possible successfully to traverse the minefield of the Jersey
law of contract. The facts of the case can for these purposes be shortly
stated. The plaintiffs bought a large property of which part had been leased
back to the vendor for a number of years. That arrangement, although largely
informal, had been successful. In 2016 the vendor’s lease came to an end,
and negotiations began with the defendant company for a new lease. Proposals
were set out in which, inter alia,
the defendant’s principal stated—
“We are also proposing to run a business which is
much more considerate of your privacy and the fact that the property is on the
same site as your home . . . Whilst the location and the layout are
less than ideal for a retail premises [sic],
I feel that we can make this work for us . . . [A number of specific
proposals were then set out as to the defendant’s intentions “with
your consent of course”]. This proposal has been prepared in the
knowledge that the buildings are next to your home and that minimal disruption,
safety and privacy etc. are strong
considerations . . . We are keen to ensure that our use of the
property . . . is in a manner which is harmonious with your
2 A lease expiring in 2022 based upon the
original lease with the vendor was signed in March 2017. No lawyers were
involved. In a very short time the parties fell out. Aggressive and rude
behaviour was alleged against the principal of the defendant. It constructed a
marquee in breach of planning laws, and a 14 ft. fence which obscured the
plaintiffs’ view of the sea. The plaintiffs’ order of justice
alleged inter alia that it was an
express or implied term of the lease that the defendant would conduct a cottage
industry which would have little or no effect upon family life, and that the
scale of commercial activity exceeded the plaintiffs’ anticipations.
Fraud was alleged, including dol par
reticence, such that there was a vice
de consentement and that the lease was void. The plaintiffs also sought
cancellation of the lease.
court first considered the law relating to implied terms, and referred to Grove v Baker
where Pothier’s rules for the interpretation of contracts had been
considered in conjunction with a judgment of the Court of Appeal in Sibley v Berry.
In that case, Le Quesne, JA had referred to the English case of Liverpool City Council v Irwin and applied a dictum of Lord Wilberforce.
The Deputy Bailiff correctly stated that the court was bound by the Court of
Appeal judgment, as indeed was the court in Grove
v Baker. He continued that Sibley “appears
to rely entirely upon the English approach to implied terms contained in Liverpool v Irwin”. That is no
doubt so, because the court is in general limited by the authorities to which
it is referred by counsel. In fact, however, the Court of Appeal had built to
an extent upon the foundations of Pothier. Although not referred to
Pothier’s rules of interpretation of contracts, the court was referred to
a different passage in
relation to which Le Quesne, JA stated—
“This doctrine, which is stated there by Pothier in
his own terms, could also be stated in the categories of implied terms more
familiar to an English lawyer.”
of reliance upon the English approach is deceptive. In the event, the court,
applying Grove v Baker, determined
that the expressed obligation to respect the family home did not imply that the
defendant principal’s conduct had been a breach of contract—
“It must be shown . . . that it is
necessary to imply the term in order to ensure that the contract is not futile,
inefficacious or absurd.”
Such was not
the case. The plaintiffs might in retrospect have wished to express additional
terms, but it was not open to the court to re-write the lease.
4 The court next considered whether the
breaches of the terms of the lease which it found to exist were sufficient to
warrant the cancellation of it, acknowledging that, if there were vices de consentement, no question of
cancellation would arise, the lease being void ab initio. In considering whether there was fraudulent conduct, the
the leading case of Steelux
Holdings Ltd v Edmonstone
where the court stated that fraud was a flexible notion and that silence could
in certain circumstances amount to fraud (dol
par reticence). The court also referred to the cautionary words of Birt,
Deputy Bailiff (as he then was) in Toothill
v HSBC Bank plc
where he doubted that there was in Jersey law a positive duty of disclosure in
pre-contractual discussions. Having found that the plaintiffs must have
understood to a very large extent what the defendant intended to do with the
site, and what was meant by the term “cottage industry”, the court
found that there was neither dol nor dol par reticence.
the court considered the authorities relating to the cancellation of a lease.
It was found that a number of breaches of contract had taken place but the court
was content to order the rectification of all unauthorised works. The breaches
were not sufficiently serious to order the cancellation of the lease. The case
is a useful analysis of the relevant case law and jurisprudence.
Centenary of the Sex Disqualification (Removal) Act
6 On 23 December 1919, not quite six months
after the signing of the Treaty of Versailles bringing World War I to an end,
the Sex Disqualification (Removal) Act 1919 received Royal Assent. The Act
remains on the United Kingdom statute book, now supplemented by many more
pieces of legislation combatting inequality and discrimination.
7 Section 1
of the Act provides that—
“A person shall not be
disqualified by sex or marriage from the exercise of any public function, or
from being appointed to or holding any civil or judicial office or post, or
from entering or assuming or carrying on any civil profession or vocation, or
for admission to any incorporated society (whether incorporated by Royal
Charter or otherwise) . . .”
Section 2 (now repealed and
replaced by later legislation), provided that women were to be permitted, for
the first time, to be admitted as solicitors.
8 By s 3
nothing in the statutes or charter of any university was to preclude university
authorities from providing for the admission of women.
9 It seems
extraordinary today that such legislation ever had to be made, let alone just
100 years ago. It is therefore serendipitous that the centenary of the 1919 Act
coincides with the announcement on 2 September 2019 by the Lieutenant Governor
of Guernsey that the next Deputy Bailiff will be Advocate Jessica Roland of
Mourant Ozannes, in succession to Richard McMahon who becomes Bailiff. She will
take office in May 2020. We wish Advocate Roland every success in her new role.
The announcement has been received warmly.
Guernsey is looking to introduce far-reaching anti-discrimination legislation
which is currently at the public consultation stage. It is proposed that a
combination of the Irish and Australian legislation would provide the best
model to work from to meet Guernsey’s needs. The protected grounds would
comprise age, carer status, disability, marital status, pregnancy or maternity
status, race, religious belief, sex, sexual orientation, and trans status. The
proposals have already generated lively debate. The technical draft proposals can
be found here: https://www.gov.gg/CHttpHandler.ashx?
11 The world has
moved on a long way in a century.