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.


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.


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!


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:

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

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

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

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

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

Improving Outcomes for Children Caught in Jersey Care Proceedings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Report of The Independent Jersey Care Inquiry

This important and impressive piece of work can be accessed on the following link:

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

For a summary as to why it is so important for children to be legally represented when they are the subject of legal proceedings see also the following article by Hanson & Corbett “The Voice of the Jersey Child”


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