News

All Change: Consent to Contract is Subjective not Objective after all!

Readers may recall that in the Calligo case decided last year (Le Cocq, Deputy Bailiff) the Royal Court took up the suggestion by the Court of Appeal in Home Farm that consent to contract was judged objectively and not subjectively.  It may be recalled that the Court of Appeal had included former Bailiff, Sir Michael Birt on the panel of three.

The Royal Court has now (Sir William Bailhache, Bailiff) decided that this decision was wrong and its a subjective test after all. (Foster v Holt [2018] JRC 076.) In this latest decision, the Bailiff referred to an article in the 2016 Jersey and Guernsey Law Review authored by former Bailiff, Sir Philip Bailhache, that argued that the earlier Court of Appeal suggestion was wrong and inappropriate.

It may be surprising that the answer to this legal issue is found to be so different and also over the course of only a few years. The fact that well respected judges of our courts, holding the top jobs, differ so markedly is also fairly striking.

Putting aside the various legal & policy arguments  (& indeed the objective approach to the issue adopted in England or the local precedents that support either stance) there will be little surprise to practitioners, at least, that these particular respected judges have landed on different sides of the fence. It is not really that one pair have overlooked some fundamental point but rather that the judicial approach and outlook is different. A careful survey of articles and previous judgments of each of our judges will, I suggest, testify to this.

What I do find frustrating, & I wonder what French lawyers think, is the citation of Nicholas on the French Law of Contract. It’s a good paperback published in 1982, but I do find it perplexing that when we look at Jersey law that this is hailed as containing the answer. I can’t see that this is justified  at all, and it seems a bit tenuous and lightweight.

I own up to my part in its drafting – but we also now have the Supply of Goods & Services (Jersey) Law 2009 which largely followed the English Sale of Goods Act 1979, although there are some important differences. (See Hanson & Marr “An Introduction to the Supply of Goods & Services (Jersey) Law” 2009 J&GLR.)

Our Jersey contract law is proving to be a bit of a battlefield: a “mixed jurisdiction” where differing approaches are fighting it out.

 

Foreshore Encroachments

The States have received criticism for demanding payments from owners who have encroached onto the foreshore. The complaint is that planning permission  was granted so why do they have to pay after the event?

The answer is that you can get planning permission to build on another’s land so this cannot be misinterpreted that what you propose is lawful. In addition, having added to the value of your property, why should you not also pay something in return?

Good Faith In Jersey Contracts: Why Are We Not Consulting Pothier?

Good Faith in Jersey Contracts: the importance of Pothier.

Pothier, an 18th Century jurist, is often cited as the “surer guide” to Jersey contract law and we sometimes forget that Pothier’s  influence upon the development of English contract law, particularly in the 19th Century, was also immense.

English law can of course provide very useful material for Jersey lawyers when we seek to develop our own legal principle. In articles on this website, or published elsewhere, I have sometimes advocated areas where Jersey law might follow English legal developments, for instance, where Jersey contract law is uncertain or cumbersome in a modern commercial setting.  However, in the context of whether or not good faith is a contractual duty,  Pothier  is such a fertile source that one wonders why more use of his writings has not been made. I don’t regard such a comment as “cherry-picking” but rather making the best use of the tools that are available, and Pothier is particularly authoritative when it comes to Jersey’s contract law.

The recent case of Hard Rock Ltd v HRCKY Ltd [2018] JRC026 was only an interlocutory decision as to whether or not an arguable case was made out on the particular pleadings/facts for a breach of an implied duty of good faith, and the claim was struck out. The Royal Court referring to earlier Jersey and English authority opined that such a term might be capable of being implied into Jersey contracts on a basis wider than merely insurance contracts, but the point remains open.

In researching and providing initial instructions for the creation of what became the Supply of Goods & Services (Jersey) Law 2009, I had to carry out a detailed analysis of Pothier as well as the then applicable English statutory framework to such contracts. It became apparent that English law did not impose any duty in respect of “satisfactory quality” of goods sold in a private capacity, but only upon business sellers. Pothier, however, was absolutely clear that a duty applied to all vendors. Indeed, he frequently spoke of good faith applying to contracts of sale in his Traité Du Contrat De Vente.  Even a cursory look through the headings to his chapters conveys how “la bonne foi” gives rise to a multiplicity of obligations.

When presented with the varying approaches, the relevant committee of the States followed the English duty on business sellers but also wanted to reflect Pothier’s wider duty on private vendors. The committee followed Pothier’s duty of good faith and decided to opt for what became article 24 of the 2009 Law. Unlike the English position, this placed a duty on vendors who were not acting in the course of a business, to disclose defects of which they were aware, if such defects would also mean that the goods were not of “satisfactory quality.” This was considered to reflect Pothier’s duty of good faith.

24   Warranty as to disclosure of certain defects

(1)     If the seller sells goods under a contract of sale of goods otherwise than in the course of a business, the seller warrants that the seller has disclosed to the buyer all defects in the goods that render the goods not of satisfactory quality, being defects of which the seller is aware.

(2)     Paragraph (1) applies only to the extent that, if Article 23(3) applied to the contract of sale of goods and the defects were present in the goods, there would be a breach of the warranty referred to in Article 23(3).

It is very likely that a large proportion of the Jersey public are not actually appreciative of this more exacting duty when selling things in a private capacity. However, it is an example where Pothier has shown the way, and how his writings might still be helpful in the wider context of good faith in contractual relations. I should add, it is pleasing that the States opted for a law that expected higher standards than would apply in the Uk & demonstrates the importance of the legislature getting stuck in, rather than one having to wait for the Courts to nudge things along every now and then.

Of course, there are also many other writers that might be consulted when the issue of good faith next comes before the Royal Court, Domat being another that speaks on the subject. Wider afield, are “The Principles of European Contract Law” (PECL) or the US “Uniform Commercial Code” (UCC),  both of which are underpinned by the concept of “good faith” in contracts and merit consideration when considering the path forwards.

 

Timothy Hanson

 

The Dangers of Buying at Auction & the need for Better Regulation (Updated Article)

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. (Regrettably, the Antiques Trade Gazette declined to publish the views expressed in this piece, maintaining instead its own auction guide that was rather more flattering to auction houses, that also happen to advertise with it.)

Auction Charges & Sale’s 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 at least 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 between auction houses, as well as the importance of bringing them clearly to the attention of consumers, has prompted various regulatory investigations in the past.

Broadly speaking, this 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.

Estimates

Most auction houses publish a bracket between which the hammer price might be expected to fall, called an “estimate.”  The reserve should not be more than the estimate, otherwise the auction house is being misleading in suggesting the possibility of a sale at its lower estimated figure. (For this reason, beware of auction houses that publish no estimate particularly when leaving an absentee bid.)

Estimates can be helpful provided you don’t forget that the sum that you actually pay will also have the buyer’s premium added & normally with VAT applied on that premium too. In a guidance note, the Advertising Standards Authority Ltd (ASA) suggest that the guide price should be followed by a statement of any percentage buyer’s premium applicable, including VAT. (Personally I felt that this guide could be clearer as the section entitled “How should non-optional fees be displayed” seemed to be at odds with later sections.)

You should also be aware that auction houses can frequently put estimates at a very low level to encourage interest. This can lead to some auctioneers declaring  (rather irritatingly) that an item is going “very cheaply” despite the fact that it still falls within their own estimate or is even beyond their estimate. Therefore, if you really want an item, be prepared for the fact that its “value” is greater than the estimate & that any absentee bid you place, is pitched at the right level.

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 absentee 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 & can be held liable if they don’t.) 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, although 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,” the Vendor was held liable for its 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 complete 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 or in failing to execute an absentee bid.

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, sometimes on more than one occasion when I thought I had just been unlucky the first time around. I do believe that auction houses need better regulation given the broader clientele that they are now 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!

Absentee or 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 absentee bid (with no other bids on their books) but you have no real way of establishing the position and, absent issuing a legal claim, 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 an absentee bid 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, absentee bids 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. In any event – and for some reason that I can’t understand- this obvious impropriety seems not to have provoked any regulatory intervention.

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 absentee bid at that. This is in breach of their terms and conditions which normally state that they will buy the item as cheaply as other bids or the reserve permit: in this instance, none being applicable. 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 as low as £50.” I wanted to ask “why not & how did you select that figure?”

Another auctioneer refused to accept a bid in the room 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. In practice, I suppose it’s only the vendor that could really complain if they wanted a sale and, despite the vast array of terms and conditions, I couldn’t find one covering this, but I’m not sure the auctioneer was right. For instance, had the auction house accepted an absentee bid on the normal basis for execution, how could that auction house then refuse to honour its obligations to execute the bid & as cheaply as possible? Further, were the auction house to have represented or advertised to potential buyers that it was selling items at no reserve, the would-be buyer might have additional grounds for complaint. (In this particular case, the irony was that the item sold at an even lower price in the following sale, but the vendor will probably never have known what went on, & I doubt the auctioneer will have volunteered the information.)

What if I leave an absentee bid and the auction house fails to execute it, puts it in on the wrong item, or executes it at the wrong price? This situation happens more than you would think and I have experience of all three scenarios. It can be very frustrating and cause a fair amount of disappointment. In auction houses where the administration is not as efficient as it ought to be, this kind of situation is prone to happen. It is far better for auction houses to confirm the absentee bid by email, not least so there is a written record, but even then it can fail to make it onto the auctioneer’s sheet or whomever is handling absentee bids.

The basic position is that  a contract is formed between the potential buyer and the auction house to execute that absentee bid; this often being covered by the terms and conditions of auction houses as has already been discussed. The provision of this service means that the law  implies a condition that the auction house has to  exercise reasonable care and skill when dealing with that absentee bid, so if the auction house messes it up, it is technically liable, although calculating any loss would be fairly difficult. Some auction houses attempt to exclude liability, but the Office of Fair Trading has opined that such exclusion clauses may be considered unreasonable and therefore be ineffective. Obviously, if the auction house bids for you on the wrong lot or more than the agreed sum, it is hardly likely that the auction house will be able to insist that you pay their invoice.

Unfortunately, when they do mess up and overlook an absentee bid that is greater than the hammer price actually paid, I very much doubt they also go on to compensate their vendor, although as the vendor’s agents, they owe a duty to do so. Instead, an apology might be heard to the disappointed (would-be)  buyer accompanied by the confession that “our poor vendor has also lost out.” That says it all really. Auction houses can appear immune from responsibility for their own ineptitude.

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 or absentee 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 either evidences  a concern on the part of the trade as to how commission bids on the books are executed by the auction house itself, or there are other advantages for the trader in proceeding in this way. 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.) I have seen one auction house say in its terms that bids left with our porters are nothing to do with the auction house. That may be an attempt to insulate the auction house from any complaint by the person making the absentee bid, but it misses entirely the potential conflict and prejudice to the vendor.

The same principles make it exceptionally unwise for an auctioneer (or any of their staff) to bid on items for his or her own purchase, something that in other walks of life might be described as “insider dealing.” If it is lawful (as I heard the BBC claim, rather boldly, on an episode of Celebrity Antiques Road Trip) an auctioneer would be wise to ensure that a term to such effect is included in its terms and conditions; any such bid is disclosed and the member of staff bidding has no involvement in the sale of the item itself.

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 shared by 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 in the sale 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 (justified as  the bid of the vendor under a reserve.)

While such practices are technically lawful under the auction house’s standard terms & conditions, 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.

(Revised & Republished article that first appeared in 2017.)

Jersey Divorce Reform – Have Your Say!

Jersey Divorce Reform – Consultation in Progress

As a barrister in St.Philips Chambers, the late David Hershman QC – a much missed and lovely man- headed our family group and asked me to do a seminar on divorce reforms being introduced by the Family Law Act 1996 and in particular, on the much anticipated “no fault divorce.”

Despite the passage of over 20 years, I can recall the seminar that we delivered, not least because despite the Act having been passed by the UK Parliament, “no fault divorce” still proved so controversial that these provisions were never actually brought into force! In part, certain procedures that accompanied the reforms were also rather problematic, but the aspiration of removing the “blame game” always seemed to me to be a good one.

It was for this reason that a colleague and I broached the idea of reform of Jersey’s divorce law to a “no fault basis” believing that Jersey might succeed in introducing a better system than that which prevailed in the UK. In 2009 we publicised various proposals but only to find ourselves challenged publicly by the then Dean of Jersey. Beneath this article is our response as published by the Jersey Evening Post.

It is heartening to know that some 9 years later, and after continuing efforts, divorce reform in Jersey is firmly on the agenda. It will be interesting to see if the aspiration of removing “fault” as the main gateway to divorce in Jersey will succeed, or if, as a society, we are still not ready for such a change.

Jersey Evening Post : 20 August, 2009

From Advocate Timothy Hanson and Barbara Corbett,  Hanson Renouf.

CHURCH leaders are reported (JEP, 7 August) to have ‘condemned’ this firm’s attempt to have the divorce law in Jersey reformed. Unfortunately, there appears to have been a degree of misunderstanding as to the reforms that we have put forward.

In Jersey, divorce is governed by the Matrimonial Causes (Jersey) Law 1949. Much of that law was originally based on the English Matrimonial Causes Act 1937.

Since that time there have been many amendments and changes to divorce law in both England and in Jersey, although the provisions in each jurisdiction are not exactly the same. Many of the changes in the Jersey 1949 law have emanated from England, but rather than copying laws wholesale, Jersey has taken bits and pieces from English statutes, occasionally adopted slightly different provisions and at other times has simply failed to react.

In part, our suggested reforms fall into this latter category and all that we seek is to match certain elements that already exist in the UK. In other respects, primarily in reducing bitterness and hostility in divorce, we feel that Jersey can put itself ahead of current UK law.

The JEP reported that Jersey church leaders opposed reducing to one year the general prohibition on couples getting divorced, unless they have been married for three years.

While to some extent an understandable reaction, this view failed to take account of the fact that the three-year restriction does not apply in cases of exceptional hardship or depravity and, therefore, it simply encourages (if not requires) one spouse to make the most unpleasant allegations possible against the other spouse to get an early divorce, but without any guarantee that the court might agree.

The English Law Commission stated in 1982 that such a rule merely produced considerable ill-will and suffering and, consequently, several decades ago the UK abandoned the three-year rule in favour of a blanket one-year ban. We suspect that this UK reform, and the reasons for it, may not have been fully appreciated in the reaction to our recommendations.

It is unclear as to what the Church may feel about our suggested reforms that would remove the need to prove that someone was at fault; for instance, that they had committed adultery or had been guilty of unreasonable behaviour. Hopefully, the Church would agree that it should no longer be necessary to prove that one spouse is responsible for the breakdown of a marriage; merely that the marriage has irretrievably broken down.

As long ago as 1988, the English Law Commission concluded that divorce based upon fault was not helpful: ‘The necessity of making allegations in the petition “draws the battle-lines” at the outset. The ensuing hostility makes the divorce more painful, not only for the parties but also for the children, and destroys any chance of reconciliation…In petitions relying on fault-based facts, the petitioner is encouraged to “dwell on the past” and to recriminate.’

These proposals formed the basis of a 1993 Government consultation paper, Looking to the Future – Mediation and the Ground for Divorce, which as well as looking at the basis for divorce, also dealt with procedures whereby mediation could be used to help people through the consequences of divorce, rather than the traditional processes of lawyer negotiation and court order.

The commission produced draft legislation which, the consultation paper concluded, ‘might reduce the bitterness and feelings of injustice so prevalent in divorce proceedings and…consequently minimise the harm suffered by children. Perhaps by encouraging parents to look at how best they can meet their parental responsibilities for the future, rather than dwelling upon the unhappiness and unfairness of the past, the process could be easier for children.’

The UK Government accepted many of the proposals of the Law Commission and brought in the Family Law Bill in 1995, which was to become the Family Law Act 1996.

This act would have removed the need to establish that one spouse was at fault for the breakdown of a marriage, as well as other useful reforms, but unfortunately these aspects have not yet been brought into force in the UK for a variety of bureaucratic and other reasons. The principles enshrined in that act, however, remain worthy to pursue in Jersey.

Divorce can be a lengthy process, expensive and unpleasant. Proceedings in fact tend to take longer and cost more in Jersey than in England, and contentious cases take up significant court time.

The fault-based grounds for divorce, and the lack of encouragement to reconcile, or requirement to explore alternative methods of resolving issues, engenders bitterness and distress. Worse still, this distress can also be felt by the children. They at least should be protected from the blame game.

In fact, they need their parents to be able to communicate and provide good role models, irrespective of the fact that they no longer live together. A divorce process that concentrates in so many respects upon blame is clearly at odds with what most people would either want to experience or to happen to others.

Further, it tends to destroy even those marriages that might otherwise have been saved along the way.

 

Welcome Appointment of Children’s Commissioner

It was both a pleasing and an exciting development to learn shortly before the Christmas holidays of the appointment of Deborah McMillan as Children’s Commissioner for Jersey.

This will be a very wide ranging and enormously important position. The drafting of the legislation that will set out the role has, of course, yet to be done, so this will pose the first challenge. There have been criticisms made, for example, as to the ambit of the various roles of Commissioner in different parts of the UK and this will no doubt inform the process.

The Commissioner will need to have investigatory powers as well as a platform to influence and, if necessary, challenge decisions, law and policy. Given that the role follows the recommendation of the Jersey Care Inquiry, it might even be appropriate for the Inquiry panel to comment upon any draft.

It was pleasing to read from the recent announcement that adherence to and promotion of the United Nations Convention on the Rights of the Child is seen as a very significant part of the role. Hopefully, the States might be persuaded to implement a complaints’ mechanism for alleged breach of this important Convention and, better still, give the Convention real force by incorporating it into Jersey law. The latter idea will no doubt take years to work through, just as the Human Rights (Jersey) Law 2000 took a further 6 years before it was actually brought into effect. Inroads could therefore be achieved quickly in this respect by imposing a specific duty on Ministers to consider the UNCRC when exercising their functions, as has already occurred in Wales.

Where proposed decisions, policies or legislation affect children’s rights, an “impact” assessment might be compiled and published by the States in accordance with the UNCRC to ensure transparency and bolster confidence in the processes of the States.

The role of Commissioner is, however, rather daunting and will extend far beyond this in a myriad of different ways. It will no doubt extend to improving mental health provision for children and young persons, where statistics show that a third of self-harm admissions for 2013-2015 were for those under 20 years of age; the far greater proportion of these being girls. Liaison with the UK Commissioners will be particularly important in respect of wider campaigns, such as the overuse of computers by children and the dangers of social media; aspects that have been prominent both last year and even this month. They are pressing issues in Jersey as much as they are outside the Island.

Early progress in the role of Commissioner will be important, not least so as to vindicate the faith reposed in the creation of such office, but more importantly, given those that have already suffered ill-treatment as children and young persons, and those that remain at risk. The appointment of Mrs McMillan and her team are therefore much welcomed.

The Toll of Ever Greater “Efficiency”

Over the years, I have worked for myself as a barrister from chambers; as a lawyer employed by a large organization, as well as a partner in a  law firm. I have experienced the relative freedom of being self-employed – being able to take a holiday & erratic cash flow can be real issues however-  as well as the crushing feeling of accounting for each 6 minute unit of one’s working life as an employee.

The organization that once employed me used a code for time recording: the number “12” was for “personal time.”  This I used when going to the toilet, which tickled me, because it was a  combination  of a “number one” and a “number two.”

Totting up the hours each week in the hope of impressing the boss and getting up that slippery pole, made me feel how cheap I was parting with my weeks on this earth and that there must be more satisfying ways forward!

Hence I set up my own law firm with a colleague, but the drive over the years became the same: to increase turnover, reduce outgoings and become more efficient. One enjoys the creativity but only to discover the irony that you are striving towards something reminiscent of what you never liked. As the firm grows, of course, those imperatives become increasingly apparent.

For many that are not so fortunate to be able to choose a different path, I worry at the changes that some employers make to work practices or to workload on the altar of achieving greater “efficiency.” Professions where cash might be short, such as teachers or medical staff, seem to be stretched to do yet more, such that you can witness people buckle with the pressure and stress being loaded onto them. At one UK school in the Midlands I visited last year (which was undergoing significant change & “harmonisation” ) a number of the teachers simply looked ill. There was palpable unhappiness, but the powers at be, seemed able to find replacements, & sometimes for less money.

But it seems to be a not infrequent event when you speak to people: “I’ve had to take on an additional role but my pay’s still the same. I’m not sure when I’m going to find the time to do it all.”

And then there’s email: a blessing and also a curse. How did we all cope before it became commonplace? But what a nightmare. As a lawyer, opposing parties expect a response, if not within a few minutes, certainly within a few hours. In multi-party cases, if you have been absent from your computer, you find there are 20 odd emails as people have engaged in frantic discussion of the issue at hand; some responding to different emails in  the chain.

On a recent case, I was scanned an application from another party, only to find an email arrive before I could even finish reading it, where the Judge had abridged time and placed the matter in Court the next day. My own mutterings of natural justice, and the application was not that urgent anyway, unfortunately didn’t illicit a similarly prompt response despite the merit to my complaint.

But when you cease work at the end of a busy day, or when you wake up, can you afford not to check your emails? What happens if your opponent has tried to take a procedural advantage when you’ve clocked off? Perhaps it matters more when it’s your own business, but the truth is its difficult not to check in any event.

The answer should be that we all have to switch-off and relax when we leave work but email often means that we take our work home with us, and even away on holiday. In years to come, no doubt, there will be a backlash to the way many of us lead our lives, forever hooked up to work and emails, as the stress and pressure makes its presence known through illness and contributes to poor communication with our own families, who get less of a look-in. “You are always on your phone”- sound familiar?

It is incumbent on employers, therefore, to insist that employees look after themselves &, where possible, avoid the tyranny that work emails can have when they have ostensibly finished work. I also think that employers should be reminded that they have a responsibility for the welfare of their staff. Employees can’t be stretched and stretched to do ever more work without eventually snapping.

 

 

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.