The Role of the Children’s Guardian when a Parent chooses to remain silent

In recent years, a parent has sometimes chosen not to give oral evidence in care proceedings and the Jersey Court has been deprived of hearing and seeing that  parent in the witness box.

One can understand why that parent’s lawyer might have given advice not to expose oneself to cross-examination, but it’s not a good result for the child and poses problems for the Court.  How do you deal with the concerns surrounding that parent for instance?

As was stated in Re S (A Child) (Costs: Care Proceedings) [2015] UKSC 20 at para.21 – [2015] 2 FLR 208: 

It would be difficult indeed for a court to decide how to secure that the child has a meaningful relationship with each parent without hearing from them both. It would be difficult indeed for a court to decide the best way of protecting a child from the risk of harm without hearing from her parents and those whose task it is to protect her. “

In some cases, where there is clear accusation against a parent, it might be possible for the Court to conclude that the accusation is true, or at least to draw an adverse inference from the failure of that parent to give evidence: Re O  (Care Proceedings: Evidence) [2003] EWHC 2011 [2004] 1 FLR 161. However, in other cases, it might be more difficult to draw a particular inference where there is no central allegation, or the issues  are more nebulous and less clear cut.

Re S answers the problem as follows:

“That is why parents are compellable witnesses in care proceedings, even when it is alleged that they have committed criminal offences.”

But who should call a reluctant parent to give evidence? In Re Y & K [2003] EWCA Civ 669 at para.35 it was suggested that the Guardian acting for the child should do so:

 “……parents can be compelled to give evidence in care proceedings; they have no right to refuse to do so; they cannot even refuse to answer questions which might incriminate them. The position is no different in a split hearing from that in any other hearing in care proceedings. If the parents themselves do not wish to give evidence on their own behalf there is, of course, no property in a witness. They can nevertheless be called by another party if it is thought fit to do so, and the most appropriate person normally to do so would be the guardian acting on behalf of the child.

Another reason why one should have both a Guardian and a lawyer acting for a child I hear you say!

Article 74 of our Children (Jersey) Law reflects the UK  position in that a parent cannot refuse to answer a question in the witness box, but there is some protection from prosecution as any admission cannot then be used in evidence in any criminal proceedings.

The above authorities were recently brought to the attention of the Royal Court where one parent had initially refused to give evidence in care proceedings; the Royal Court remarking that it had become quite common for parents to decline to go into the witness box. As it turned out, the parent then reconsidered their position and thankfully gave live evidence. It is to be hoped that Royal Court will touch upon the issues when giving judgement.

 

Royal Court moves Jersey’s contract law in the right direction

A recent decision of the Royal Court has held that when determining whether or not parties have consented to entering into a contract and as to the terms of that contract, an objective test should be applied by the Court rather than what each party might have privately intended.

Le Cocq, Deputy Bailiff so found in Calligo Ltd v PBS CI Ltd [2017] JRC 159, holding that it would “be unsatisfactory, if adopting the subjective approach, to reach a result where a party to a contract who believes that he has entered into a binding arrangement finds that it is of no effect because of some unknown but private intention of the other party.” The Deputy Bailiff further stated that it was important that Jersey law was developed to achieve “clarity and certainty.”

In following the postscript raised in Home Farm Developments Ltd v Le Sueur [2015] JCA 242 on this point, the Royal Court has not followed the criticism expressed on that postscript by a former judge of the Royal Court in the Jersey & Guernsey Law Review: https://www.jerseylaw.je/publications/jglr/Pages/JLR1606_Bailhache.aspx

In the view of our legal practice, this decision is to be welcomed. It can sometimes feel that areas of Jersey law are maintained like an historic building and despite the fact that it becomes wholly unsuitable for the residents seeking to enjoy it. A little updating will only improve the fabric of our law and give it the strength to last.

The irony of seeking out life in space: a self-fulfilling quest?

We don’t yet know how life evolved on Earth, but there are theories that it started with the most basic of microbes. Despite our lack of knowledge as to what happened on Earth, we are fascinated with discovering new life in our solar system. There may, however, be a great irony in this quest that has so far failed to find life.

There is no absolute way of ensuring that the spacecraft we send up are free from Earth’s bacteria. Certain microbes have been shown to survive in the vacuum of space despite all care being taken to create sterile conditions while creating the craft. There are already thousands of pieces of man-made debris floating about space. So as to avoid further pollution and  interplanetary contamination, the Cassini probe was recently allowed to burn up in the atmosphere of Saturn.

The irony may be that in seeking out life, all that mankind has done is sow the future seeds of life beyond Earth in the form of microbes. Like the bur that gets caught in animal fur or feathers, or seeds that are ingested, we are, in effect, simply dispersing the seeds of life into space. Who knows what might then develop given time? Seeking out life, may ultimately turn out to be a self-fulfilling quest.

Improving Outcomes for Children Caught in Jersey Care Proceedings

The United Nations Convention on the Rights of the Child was extended to Jersey in 2014. Article 9 requires that children who may be separated from their family are able to “participate” in such proceedings and to make their views known. Article 12 also requires that they have the right to be heard. How do we reflect these important rights in care proceedings in Jersey?

Despite the emphasis given in Jersey judgments (Re B (Separate Representation of Minors) 2010 JLR 387, W.Bailhache, Deputy Bailiff)  as to how the representation of children in England is so radically different to that under our own Children (Jersey) Law 2002, the argument made in this article is that the Courts in both Jersey and England enjoy some statutory latitude in the appointment of a Guardian and lawyer to act for children in care proceedings. However, the approach in each jurisdiction to that latitude is indeed quite different. My argument is that this is more to do with the view held by the Courts on the value or significance of a Guardian and lawyer acting for a child and has little to do with the actual laws and regulations themselves.

In England, the Court is not obliged to appoint a Guardian to act for a child in care proceedings if satisfied that the child’s interests will still be safeguarded. (s.41 Children Act 1989 – see exact wording in F1 below.) The fact is that it is wholly exceptional for it to find that the child’s interests can be safeguarded without a Guardian and so such an appointment is routinely made.

The Guardian then has to appoint the lawyer. So if a Guardian is not appointed, then the child will also not have a lawyer unless the Court decides to appoint a lawyer under s.41(3) of the Act, where certain conditions must first be satisfied.

In Jersey, even if a Guardian is appointed by the Royal Court (which is by no means certain) it remains the Court that has control over the appointment of a lawyer for the child and the Guardian will be required to apply to the Court for such appointment. This can mean that the Jersey Guardian & child are without a court lawyer pending an application being determined and also, as we shall see, are not necessarily guaranteed that the Court will go on to make such appointment. Fortunately, at least, there is the availability of ad hoc legal advice for the Guardian which mitigates the position to an extent.

It is correct that in Jersey, such power of appointment under article 75 of our 2002 Law, is not quite as detailed as in England, but it might well be seen as wrong for a Jersey Court to dispense with a Guardian in care proceedings unless making a clear finding that it was satisfied that the child’s interests could still be safeguarded and giving reasons as to how it came to that conclusion.

Such a view is bolstered by the opening words to our article 75 that refer to making an order where it is “desirable in the interests of a child to do so.” Although the paramountcy rule does not apply, the exercise of this power to appoint a Guardian or a lawyer, remains welfare based.

Is it not always – or almost always – both desirable and in the interests of a child to have a Guardian and a lawyer appointed? If we are being true to our Jersey statute, I suggest it is a low threshold before the Court should  appoint a guardian, and indeed a lawyer, for a child in care proceedings.

In short, while the Jersey Courts enjoy a discretion, can it be right that a child in Jersey does not need a Guardian or a lawyer, but in care proceedings in England, that same child would almost always have both as being necessary to safeguard his/her interests? What added protections do we have in Jersey that makes us able to dispense with a Guardian or lawyer for children while in England it’s considered necessary?  .

Appointing a Guardian or a lawyer for children caught up in care proceedings in Jersey has come rather late, emerging as a practice around 2008, and to the great credit of our judiciary in Jersey, has really been grafted onto the Children (Jersey) Law 2002. The reality is that article 75(1)(b) of the Law merely refers to a person “to assist & befriend” a child and the appointment of a Guardian has been shoehorned into this provision by the decision in Re B. It is, in fact, such an uncomfortable fit that a different judge (Birt,Bailiff) in Re Q 2011 JLR 147 (para.26) was receptive to the idea that a different statutory provision might in fact govern the position: article 75(1)(a).

By reason of this grafting process, the Guardian in Jersey actually enjoys no legal right to look at files held by the Minister and there is no statutory framework specifying the Guardian’s duties – something that is often overlooked in practice. This is in contrast to the express provisions applicable in England. If the child is also not made a party to the proceedings (which Re B suggests could be the case) then the ability of the child to participate from a technical, legal basis must also be questionable, even with a person “assisting and befriending.” It is arguable that this might be a breach of the United Nations Convention on the Rights of the Child that has since been ratified in Jersey. In the recent case of Re Bradley [2017] JRC 126, the Royal Court suggested otherwise, but the point was described by the Judge as being “dangled” and was an argument for another day. See FN2.

So what importance is placed upon the Guardian and Lawyer acting for a child in England?

Recent Court of Appeal cases in England have emphasized the importance of children that are subject to care proceedings having both a guardian  & a lawyer appointed to protect and further their interests. AMcC v The London Borough of Wandsworth [2017] EWCA Civ 398 reiterated the view held earlier by both the Court of Appeal & High Court in R & Others v Cafcass [2012] EWCA Civ 853 as follows:

“No detailed analysis of this statutory regime is necessary. The provisions speak for themselves. All we need say is that the children’s guardian is on any view pivotal to the whole scheme. The guardian is both the voice of the child and the eyes and ears of the court. As any judge who has ever sat in care cases will be all too aware, the court is at every stage of the process critically dependent upon the guardian. In a jurisdiction where the State is seeking to intervene – often very drastically – in family life, the legislature has appropriately recognised that determination of the child’s best interests cannot be guaranteed if the proceedings involve no more than an adversarial dispute between the local authority and the parents. Parliament has recognised that in this very delicate and difficult area the proper protection and furthering of the child’s best interests require the child to be represented both by his own solicitor and by a guardian, each bringing to bear their necessary and distinctive professional expertise.

What I find puzzling is if the experience in England is that a Guardian is “pivotal” and that both a Guardian and a lawyer are almost always necessary in care proceedings to protect and further that child’s interests, how do we manage in Jersey to justify not appointing a Guardian in care proceedings, or appointing a Guardian but then declining to appoint a lawyer? The two positions are surely at odds with each other.

There are also actual instances in Jersey where Guardians have applied for a lawyer to be appointed & for the child to be made a party to the proceedings, but the Royal Court has refused the application. Unfortunately, those instances have not been subject to an appeal or to a detailed judgment. Most probably they have been dealt with in a summary fashion but one such judgment may suffice.  In Re T [2011] JRC 098 at para.8-9, W.Bailhache, Deputy Bailiff appears to have appointed a Guardian at the hearing of an interim care order, but despite the request of the Minister, then refused to join the 10 year old child as a party, or grant the child legal representation. The Judge held that, at that stage, there was no evidence as to whether or not the Guardian could deal with the matter without a lawyer. The Minister had submitted that delay in the progress of proceedings might be caused were an application required at a later date but the Judge was not persuaded and cited Re B.

At a time when there is a drive in other jurisdictions to fortify the rights of children even before proceedings actually commence, the approach in Re B is a regressive policy which, in effect, creates a blanket prohibition on lawyers acting for children in the early stages of care proceedings.

My worry is that there may also be Guardians that are reluctant even to make an application out of concern of the reaction of the Court.

The Guardian in the Re B case (2010 JLR 387 at para.5) for example, received a rather hostile account in the judgment for not “undertaking her duties in the absence of a lawyer for the child” and being “familiar with UK law and practice and..uncomfortable with any other system….[but] it is our legislation that should drive domestic practice.” This judgment was handed down & published without prior circulation in draft. This criticism was rather unfair. For two years until this point, the previous practice of the Royal Court (in particular Bailiffs Philip Bailhache, and Michael Birt) had been to follow the UK and appoint a Guardian and lawyer for the child. It was the judgment in Re B that suddenly declared a wholly different approach. The Guardian (and her line-manager) – the former appointed by the Royal Court for her experience from the NSPCC- could be forgiven for not anticipating a new direction. However, their concerns were justified and did not deserve the apparent criticism that they received in this judgment. I respectfully suggest that we need to be a bit careful in not influencing Guardians in their duties, and particularly the majority of Guardians that live and work in Jersey, where the impact of perceived criticism might be felt more acutely. At the end of the day, we all want what is best for all Jersey children and particularly those that are at risk of harm and subject to care proceedings. A healthy debate on such issues is necessary so that we keep on our toes, looking for improvements.

I suggest that the value that English practitioners and Judges place upon a Guardian and lawyer both acting for children caught in care proceedings, speaks volumes. Given the recent Abuse Inquiry Report, perhaps an outside consultant should audit our current approach to children caught in care proceedings and at least give us the reassurance that it is working as well we would hope? In the meantime,  an appeal in a suitable case may give cause for the Jersey Court of Appeal to hear argument on the issues raised in this article; the Court of Appeal not yet having been seized with an appeal that has been directly on point. FN3.

F1 –  “the court shall appoint [a Guardian]  for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.”

F2– Note that Jersey has ratified the UNCRC which requires the child to be able to participate in care proceedings. This should at least influence the exercise of discretion by the Court.

F3The appeal in Re D 2011 JLR 220 was on whether or not a Guardian could be appointed outside care proceedings. The general approach articulated in Re B was not therefore at issue and regrettably was not challenged.

Report of The Independent Jersey Care Inquiry

This important and impressive piece of work can be accessed on the following link: https://ijci-public.sharepoint.com/Pages/Final-Report.aspx

Appointed as Guardian ad Litem of the X and Y children, Advocate Hanson was pleased that the children that he represented were able to express their voices as part of this Inquiry. Below is the headnote from a reported decision of the Royal Court permitting the children to give disclosure of valuable reports to the Inquiry. (The children’s report is in fact quoted with approval by the Inquiry & so turned out to be particularly helpful.)

For a summary as to why it is so important for children to be legally represented when they are the subject of legal proceedings see also the following article by Hanson & Corbett “The Voice of the Jersey Child” https://www.jerseylaw.je/publications/jglr/Pages/JLR1102_Hanson.aspx

 

[2015 (2) JLR 126]
X CHILDREN v. MINISTER FOR HEALTH AND SOCIAL SERVICES
ROYAL COURT (Scriven, Commr.)December 8th, 2015
Family Law—children—confidentiality of documents—disclosure—in children’s action against Minister for Health and Social Services concerning child abuse and neglect expert reports subject to implied undertaking of confidentiality—disclosure ordered of anonymized reports to Independent Jersey Care Inquiry—factors considered
    The plaintiffs brought proceedings against the Minister for Health and Social Services for negligence and/or breach of a duty of care.
    The plaintiffs brought claims against the Minister for Health and Social Services alleging failure to protect them from sexual, emotional and physical abuse and neglect which they suffered as young children. The Minister admitted that the plaintiffs had suffered abuse and neglect but denied negligence. In the course of the proceedings, both parties obtained expert reports.
    In 2014, the Independent Jersey Care Inquiry, which was established by the States of Jersey to investigate historic child abuse on the Island, sought disclosure of the experts’ reports for use in its investigations into the Jersey child protection system. In October 2014, the court granted leave to disclose the reports in a redacted form which preserved the anonymity of the plaintiffs and any other minor children referred to.
    The experts subsequently provided further reports of which the Inquiry now sought disclosure. It wished to consider the reports as part of its investigation, to make them available on its website and to be able to use them as it saw fit in accordance with its remit. The plaintiffs consented to the Inquiry’s request provided the reports were anonymized.
    The Inquiry submitted inter alia that when deciding whether to permit disclosure of the reports, the factors to be considered included: (a) the function of the Inquiry to elicit and make publicly available relevant evidence; (b) the plaintiffs wished the reports to be disclosed; (c) disclosure was in the plaintiffs’ interests as the commentary provided a history of social services involvement and, in assisting the Inquiry, helped to set out any lessons that could be learned; (d) there was a public interest in furtherance of the Inquiry’s function that the reports were made public and this was an important case study; (e) the children’s identities would be protected; and (f) any concerns that the proper function of Children’s Services would be undermined by disclosure were overtaken by the scope of the Inquiry’s public evidence to date—the functioning of Children’s Services was already under scrutiny. The reports were not subject to an implied undertaking of confidentiality.
    The Minister opposed the disclosure of the reports and the publication and use of the reports previously disclosed. He submitted inter alia that disclosure was not justified because (a) the reports had not been tested in court; (b) the usual rules as to the use by a third party of documents within a civil claim applied, i.e. there was an implied undertaking that the documents would not be used for any other purpose by the other party or parties (there was a right of confidentiality in the relevant material); and (c) the court could override any such implied undertaking or right of confidentiality but the balancing exercise in the present case came down in favour of refusing the Inquiry’s request because (i) the terms of confidentiality under which the reports were created and disclosed must have led to an implied undertaking that they would not be used by the other party or a third party; and (ii) the Inquiry could obtain all of the information contained in the reports by other means, apart from the experts’ opinions which were not relevant.
    Held, ordering as follows:
    (1) The further expert reports would be disclosed to the Inquiry, subject to redaction and anonymization. The court had a discretion as to whether it should order disclosure of the reports. When deciding whether disclosure was justified, the court had to take into account the various competing interests, both public and private. The court would consider: (a) the welfare of the children concerned; (b) the welfare of other children generally; (c) the maintenance of confidentiality; (d) the importance of encouraging frankness; (e) the public interest in the administration of justice, and co-operation between judicial bodies and agencies concerned with child protection; (f) the public interest in the prosecution of serious crime; and (g) any material disclosure that had already occurred. The consent of the children to the disclosure of the information was also relevant, although not determinative. An undertaking of confidentiality would be implied in the present case because the proceedings involved sensitive information concerning the plaintiffs and had been structured so as to protect their privacy and safeguard their interests as publicity was likely to result in further harm to them. The material sought was relevant to the work of the Inquiry (this was not, however, the test for disclosure). Although the reports had been prepared for the purposes of the negligence claim against the Minister, much of their content dealt with matters which the Inquiry was obliged to investigate under its terms of reference. The fact that the evidence had not been tested in court did not affect its relevance and the Minister, as an interested party, would be able to make representations to the Inquiry as he thought fit. Disclosure of the reports was not prevented by confidentiality; the plaintiffs’ identities could be
protected by anonymization and redaction. Furthermore, although much of the sensitive material in the reports had been produced by the Minister under the requirements of disclosure in the negligence proceedings, that information would in any event be available to the Inquiry in its original form. Disclosure was in the interests of the plaintiffs, as demonstrated by the fact that two of them had stated that they wished the reports to be disclosed, and disclosure posed no risk to their welfare as the reports would be carefully anonymized and would also be subject to the Inquiry’s protective procedures. Disclosure was in the interests of children generally. The Inquiry had a public function of great importance: the furtherance of child protection in Jersey. Co-operation between the various agencies concerned with child welfare was important. It would be contrary to justice for information relevant to the subject matter of the Inquiry to be withheld from it. The court paid full regard to the importance of encouraging frankness in such cases. As the earlier reports had already been disclosed to the Inquiry without objection, it would be unsatisfactory and potentially misleading to refuse disclosure of the later reports. For all these reasons, the balance came down firmly in favour of disclosure of the reports, suitably anonymized (paras. 37–64).
    (2) No restrictions would be placed on the Inquiry’s use of the reports, as they would be redacted before being given to it, and it would also implement its own protective protocols and procedures. The Minister would, further, be able to make representations to it regarding the use of the reports. In an appropriate case, however, restrictions on the use of disclosed material might be justified in order to strike a balance between the public interest in disclosure and confidentiality (para. 65).
Cases cited:
(1)      Appleton v. Gallagher, [2016] E.M.L.R. 3; [2015] Fam. Law 1473; [2015] EWHC 2689 (Fam), dicta of Mostyn, J. considered.
(2)      C (A Minor) (Care proceedings: Disclosure)Re, [1997] Fam. 76; [1997] 2 W.L.R. 322; [1996] 2 FLR 725; [1996] 3 F.C.R. 521, dicta of Swinton Thomas, L.J. applied.
(4)      Prudential Assur. Co. Ltd. v. Fountain Page Ltd., [1991] 1 W.L.R. 756; [1991] 3 All E.R. 878, dicta of Hobhouse, J. considered.
(5)      XIn re, 2003 JLR 111considered.
(6)      X (Children) (Disclosure of Judgment to Police)Re, [2015] 1 F.L.R. 1218; [2014] EWHC 278 (Fam), considered.
(7)      X ChildrenRe, [2008] 1 FLR 589; [2008] Fam. Law 23; [2007] EWHC 1719 (Fam), considered.
T.V.R. Hanson for the plaintiffs;
D.A. Corbel for the defendant.

Some Clarity At Last? Judges Still Grapple With The Direction of Jersey’s Contract Law.

Judges in Jersey continue to struggle to find consistency in developing Jersey’s contract law. There has been a difference in approach in the last 15 years, with some Judges being critical of drift towards English contract law and seemingly believing that it may be better discovered in the textbook by Barry Nicholas called The French Law of Contract (1992 ed) which is frequently quoted.  Having rejected the apparent “heresy” of picking up Chitty on Contracts it sometimes appears that this readable softback by Nicholas, in fact has all the answers. In my early days, at least, practitioner books were not authority in themselves and mere textbooks rarely found a place in any judgment. Perhaps in smaller jurisdictions, however, a more flexible approach is justified.

Nonetheless, I have long found it surprising how much weight appears to be attached to Nicholas in Jersey, not only because it is a mere textbook, but because he is dealing with contemporary law that is foreign to Jersey. It sometimes feels that we have just swapped one book, that was a bit suspect, for another, although the latter may make up for our paranoia of having anything that looks like English law. Were that to happen, articles suggest we might suddenly lose our “identity;” it apparently being so fragile that we must ensure some difference. That might not be so bad if it were not litigants having to pay the price for this experimentation. We should be grateful, therefore – and it seems to be much overlooked- that we already have a degree of certainty in contract law from the Supply of Goods and Services (Jersey) Law 2009 and associated regulation of unfair terms. Has this not set the proper direction of travel for Jersey’s contract law?

The recent case of Hong Kong Foods Ltd v Gibbons [2017] JRC 050 reviews the muddle that has occurred.  This case considered whether Jersey contracts are void ab initio or voidable for innocent and negligent misrepresentation; some previous Jersey cases having built upon French concepts of nullité and vice du consentement to suggest that they are completely void. For the reasons set out by Commissioner Birt in this case, past enthusiasm to develop Jersey law seems to have led us down this path, but under proper analysis it is not consistent with writers that we do consider to be of authority in this area such as Le Geyt or Domat whereby the contract would be considered voidable only. Far from being loyal to our roots, certain Jersey cases have taken us on a bit of a foreign frolic. Commissioner Birt was right to emphasize the potential consequences of an alternative finding to the one he made but, with respect, there were a number of additional reasons that support his conclusions.

The case may, however, be going to appeal, with time to make such an application being extended by William Bailhache, Bailiff in [2017] JCA 082. It is fair to note (from existing judgments if nothing else) that the current Bailiff is (like the former Bailiff, Philip Bailhache) receptive to the idea of developing Jersey contract along the “French” route disapproved of at first instance in the Hong Kong Foods Ltd case. Indeed, there may be other supportive judges in the Jersey Court of Appeal (such as James McNeil QC – a Scottish lawyer) who has been sympathetic to Jersey’s roots. (See for example the Rockhampton case.) Nevetherless, as the Bailiff seemingly summarised when extending time to appeal, the direction of Jersey’s contract law may just depend upon the way the court is constituted: “It is clear that no particular points of law seem to be being urged on this appeal although it is not impossible that different judges would take different views about the content of the Royal Court’s judgment particularly in relation to misrepresentation and at some point, it does not arise on this appeal, but at some point it would be desirable for that issue to go before the Court of Appeal.”

Given the Hong Kong case, and a possible appeal, I set out below an article that was published in South Africa and also elsewhere as part of a consideration of the creation of European contract law, and given the growing interest internationally in mixed jurisdictions. You will find an analysis in section 3 of the area considered in Hong Kong Foods Ltd v Gibbons and a number of additional reasons that anticipate the approach taken by Commissioner Birt in that case.

COMPARATIVE LAW IN ACTION: THE JERSEY LAW OF CONTRACT

reproduced by courtesy of the Stellenbosch Law Review

(volume 16 no 2 (2005) pp 194-209)

Timothy VR Hanson

LLB (Hons)

Advocate of the Royal Court of Jersey & Barrister-at-Law

 

1          Introduction

 

The Islands of Jersey and Guernsey may fairly be said to deserve more attention from comparative lawyers than they currently receive. Both Islands have what may be described as a mixed legal system, where English and Continental legal traditions are frequently seen to merge. This feature makes them particularly interesting for the study of comparative law.[1] Further, given the current drive towards the development of a European contract law, legal systems that manage to reconcile, successfully, the inherent tensions of a mixed legal system, may even merit imitation in such a grand design. This article examines the current debate in Jersey (being the largest of the Channel Islands) as to the evolution and future direction of its contract law. In grappling with the “identity” of this Island’s contract law, this debate reveals the variety of legal influences that have helped shape Jersey’s law to its current form. In order better to understand this debate, however, it is first necessary to say a little more as to Jersey’s geographical and constitutional position, as well as to sketch out the origins of its law.

The Bailiwick of Jersey lies sixteen miles due west of the Cherbourg peninsula of France and 120 miles south of England. It has a total surface area of some 45 square miles and a population of approximately 87,000.[2] It owes allegiance to the English Crown dating from the 11th century when the Crowns of England and France (including the Duchy of Normandy of which the Channel Islands formed part) were united. Successive English monarchs and governments have granted rights and privileges to the Island, which result in Jersey having a right to govern itself on all internal domestic matters. To this end, the Island has a single chamber legislative body known as the States of Jersey, which passes all domestic legislation subject, in the case of primary legislation, to the approval of Her Majesty in Council. The Island is part of the British Isles, with an overwhelming majority of English speaking inhabitants,[3] but is not a part of the United Kingdom. Jersey is, further, neither a separate member State nor an associate member of the European Union, but nevertheless enjoys the benefit of certain rights conferred by paragraph 227(5)(c) of the Treaty of Rome 1957.[4]

 

2          The origins and development of Jersey law[5]

 

The Channel Islands were part of the Duchy of Normandy until 1204 when, historically, they are regarded as becoming “separated” from France upon the English Crown’s loss of continental Normandy. Both prior to 1204 and for a significant time thereafter, Jersey’s law essentially consisted of Norman customary law. This had already formed into a definitive oral body by 1090 and came to be expressed in written form by about 1200 in two separate treatises together known as Le Très Ancien Coutumier de Normandie. Subsequent evolution of this customary law took further written form in a version known as Le Grand Coutumier or Summa de Legibus in about 1250. Subject to certain local customary variations, this appears to have been the version that the Islanders were still relying upon in the 14th century.[6]

In 1585, however, Normandy produced an official revised version of its customary law as a result of a Royal ordinance to this effect. This was known as the Coutume Reformée or Nouvelle Coutume. Whilst, in many respects, the Coutume Reformée did not radically differ from the Ancienne Coutume,[7] various parts did stem from Ordinances, decisions of the Cours de Parlement, or from the Coutume de Paris and, therefore, did not reflect Jersey customary law at that time. Nevertheless, despite the Coutume Reformée not being of direct authority in Jersey, it came to be “frequently used as books of reference”[8] in the Island owing to the absence of alternative sources of written law. Commentators upon Jersey law such as Poingdestre[9] (1609-1691) and Le Geyt[10] (1635-1716) both refer to the significant influence that the Coutume Reformée exerted upon Jersey law and the extent to which the Island came to assimilate, what Le Geyt refers to as “fashionable innovations”. The position is well summarised in a report of 1861 that was compiled by Royal Commissioners appointed by the English Crown to investigate the civil laws of Jersey. They stated that “the gradual introduction of much foreign matter” meant that:

 

“what is now practically received as the common law of Jersey, may be described as consisting of the ancient Norman law with subsequent accretions, some of which are mere developments of the earlier customs, and other interpolations of French law”.

 

As far as contract law was concerned, the customary law of Jersey frequently made no provision and the general practice was to turn to civil or Roman law for guidance.[11] In more modern times, this has led the Jersey Courts to pay high regard to the writings of Robert Joseph Pothier (1699-1772), the celebrated French jurist, and in particular to his Traité des Obligations and Traité du Contrat de Vente. The fact that Pothier also wrote upon, and frequently refers to the neighbouring customary law system of Orléans, increases the weight placed upon his works within the Channel Islands.  In contract matters, Pothier has, for example, been described as the “preferred”[12] authority and “a surer guide”[13] to the discovery of Jersey’s contract law. Nevertheless, where there is no previous decision of a Jersey Court upon a given contractual point, the Royal Court of Jersey explained in the case of Father Amy,[14] that it is not obliged to follow Pothier. The phrase “a surer guide” only means that the Court has “an inclination or predisposition to follow [such a] source” and is still free to choose to adopt into Jersey law a more appropriate legal rule should “policy” require it to do so.[15] As is examined in further detail below, such flexibility has been both a strength and a weakness in the development of Jersey’s contract law.

 

3          Development  towards the Code Civil

 

On 21 March 1804, the Code Civil des Français was promulgated by Bonaparte, Premier Consul, and eventually re-named in 1807 as the Code Napoléon. Pothier’s influence upon the content of the French Code Civil is acknowledged to have been so great that he has been described as “the father of the Code”.[16] Whilst careful scrutiny of the Code will reveal much that is consistent with Pothier’s works, or at least a development of his writings, it may be somewhat surprising to note the reluctance of the Jersey Courts to follow the Code when dealing with contractual disputes that have come before it. The case of Selby v Romeril,[17] however, represents one of the few modern authorities where the Royal Court did decide to develop Pothier’s writings when considering the essential constituents of a contract. Declaring that Jersey’s law “cannot be regarded as set in the aspic of the 18th century,”[18] the Royal Court adopted the constituents of a valid contract as set out in article 1108 of the Code Civil.

Any great enthusiasm for this approach, however, appears to have been quickly dampened by the Jersey Court of Appeal’s note of caution sounded in Public Services Committee v Maynard:[19]

 

“care has to be taken in referring to French legal texts in connection with the law of Jersey.  After the Channel Islands were severed from the rest of the Norman territories in what is now France, Norman customary law continued to develop in Jersey, Guernsey and Normandy in parallel, but not with identical developments.  In Normandy, development was naturally affected by doctrines prevailing in other parts of France.  The Napoleonic Codes embodied much of the pre-existing laws of the French provinces, but with some material changes.  After the Napoleonic Codes came into existence, French law developed independently of developments in Jersey and Guernsey, under the direction or influence of French statutes, French jurisprudential writers and the case law of the French courts.  Accordingly, no great weight can be placed on French law as it exists today in ascertaining what is Jersey law, except perhaps on a comparative basis as showing how the same problems have been treated in another legal system.”

 

Soon after this judgment, the Royal Court decided in Mendonca v Le Boutillier[20] that the principle enshrined in article 2279 of the French Code Civil (en fait de meubles, possession vaut titre: in the case of movables, possession gives title) was not part of Jersey law and, in fact, never had been. This decision appeared to justify all that the Court of Appeal had said as to the limited reliance that could be placed upon the Code Civil.

Whilst greater exploration of the Code Civil is something that should be encouraged in the Channel Islands, it is notable that the limited excursions into this area have already posed some difficulties. In Selby v Romeril,[21] for instance, the Court had to deal with the position where one of the essential constituents in a contract was absent. Whilst the Court found (properly) that the contract was, therefore, “null”, the Court appeared to go on and approve the distinction which exists in French law between defects in a contract that would render the contract an absolute nullity (nullité absolue) with those that would render it a relative nullity (nullité relative). According to such theory, for example, the lack of one of the essential elements enshrined in article 1108 of the Code Civil would lead to the contract being an absolute nullity whereas a vice du consentement, namely, mistake (erreur), duress (violence) or fraud (dol) would render the contract a relative nullity. In either event, however, the contract would be void ab initio. Otherwise, French law treats each of the types of nullity differently, inter alia, by applying separate prescriptive periods to any resulting action en nullité. A number of subsidiary rules are of further relevance in this context, notably by protecting the interests of third parties, such as en fait de meubles, possession vaut titre (in the case of movables, possession gives title) which, as we have seen, is not part of Jersey law.

The danger with Selby v Romeril is that the distinction between a nullity that is “absolute” or “relative” is something that appears not to have been considered in any other Jersey reported case. Indeed, all other recent Jersey authority defines nullity in terms of contracts that are either void ab initio or merely voidable.[22] Given, further, the apparent absence in Jersey law of differing prescriptive periods for an absolute or relative nullity, and the further lack of other relevant rules, Jersey would appear to be ill equipped to adopt such concepts even if it chose to further develop the dicta in Selby v Romeril.[23]

More recently, in Steelux Holdings Ltd v Edmonstone,[24] a similarly constituted Royal Court sought to reinforce the position that had earlier been reached in Selby v Romeril.  In this case, the Royal Court was asked to adjudicate upon the validity of a promissory note that the defendant alleged had been procured in 1991 by a fraudulent misrepresentation on the part of the plaintiff. Both counsel agreed that the case should be analysed from the viewpoint of “misrepresentation” as considered in the English textbook of Chitty on Contracts. Such an approach was certainly supported by existing Jersey authority[25] with cases such as McIlroy v Hustler[26] stating that the basic ingredients for a misrepresentation were the same as under English common law. In fact, in McIlroy v Hustler,[27] the Royal Court had declared that:

 

“the principles enunciated by Domat and Pothier have much in common with the law of England relating to misrepresentation and mistake. In arriving at our judgment in this action, therefore, we have regard both to the civil law and to the law of England”.

 

In Steelux Holdings Ltd v Edmonstone, however, the Royal Court took an entirely different approach, both from this earlier authority and from counsel’s submissions:

 

“While English law and Jersey law may often arrive at the same conclusion in relation to the effect of a false or fraudulent misrepresentation upon a contract, the process of reasoning, and the route by which the journey is taken, are sometimes different. We find it necessary therefore to set out what we conceive to be the law in this area.”

 

The Royal Court went on to consider the case upon the basis that in the event that there had been a fraudulent misrepresentation, this would have constituted a “vice du consentement” or defect in the consent of the defendant to the obligations that she assumed under the promissory note. As referred to in Selby v Romeril, this would have constituted a “moyen de nullité” or cause of nullity of the agreement which, the Royal Court held, would have been “void ab initio.

Given the absence of “misrepresentation” as a discrete cause of action in French Law,[28] this very much represented a French analysis. Ultimately, however, the Court did not accept the defendant’s evidence as to the occurrence of the misrepresentation. Nevertheless, the case is of interest, not least because the Court appears to have eschewed the reference to the French concepts of nullité absolue and nullité relative that had earlier been adopted in Selby v Romeril. However, the practical consequence remained the same: had the defendant’s case been made out, the contract would have been void  ab initio.[29]

            Steelux Holdings Ltd v Edmonstone did not, however, deal expressly with the issue as to what limitation period would apply to a moyen de nullité and no such issue was raised upon the pleadings. In this particular case, it would have been arguable that as the cause of action was based upon dol or fraud, the action was “founded on tort” and therefore a period of three years would have applied, as in other tort actions in this jurisdiction.[30] Alternatively, the ten year limitation period that is applicable to contracts would have been relevant.[31] However, in either event, the particular limitation period would have been extended whilst the complainant was (despite all due diligence) unaware of the fraud.[32]

Similarly, no consideration was given in this case to the extent to which a moyen de nullité can be barred by the occurrence of certain events within the applicable limitation period, such as lapse of time or affirmation of the contract. Such matters certainly would have been relevant when considering rescission of a contract upon the basis of misrepresentation.[33] Presumably, with the Court in Steelux having concluded that a contract is void ab initio for a vice du consentement, it would seem to follow that only the expiry of the relevant limitation period — whichever period this might be — would bar such an action. In contrast, concepts such as lapse of time, affirmation, or creation of third-party rights would be relevant in contracts that are “voidable” only (as opposed to “void”) and which are valid until rescinded.

 

4        The Influence of English law

 

The influence of English law in Jersey can already be detected from the discussion above. Such influence became particularly marked from the 19th century but not across all areas of Jersey law.  In criminal law, English law has perhaps played its greatest role. As long ago as 1847, the Report of the Criminal Law Commissioners noted the frequent citation and use of English authorities in criminal cases at that time and, in 1936, the Privy Council was led to remark upon the development of Jersey criminal law towards “English models”.[34]  Similarly, the Jersey courts have adopted general principles of English law in tort to the extent that the majority in Picot v Crills[35] held that unless a separate Jersey rule had already been established, the decisions of the English Courts were binding.[36] In contrast, other areas of Jersey law, such as that relating to land[37] (propriété foncière) or succession,[38] have largely remained immune to the influence of English law. This is probably due to the fact that these aspects were already well entrenched in customary law and are so different to conventional English principle.

In matters of contract law, the approach of the Jersey courts has been somewhat inconsistent. English law has sometimes been applied but often without any proper analysis as to why this should have been the case.[39] On other occasions, the court has been quick to admonish counsel that Pothier was the more appropriate authority in this jurisdiction. The battle between these approaches is starkly illustrated by the recent debate as to how a contract in Jersey may be resolved or rescinded by reason of the other party’s breach.  In Hotel De France (Jersey) Ltd v The Chartered Institute of Bankers,[40] the Royal Court approached the matter according to French principle. It held that, absent the consent of the parties, the sanction of the Court was required so as to resolve a contract. This decision, however, sparked a debate amongst local practitioners as to whether or not this was correct and whether, in fact, extra-judicial termination of a contract in Jersey was permissible in accordance with the English doctrine of repudiatory breach.[41] Doubt was expressed upon the “French approach” in a further case,[42] but the issue was not finally dealt with until Hamon v Webster,[43] where the Royal Court decided to follow the English doctrine of repudiatory breach.[44]

 

5          Possible causes of  legal inconsistency

 

The inconsistency in approach to Jersey law, and particularly in the field of contract law, was the subject of a Conference in London on 2 July 2004 that was organised by the Jersey Law Review.[45]  During the course of the Conference, it was observed that over a period of several decades, from at least the 1970s, advocates had fallen into one of two camps: those who were prepared to “mine the rich lodes” of Norman and French law[46] and those who were content to agree that Jersey law was the same as English law upon the contractual point in question.[47]  One particular judge (Commissioner Page QC) indicated that advocates who had appeared before him, had all too frequently adopted this latter approach. As a consequence, it was accepted that English contract law had been adopted upon an ad hoc basis and that Jersey law had become increasingly confused in this area.[48]

It is, in fact, a fair criticism of Jersey counsel to say that he or she has sometimes found it easier to refer the Court to English texts such as Chitty on Contracts or Halsbury’s Laws rather than to conduct the more time consuming and expensive[49] research of writers such as Pothier or Domat. In part, this disinclination is the result of Jersey lawyers now receiving their University and postgraduate education in England rather than in France,[50] which is in marked contrast to the position that existed prior to the 20th century.[51] It is also true that since about the end of the Second World War, French has become a foreign language in the Channel Islands, thereby making a perusal of the old French texts that bit more onerous when compared to the ready availability of current English texts.[52]

Whilst counsel must shoulder some responsibility for the legal confusion generated by incorrect or inconsistent use of legal principle, it is the judges that make the ultimate decision as to the legal principle to be applied in any given case.  As the case of In the Estate of Father Amy shows, the Jersey Courts have deliberately adopted a policy of “cherry-picking” legal principle from differing sources. Given the frequent delay or absence of appropriate statutory intervention in the Islands, such judicial ingenuity has often been extremely important in developing Jersey law.[53] Nevertheless, such ingenuity has inevitably caused a degree of uncertainty as to what legal rule the Court might go on to apply in any particular case.

The drift towards English legal principle has further resulted from the particular make up of many of the judges who sit in Jersey.  At Royal Court level (which is comparable to the High Court in England) the full time judges are the Bailiff and Deputy Bailiff who will have practised as Jersey lawyers for many years prior to their appointment. Part-time judges known as Commissioners will also sit as required, but these will include a number of English Queen’s Counsel who have been selected for such role.[54] However, of more importance is the Jersey Court of Appeal, which since its creation in 1961,[55] has sat locally and at regular intervals throughout the year. The availability of this convenient tier of appeal (when compared to the expense and delay of an appeal direct to the Privy Council in London) has led to greater use being made of the appellate process. Since the judges of the Jersey Court of Appeal have, in practice, been drawn predominantly from the ranks of senior English lawyers,[56] it is suggested that this has inevitably made the Court process more amenable to the reception of English law. Indeed, the more recent application in the Channel Islands of principles emanating from the English Civil Procedural Rules, can be directly attributed to English lawyers sitting as judges of the Jersey Court of Appeal.[57]

 

6        The debate: “The Jersey law of contract: which way?”

 

As part of the Jersey Law Review Conference, three particular advocates put forward differing arguments as to the future direction of Jersey and Guernsey contract law.[58]  In respect of Jersey, the first speaker recommended codification favouring an English approach,[59] whilst the second speaker urged codification based upon Jersey’s existing roots in Norman and French law.[60]  The last speaker was a Guernsey advocate who suggested that Guernsey continue with its existing approach, being to follow Pothier and the Code Civil.[61] In reacting to such a recommendation, the second and third speakers’ appeal to follow Pothier implied that Pothier and English contract law must therefore be radically different. In some areas, there are, of course, important differences. For example, contracts in the Channel Islands, as in France, do not require “consideration” but “cause”. Whilst these often amount to the same thing in the majority of contractual situations, the distinction between such concepts can sometimes lead to differing results.[62] However, across a broad range of other areas, it is interesting to note the extent of the similarities that do exist between Pothier and English contract law.

In the area of sale of goods, for instance, Pothier and the Civil Law generally were heavily drawn upon by Sir Mackenzie Chalmers who drafted the UK’s Sale of Goods Act 1893 (the 1893 Act). In Chalmers’ 1894 book entitled The Sale of Goods Act, 1893, he makes the following acknowledgements:

 

“I have…made frequent reference to Pothier’s Traité du Contrat de Vente.  Although published more than a century ago it is probably still the best reasoned treatise on the Law of Sale that has seen the light…The references to the Civil Law need little comment. It is the foundation of Scottish law, and it is an inexhaustible store of legal principles. There is hardly a judgement of importance on the Law of Sale in which reference is not made to the Civil Law. ‘The Roman Law’ says Tindal C.J., ‘forms no rule binding in itself on the subjects of these realms; but in deciding a case upon principle, where no direct authority can be cited from our books, it affords no small evidence of the soundness of the conclusion at which we have arrived, if it prove to be supported by that law – the fruit of the researches of the most learned men, the collective wisdom of ages, and the groundwork of the municipal law of most of the countries of Europe.’[63] My task of reference in this edition has been much facilitated by Dr. Moyle’s excellent monograph on the Contract of Sale in the Civil Law.”[64]

 

Notwithstanding the subsequent repeal of the 1893 Act, significant parts were replicated in the Sale of Goods Act, 1979 and, therefore, continue to have force in the UK today. More generally, Pothier’s influence upon English law was repeatedly acknowledged in England by the House of Lords. In the 1822 case of Cox v Troy,[65] Pothier was described as an authority “as high as can be had, next to a decision of [an English] court of justice”. In a further House of Lords decision in 1883, Pothier’s importance was again emphasised, but this time by Lord Blackburn:

 

“We constantly in the English Courts, upon the question what is the general law, cite Pothier, and we cite Scotch cases where they happen to be in point; and so in a Scotch case you would cite English decisions, and cite Pothier, or any foreign jurist, provided they bore upon the point.”[66]

 

As can be seen from the above references, Pothier was an authority in England for some considerable period. Whilst it is clear that from about the end of the 19th century, Pothier’s influence upon emerging case law steadily diminished, it is noteworthy that his works continued to retain some influence and were cited,[67] albeit with far less regularity, during the course of the 20th century. More recently, the House of Lords in Shogun Finance Ltd v Hudson 2004.[68] had cause to re-examine Pothier’s works as to the effect of mistake in the formation of a contract.

 

7        The Contribution of the Jersey Law Commission

 

The timing of the Jersey Law Review Conference was particularly appropriate because it took place only a few months after the publication of the Jersey Law Commission’s Final Report that recommended the codification of Jersey’s contract law according to an English model.[69] In its Topic Report number 10,[70] the Jersey Law Commission recommended that Jersey adopt a statutory framework for the Jersey law of contract that was modelled upon the Indian Contract Act, 1872 and which, itself, was based upon the English common law prevailing at that time. However, the intention of the Law Commission was that those aspects of existing Jersey Law which were peculiar to Jersey as opposed to England, and which were found worthy of retention, should also be incorporated where necessary. In arriving at this recommendation, the Jersey Law Commission discounted the adoption of the Quebec Civil Code or the Uniform Commercial Code of the United States of America.  The Quebec Civil Code was ruled out upon the basis that future Jersey Courts might be tempted to look to Quebec case law and possibly also to French law for help in interpreting the provisions of such a new statute and this would be largely inaccessible to the Jersey population.  It would seem, however, that the adoption of the Indian Contract Act, 1872 might lead to a comparable situation where decisions upon such statute are similarly scrutinised for guidance, although such case law might be slightly more accessible and, at least, be in the English language.

Given the influence upon English contract law of both Pothier and the Civil Law generally, it is suggested that the adoption of an English model for the future codification of Jersey’s contract law would not involve too radical a departure from the existing Jersey position. Indeed, even whilst the Jersey Law Commission has recommended the adoption of an English model, it is noteworthy that it has further suggested the retention of “cause” as opposed to the introduction of the English concept of “consideration”. Moreover, in certain important areas (for example, in the quantum and recoverability of damages for breach of contract), English law has already established itself [71] as part of Jersey’s heterogeneous contract law.

What may strike the reader as surprising, however, is the choice of this particular statute as a model to copy. Whilst the Indian Contract Act, 1872 is annexed to the report, there is no commentary or other detailed consideration as to the specific provisions of this Act and that one might have hoped to have seen as justification for its adoption. Indeed, the text to the Final Report of the Jersey Law Commission is extremely short and runs to a mere three and a half pages. However, even a quick perusal of this Act makes it clear that it is not some panacea.  Whilst the statute might provide a convenient starting point for a new statutory framework, its provisions necessarily reflect an out-dated position.  For instance, the Indian Contract Act either makes no provision or, at least, no detailed provision in the following areas:

  • sale of goods and the terms to be implied;
  • provision against the use of unfair contract terms;
  • implied terms in contracts for the provision of services;
  • credit agreements; or
  • particular provisions for the sale and transfer of immovable property.

Indeed, whilst the Royal Court declared in Selby v Romeril that Jersey’s contract law was not set in the aspic of the 18th century, there is a danger that too great a reliance upon the Indian Contract Act might not lead to the advance that one would hope to achieve by such a major reform of the law. It is most unfortunate, for example, that the Law Commission did not consider the adoption of the Principles of European Contract Law (PECL) which were completed in 2003 and prior to the Jersey Law Commission’s Final Report. This was prepared in three parts[72] by the Commission of European Contract Law under the chairmanship of Professor Ole Lando and with the view of providing general rules of contract to be applied throughout the European Union. Accordingly, whilst the PECL will similarly not address all of the matters identified above as being absent from the Indian Contract Act, it at least represents a broad, contemporary work on the subject. For instance, the PECL make provision for liability in the case of negotiations that are conducted contrary to good faith[73] whereas even under current English law, recovery is not readily available in such circumstances.[74] Furthermore, unfair terms[75] are similarly dealt with, as are periods of prescription, their commencement, extension and effects:[76] all being areas of Jersey law that are in need of reform. In general, the PECL can readily be seen as such an important work that the apparent omission of the Jersey Law Commission to consider its relevance should result in a reconsideration of the model chosen for the new codifying law.

The adoption of the PECL is also justifiable upon more general grounds. In the Law Commission’s consultation process concern was expressed that an increased adoption of English contract law would lead to “a further erosion of Jersey’s relative independence from England”. The adoption of the PECL would have met such concern, whilst at the same time providing a contractual framework that would have made Jersey the focal point of European interest in this respect. Indeed, there would have been a ready supply of European academics and practitioners to drive on such reform. Moreover, with the real possibility of the PECL eventually being integrated in what may eventually become a European Civil Code, there might even be trading and other advantages in Jersey being at the vanguard of such a movement.

 

8        Fears as to identity

 

Whatever criticisms may be made of the recommendation of the Law Commission, it is clear that the Jersey law of contract is in need of reform and clarification. The recent Law Commission’s proposal, however, comes at a sensitive time, being in the midst of Jersey’s 800 years’ celebrations since its break with Normandy, where notions of “identity” find regular expression. It is inevitable, therefore, that the recommendation that Jersey law ought to be developed towards an English model will be disconcerting to a number of Islanders.  During the Conference, the second and third speakers certainly appealed to notions of “identity” in arguing for the maintenance of laws that were different to other jurisdictions and that preserve our Norman French roots.[77]  It is, however, immediately noticeable that despite Jersey having followed England for many years in the law of tort, and longer still in relation to criminal law, Jersey has not suddenly lost its sense of “identity” and no public outcry has ensued.

In reality, such issues will not be relevant to the ordinary Channel Islander for at least two reasons: first, the issues are simply too esoteric to be readily appreciated; secondly, the average consumer already believes that Jersey contract law is, more or less, the same as English law. The reasons for this perception may be gathered from a Report on Consumer Protection in Jersey that was published in 2002:

 

Why the UK is relevant

  • Most goods and services sold in the Island are either imported from the UK or are sold by UK based organisations. Often, traders are complying with UK laws, regulations and codes of practice when they sell in Jersey even though they are under no obligation to do so.
  • Jersey people buy many goods directly from the UK either when they visit Britain, by telephone, by mail order or by Internet. They therefore benefit from, and have some knowledge of, the UK framework for consumer protection.
  • Jersey has many visitors from the UK and also many people visit the Island for business reasons during which time they may be consumers. A significant proportion of consumer expenditure in Jersey is by non-residents, mainly from the UK. While they have no right to expect UK legislation to apply they are nevertheless familiar with it.

 

To the extent that the public perceives Jersey’s contract law to be English in nature, there can, therefore, be little force in the argument that the Law Commission’s recommendation to follow English contract law will lead to a loss in Jersey’s  “identity”.

 

9        Conclusion

 

In essence, therefore, Jersey’s contract law represents an interesting fusion of French law, before the Code Civil, with English law. In many ways, Jersey’s contract law shares the characteristics of English law of the 19th century, with the relevance of Pothier, the absence of significant statutory intervention,[78] and the prevalent notion of freedom of contract.[79] It is, however, striking how quickly English principle has taken root in Jersey’s contract law over the past 30 to 40 years. Its growth owes much to the increasing trade and cultural ties with England and, in particular, to the steady settlement of UK anglophiles in the Islands after the Second World War.

The eclectic mix of English and French law in Jersey has inevitably led to tensions and a degree of uncertainty. As we have seen, this point is well exemplified in the debate as to the relevant principles to be applied for the resolution of a contract. In the context of reform of Jersey’s contract law, the ultimate survival of the English principle of repudiatory breach is prophetic. In an article that appeared in the Stellenbosch Law Review in 1998, Jacques du Plessis[80] noted the argument that:

 

“mixed systems have the potential of being legal ‘battlefields’ where rules from different systems have to fight for their survival so that only the fittest or best rules survive…”

 

In Jersey, it is true that there exists such an ongoing struggle and that in certain areas, English law has already won valuable ground. Indeed, statutory codification looks ready to reinforce and accelerate such gains. However, this is not necessarily because such English legal rules are particularly better than any other rules, say for example, than those contained in the French Code Civil or, indeed, in the PECL. It is simply that there are a number of features (as outlined above) that now make English law both a “natural” and easy resource to supplement and develop the Jersey legal process.

The problem, of course, is that the introduction of such extraneous material may prove to have a devastating effect upon the indigenous legal species. Further, with the absence of a University in the Channel Islands and the pressures already upon public finances that make funding a programme of research and reform elsewhere unlikely, it is difficult to see what can be done to halt this process of anglicisation. Many sentimental Island practitioners will lament at such a conclusion, whilst others may see it as a necessary phase in the continuing evolution of Jersey law. Whatever view one adopts, however, the next decade should prove to be of real significance in determining the future direction and development of Jersey Law.

 

OPSOMMING

 

Gemengde regstelsels het ’n onderwerp van groot belangstelling geword veral as gevolg van die vordering wat die Commission of European Contract Law gemaak het met die daarstel van ’n stel Principles of European Contract Law (PECL) wat dalk nog eendag deur al die verskillende regstelsels van die Europese Unie aanvaar mag word.  Sover dit die Britse Eilande betref is daar baie geskryf oor ervaringe met Skotland se gemengde regstelsel terwyl ander voorbeelde heeltemal misgekyk is.  In hierdie artikel word die regstelsel van die “ ‘Bailiwick’ of Jersey” van naderby bekyk.  “Bailiwick” is die argaïese term vir die gebiede onder die jurisdiksie van ’n “bailie” of “bailiff” (balju) wat die mees suidelike gedeelte van die Britse Eilande uitmaak.  Jersey, net soos Guernsey, ’n sustereiland, het ’n ryk civil law-tradisie omdat dit eens deel was van die Hertogdom van Normandië.  In die een en twintigste eeu het albei eilande egter by ’n kruispad gekom waar dit wil lyk asof anglisering die inheemse reg gaan oorweldig.  In hierdie artikel word ondersoek ingestel na die konflik in Jersey tussen regsreëls wat uit verskillende tradisies voortkom en na die oorlewingstryd wat dit meebring.  Besondere klem word geplaas op die ontwikkeling van Jersey se kontraktereg wat lyk asof dit, pleks van trou te bly aan die Franse wortels daarvan, die Engelse reg toenemend navolg.  Die skrywer doen aan die hand dat Jersey, pleks van te tob oor die verdringing van Frans georiënteerde kontraktereg deur Engelse reg, aktief deel moet word van die beraadslagings oor die aanname van ’n PECL en so ’n plek aan die voorpunt van ’n breër Europese beweging moet inneem.

[1]          As to mixed legal systems generally, see the overview provided by MacQueen “Scots and English Law: The Case of Contract” 2001 54 Current Legal Problems 205-229.

[2]          Census of 2001. In 1821, the population of Jersey was approximately 29,000.

[3]          Only 17.3% of residents can speak French either as a main or secondary language. After English, Portuguese is the next main language in Jersey. (Census 2001.) As to the accessibility of Jersey’s law in such circumstances, see Hanson “Legal Wonderland” 2002 Business Brief 30-3.

[4]          The Treaty applies, inter alia, to Jersey to the extent necessary to ensure the implementation of the arrangements set out in Protocol 3 to the Act of Accession.

[5]          For a more detailed exposition, the reader is referred to Southwell “The Sources of Jersey Law” 1997 JL Review 221; Nicolle The Origin and Development of Jersey Law (2003) published privately.

[6]          This appears from the Islanders’ Petition to the Crown of 1333 where they claimed to observe the custom of Normandy, which they called La Summe Mankael, with certain other customs used in the Islands time out of mind. See Le Patourel The Medieval Administration of the Channel Islands 1199-1399 109-110.

[7]          Thus it is permissible for the Coutume Reformée to provide evidence as to the customary law of Jersey: La Cloche v La Cloche 1870 VI Moo NS 383.

[8]          Report of the Civil Law Commissioners 1861.

[9]          Lieutenant Bailiff of Jersey between 1669-1676. His currently unpublished work Remarques et Animadversions sur la Coutume Reformée discusses the extent to which the Coutume Reformée had become part of Jersey law. Lieutenant Bailiff of Jersey between 1676-1695. See, eg, the preface to his Constitution, Lois et Usages.

10        Lieutenant Bailiff of Jersey between 1676-1695. See, eg, the preface to his Constitution, Lois et Usages.

[11]        Poingdestre, eg, refers to “[le] Droict Romain, qui est celuy que tout le monde suyt en matière de contracts…” [Roman Law, which is that which the whole world follows in matters relating to contract…].

[12]        Wood v Wholesale Electrics (Jersey) Ltd. 1976 JJ 415.

[13]        HM Viscount v Treanor 1969 JJ 1243 1245.

[14]        2000 JLR 80.

[15]        In the Estate of Father Amy 2000 JLR 80 93. Affirmed on appeal 2000 JLR 237.

[16]        Robinson, Fergus and Gordon An Introduction to European Legal History (1985) 434.

[17]        1996 JLR 210.

[18]        218.

[19]        1996 JLR 343 350-351.

[20]        1997 JLR 142.

[21] 1996 JLR 210 219-220.

[22]        Vibert v Vibert 1890 48 H 462 (contract void ab initio where party deprived of mental faculties); Valpy, Curator of Warren v Channing 1946 50 H 290 (contract declared nul ab initio et non avenu upon comparable grounds); Le Jeune v Le Jeune 1900 49 H 182 (Table des Decisions  refers to la nullité ab initio); Simon v Page 1905 49 H 279 (contract to sell future interest in parents’ estate was cassable et annullable); Jackson v Jackson 1965 JJ 463 (time cannot cure a contract that is nul); Deacon v Bower 1978 JJ 39 49-50 (contract passed during a remise des biens is voidable only: “It is clear …that the Royal Court has distinguished between a case where a contract is void ab initio and one which is merely voidable”); Ferbrache v Bisson 1981 JJ 103 (contract passed under duress was void ab initio: query, however, whether contract ought to have been declared to be voidable only).  See also Le Geyt Constitutions, Lois et Usage Tome 1 118 et seq where a similar distinction is made.

[23]        At present, the classification of nullité absolue and nullité relative has only received further acknowledgment by its inclusion in the syllabus to the current Jersey legal examinations.

[24]        2005 JRC 062.

[25]        For fraudulent misrepresentation, see Marenko v CIS Emerging Growth Ltd 2002 JLR 348.

[26]        1969 JJ 1181.

[27]        1969 JJ 1181 1185.

[28]        See Nicholas The French Law of Contract 2 ed (1992) 114.

[29]        In contrast, note that by s 19 of the Indian Contract Act 1872 (which is dealt with in the main text infra), a contract is merely voidable for fraudulent misrepresentation.

[30]        Art 2 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.

[31]        See In Re Esteem 2002 JLR 53 142 as to the more general application of this period. Further, note its possible application to a breach of fiduciary duty: In the Matter of Northwind Yachts Ltd 2005 JRC 050.

[32]        Time would not have run against the complainant in such circumstances: Eves v Le Main 1999 JLR 44 53.

[33]        See, eg, Channel Hotels & Properties ltd v Rice 1977 JJ 111 115 where it was suggested that lapse of time could prevent rescission of a contract arising out of an innocent misrepresentation.

[34]        Renouf v Att Gen 1936 AC 445. See also Foster v Att Gen 1992 JLR 22.

[35]        1995 JLR 33.

[36]        It is submitted that this decision went too far and that the better view is that English authority ought merely to be accorded due weight and respect: see the minority judgment of Blom-Cooper JA 62-63.

[37]        See, eg,Colesberg Hotel (1972) Ltd. v Alton Hotel Ltd 2003 JLR 176.

[38]        Godfray v Godfray 1865 III Moo NS 338 343.

[39] This approach is illustrated, eg, in Denny v Hodge 1971 1915 1924 (quantum of damages for breach of contract held to be the same as in English law but no examination made as to Pothier’s various rules upon this subject as, eg, are set out at par 213-216 to his Traité du Contrat de Vente). See also United Dominions Corp (C.I) Ltd v Pinglaux 1969 JJ 1123 1137 (implied terms in respect of a hire-purchase agreement).

[40] 2002 JLR Note 5.

[41]        See the article of Le Cocq “Resolving Contracts: The Hotel de France Case” 2000 JL Review 151 and the reply of Kelleher “Résolution and the Jersey Law of Contract” 2000 JL Review 266.

[42]        Rossborough (Insurance Brokers) Ltd v Boon 2001 JLR 416.

[43] 2002 JLR Note 30.

[44]        Interestingly, since the 1994 and 2002 amendments to the Sale of Goods Act 1979, the ability to rescind a contract for breach has been restricted: see ss 15A 48E.

[45]        The event was part of a celebration of the separation of the Channel Islands from Normandy and their allegiance to the English Crown over the past 800 years. All of the speeches will be bound together and published.

[46] A phrase coined by Commissioner Hamon in La Motte Garages Ltd v Morgan 1989 JLR 312 316. See also Donnelly v Randalls Vautier Ltd 1991 JLR 49 57.

[47] Panel Discussion , Session 2 of the Conference.

[48] See also Kelleher “The Sources of Jersey Contract Law” 1999 JL Review 1-21.

[49]        Note that despite the absence of rules equivalent to the English Civil Procedural Rules, the Court of Appeal has declared that an “overriding objective” should still be applied in the conduct of litigation in the Islands so as to ensure that legal costs are proportionate to the issues and value at stake. See Hanson “No Legal System is an Island, Entire of Itself 2004 JL Review 209.

[50]        Since the Solicitors and Advocates (Jersey) Law 1997, the requirement for aspiring Jersey lawyers to complete a diploma course of study at Caen University in Normandy, has further been removed.

[51]        The 1861 Civil Commissioners noted the fact that Jersey law enjoyed a French complexion that was partially attributable to the fact that its lawyers tended to receive their education in France.

[52]        See Hanson “The Language of the Law: The Importance of French” 2005 JL Review forthcoming.

[53]        See Hanson “Justice in Our Time: the Problem of Legislative Inaction” 2002 JL Review 74-76.

[54]        As at June 2005, Jersey has two Commissioners who were previously Jersey lawyers: Mr FC Hamon OBE and Mr PR Le Cras. The three remaining Commissioners consist of a retired English High Court Judge: Sir Richard Tucker and two English Queen’s Counsel: Mr HWB Page QC and Mr BGD Blair QC.

[55]        Art 2 of the Court of Appeal (Jersey) Law 1961 sets out the limited category of persons who may be appointed to the Jersey Court of Appeal. In summary, appointment is restricted to Commonwealth judges, Jersey advocates of at least ten years standing and barristers of at least ten years standing drawn from England, Wales, Scotland, Northern Ireland or the Isle of Man.

[56]        As at June 2005, the Jersey Court of Appeal consists of a panel of three or more judges selected from the following: the Bailiffs of Jersey & Guernsey; a QC from Scotland (PS Hodge); a QC from Northern Ireland (PD Smith); seven QC’s from England (RC Southwell, E Gloster, MJ Beloff, J Nutting, JPC Sumption, DAJ Vaughan and KS Rokison) and a retired English Court of Appeal judge (The Rt Hon Sir Charles Mantell PC).

[57]        Hanson “No Legal System is an Island, Entire of Itself” 2004 JL Review 209.

[58] Lord Hoffman PC chaired the panel of speakers upon this particular topic, entitled “The Law of Contract:            Which Way?

[59] Advocate Alan Binnington.

[60] Advocate John Kelleher.

[61] Advocate Alison Ozanne of the Guernsey Bar. Note also Robilliard  “The Guernsey Law of Contract – An Explanation” 1998 JL Review 35.

[62]        Eg, in principle, a gratuitous contract should be recognised and enforced in Jersey (as it would be in France) despite the absence of consideration as required under English law. See Buckland and McNair Roman Law and Common Law, A Comparison in Outline 2 ed (1952) 233-236. There is, however, no clear authority upon the point in Jersey: Osment v Constable of St.Helier 1974 JJ 1 and 1975 JJ 205.

[63]        Acton v Blundell 1843 12 M & W 324.

[64] Introduction (vi) to (vii).

[65] 1822 5B & Ald 481.

[66]        Mc’Lean v Clydesdale Bank 1883 9 App Cas 105.

[67]        Pothier was, eg, applied by Fry J in Smith v Wheatcroft 1878 9 Ch D 223 230; by Horridge J in Phillips v Brooks 1919 2 KB 243; by Viscount Haldane in Lake v Simmons 1927 AC 487 501; and by Tucker J in Sowler v Potter 1940 1 KB 271. Pothier was referred to by Lord Goff in Kleinwort Benson Ltd.v Lincoln City Council 1999 2 AC 349 368-369. Cf Lewis v Averay 1972 1 QB 198 206 where Pothier’s statement upon mistaken identity was urged by Lord Denning MR to be “dead and buried together”.

[68]        1 AC 919.

[69]        The Commission’s Consultation Paper was published in October 2002 and its Final Report in February 2004.

[70]        See www.lawcomm.gov.je

[71]        A fact recognised in In the Estate of Father Amy 2000 JLR 80 and in McDonald v Parish of St Helier 2005 JRC 074. See also Denny v Hodge 1971 JJ 1915.

[72]        Work commenced on this project in 1982. Parts I & II were published in 1999 and Part III in 2003.

[73]        Art 2.301.

[74]        See, eg, Walford v Miles 1992 2 AC 128. Contrast the French position where the pre-contractual period is regulated through the medium of delict: Giliker “A Role for Tort in Pre-Contractual Negotiations? An Examination of English, French, and Canadian Law” 2003 52 ICLQ 969-994.

[75]        Art 4.110.

[76]        Arts 14.201 to 14.601.

[77]        Reference was, for instance, made by the second speaker to a quotation from Victor Hugo (1802–1885): “Jerseymen…are certainly not English without wanting to be, but they are French without knowing it.” It is poignant to note, however, that a century later, the Jersey author GR Balleine described Jersey as “intensely un-English, yet even more intensely anti-French”. Quoted by R Le Masurier in Le Droit de L’Ile de Jersey (1956) 333.

[78]        Hanson “Justice in our Time: the Problem of Legislative Inaction” 2002 JL Review 74-76.

[79]        The maxim “la convention fait la loi des parties” is frequently cited by the Jersey courts. See, eg, Wallis v Taylor 1965 JJ 455 457; Basden Hotel Ltd v Dormy Hotel Ltd 1968 JJ 919.

[80]        “The Promises and Pitfalls of Mixed Legal Systems: the South African and Scottish Experiences” 1998 StellLR 343.

In Need of Better Regulation? Practical & Legal Issues Arising from Buying Antiques at Auction

Appreciating the Dangers of Buying at Auction

It is not difficult to find material (including guides) extolling the virtues of buying at auction. Certainly the amount of TV programmes showing auctions, and the greater accessibility to buy at auction online, demonstrate the attraction of auctions not only to the trade but to the public more generally. Motivations will vary, but there may be a view that items are likely to be cheaper at auction than in a shop; that buying at auction is more likely to achieve a more accurate market value; and it’s also fair to say that it can sometimes be a thrilling experience: searching for that “sleeper,” the unpredictability and the gamble involved in any bid. Having bought a fair amount at auction for the last 25 years, and also sold a few pieces, the purpose of this article is to highlight some of the less attractive aspects of buying at auction that do not seem to get very much (if any) coverage.

Commission

In years gone by, it was the seller that just paid a commission (as well as other charges) to the auction house as it acted as the vendor’s agent in selling the item, but gradually over the past 30 years, most auction houses now also charge a commission to the purchaser known as a buyer’s premium. Such charges vary, but auction houses commonly will be reaping a total commission of around 1/3rd of the price that an item sells for.  (The similarity in charges has prompted various regulatory investigations in the past.) Broadly speaking, that level of commission makes auction houses look more like retailers than mere auctioneering agents. Indeed, when you see auctions on view, such as “house and garden” sales, where the items are displayed like some room set, the physical impression of a shop can even be conveyed. When buying online, it should be noted that a further 3% plus VAT might be levied.  In contrast to a shop, however, the raft of terms and conditions relied upon by auction houses – attempting to exclude almost any responsibility for what they do – makes you wonder exactly what you are paying a buyer’s premium for.

Catalogue Descriptions & Rights of Redress

The terms and conditions are often quite clever and, to the lay person, the intricacy will not be obvious. They are quite obviously designed to protect the auction house. They make clear that they are only acting for the vendor, lest it might be said that they are assuming some obligation to the buyer who is (for no express reason) also paying a commission. The intention is that in cataloguing an item, supplying a condition report to a potential buyer or in arranging a telephone or commission bid, these fall into some “free service” for which the auction house has no responsibility to the buyer (at least) for getting right: this often also being expressly spelt out. Commonly the auction house will design its clauses to prevent any duty arising in the first place and, for good measure, then exclude any liability that might arise were a duty to be found.

Because the law sets out differences between someone expressing an opinion and someone saying something as a fact, the terms and conditions also have a standard clause that auction houses are just expressing opinions about what an item is; who made it; its age or condition. Opinions, of course, can more easily differ (although someone should still have reasonable grounds for forming whatever opinion they do express.) Further, buyers are told that they should inspect an item personally at the auction house and make up their own minds, and that things are sold “as is”: all further watering down the possibility of the auction house being held responsible for anything that it says. I don’t think that this is fair and it’s also at odds with general consumer expectations.

The reality is that auction houses will have had every opportunity of looking in detail at an item that it puts up for sale (including photographing it, often without illustrating the blemishes) and frequently will have been able to talk to the vendor. Indeed, many auction houses trumpet their expertise on their website and how long they have been in business. Auctioneers will even frequently coax buyers along when actually selling with comments like “it’s a super lot this;” “it’s in excellent condition;” “it’s a fine lot this one” as they appreciate this all goes to help persuade someone to bid and buy. Yet their small print all attempts to exclude liability for these assurances. Auction houses are in a far superior position than a buyer. High standards should be expected and they should be held to account if they get it wrong. (In their coaxing, auctioneers should be wary that they may go too far: Andrews v Hopkinson 1957 1 QB 229 “it’s a good little bus, I’d stake my life on it.” Vendor held liable for defects.)

Unfortunately, and it happens on a fairly frequent basis, you may also receive a condition report that fails to mention what seems to you – when you have an item delivered- the blindingly obvious. The condition report on an item may well be given by someone inexperienced at the auction house who can’t tell if an item is 17th century or something that has been knocked up in that style in the last 20 years; that there is extensive restoration or gives such a bland comment – “knocks and marks consistent with age”- which doesn’t tell you anything. But with auction houses permitting bidding online to buyers all over the world, who clearly can’t personally inspect an item, this lack of care and exclusion of liability must surely fail if tested in court. Sometimes I feel that auction houses could learn a bit even from the expectations on the Ebay site that all defects should be described on every item sold. Yet only recently, I had an auction house relying on an exclusion clause when I bought over the telephone and their catalogue description turned out to be inaccurate. The best I got was a refund in the buyer’s premium as a gesture of goodwill but still felt saddled with the item. I do believe that had I bought the item from a shop, I would have been better positioned to ask for a refund.

There are various statutes that may assist a buyer in attacking the exclusion clauses of auctioneers, or holding them responsible including (in the UK) The Consumer Rights Act 2015 (replacing The Unfair Contract Terms Act 1977 & the Unfair Terms in Consumer Contracts Regulations 1994); or The Trade Descriptions Act 1968. Unfortunately, the Consumer Contracts (Information, Cancellation & Additional Charges) Regulations 2013 (formerly Distance Selling Regulations) do not apply to auctions. In Jersey, the Supply of Goods & Services (Jersey) Law 2009 and associated 2010 regulations will be relevant. Whether or not the buyer is acting in the course of a business may be relevant to which particular statutes or provisions apply. The Office of Fair Trading (which regrettably closed in 2014) has many years ago reviewed the terms and conditions of auction houses and provided a valuable analysis of what terms would be regarded as fair and reasonable. It suggested that auction houses should, for example, accept liability for their negligence when providing a condition report.

At the end of the day, however, with the complexity of the law, it can easily feel that the auctioneer is in a pretty fortified position with only reputational damage being the simplest and cheapest weapon for an aggrieved purchaser to threaten. (If the auctioneer belongs to a professional body, a complaint in this direction might also help.)  I have a number of auctioneers I trust and go back to; others I steer well clear of, having had my fingers burned on more than one occasion. I do believe that auction houses need better regulation given the change in clientele that they are attracting; the online method of bidding; and their superior bargaining position when compared to consumers, who can often be very inexperienced.

As a rule of thumb, therefore, never be tempted to buy a lot that you have not seen in the “flesh” without at least having the precaution of a condition report and asking for additional images. That way, you may be better informed and have more chance of redress if required. I regret to say that even then, it’s sometimes only once I get a piece of furniture home and start polishing each bit of it, that I see all the faults and restorations. But it’s generally too late then!

Commission Bids

Commission or absentee bids can be left with the auction house if you cannot attend and the basis of such bids is that the auction house will try and secure the item as cheaply as other bids (including the reserve) permit. There is an element of trust here, because obviously the higher the end price, the more commission the auction house makes. I confess that with some auction houses, when I have listened online to events, I have suspected that they have simply started off with my bid (with no other bids on their books) but you have no real way of establishing the position and no right to look at the books. A more subtle difficulty is where the item is subject to a reserve but the auctioneer has a discretion, say of 10%. If the auctioneer is also executing a commission that is equal to or more than the reserve, it’s an easy outcome for the auctioneer simply to bang the hammer down on the reserve price (wrongly in my view) rather than the 10% lower sum that he could have accepted. Given that the auctioneer has confidential information for both buyer and seller, commissions should be executed by a separate person at the auction house under what’s called a Chinese wall so that this conflict does not arise, but this is unlikely to happen at smaller auction houses.

Even where there is no reserve and no other bids, auctioneers do not necessarily just start at the lowest bid possible when selling an item, such as at £5 or £10, but can gear it to the estimate, plucking a low figure and starting your commission at that. This is in breach of their terms and conditions. I have heard one auctioneer (who also appears on TV) selling an unreserved £500 estimated item stating on the rostrum “You won’t see many other auctioneers like me starting this off on commission at £50.” I wanted to ask “why not?” Another auctioneer refused to accept a bid on an unreserved item, saying it was up to him to decide how low to go and he could refuse to sell an item at all so as to protect the vendor. Despite the vast array of terms and conditions, I couldn’t find a term covering this one, but he may have been right. (In this case, the irony was that the item sold at an even lower price in the following sale.)

Interestingly, traders in particular will cultivate relationships with the porters at auction houses who may enter into what appears to be a private agreement to execute that trader’s commission bid that otherwise will not appear or be seen on the books of the auction house. In return they are “bought a drink” by the trader, particularly if they secured the item advantageously. This practice seems to have evolved many years ago. It supports a concern on the part of the trade as to how commission bids on the books are executed by the auction house itself. However, my objection to this practice in the 21st C is that all buyers have to pay a buyer’s premium and I do not see why certain buyers should be treated differently. More importantly, it seems ripe for abuse as the porter, as an employee of the auction house, is under a potential conflict or, at least, it’s only a small distance to helping the trader to other helpful information that he/she should not have. In an age where other professions have to be careful as to what gifts they receive from their particular business relationships, the auction world has apparently escaped such scrutiny. (See further pg.19 The Times 13th May, 2017 where it is posited as a reason why one investment company will no longer be sponsoring The Chelsea Flower Show as regulations make it improper to give out free invitations to clients.)

Rings

Buyers (usually from the trade) can form a ring where they agree not to bid against other and then carve up the items amongst themselves at deflated prices. Such rings are illegal but do happen to varying degrees. For those not committing this criminal activity, it can lead to the puzzled feeling that you don’t get a great deal when selling at auction but you somehow seem to be paying a lot when buying!

A true reflection of market value?

Buying at auction in preference, for example, to buying in an antiques’ shop might be justified on the basis that the shop will have overheads to cover and a profit to make, and will be selling at higher than an auction price. It is, however, simplistic to find too much comfort in an auction providing a fair reflection of market value for the item that you buy. It is true that, in an instant, the auction has buyers from far afield, deciding upon an object at a given time but there are various factors that can distort the picture.

Even where there is no reserve, the point at which auctioneers start off the bidding can be a cause for concern. I have been to one auction (heralded as without reserve) only for the auctioneer to start off bidding pretending he had a bid when he didn’t and therefore impose his own reserve. (A member of the auction team in effect admitted this to me.) On another occasion, after quizzing the auctioneer as to the hammer price that I paid, he admitted that the reserve was increased before the auction and above the auction estimate that had been provided. He didn’t see any harm in the estimate giving a wholly false impression. On other occasions, an auction house (or indeed you) can fail to see some important defect in the item being purchased; a misapprehension that might be communicated to all other buyers so that the price paid is inflated but without any easy or practical means of redress.

One might hope that auctioneering was merely a practical and transparent form of selling an item but there is indeed an “art to auctioneering” -as one auctioneer proudly told me. Surprisingly, he trumpeted this only after I queried why my commission had been levied against the wrong lot, and then the right lot was invoiced to me but at reserve (no discretion applied) and after the sale, for it had actually been passed as unsold. It took a while to get him to understand that this “art” might in fact be incompetence and a sale after auction also required my agreement.) Aside from tone and pace (important to maintain interest) there are auctionering aspects that are slightly suspect. These include starting the bidding process at a sum that the auctioneer has no intention to sell at (as being below the reserve) & perhaps pretending to take a bid from a non-existent person at the back of the room. This is really no better than a deception. At some point, particularly at the lower price, a (real) buyer can be persuaded to bid and is then sucked into the process. Once two buyers have their teeth into bidding for an item, sometimes prices can be achieved that exceed those that one expect to pay in the calm atmosphere of a shop.

When bidding at auction, it’s important to stick to a limit. Of course, there can be slight variations on the day: the item may appear better than the initial viewing or there may be a gut feeling from the bidding such that one further bid would secure. However, tenacity and perseverance – admirable qualities generally -are a buyer’s enemy at an auction &, unfortunately, only play well for vendors and the auction house. Despite “ebay” style terminology beginning to be taken up by some auction houses, please note that you don’t really “win” an item. Unfortunately, there is an expectation that you will be paying for it, just as you would in a shop! So be patient, and do your homework before the sale. At least 9 times out of 10, a similar quality item will eventually come up. Remember also, that sales can be a bit boring waiting for the lot that you are interested in. Resist the temptation to stick your hand up, or clicking your mouse, when something (that you probably haven’t looked at properly) is apparently going remarkably cheaply. The chances are that there’s something wrong with it, or it’s just not very good!

Summary

Clearly some good bargains can be secured at auction but the truth is that you need to have your eyes opened to some of the less savoury processes and understand where and how it can go wrong. Over the years, regrettably, I have probably bought more “duds” than bargains at auction and the collapse in value of many traditional antiques has emphasized that sentiment. (In that latter respect, what happened to the value in apparently rare Royal Doulton series items or dining tables & why the continuing demise of the bureau?) It is clear that there is greater “come back” for purchases from a shop business than an auction house which can be an important factor to consider. Unfortunately, in an age of cut backs and the disappearance of organizations such as the OFT, it remains to be seen if there will be more regulation of auctions in the near future so as to better protect the consumer. In my view, the law in this area is complex, unclear and inadequate. With changes in consumer habits, and online bidding, better regulation of auctions is undoubtedly required.

Timothy Hanson is a Jersey advocate & English barrister and, disappointingly to his wife –“where on earth are you going to put that?”-  a keen collector of early furniture.

 

 

Message in an Old Pewter Tankard – Touching the Past

In a box of items that I bought at an auction in Oxfordshire was an old neglected pewter tankard. It was inscribed “Queen’s College Boat Club Front Quad: V Back 1861.” It then had the names of the winning crew and their positions: H.J. Gallon Bow; R.Wood 2; G.Godfrey 3; T.Harrison 4;  A.L.Foulkes 5; R.Oliver 6; J.R.Magrath 7; H.W.Barber Stroke;  E.S. Grindle Cox.

Now I hate to get rid of most things, let alone those that have sentimental value or tell a story, and was intrigued by this little grey piece of history. A little research soon brought this neglected item to life & enabled me to touch some of the lives that were marked on it. Intriguingly, I soon found connections with the Channel Islands.

Augustine Lempriere Foulkes (1844-1922) is recorded as a Bible Clerk at Queen’s College (i.e. he received a small stipend for reading the Bible in Chapel) and became the vicar of Steventon. As the name Lempriere implies, he had Jersey origins.

John Richard Magrath was born on 29 January 1839 at St Peter Port, Guernsey, & was the son of a naval surgeon. We know a lot about him & his story is captured in a wonderful article by Michael Riordan FSA, Archivist, St. John’s and The Queen’s Colleges, Oxford:

A year ago, in the College Newsletter, we published four photographs of Provost Magrath taken between 1912 and 1925. These seem to have caught the imagination of many Old Members, so some might be interested to know more of Magrath, a man of mythical status at Queen’s. He has earned this reputation not only through his large-bearded, imposing portrait in Hall and his scholarly, though rather turgid two volume history of the College, but because he served as Provost for fifty-two years. This length of service was twenty-one years longer than his nearest rival (Septimus Collinson, Provost 1796-1827) and only Martin Routh (who began his Oxford career as an undergraduate at Queen’s and ended it as President of Magdalan, 1791-1854) served longer as a head of house.

            John Richard Magrath was born 29 January 1839 at St Peter Port, Guernsey, the son of a naval surgeon. He was educated at Elizabeth College, Guernsey, before winning a classical scholarship to Oriel. He took a first in Lit Hum and a fourth in Mathematics in 1860, winning the Stanhope essay prize and a fellowship at Queen’s in the same year, being one of the first to be elected under the open competition introduced under the 1858 ordinances. Only then did he become President of the Oxford Union. He had begun reading theology as soon as he entered Queen’s and was ordained deacon in 1863 and priest the following year. In 1864 he became tutor (teaching Greats) and Dean. Over the course of the next decade he also took his turn as chaplain and bursar. To all intents and purposes, the Provost, William Jackson, left the administration of the college to Magrath. It was therefore no surprise that in 1877, while he was serving as Senior Proctor, that Magrath officially became Pro-Provost, and a year later he succeeded Jackson as Provost. Ten years later he married his daughter, Georgina.

            While Provost, Magrath served the University on virtually all its major boards: University Chest, Common University Fund, University Press (where he oversaw the establishment of the New York office), Hebdomadal Council, Sheldonian Theatre, University Museum. As well as being Vice-Chancellor, he was also the first don to sit on the city council.

But what was he like? By all accounts he was a good Greats tutor, though one who feared (quite rightly) that Classics was losing its pre-eminence in the University. In this he was conservative (though he was radical in supporting the right of women to take degrees), objecting to the abolition of an understanding of Greek as a stipulation for admission to the University. He was not a great author. Aside from his history of the college (which as his obituary in the Record noted was his magnus opus) he compiled just three volumes for the Oxford Historical Society of The Flemings in Oxford, an edition of the letters of Daniel Fleming and his family while at Queen’s which shed much light on the college and the university in the late seventeenth century. Magrath was not of a generation that published much and as his Record obituary stated he was of an age that considered the life of a head of house to be one of ‘dignity, leisure, and antiquarian research’.

As Dean, tradition has it that he was something of a disciplinarian. This was perhaps no bad thing given that this was the period of attacks by ‘hearties’ on ‘aesthetes’. On one occasion in 1877 an attempt was made to disrupt the first meeting of a new philosophical society being in the college. The room where it was to be held was noted and the chimney above it marked. During the meeting a number of large bath cans of water were transferred to the roof and the water poured through the chimney. Alas, a mistake had been made and the water was poured into Magrath’s own rooms. As EM Walker, Magrath’s successor as Provost, who was an undergraduate at the time, noted ‘The result may be guessed’. Yet Magrath was not a distant figure, at least in his years as Dean and the early years of his Provostship. He rowed in the College eight, before coaching it, and he served as a sergeant in the University Rifle Corps.

            In 1877, while Magrath was Pro-Provost, the Commissioners for the University discussed the fate of the remaining academic halls, including St Edmund Hall. Should it remain independent or should it, like so many of the others, be incorporated into a college? In the end, at Magrath’s suggestion, a compromise was reached. When the current principal, Edward Moore, resigned, a new system of ‘partial union’ with Queen’s would be established. It would be under the control of Queen’s but they would remain separate institutions, with Teddy Hall effectively the poor students’ annexe for Queen’s. It was not until 1903 that Moore resigned and then Queen’s, under Magrath’s lead, decided against the partial union and voted for a complete take-over of the hall. Moore was horrified and led the defence, persuading Congregation to vote against the scheme. Deadlock was held for the next eight years while Moore and Magrath fought for control of the hall, a particularly unpleasant fight as they were lifelong friends. Eventually, opposition within Queen’s collapsed and in 1911 the Hebdomadal Council granted Teddy Hall its impendence.

It is at this time that the legend of Magrath begins. Defeated and exhausted, he effectively gave up control of the college, though remaining Provost and continuing to live in the Lodgings where, after his wife’s death in 1899, he was looked after by his niece, Miss Eva Lefroy. In his place the college was run by Edward Armstrong as Pro-Provost. Because Magrath had been elected Provost three years before the ordinances of 1881 he did not need to retire at seventy. This did not apply to Armstrong who had to retire without ever being Provost. (Indeed, Magrath outlived Armstrong by two years.) Armstrong’s successor as Pro-Provost was EM Walker who eventually succeeded Magrath as Provost, though the ordinances that allowed Magrath to be Provost for fifty-two years forced Walker to retire after three. It is noteworthy that Walker was still an undergraduate when Magrath was elected Provost.

During his years of semi-retirement Magrath was little in evidence. One undergraduate of 1921-4 never saw him, and others believed in his existence only because his ‘minder’ drew batells for him. Another student of 1922-5 saw him only twice, once on the streets in his carriage and once when ‘without a noticeable blush’ he claimed his place as Provost in the college photograph of 1923. It was the last college photograph he appeared in. In 1928 a sensation was caused when Magrath appeared in the front quad in a wheelchair. None of the undergraduates had ever seen him before and all wanted to take advantage of the opportunity. The following year some undergraduates were even tipped off that Magrath would be walking in the Provost’s Garden and they were allowed to watch him walking a few yards from an upstairs window in the Lodgings. During this period rumours rapidly became myths. For example, the Provost’s electric hot water bottle became distorted into an electric mattress with a dazzling array of buttons which could keep any part of his body warm at a touch!

In 1930, at the age of ninety and having been Provost for fifty-two years, Magrath finally died. Eric Ratcliff, the chaplain at the time told students that ‘one day after lunch the Provost had the wind. He said to himself, ‘I’ve had the wind before and blown it off before and I shall blow it off again.’ But this time the wind blew him off’. The veracity of this story is unclear.

So, almost a century after Magrath began his nineteen years of office without power how does his reputation stand? It is probably true to say that he steered the college well as the Victorian age gave way to the twentieth century, a time of enormous change in the University and the colleges. Other colleges had a more traumatic time than Queen’s. In his prime in the last decades of the nineteenth century, Magrath was a man of immense energy who transformed the college. We should remember that he was an important Dean as well as Provost. However, in the twentieth century Magrath was very much a man from a different age, and this led to his great mistake over St Edmund Hall, where he failed to realize that feelings in the University had changed in the quarter century between 1877 and 1903. However, his real mistake was probably in living too long. Over twenty years he created the legend of the absent Provost which perhaps helped to create the atmosphere of inefficiency and sluggishness in inter-war Queen’s that undid much of his earlier energetic reforms.

In conclusion, however, Magrath probably stands in reality, and certainly in mythology, amongst the greatest of the fifty provosts of Queen’s.

Michael Riordan. “

 

Amazing that a grey neglected chance find can be a porthole to a world long gone. I suppose I just need to be careful that I don’t get too carried away if I find a ring with the inscription “Ash nazg thrakatulûk agh burzum-ishi krimpatul.” Unfortunately, I don’t have the temperament of a hobbit, although my feet might be mistaken as belonging to one!

London Terror Attack – Security Failure?

As the dreadful details become clearer, it is uncomfortable hearing how officials predicted the attack; how it was a matter of “when” and not “if.” Only days before, security services are also shown practising for such an event. Parliament, we can all agree, was such an obvious “magnetic” target.

But logically, the next question comes into your head, if it was so predictable, why were armed officers not posted on the actual gates to Parliament (rather than away from the gates as appears to have been the case)? Were officers provided with protective equipment and required to wear stab vests? The attacker was only stopped after the entrance by a Minister’s armed bodyguard who happened to be there: that merely appears to be good fortune.

The reason for raising the issue is that we all take for granted that appropriate security provision is in place when that may not actually be the case. As you are travelling, sometimes you explore in your mind “what would happen, if….” Flying from one UK airport recently, I raised certain security concerns as to why I felt it was vulnerable, only to be told that it met CAA requirements. But I genuinely didn’t think these were enough, and if it occurs to me, presumably it’s going to occur to someone that does have harmful intentions.

If, despite all the warnings & predictions, Parliament is vulnerable to a single individual with knives, perhaps an urgent security review is needed of all our obvious sites? The argument is raised that we need to make sure that Parliament remains accessible to the public, but it still can be even with improved security.

A duty of care is also owed to those in the front line (such as officers at the Parliamentary gates) who are the first to confront such attacks; attacks that we are repeatedly told, have long been predicted. It would be interesting to learn what the drill was meant to be for these poor unarmed officers when confronting the “inevitable” terror attack on such a prime target.

Postscipt

If The Sunday Times is correct (26th March, 2017) that 2 months ago security on the Parliamentary gates was downgraded with static armed guards on the gates being removed, then the officials, advisers & agencies involved in that decision, need to be held to account; not as a matter of hindsight, but because it seems that they have played “Russian Roulette” with the lives of the unarmed officers left on the Parliamentary gates.

 

The Supreme Court’s Ruling on Prerogative Power: how the result might have been different….

Lord Neuberger & his Supremes: 8 v 3

As many expected, the Supreme Court has ruled that the Crown’s prerogative power cannot be used to trigger article 50 & without the sanction of Parliament. The essential reason is that to do so would change domestic law and this is a matter for Parliament.

What is of particular interest is that the appeal was dismissed by a majority of 8 to 3: Lords Carnwath, Hughes and Reed voting in favour of the Government. So if the Supreme Court had sat, as it normally does as a five member Court & also with these three judges, the result would have been the opposite and a win for the Government!

This shows at least four things: (i) how scary the legal process can be, depending upon who sits;  (ii) how right the Supreme Court had been to sit with its full number; (iii) that declarations that the issue is one of law – and therefore apparently only capable of one “correct” result- don’t convey the true picture. As Lord Hughes says at para.281 of the judgment, “clearly either reading [of the legislation] is possible”; and lastly, (iv) either way the appeal went, the public gained in having these important issues clarified, but also went on to lose many millions in the process as they cop the vast legal costs.

Whether you wanted Brexit or not, it is a shame that the Government never thought through the implications at the outset.