MISCELLANY

25 years on—and a new era dawns

1 25 years ago, at the beginning of 1997, the Jersey Law Review was launched. The object of the Review, as set out in the constitution, was recorded as “the development of the law of Jersey and the encouragement of interest therein.” In 2007, the Review became a Channel Islands institution and changed its name to the Jersey and Guernsey Law Review. The above object has been moderated accordingly.

2 During the last quarter century, more than 300 articles have been published on subjects as diverse as the law of unjust enrichment, the Guernsey law of contract (and many aspects of Jersey contract law too), the limits of prescription criminelle, the promulgation of legislation and momentous decisions by trustees. The Editorial Board (“the Board”) has tried to embrace every aspect of the law, to record decisions and developments of historical importance, but also to look forward and to stimulate reform. As the Royal Court of Jersey stated in Selby v Romeril,[1] “Our law cannot be regarded as frozen in the aspic of the 18th century”.[2] The law and legal systems must constantly reform and refresh themselves to serve the needs of their communities.

3 Many distinguished authors have written for the Review. Law Lords and members of the Supreme Court, such as Lord Bingham of Cornhill,[3] Lord Walker of Gestingthorpe,[4] and Lord Hope of Craighead[5] have contributed. Academics such as Professor Sir Roy Goode,[6] Dr Paul Omar (many times),[7] Professor Rosalie Jukier,[8] Professor Tim Thornton[9] and of course our own Professor Paul Matthews (prolifically)[10] have written. Judges of the Jersey and Guernsey Courts of Appeal and Royal Courts such as the Hon. Michael Beloff QC,[11] Richard Southwell QC,[12] Sir John Chadwick QC,[13] and Sir Michael Birt (often)[14] have shared their wisdom; and, of course, Law Officers and members of the legal profession in both Channel Islands have been the mainstay of contributions.

4 The Board would like to think that the Review occupies an important place in the jurisprudence of both Bailiwicks.[15] It is an unusual publication in the sense that there is, to our knowledge, no other comparable periodical in the offshore world. The Channel Islands are themselves unusual in having legal systems which derive historically not from the common law of England, but from the customary law of Normandy. In his Foreword to the first issue in 1997, the Editor wrote in terms which are equally applicable to Guernsey—

“Jersey’s legal system is part of its cultural heritage. Without a separate legal system the Island’s cherished quasi-autonomous status would not have emerged. Few would wish to turn back the clock and to rely upon ancient legal doctrines relevant only to a primitive agricultural economy which has disappeared. But it is possible to modify the customary law to reflect the needs of contemporary society.”

5 Both Islands occasionally struggle to modernise the customary law instead of yielding to the easy expedient of copying the law of England. Guernsey is particularly prone to that temptation. A former Bailiff, Sir de Vic Carey, lamented in the Review the wholesale sweeping away of a large part of the customary law of succession, apparently without much consideration of the consequences.[16] One of the functions of the Review is to show that it is possible to reform without abandoning the principles and structure of the customary law.[17]

6 More fundamentally, as mentioned in the Foreword above, a functioning separate legal system is the foundation of the Islands’ constitutions. Had King John not decreed, in or about 1204, that Jersey and Guernsey were to be governed by their own laws, our constitutional autonomy would not have developed in the way that it did. We believe that the rich diversity of our legal heritage is something to be nurtured and protected. Legislators should be more aware, but the primary duty falls upon the lawyers and judges practising in the Bailiwicks.

7 This milestone in the life of the Review coincides with the end of the second Elizabethan era. The death of Her Majesty Queen Elizabeth II on 8 September 2022 leads us to mourn a monarch whose long and full life was an example of unparalleled service and blessing. On Sunday 11 September 2022, her eldest son and successor, Charles III, was proclaimed King in moving ceremonies in St Helier and St Peter Port. The loyal toast is now “Le Roi, notre Duc”. Dieu sauve le Roi!

Toutesfois et quantes et à tous usages

1 It sometimes happens that a word or phrase in common technical usage is so familiar to professionals that, in the event of dispute as to its meaning, it is difficult to find authority for the common view. So it is with the phrase “à tous usages” which was (until the change to the language of conveyancing in Jersey from French to English in 2006) very familiar to all Jersey lawyers and conveyancers. The phrase is used to describe the ambit of a servitude—usually, but not always, a right of way.

2 The words constitute a conveyancing term of art in Jersey but none of the usual authorities offers much guidance as to its meaning. The phrase is not interpreted in Matthews and Nicolle’s The Jersey Law of Property,[18] Le Gros’ Droit Coutumier de Jersey,[19] Le Geyt’s Privilèges, Loix et Coustumes de l’Ile de Jersey,[20] or Poingdestre’s Les Lois et Coutumes de l’Ile de Jersey.[21]

3 The dispute as to the meaning of the phrase emerged in argument between counsel in a hearing before the Court of Appeal in Colesberg Hotel (1972) Ltd v Alton Hotel Ltd.[22] Planning permission had been obtained to build 24 flats on the field which was the dominant tenement. The servitude in question was created by a contract of 1871 and was a right of way over a private road leading to the field which could be exercised “toutesfois et quantes et à tous usages”. Counsel for the appellant submitted that à tous usages meant “by all methods” or “means”. Counsel for the respondent contended it meant “for all purposes”.

4 The Royal Court had stated—

“The manner in which the right of way may be exercised is certainly embraced by the phrase ‘à tous usages’ so that the beneficiary of the right may use it on foot or by vehicle as he sees fit. But it means more than that; it means that he may use it for transporting persons, materials or supplies or, generally, for any purpose reasonably incidental to the enjoyment of his land.”[23]

Southwell JA in the Court of Appeal disagreed, although he did not find it necessary for the disposal of the appeal to determine what the phrase did mean.

5 The Court of Appeal had two concerns. The first was that, if the phrase meant “for all purposes”, then servitudes could be used for purposes which could not possibly have been in contemplation at the time when the servitude was created. Arguably, this could have devastating consequences for the servient tenement. The second was that, if the phrase meant “by all methods”, then it conferred on the owner of the dominant tenement no permission to use the servitude except for such limited purpose or purposes as could be derived from the context of the contract and from the relationship of the dominant and servient tenements. That might be very limiting and affect the use of servitudes.

6 In Morgan v Heaven,[24] a recent case where neighbours had fallen out over the use of a right of way over land, these alternative constructions of the phrase “à tous usages” were again under the spotlight. Unfortunately, the court was again able to avoid clarifying the issue because the right of way did have an express purpose—a right to go to and come from the public road to a garage and a field. The dispute concerned practical difficulties in exercising that right of way and the court was able to solve that dispute without grasping the nettle of “à tous usages”.

7 Without expressing a view on the conflicting possible interpretations of the phrase “à tous usages”, it does seem that the Court of Appeal in the Colesberg Hotel case did not attribute much weight to the general principles of the law of servitudes as limiting factors. The court thought that if the phrase meant “for all purposes”, the roadway owned by Colesberg “could have been used for the purposes of, for example, a multi-storey car park”.[25] That might have come as an unwelcome surprise to the servient tenement. Indeed, but what of the principles that a servitude must be used civiliter (minimizing inconvenience to the servient land) and, more importantly, that a servitude should not be subject to aggravation? A multi-storey car park should at least raise the possibility of an argument that the all-purpose ambit of the servitude envisaged by the phrase “à tous usages” did not embrace such an excessive extension of the original purpose and was an aggravation.