News

The Limits of a Saisie Judiciaire

In a recent decision of the Royal Court in In Re Tantular [2019] JRC 114 the Court stated at para.34 that an injunction or saisie judiciaire made against a Trustee to prevent any dealing with a foreign asset also prevented a bank/mortgagee from dealing with its mortgage that was secured on such asset. Unless overturned on appeal, this decision could have enormous repercussions for lenders outside Jersey, making it necessary for them to go to the cost of applying to the Royal Court for permission to transfer or enforce their security despite the fact that such an injunction has been made against a separate third party. But was the Royal Court right?

This particular case involved an application by the Attorney General of Jersey (acting upon behalf of the Indonesian government) for a saisie judiciaire under article 16 of the Proceeds of Crime (Jersey) Law 1999 as modified under certain regulations. It is not actually clear whether or not these statutory provisions are intended to apply to property outside Jersey and there is a conflict in the approaches so far taken in Jersey (Re Kaplan) with that taken in Guernsey (King v HM Procureur.) Certainly when article 16(5) refers to Jersey property remaining subject to existing Jersey security, an extra territorial jurisdiction is not hinted at in these provisions. However, this issue remains for another day.

This month the case came before the Jersey Court of Appeal where Advocate Timothy Hanson appeared for the Appellants. It was submitted on appeal that:

(1) the overarching effect of article 16(5) clearly conveyed the legislative intention that the saisie judiciaire (and asset) is subject to existing security rights which may be enforced or transferred without further order of the court;

(2) there was no logical reason for a stricter approach to foreign assets where indeed, the court had to be careful not to act oppressively against third parties;

(3) the rights of a mortgagee represent separate property to that of a mortgagor (who was subject to the injunction) and article 16(4)(1)(b) further meant that the saisie could only extend to realisable property held by the Trustee;

(4) the mortgagee’s rights (being its own property) were not tainted or “realisable;”

(5) accordingly, the saisie judiciaire did not prevent the bank/mortgagee dealing with its own property and, for example, transferring its mortgage to a third party.

These submissions appear to have been favourably received by the Court of Appeal. It is anticipated that the Court of Appeal will express its judgement, on this important point of public interest, in the near future.

Appeal Allowed Against Hard Rock Ltd

Claims of Bad Faith to go to Trial

The Court of Appeal of Jersey has just handed down its judgement in which it has allowed the appeal of HRCKY Ltd against the summary dismissal of its claim against Hard Rock Ltd and Hard Rock Cafe International.

The Court of Appeal was presided over by William Bailhache, Bailiff with fellow judges John Martin QC & Robert Martin QC.

The Court of Appeal held that the Appellant (HRCKY Ltd) had been driven from the judgment seat without all the evidence having been produced to the Court. The Court of Appeal further provided elaboration as to the applicable principles of erreur and dol; accepting also the role of good faith pre and post contract, a breach of which might amount to dol.

The Court further explained why previous authorities that apply principles of misrepresentation drawn from English law may be unreliable.

The Court also discusses how an “entire contract” clause could be undermined in appropriate circumstances (as alleged in this case. )

The Court of Appeal has emphasized the need for the issues in this case to go to trial.

Advocate Timothy Hanson commented “This is an immensely important case for the future direction of Jersey’s contract law that may further assist any future codification or restatement. I have found it a privilege to have been involved.”

The judgment is published at the following link:

https://www.jerseylaw.je/judgments/unreported/Pages/[2019]JCA123.aspx

The Overlap between Dol & Bad Faith

In an earlier post on the Hard Rock Cafe appeal, it was suggested that dol might more properly be categorised as bad faith, or at least a form of bad faith, rather than fraud or dishonesty, and that the examples given by commentators such as Pothier supported such a wider view, as did authorities such as West v Lazard Brothers and Company (Jersey) Limited 1993 JLR 165. It was also suggested that dol may in fact vary in context and in respect of the precise legal relationship involved.

A line of authority in England could possibly now assist in elaborating the ambit of dol and in formulating a helpful definition of bad faith. The difference between Jersey & England is, however, that England has resorted to developing the concept of implied terms, whereas in Jersey (it is argued) “good faith” is already considered essential to the formation of contractual relations; a breach, giving rise to an action under the concept of dol viz. that the contract is void and/ or damages. (Perhaps such differing approaches are comparable to eg the duty to exercise reasonable care that exists as an implied term but also can overlap with the duty that arises in tort.)

The latest English High Court judgement is Bates v Post Office  [2019] EWHC 606 (QB) reported at https://www.bailii.org/ew/cases/EWHC/QB/2019/606.html 

The Bates case applies Yam Seng (referred to in an earlier post) and, at paragraphs 710 & 711, the High Court considers the ambit of what can amount to bad faith: conduct which in the relevant context would be regarded as commercially unacceptable by reasonable and honest people.”  Importantly, the High Court disagreed with Chitty on Contracts and further stated that a finding of dishonesty was not necessary for bad faith to be found.

Perhaps such a definition accurately captures the essence conveyed by the myriad of examples that Pothier and other commentators cite in their works when dealing with objectionable behaviour that is referred to as dol? We know that Le Gros also refers to “good faith” being essential to contracts governed by Jersey law, so we do need to be able to define bad faith.

The judgment of the Court of Appeal of Jersey on the Hard Rock appeal is eagerly awaited on what could be a key decision in the development of Jersey’s contract law, embracing conduct both pre and post contract.

Hard Rock Cafe, Dol & Good Faith

HARD ROCK CAFÉ, DOL & GOOD FAITH

Advocate Timothy Hanson appeared for the Appellant in the recent appeal of HRCKY Ltd against Hard Rock Ltd & Hard Rock Café International (STP Inc). Pursuant to leave having been granted in [2018] JCA 152 on the issue of dol (loosely to be translated as fraud), the appeal was heard by the Court of Appeal of Jersey on 21st January, 2019.

The complexity of the issues raised has meant that judgment has been reserved. However, the decision will involve a major reconsideration of Jersey’s contract law and, in particular, the role of dol, misrepresentation, good faith and the effectiveness of certain contractual clauses known as “entire contract” and “non-reliance” clauses.

The Facts & Arguments

Hard Rock franchises have been granted through the vehicle of a Jersey registered company called Hard Rock Ltd, granting rights to operate a Hard Rock franchise far beyond the shores of Jersey. In this case, the agreement dates to 1999 and granted rights to operate a franchise in Cayman. Surprising as it may seem for a global operation, Jersey law, however, was specified as the applicable law in the Hard Rock franchise agreement.

It may immediately be apparent that Jersey has never introduced specific statutory protections for those operating a franchise which involves an asymmetric “relational” contract, where the franchisee is reliant upon the knowledge and experience of the franchisor that grants the franchise. Many countries around the world have had to introduce specific statutory protections to prevent abuse by franchisors and to protect those buying a franchise from being misled. Sometimes, the courts have simply had to be ingenious in fashioning the law to meet the particular problems posed.

In this case, it was accepted that HRCKY as franchisee (who “bought” the Cayman café franchise) was never informed by Hard Rock that its restaurants were likely to run at a loss and that overall profit depended upon strong sales of merchandise. HRCKY’s case was that this business model was therefore inherently vulnerable to economic fluctuations; particularly over its non-standard 20 year term granted, and the rigidity with which Hard Rock could (and did) demand performance. HRCKY had understood that the sale of merchandise was merely a “bolt-on,” or a subsidiary, separate stream of revenue. It was not appreciated that were merchandise sales to dip below 50%, a downward spiral of losses ensued, exacerbated by Hard Rock’s royalties taken on revenue rather than profit.

The Royal Court at [2018] JRC 026 had found that the franchisee had been informed of likely overall profit figures and that these were not far from the mark for the first few years. As a result, there was no misrepresentation by Hard Rock and the Royal Court found that there was therefore no fraud or dol on the part of Hard Rock. Moreover, contractual clauses under the franchise operated so as to thwart any claim.

On appeal it was argued that that the Royal Court had not approached the issues correctly and, in particular, that there had been a duty on Hard Rock under Jersey customary law to disclose to HRCKY the loss making restaurant side before the contract, as it was so obviously relevant. Further, that in having provided the allure of overall profit forecasts, it was misleading not to have also revealed the inherent weakness in the Hard Rock business model. As a result, only part of the picture had been conveyed.

Reliance was placed firmly on Jersey customary law; it being observed that principles of English misrepresentation were foreign and inappropriate accretions, that operated under a different statutory framework including the Misrepresentation Act 1967 that simply had no counterpart in Jersey.

In respect of the exclusion clauses relied upon by the Royal Court, Jersey customary law was such that these did not, and could not, exclude dol and were not relevant. Again, reference to English law was not helpful in this area because case law there relied upon statutes such as the Unfair Contract Terms Act 1977 in assessing the reasonableness of such clauses; a statutory check that was not available in Jersey until, arguably, reforms introduced in 2009, and which post-dated the contract under appeal in any event.

Despite the absence of specific statutory protections for those entering a franchise under Jersey law, the central contention was that, nonetheless, Jersey’s customary law offered a vibrant and fertile set of principles that could and should be applied by the Jersey Court of Appeal.

Customary Law Summary

A review of Pothier’s works – considered high authority in Jersey- reveal a coherent and often repeated set of principles in relation to the issue of dol and as to concomitant duty to give disclosure to another contracting party. The principles can be summarised thus:

  • In a reciprocal contract of mutual interest, where a contracting party has knowledge relating to the subject matter of the contract, in particular as to some significant defect,  and that this knowledge is material to the other contracting person, there is a duty to disclose that knowledge as a matter of good faith;
  • Not to do so is a fraud or dol;
  • In such circumstances, contractual clauses that seek to exclude or exempt liability are not enforceable and will not be upheld;
  • While dol will give rise to a claim in damages (and indeed against a non-contracting party guilty of dol) only dol that induces the contract may furnish ground for its impeachment.

Pothier’s Classification of the Franchise Agreement

The franchise agreement in this case would fall within Pothier’s classification of a perfect reciprocal (bilateral) contract with principal obligations on both sides. . (Obligations  at para.9.) Accordingly, the franchise agreement would share such classification with contracts of sale (“de vente”) hire (“de louage”) or partnership (“de société”) being also consensual (para.10) and of mutual interest (“Ies contrats interéssés” para.12.) Indeed, the franchise agreement in this appeal could be said to be made up of elements of partnership, hire and sale.

In his works, Pothier repeatedly draws out similarities in such contractual relationships. For example, in his Traité Du Contrat De Louage at para.2 “Ce contrat convient en beaucoup de choses avec le contrat de vente;” and at para.4 “Le rapport entre ces deux contrats est si grand…”  Pothier’s general classification is useful, therefore, because it means that we can better understand his coherent approach when we look at his separate treatise on the topics of contract of sale, hire and so on; each exemplifying broader principles of contract law.

Disclosure & Good Faith

In his Traité du Contrat de Vente Pothier provides an important explanation for the need for disclosure by one contracting party to another at para.234.

 “…in contracts of mutual interest, of the number of which is the contract of sale, good faith prohibits not only falsehood, but all suppression of everything, which he, with whom we contract, has an interest in knowing, touching the thing which makes the object of the contract.

The reason is that justice and equity, in these contracts consists in equality. Everything which tends to diminish this equality is therefore contrary to equity. It is evident, that every suppression, on the part of one of the contracting parties, of anything which the other has an interest in knowing, touching the thing which makes the object of the contract, diminishes this equality; for, when one of them has more knowledge than the other concerning the thing, he has an advantage over him in contracting, he knows what he is doing better than the other; and, consequently, there is no longer equality in the contract.

In making an application of these principles to the contract of sale, it follows, that the seller is obliged (“est oblige”) to declare all that he knows touching the thing sold to the buyer, who has an interest in knowing it; and, that by omitting to do so, he offends against the good faith which ought to govern in this contract.”

Accordingly, Domat asserts a party must not be tricked by dol or something unexpected:  “c’est un autre caractère essentiel à toutes les conventions, que l’on y traite avec sincérité et fidélité : et c’est un vice dans une convention, si l’un trompe l’autre par quelque dol et quelque surprise.” The sentiment is also seen in an earlier passage at p.17 “Qu’en toute sorte d’engagemens, soit volontaires ou involontaires, il est défendu d’user d’infidélité, de  duplicité, de dol, de mauvaise foi et de toute autre manière de nuire et de faire tort.”

Exclusion of Liability & Dol

At para.211 of his Traité du Contrat de Vente when dealing with attempts to exclude liability,  Pothier makes clear why an exclusion clause will have no effect where there is dol

“But if the seller, at the time of the contract, has full knowledge of the defect, and instead of declaring it, stipulates that he does not warrant against it, such concealment is a fraud  on his part (“cette dissumlation du vendeur est un dol”), which renders him subject to warranty, notwithstanding the clause.”

Both Domat and Le Gros are clear that obligations of sincerity, good faith and acting without dol cannot be “contracted out of” in agreements :-

  • Domat thus notes in one of his early sections that : “Ainsi, les lois qui ordonnent la bonne foi, la fidélité, la sincérité, et qui défendent le dol, la fraude, et toute surprise, sont des lois dont il ne peut y avoir ni de dispense ni d’exception.”
  • This is also reflected in Le Gros’ statement that : “C’est un principe en quelque sorte sacré que la convention fait la loi des parties, mais la bonne foi est une condition essentielle et sine quà non de la convention.” Traité du Droit Coutumier de l’Ile de Jersey, 1943, p.350.

Residual Issues

The appeal in the Hard Rock case raised a number of other interesting issues which it is hoped that the Court of Appeal might further explore:

  • Is dol properly translated into English as “fraud” or is this apt to mislead by comparison to the English tort of common law fraud? Pothier does not use the word “fraude” but dol (emanating from “dolus.”)
  • Is dol a convenient & flexible label of simply what happens when someone does not act in good faith pre-contract or post? In West v Lazard Bros 1991 JLR 165 the Royal Court emphasized the comparison between dol with equitable fraud; the importance of the particular relationship involved and “unconscionability.” (See Howard, “Positions de Confiance” 1997 J & GLR & consider Steelux Holdings v Edmonstone 2005 JLR 152.)
  • Could dol vary as between relationships: perhaps “dishonesty” needed between hard bitten experienced commercial parties, but only “unconscionability” needed in other situations such as in a fiduciary relationship? Alternatively, is the label “bad faith” sufficient to describe the abuse of such relationships, but with varying levels/factors depending upon the circumstances of each case?
  • Do different principles apply to dol that leads to the annulment of a contract to dol that leads just to damages? For example, Pothier speaks of dol emanating from the other party in order to annul a contract, but if from a third party the remedy is damages only against that third party. (Modern French law is also interesting in this analysis.)
  • Does dol incorporate concepts of fair dealing more generally and therefore provides a means to control objectionable exclusion clauses for which no statutory protection exists?

Concluding Confession

I have to end by this confession: it is rare to have the privilege of researching a case with so many interesting customary law issues but the process has changed my view on the future development of Jersey’s contract law. Hitherto, I had adopted the pragmatic view that Jersey law must be accessible and in a constant state of review and development. That necessarily meant that any judicial “tussle” as to future direction was to be deprecated because it was the litigant that bore the expense and uncertainty. Moreover, the paucity of Jersey contractual cases; the delay in the States passing legislation to update Jersey Law; and (until the creation of the Institute of Law) the lack of an educational establishment to assess and debate Jersey contract law, were all aspects that favoured us harnessing the labours of others. That did not necessarily mandate developing Jersey contract law along English lines, but given the shared language and existing relationships, this would not have been an untenable view. I had, in fact, expressed the preference for adopting the Principles of a European Contract Law (PECL) as a suitable framework; placing Jersey at the forefront of contractual development and also on an international stage. The Law Commission in fact suggested an Indian Contract Law model, which has not otherwise received support.

The change in my view is that the material is there for the development of Jersey contract law, according to the writings of Pothier and others, but it seems to me that we should be more ready to look to modern day French law that used such works as its inspiration, and so as as to assess how such principles have developed. The work particularly of Duncan Fairgrieve, formerly of the Institute of Law, has provided me with the reassurance that I have needed that Jersey can develop Jersey contract law in a reasonable period. However, we will be heavily reliant on academics, judges and practitioners of his stature in any such endeavour. As the former Bailiff of Jersey, Sir Philip Bailhache, has already remarked, Fairgrieve’s recent book entitled Comparative Law in Practice: Contract Law in a Mid-Channel Jurisdiction should be mandatory reading for practitioners in this area.

Consistency by the Court, either set by virtue of authoritative rulings, or by statutory intervention, will of course be crucial. As the Bailiff Sir William Bailhache has remarked recently in Foster v Holt [2018] JRC 076:

“Absent some conclusive cases decided at Court of Appeal level or in the Privy Council, the more sensible way forward now in our judgment would be a formal Restatement of the Law of Contract.”

Perhaps the Hard Rock Cafe case will provide that former opportunity; resetting Jersey contract law at an authoritative level that will influence its future direction.

Timothy Hanson

Advocate

Ridiculing a Victim of Sexual Assault Shows Trump Not Fit for Office

We may be surprised of the open acceptance in the USA that judges are political and that their personal views can influence the conclusions that they reach in court: the nominations made by the President for the Supreme Court therefore being considered to have potential political and social consequences. In the UK, we still cling to the notion that justice is blind, although works such as Griffith’s “The Politics of the Judiciary” argue that such a belief in the UK is less well founded than we may have hoped.

Unfortunately, the allegation of sexual assault made by Professor Christine Blasey Ford against the presidential nominee, Judge Brett Kavanaugh, had the potential, therefore, to become mixed up in the world of politics. I accept entirely that the resolution of such an allegation poses a number of difficulties, but what has been utterly unforgivable is President Trump’s ridicule poured this week upon the oral evidence given by the Professor. If this was not bad enough, he chose to do so at a political rally.

The evidence of the complainant was widely hailed as being “credible” and “compelling”, even initially by the President himself, so this is not an accusation that can simply be dismissed.

In reporting a sexual assault at all, a victim will have to get over a myriad of barriers, including feelings of embarrassment, shame (even if misplaced) as well as the fear of not being believed. In recent years, there has been great effort made to reassure victims to come forward and to train people to react appropriately to such accusations.

The President is meant to be a role model. I fear, however, that his actions will have set us back decades in respect of encouraging victims of sexual assault to come forward and make disclosures.

In ridiculing someone that has had the courage not only to make a disclosure, but also to give evidence and to have her accusation tested in the open, the President has shown not only a lack of compassion but projected both himself and the state as bullies. Any prudent individual in the position of President might have maintained a dignified silence and allowed the proper processes to take their course.

The one person that has come out of this unedifying spectacle as not being fit for office, is Donald Trump himself.

Work Needed on Child Protection: Some Areas for the States to Consider

On 6th September, 2018, the Jersey Care Commission reported on an Ofsted inspection of children’s social services and issued recommendations. The findings by Ofsted were stated to be “consistent with the conclusions of Frances Oldham QC” of the Jersey Care Inquiry published last year. The position is neatly encapsulated in the following few paragraphs:

The Care Commission agrees with Ofsted that whole system change is required. All those with corporate responsibility for meeting the needs of children and young people in Jersey must now address the key challenges summarised above; ‘What needs to improve’.

Unless and until these core issues are satisfactorily resolved, the service will continue to struggle to deliver safe and effective interventions and support for children and their families.

……..Some recommendations will only be realised through effective collaboration with other departments including the courts service, police, health and education. Others will require a commitment to invest in the service at an appropriate level. The overall endeavour will require support and intervention at a political level.

The Jersey Care Inquiry had made the important point that a widespread “culture” had existed which had contributed to a failure to protect Jersey children. This latest report similarly reiterates the ambit of change that needs to take place. In this article, I highlight a few areas that might benefit from improvement but that have so far escaped scrutiny in recent reports.

The Children (Jersey) Law 2002

This 2002 Law represented a big shift in the Jersey law relating to children, emulating extensive parts of the UK Children Law 1989 that had overhauled the position there. The 2002 Law actually came into force in 2005 and had, by this stage, been underpinned by a number of bespoke procedural rules and regulations.

What is important to appreciate, however, is the particular era in which the 2002 Law was conceived in Jersey: it was one that that had failed to give children caught in care (“fit person”) proceedings a proper voice; to acknowledge them as individuals in their own right and, importantly, to appreciate that better outcomes in such proceedings resulted in such children having their own social worker or Guardian to report to the court, and, further, to be represented by their own lawyer.  In the UK, for over a decade, a Guardian and lawyer had been automatically appointed to children caught in care and other public law proceedings: the so-called “tandem model.” The United Nations Convention on the Rights of the Child had also been ratified by the UK in 1991 and this further bolstered the importance of children being able to participate in the proceedings that affected them and  particularly, where they might be separated from their birth parents.

Unfortunately, in the drafting of the Jersey 2002 Law, a decision was taken  not to follow section 41 of the UK Act that provided for the near automatic appointment of a Guardian and lawyer for children caught in public law proceedings. The Bailiff, W.Bailhache is therefore entirely correct at para.49 of his judgment in  Re B [2010] JLR 387 as follows:

It appears to me to be clear that P200/2001 [i.e. the 2002 Law] did not envisage that the UK scheme was being replicated wholesale into the law of Jersey. Indeed, the difference of language of the local legislation compared with the 1989 Act; the expressed intention of the Committee; the statement in the report that the proposed Law had been the subject of wide consultation with all major parties interested in the care of children and, where appropriate, had been amended to take account of concerns and comments received; and also the statement that no additional manpower or funding was being sought to administer the Law all point to the conclusion that the English regime was not to be adopted wholesale.”

It is, of course, surprising that the introduction of a major piece of legislation, that is meant to achieve a radical overhaul in child protection and children law generally, should be said to have no implications  in respect of manpower or funding. Perhaps this just conveys the limited aims or simply the lack of awareness of those behind the 2002 Law.

Ironically, in a completely different arena of wealthy trust proceedings, where some issue might arise that could potentially affect even unborn children, a lawyer was routinely appointed by the Royal Court to represent  the minor and unborn beneficiaries; the costs of which were ordered to be paid out of the trust on the indemnity basis. The headnote in Re Osias Settlements 1987-88 JLR 389 records the introduction of this practice:

“In an application to vary a trust all parties having an interest or a potential interest should be convened, separate representation being required for minor beneficiaries and, where there are unborn or unascertained beneficiaries and a potential for conflict between their interests and those of adult beneficiaries, then independent representation is preferable.”

Some may find the difference in approach wholly perplexing, not least when public law children proceedings can see a child and parent being separated and, sometimes, forever. In trust cases, however, even an unborn child might have a lawyer appointed for them and, dare I say, even when the issue is just about money!

Nonetheless, for a brief period from 2008, the creative efforts of Bailiff, P.Bailhache and Deputy Bailiff, Birt, pioneered the routine appointment of Guardians and lawyers to act for children in care proceedings, with the assistance of a number of Jersey lawyers willing to assist in such cases. Unfortunately, the decision in Re B soon restricted such practice to the limited horizons in which the 2002 Law was conceived; a period in which social work practice and child protection  generally in Jersey has since been criticised  as suffering from systemic faults, whether by the  Jersey Care Inquiry, the Serious Case Review of child BA 2010, the recent Ofsted Report or the X children’s case that has seen the Minister for Health admit negligence in the late 1990s and early part of the following decade. (In this latter case, the damages of c.£160 million are soon to be adjudicated upon.)

Re B found that there was a discretion enjoyed by the Court in both the appointment of a Guardian and a lawyer for a child; that the Royal Court was not bound to appoint a Guardian, and even then, would only grant a lawyer in specific circumstances. It was clear from Re B (& from subsequent cases)  that even a child potentially being removed from a parent would not,in itself, be sufficient for the appointment of a lawyer for that child.

Will the States now take a view on what they want to happen?

Re B therefore signalled a regressive change in approach that has been the subject of much debate. It is a matter for the States of Jersey to choose if they wish the current approach to the representation of children to be interpreted against the backdrop of an era that was found to be lacking, or to insist that our vulnerable children benefit from the tandem model of representation by both Guardian and lawyer in all care and other public law proceedings.  The States should have no need of reminding of the recent Inquiry’s words at para.3.19 that:

“Child care legislation in Jersey has failed to keep pace with developments in social care and children’s rights in the developed world. Historically, there has been insufficient regard to the needs and rights of children at risk.”

At the very least, vulnerable Jersey children should not have more limited rights than their counterparts in England. Interestingly, even in a Ministry of Justice report published in the UK earlier this year (with a view to achieving efficiencies and savings) the following findings are noteworthy:

  • There was consensus across the focus groups and the judiciary that representation [of a child] by a solicitor at all  [public law children] hearings is essential.This is not the current view of the Royal Court of Jersey as set out in Re B.
  • The vast majority of participants, including the judiciary, struggled to identify a type of case [in public law proceedings] where neither a guardian nor a legal representative were required to represent or act in the child’s interests.”
  • The difficulty identified with proposing a ‘type’ of case or scenario where the tandem model may not be appropriate was the dynamic nature of care proceedings. Research participants agreed that it was common for a seemingly straightforward, simple case to turn into a complex case. Examples were consistently cited where the issues of the case are agreed at the advocates meeting only for positions to change and new issues to emerge in court.
  • “Professionals believed that taking either the legal representative or the guardian out of the process would ultimately extend the case. This was because they would not be able to gather the knowledge required to narrow the issues from the case outset. ‘So without lawyers being involved, it’s likely that matters perhaps couldn’t be advanced as far as that and the court would need to hear more than it otherwise might have to.’ Solicitor, FG4”
  • “Conversely, participants also argued that the absence of a lawyer to advise guardians on the complexity of the law could disadvantage the children subject to proceedings. ‘I think it would be a real disaster to say that guardians must do the job, of the independent role, on their own without the advice.’ Barrister, FG3.”  As a result of the Jersey case of Re B, however, Guardians can be appointed without a lawyer, and while they might be able to get ad hoc legal advice before Court, they just have to do the best they can while in court. Occasionally, they might be able to persuade the Royal Court that there are special features so that a lawyer can, belatedly, then be appointed. But as the case of Re B, and more recently,  Re Bradley [2017] JRC 126 demonstrate, the Guardian has to be plucky and risk the disapproval of the Judge in making that application in Jersey. “We were generally not impressed therefore with the submission that they [complexity, instructing experts, potential arguments on the law] were good reasons to appoint a lawyer.” The judge observed that otherwise “they would apply in every case.” (Re Bradley at para.5.) In my respectful view, they do apply in virtually every case and that is why the current approach in Jersey is wrong. A system of law that is happy to appoint lawyers in trust cases to act for children (even if they are not yet born) but is reluctant to appoint a lawyer when they might face permanent separation from their family, is not coherent but topsy-turvy.

Jersey Family Court Advisory Service

Following the newly discovered power to appoint a Guardian, recourse had generally to be made of professionals outside of Jersey to fulfil such role until local professionals could be appropriately trained. JFCAS, which was only created in the last decade, provides local Guardians in cases where they might be appointed.  JFCAS  are so very important for scrutinising the plans put forward for children and ensuring that the best options for vulnerable children are pursued. The Guardian, in particular, provides an important part of the “checks and balances” in public law proceedings. Frequently  this brings the Guardian into opposition with the Children’s Service and even rarely into conflict; the Guardian also being said to enjoy an investigatory power to look at the documents of the Children’s Service so as to ensure all relevant matters are considered. From my own experience with working with the local Jersey Guardians, they work extremely hard, long hours and are dedicated to their work.

The trouble is, however, different people and different agencies have different views on what their role actually is. Even the Jersey Courts have since 2008 referred to the Guardian’s role in different terms given the lack of clarity in our own statute. The problem is exacerbated because there is still no JFCAS document setting out in detail the precise role that they say a Guardian performs. Are they just to “assist and befriend” the child under article 75(1b); do they “represent” the child under article 75(1a)); do they do both?; the Guardian must safeguard the child’s human rights according to Re B but what does this mean in practice?; as a person not trained as a lawyer, when should a Guardian seek the appointment of a lawyer, and what happens if this conflicts with the view expressed in Re B?; does a Guardian have the right to inspect the documents of other parties such as the Minister – which is conferred on a UK Guardian under s.42 of the Children Act 1989 because this Act specifically refers to Guardians, but we took this bit out for our 2002 Law!; is hearsay in a Guardian’s report admissible perhaps as a form of “welfare report” under article 9? Unfortunately, the concept of Guardian was wholly omitted from the 2002 Law & there is no specific provision dealing with a Guardian’s report, or indeed an exemption for hearsay evidence in children proceedings generally. (Note rules have not been made in this respect under article 71 of the 2002 Law; In the matter of EE [2011] JLR Note 39  at para.50 “there are no special rules of evidence which apply in care proceedings”  and therefore the Civil Evidence (Jersey) Law 2003 applies. Contrast however with Minister v A & B [2013]  2 JLR 119 at para.34 “… frequently in these cases, particularly at the time of an application for an interim care order, the evidence put before the court is hearsay evidence…”)

Discussions as to what might be included in a document setting out the Guardian’s role have taken place but over the years nothing has surfaced. One would hope that any document that is created emanates from JFCAS; reflects the independent role that JFCAS is intended to perform and benefits from advice from both inside and outside the Island. It is hoped that it might be a progressive document with the Guardian envisaged as proactive and “muscular” in terms of role and powers; poised to challenge should the welfare of a child demand. Indeed, given the reluctance by others to put their head above the parapet, and to challenge the status quo – as is vividly described by the Jersey Care Inquiry- it is to be hoped that JFCAS will not be slow in coming forwards to the extent that it might disagree with, for example, the current approach of the Royal Court to the representation of vulnerable children.

It is for this reason that the website page of JFCAS – which is  merely “housed” within the Probation Department’s website- needs urgent overhaul and resources deployed. The current page is rather lost; the hyperlinks to leaflets have not worked for at least the last year and it is also not child friendly. A comparison with the UK equivalent “CAFCASS” website – which to my ageing eyes seemed a little complicated – does at least demonstrate the lack of initiative and resources deployed in this particular area in Jersey, but it is capable of straightforward rectification. The image & message of JFCAS  should reflect the good work that they do in practice and their true significance to child protection which cannot be overestimated. It would be useful if the States could therefore bolster the role of JFCAS & support it in its ongoing evolution.

Should the role of the Lieutenant Bailiff be reviewed?

In a judgment handed down recently in E v The Attorney General [2018] JRC 111 the Youth Appeal Court tackled an interesting legal issue as to the respective roles of the Magistrate and other panel members in the Youth Court. 

The appeal court – that had the benefit of the Bailiff presiding with 2 other youth panel members-  questioned if the Youth Court had been right to hold that all members of the Youth Court are judges of fact (ie. as to what may have happened) but also as to matters of law. Given that only the Magistrate was legally trained and the other youth panel members were usually non-lawyers, it would have been a curious result if the Magistrate could have been outvoted by the others when determining an issue of law.

At para.40 -41 of the judgment, the appeal court considered the relevant legislation includingthe Human Rights (Jersey) Law 2000, which requires that there be a fair trial in any civil or criminal case” before concluding “ …we would have been minded to read down the 2008 Law to reach the conclusion that the Magistrate is the sole judge of law in the Youth Court, and the Bailiff the sole judge of law in the Youth Court Appeal Court.

While this important judgment is of interest in clarifying this aspect, it also has other important ramifications. The first is a matter of form only:  if the sole judge of law is the Bailiff or Magistrate, it might be seen to be desirable for judgments to make clear who is exercising this exclusive role and avoid the use of “we” when legal issues are in fact determined only by that particular individual. The second is of more significance: if the determination of legal issues by non-legally qualified individuals is a risk to a fair hearing, then the long established custom of having a Lieutenant Bailiff occasionally presiding over the Royal Court, is similarly of concern.

Since 1948, the Royal Court (Jersey) Law removed from Jurats their previous role as judges of law and ascribed such role to the Bailiff alone who would be “learned in the law.” However, it did not remove the power of the Bailiff to appoint a Lieutenant Bailiff, which in more recent times has been bestowed upon the most senior Jurat. In Guernsey senior Jurats can similarly be appointed a Lieutenant Bailiff. 

Sometimes a Jurat can also be a retired advocate or Jersey solicitor, but normally they will have no formal legal qualifications, being respected individuals elected for their particular qualities that they can bring to this important role.  Albeit a relatively rare occurrence, therefore, a non-legally qualified Lieutenant Bailiff can preside in the Royal Court, and make some tough decisions. In VKS v Health & Social Services Committee [2005] JLR 390 for instance a baby was removed from a mother at birth by a Lieutenant Bailiff (who was not a qualified lawyer) only for such course to be determined later to have been wrong and too draconian. Perhaps the result would have been the same whomever sat, but even the query arising is uncomfortable.

Before parting with E v The Attorney General, permitting non-lawyers to determine issues of law is not necessarily such an unusual thing as the appeal court seems to have found. In fairness, in England lay magistrates can determine both issues of fact and law, although they will have the benefit of a clerk who is legally qualified to assist them. The same is true of the Court of Alderney which has Jurats as its members and is assisted by a Greffier. It is not beyond the realms of possibility that the Youth Court was set up as a variant of this, with our Magistrate being able to assist the other panel members reach a view, but this would seem unlikely.

Advocate Timothy Hanson

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