Constitutional Law 2020 - part 2 (c)

Question 1

What was the name of the document issued by Louis X which recognised that Normandy remained a separate legal jurisdiction within France despite its earlier conquest? It was cited in Vaudin v Hamon on prescription time limits

Answer 1

Charter of the Normands

Question 2

Name either of the Jersey Court of Appeal decisions which endorsed the approach taken by the Royal Court in State of Qatar to precedent

Answer 2

Knitwear v Hotchkiss32 and Crociani v Crociani.

Question 3

What was the name of the French style judgments given by the Royal Court up to 1961, although less so after 1950?

Answer 3

Jugements motivés

Question 4

How is the Order in Council which, amongst other things, set out all then existing Jersey statutes better known?

Question 5

Give a 21st century case where the Royal Court used evidence of consistent usage as the principal reason for a finding of the customary law?

Answer 5

Connétable of St Helier v Gray and Attorney General

Question 6

According to Le Geyt, what had “no one has dared as yet to give judgment in conflict with”?

Answer 6

The Glose was a
source of some principles of importance in the customary law of Jersey, for example the
law on tiers in wills of immoveable property. According to Besnier, it was probably written
after the L’Ancien Style and before Le Nouveau Style

Question 7

Cited in Snell v Beadle, which 18th century commentator on Norman law is noted in Jersey for his rules on how customary law?

Question 8

What did Domat say was founded in equité and natural law?

Answer 8

justification for the adoption of Roman law was founded in equité and natural law

Question 9

Writing in the Jersey Law Review, which Jersey Court of Appeal judge disagreed with the Privy Council in Snell v Beadle for its direct reliance on Roman Law?

Answer 9

Richard Southwell QC

Question 10

In what area of Jersey law is recourse to Scottish or South African law most likely to be useful?

Answer 10

property law

Question 11

What was the constitutional question raised by the Daniel Case?

Answer 11

any Warrant issued in Jersey in the exercise of the
prerogative of mercy should be communicated to the Bailiff as well as to the Lieutenant
Governor for the sole purpose of giving notice of Her Majesty’s pleasure

Question 12

Article 31?

Question 13

Which decision of the European Court of Human Rights does Professor Jowell argue undermines the right of the UK Parliament to legislate for Jersey without its consent?

Answer 13

Matthews v UK

Question 14

powers of the Chief Minister?

Question 15

Madzimbamuto v Lardner-Burke explain?

Question 16

What is the notice period for either party to renounce the Jersey-UK free trade agreement?

Question 17

Which officers have oversight of parish finance

Answer 17

wo procureurs du bien public (‘public trustees’ responsible for oversight of the
parish finances and, with the Connétable, for land transactions authorised by the
Parish Assembly)

Question 18

Each parish is run by a number of elected officers, namely

Answer 18

• a Connétable
• several centeniers (the next most senior members of the honorary police and those
  who in practice carry out the most important policing functions at parish level)
• two procureurs du bien public (‘public trustees’ responsible for oversight of the
  parish finances and, with the Connétable, for land transactions authorised by the
  Parish Assembly)
• several vingteniers (members of the honorary police)
• several constable’s officers (also members of the honorary police)
• two inspecteurs des chemins (‘roads inspectors’) for each vingtaine.

Question 19

Each Parish is required by law to have committees:

Answer 19

a Comité des Chemins (‘roads committee’), responsible for the ‘chemins vicinaux’
(minor roads) in the Parish475
an Assessment Committee for the purposes of the Rates (Jersey) Law 2005.
A parish may choose to set up other committees for particular purposes (for example, to
oversee the management of old people’s homes provided by the parish)

Question 20

briefly explain the historical and present importance in Jersey law of The tres ancien coutumier

Answer 20

Written at the time of the
Separation, represents the best evidence of Norman law prior to the Separation of the
Channel Islands from mainland Normandy. The foundational texts of customary law are the Très-ancien Coutumier and the Grand
Coutumier de Normandie (with English translations of both now available). This work dealt with more substantive law than the Grand Coutumer. As being the only true written source. It has never been cited in any modern case and there is no direct source that it was used previously. It has been eclipsed in Norman Law by the Grande Coutumier. However it is an original source and it has been republish recently. Although even the Grande Coutumier is not used commonly as a source. It codified the existing customary law and was meant to be a continuation not a full stop.

Question 21

briefly explain the historical and present importance in Jersey law of The writings of Pesnell

Answer 21

Pesnelle, Routier, Flaust and Houard are the four commentators on the Coutume Reformée
during the 18th century who achieved prominence in Jersey.
Pesnelle produced his commentary, Coutume de Normandie, in 1704, which against each
article of the Coutume Reformée helpfully summarised the commentaries of other commentators such as Terrien, Bérault, Basnage and Godefroy. Subsequent editions
published until 1771.

Besnier thought Pesnelle had produced a clear and intelligent
resumé: he had used a traditional format but with a new, simplified feel. The work is cited
in Re Barker133 (duty of an attourné in a dégrèvement) and Snell v Beadle134 (the element of
fraud required for déception d’outre moitié)

Question 22

briefly explain the historical and present importance in Jersey law of The writings of Pothier, other than his Traité des Obligations

Answer 22

Pothier was a writer on both customary and civil law, and serves as authority in both fields.
His major works include: (i) Pandects of Justinian (1748); (ii) Coutume d’Orléans; and (iii)
Traité des Obligations (1761). In those areas where customary law systems traditionally had
little to say, e.g. contract, and drew on the ius commune, recourse may be had to his non
customary civilian influenced works, e.g. the Coutume d’Orléans. In relation to contract law,
Pothier’s Traité des Obligations has come to be the most influential work in Jersey.
Kelleher notes that
Pothier has been cited in some fifty per cent of all contract cases162 before the Jersey courts
between 1950 and 1999.163 In cases between 2000 and 2016 there were 51 direct or
indirect references in to Pothier in judgments, such references being either by the court or
Advocates. Examples of references to Pothier include more recently in Flynn v Reid the Royal Court acknowledged that even though society
changed (co-habitation was now acceptable), Pothier’s view and his statements of principle
were of general application and could still be relevant today.

Question 23

briefly explain the historical and present importance in Jersey law of The Report of the Royal Commissioners of 1847

Answer 23

They were sent by the privy council to review the Jersey law and the report is valuable within limits (given
the difficulty of Commissioners to adjust to a different jurisdiction) for its account of the
criminal law and procedure and its inclusion of old Royal Charters. The Report has
sometimes been criticised for failing to fully understand the Jersey context. However, the
political pressure on the Commissioners was extreme as the reforming party on the
Island was pushing for the wholescale adoption of the English criminal law. Indeed, this
might explain many of the findings.
Commissioners report included
some strange conclusions such as the, the Commissioners regarding Norman law as
irrelevant post-1204, and they were consequently very critical of Terrien.
The
Commissioners recommended the introduction of a penal code. This was drafted but
never adopted, probably because this was a period of great constitutional tension between
Jersey and Westminster. The Jersey Court of Appeal has recently stressed the importance of the Commissioners’
report, from which the court quoted extensively and it was referenced in De La Haye v Attorney General.

Question 24

If there is no Jersey customary law answer, we simply take the answer from Guernsey?” Discuss briefly

Answer 24

The law of Guernsey will be of the highest persuasive authority in Jersey unless some
reason to the contrary appears. Three main justifications may be advanced for this
proposition. One is that the two Bailiwicks share similar (though not identical)
roots in Norman customary law.
Second, as one Guernsey advocate puts it: “The Bailiwicks of Jersey and Guernsey have led
a parallel existence over the centuries. They have responded to their near identical
position in the world in similar, if not identical ways, and it is appropriate to consider the
other’s answer, without in any sense being bound by it”. However, a practitioner
should not assume that there has been a sufficiently similar development in jurisdictions.
A useful approach to follow is that of the Guernsey Court of Appeal in Smith v Harvey:
“we do not regard the law of Jersey as a
sufficiently safe guide. We are not persuaded that the development of the separate systems has been so similar as to warrant the same result in each jurisdiction. We have accordingly
sought to proceed on the basis of Guernsey law and authorities.”
The same is true of Jersey looking to Guernsey. However, even where the persuasive value
of Guernsey case-law is limited due to differences in the development of case-law, this does
not rule out the possibility of Jersey authorities being used on a comparative law basis, but
that is not usually necessary when there is local material to give an answer.

Question 25

Investec Trust (Guernsey) Ltd v Glenalla Properties Ltd [2018] UKPC 7 and Representation of Rawlinson and Hunter