Gale and Clarke v Rockhampton and Antler

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: McNeill JA,Beloff JA,Vaughan, JA
• Judgment Date: 15 June 2007
• Neutral Citation: [2007] JCA 117B
• Date: 15 June 2007

[2007] JCA 117B

COURT OF APPEAL

Before:

The Hon Michael Beloff, Q.C., President; D. A. J. Vaughan, Esq., C.B.E., Q.C., and; J. W. McNeill, Esq., Q.C.

Between

(1) Martin Gale

(2) Anthony Gabriel Webber Clarke

Plaintiffs/Respondents

and

(1) Rockhampton Apartments Limited

(2) Antler Property CI Limited

Defendants/Appellants

Advocate K. J. Lawrence for the Appellants.

Advocate D. Gilbert for the Respondents.

Authorities

Searley v. Dawson [1971] JJ 1687.

Dalton v. Angus & Co. (1881) 6 App Cas 740, HL.

Poingdestre's "Remarques et Animadversions sur la Coutume Reformée de Normandie".

Pothier Des servitudes réelles" in the Le Trosne edition 1844, Volume 16 Titre XIII.

Domat, "Loix civiles", Tome I, Titre 12, Section II, paragraphe 8, page 117.

Lysacht v. Channel Islands Property Holdings Limited [1962] 254 Ex. 10.

Shaw v. Regal [1962] JJ 189.

du Feu v. Granite Products Limited [1973] JJ 2441.

Macrae, née Tudhope v. Jersey Golf Hotels Limited [1973] JJ 2313.

Browne v. Premier Builders (Jersey) Limited [1980] JJ 95.

Charlesworth on Negligence.

Mitchell (née Bird) v. Dido Investments Limited [1987 - 88] JLR 293.

Cornick v. Le Gac [2003] JLR N-43, [2003] JRC 169.

Jersey Law of Property by Paul Matthews LLB and Stéphanie Nicolle (1991).

La Cloche v. La Cloche (1870) VI Moo.N.S. 383 at 401.

Houard's Dictionnaire de Droit Normandie (1782 Edition).

Pothier's Traité du Contrat de Société.

Re Barker [1985-86] JLR 186, 191.

Fruit Export Company Limited v. Guernsey Gas Light Company Limited (May 3rd 1994).

Caine v. Gillespie and Ford (2nd April 2003).

Jean Fournel (1805).

Le Gros, Droit Coûtumier de Jersey (1943).

Dimensions of Private Law (2003, CUP) by Stephen Waddams, Goodman /Shipper Professor of Law at the University of Toronto.

Snell v. Beadle [2001] JLR 118.

Common Pleas 1822.

Cox and Others v. Troy (1822) 5 B. & ALD. 474, 480-1.

Laws of Guernsey. Gordon Dawes

Caledonia North Sea Limited v. London Bridge Engineering Limited [2000] SLT 1123, 1140 - 1141 (the Piper Alpha litigation).

Curry v. Horman (1889) - 213 Ex. 511.

Arm v. De La Mare (1899) 220 Ex. 28.

Dutton v. Constable of St. Helier and Others [1901] - 221 Ex. 120.

Chisholm v. Glendewar [1924] - 233 Ex. 31.

Keough and Wife v. Farley [1937] 12 CR 373.

Penseney v. Philip Le Sueur and Sons Limited [1951] - 247 Ex. 117.

Coutanche v. Lefebvre and Others [1955] 249 Ex. 390,

Lysacht v. Channel Islands Property Holdings Limited [1961] 253 Ex. 204 (Merits) and (1962) 254 Ex. 10.

Mercer v. Bauer [1973] JJ 2453.

Dale v. Dunnell's Limited [1976] JJ 291.

Magyar v. Jersey Strawberry Nurseries Limited [1982] JJ 147.

Clerk and Lindsell on Torts.

Jersey Financial Services Commission v. A P Black (Jersey) Limited [2002] JLR 443.

Hemery & Dumaresq 1789 report to the Privy Council

Clameur de Haro.

Loi of 11 November 1869 for the Jersey Railway Company Limited, Article 45.

Loi of April 1872 for the Jersey Eastern Railway Company Limited, Article 46.

Loi of 1 February 1934 on public health.

Cremation (Jersey) Law 1953.

The Island Planning (Jersey) Law 1964,.

Dangerous Wild Animals (Jersey) Law 1999 Article 6.

Statutory Nuisances (Jersey) Law 1999.

Supreme Court of Judicitor Acts 1873 and 1875.

Re Diplock, Diplock v. Wintle [1948] Ch 465, 481-482.

Hunter v. Canary Wharf Limited [1997] AC 655, 687G - 688C.

Clerk and Lindsell on Torts.

Halsbury's Laws of England.

Browne v. Premier Builders (Jersey) Limited [1980] JJ 95

JFSC v. A P Black [2002] JLR 443.

Arya Holdings v. Minories Finance Limited [1997] JLR 176.

T.A. Picot (C.I.) Limited v. Crills [1995] JLR 33.

Madame Nicolle's The Origin and Development of Jersey Law.

Supreme Court of Judicitor Acts 1873 and 1875.

RHM Bakeries (Scotland) Limited v. Strathclyde Regional Council [1985] SC (HL) 17.

Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2 AC 264, 300.

Pothier, Traite des Obligations Volume 1 Section 2 paragraphs 113 - 115.

Lewin on Trusts (17th Edition),

Louis v. Le Liard [1990] JLR N-13.

Golder v. Société des Magasins [1967-69] JJ 721.

Traité des Obligations Volume 1, (in the 1806 Evans translation).

Donoghue v. Stevenson [1932] AC 562, 579-580 (Lord Atkin).

The Origin and Development of Jersey Law at para. 12.4 (1998).

Official Solicitor v. Clore [1983] JJ 43.

Johnston, Prescription and Limitation (1999: W. Green & Son).

Gallaher v. Dauny [2001] JLR 302.

Albright v. Wailes [1952] JJ 31.

Re Esteem Settlement [2002] JLR 53.

Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.

Charles Church (Spitfires) Limited and Anr v Aviation Jersey Limited and Anr [1993] JLR 93.

Appeal by the Appellants against the judgment given by the Bailiff of Jersey, sitting alone as a Judge of the Samedi Division of the Royal Court on 13 ^th December, 2006.

McNeill JA

1 The following is the scheme of this judgment:

Introduction	paragraphs 2 to 7
Voisinage - Jersey decisions	paragraphs 8 to 31
Customary Law Sources	paragraphs 32 to 35
Indexing	paragraph 36
submissions before the Bailiff	paragraphs 37 to 44
submissions before this Court	paragraphs 45 to 50
discussion	paragraphs 51 to 84
Nuisance - Jersey decisions	paragraphs 85 to 109
other Jersey Sources	paragraphs 110 to 122
submissions before the Bailiff	paragraphs 123 to 124
submissions before this Court	paragraph 125
discussion	paragraphs 126 to 143
The boundaries of Tort in Jersey	paragraphs 144 to 151
The boundaries of Nuisance in Jersey	paragraphs 152 to 154
The boundaries of Voisinage in Jersey	paragraphs 155 to 157
Quasi Contract in Jersey - submissions	paragraphs 158 to 162
discussion	paragraphs 163 to 171
Conclusion on matters other than prescription	paragraphs 172 to 174
Prescription - before the Bailiff	paragraphs 175 to 177
before this Court	paragraph 178
discussion	paragraphs 179 to 185
Conclusion	paragraph 186.

INTRODUCTION

General

2 This is an appeal from a judgment of the Bailiff, sitting as a single Judge of the Samedi Division of the Royal Court, given on 13 December 2006. That judgment was made in respect of a preliminary question which had been certified in this action.

3 The salient circumstances giving rise to this dispute can be taken from the judgment of the learned Bailiff, at paragraph 2. The Appellants own a number of properties on La Grande Route de St Aubin. The first Respondent is the owner of a block of flats, known as Rockhampton Apartments, which were developed by the second Respondent. It is alleged that during those development works the actions of the Respondents caused cracking and subsidence to the Appellants' neighbouring properties, resulting in substantial damage to the Appellants property.

4 The first Order of Justice, dated 4th August 2005, was presented upon the basis of negligence and breach of obligations of voisinage. Subsequently it was accepted that the claim based on negligence had prescribed. The preliminary question before the Bailiff was as to what was the applicable prescriptive period for a claim in voisinage. We were informed that, whilst the original expectation for the hearing before the learned Bailiff was that it would address only the appropriate prescriptive period for a claim brought in voisinage, research had led to inclusion of the question as to whether a quasi contractual doctrine of voisinage was part of Jersey law. It is clear that, in preparation for the hearing before us, the parties' representatives have carried out considerable further researches, and we have been favoured with a much more detailed presentation than was available before the Bailiff. It is appropriate for this Court to express appreciation of the detailed and careful assistance which the parties' Advocates have given in the presentation of this Appeal.

Summary of the parties' submissions to this Court

5 Miss Lawrence, for the Appellants, contended that the Bailiff had erred. An obligation in voisinage did not form part of the law of Jersey. Whilst a legal relationship referred to as voisinage had been relied upon in the decision of the Royal Court in Searley v. Dawson [1971] JJ 1687, that Court had been in error in failing to apply the existing Jersey domestic law of nuisance. Prior to that decision there had been no reference to any doctrine of voisinage in Jersey law. It was clear that the reference to it in Searley v. Dawson had been based on writings of Pothier; but the writings referred to had been in respect of the customary law of Orléans and not that of Jersey or of Normandy. If voisinage did form part of the law of Jersey, to classify it as an obligation arising by virtue of quasi contract was outmoded and the proper modern classification would be as a tort with the resulting prescriptive period of three years.

6 For the Respondents, Miss Gilbert submitted that the learned Bailiff below had reached the correct decision for the correct reasons. In particular, Searley v. Dawson had been correctly decided. She contended that voisinage and the tort of nuisance were entirely separate concepts of law; and that voisinage was the correct doctrine to apply in the present case. Voisinage depended upon there being a contiguous relationship of properties one to another: nuisance did not. Voisinage, given its nature, was appropriately classified within the ambit of quasi contract. Quasi contracts were actions personelles mobilieres in respect of which, generally, a ten year period was to be applied.

7 I have found it helpful to consider both sets of submissions by reference to the individual concepts of voisinage and Nuisance; and propose to start by considering voisinage as it was seen in Searley v. Dawson and certain associated cases.

THE DOCTRINE OF VOISINAGE

Jersey Decisions

8 The first direct reference in Jersey Jurisprudence to what has, in this litigation, been...