Gale and Clarke v Rockhampton Apartments Ltd and Antler Property C.I. Ltd

JurisdictionJersey
CourtRoyal Court
JudgeBailhache, Bailiff
Judgment Date13 December 2006
Date13 December 2006
ROYAL COURT
Bailhache, Bailiff

D. Gilbert for the plaintiffs;

Miss K.J. Lawrence for the first and second defendants.

Cases cited:

(1) Albright v. Harrison (née Wailes), 1952 J.J. 31, applied.

(2) Att. Gen. v. de Carteret, 1987-88 JLR 626, referred to.

(3) Att. Gen. v. Williams (née Lewis), 1968 J.J. 991, referred to.

(4) Barker, In re, 1985-86 JLR 186, followed.

(5) Curry v. Horman (1889), 213 Ex. 511, unreported, considered.

(6) Esteem Settlement, In re, 2002 JLR 53, dicta of Birt, Deputy Bailiff applied.

(7) Gibaut v. Le Rossignol (1900), 11 C.R. 188, considered.

(8) Guernsey States Ins. Auth. v. Ernest Farley & Son Ltd., 1953 J.J. 47, considered.

(9) Hanbury v. Smith (1898), 219 Ex. 94, considered.

(10) Jersey Fin. Servs. Commn. v. A.P. Black (Jersey) Ltd., 2002 JLR 294; on appeal, 2002 JLR 443, dicta of Southwell, J.A. considered.

(11) Keough v. Farley (1937), 12 C.R. 373, considered.

(12) La Cloche v. La Cloche (1870), 6 Moo. P.C.C.N.S. 383; 16 E.R. 770; L.R. 3 P.C. 125 ([1870] UKPC 14), considered.

(13) Le Sueur v. Bois (1889), 10 C.R. 419, considered.

(14) Mitchell (née Bird) v. Dido Invs. Ltd., 1987-88 JLR 293, not followed.

(15) Official Solicitor v. Clore, 1983 J.J. 43, dicta of Crill, Deputy Bailiff considered.

(16) Qatar (State) v. Al Thani, 1999 JLR 118, referred to.

(17) St. Helier (Parish) v. Manning, 1982 J.J. 183, distinguished.

(18) Searley v. Dawson, 1971 J.J. 1687, applied.

Texts cited:

Houard, Dictionnaire de Droit Normand, 1st ed., vol. 4, at 3 (1782).

Le Geyt, Privilèges, Loix et Coutumes de L'Isle de Jersey, livre 2, titre VIII, art. 2, at 37 (1953).

Le Gros, Traité du Droit Coutumier de l'Ile de Jersey, at 173 (1943).

Nicolle, The Origin & Development of Jersey Law An Outline Guide, paras. 15.24-15.25 (2005 ed.).

Poingdestre, Remarques et animadversions sur la Coutume Réformée de Normandie … pratiquable dans les iles de Jersey et Guernsey, at 426-427 (Ms., c.1680).

Pothier, Coutumes d'Orléans, para. 22, at 426; para. 24, at 426 (1827 ed.).

Pothier, Traité du Contrat de Société, para. 247, at 556 (1827 ed.).

Contract—quasi-contract—voisinage—quasi-contractual doctrine of voisinage, i.e. landowner's obligation not to use property so as to damage neighbouring property, part of Jersey law but different from English law of nuisance—action in voisinage is action personnelle mobilière and prescribed after 10 years

The plaintiffs brought proceedings against the defendants in negligence and voisinage in respect of alleged damage to their properties.

The plaintiffs claimed that construction works on the first defendant's property had caused substantial damage to their neighbouring properties. They brought proceedings against the defendants in both negligence and voisinage, but the negligence action was prescribed, having been brought more than three years after the cause of action arose. The Master sought the determination by the present court of the applicable prescription period for an action in voisinage.

The doctrine of voisinage, namely the obligation not to use one's property so as to damage neighbouring property, had been applied in the Royal Court in 1971. The court had relied on Pothier's Coutumes d'Orléans, as there was no explanation of voisinage in Jersey or Norman law (although quasi-contract was recognized).

The defendants submitted, however, that (a) voisinage was not part of Jersey law and the 1971 decision should not be followed because (i) the importation of voisinage into Jersey law had been unnecessary, as the tort of nuisance already existed, and (ii) voisinage was a foreign doctrine from Orléans and inconsistent with Jersey law; alternatively (b) even if voisinage were found to be part of Jersey law, the prescription period was three years, by analogy with the tort of nuisance, and the plaintiffs' action was prescribed.

The plaintiffs submitted that voisinage remained part of the law of Jersey and their action was not prescribed, as the prescription period for such actions was 10 years.

Held, ruling as follows:

(1) The quasi-contractual doctrine of voisinage, namely the obligation not to use one's property so as to damage neighbouring property, was part of Jersey law. The 1971 case, in which voisinage had been applied, had stood unchallenged for over 30 years. It was not plainly contrary to earlier authority or wrong and would therefore be followed. There was insufficient evidence to support the defendants' submission that when it was decided the English tort of nuisance had already been assimilated into Jersey law and that the importation of the doctrine of voisinage had been unnecessary. Furthermore, as quasi-contract was recognized in Jersey and Norman law, it could not be said that the decision should not be followed on the basis that voisinage was a foreign doctrine from Orléans and inconsistent with existing Jersey law. Since there had been no explanation of voisinage in Jersey or Norman law, the Royal Court had been entitled to look to Pothier's Coutumes d'Orléans for guidance as to the meaning and extent of the doctrine. In certain circumstances, commentaries on the customary law of neighbouring provinces such as Orléans, Paris and Brittany, to which commentators in Norman law have referred from time to time, could be regarded as authority in Jersey, to explain the meaning and extent of an area of Jersey law for which there was no explanation in the customary law of Normandy. Pothier was an especially appropriate source, as his works on Norman law and contract law were considered highly authoritative in Jersey. While certain aspects of the doctrine of voisinage conflicted with principles of Jersey law, such clashes were an almost inevitable consequence of assimilating principles of law from other legal systems, which had to be adapted to conform with Jersey law. The 1971 decision of the Royal Court had been plainly right and would be followed ( paras. 15-17; paras. 20-23).

(2) Furthermore, the plaintiffs' action against the defendants in voisinage was not prescribed, as the prescription period was 10 years. An action in voisinage should properly be classified as an action personnelle mobilière, for which the prescription period was 10 years if no statutory period applied, and not as a tort action. In addition, 10 years would generally be the sensible default period of prescription for such actions ( para. 39).

(3) Although the essential elements of an action in tort—namely duty, breach of duty and damage—were substantially the same in Jersey law and English law, the only legal duties that would give rise to tortious liability in Jersey were those arising otherwise than by virtue of contract, trust, quasi-contract or land law. The duty of a landowner not to use his land in such a manner as to cause harm or injury to his neighbour was not founded in tort but in voisinage or quasi-contract. Likewise, if a person's land were invaded by travellers or a tramp, his remedy would not be an action in tort for trespass but an action possessoire, or a possessory action. While there were many similarities between voisinage and the English tort of nuisance, and between an action possessoire and trespass, those English torts did not apply in Jersey. A cause of action arising in quasi-contract or land law should be pleaded accordingly and the court should insist on the correct nomenclature. The use of English technical words to describe a cause of action in Jersey law would be apt to mislead and to give the false impression that the relevant body of English law had been incorporated into Jersey law ( paras. 27-31).

1 BAILHACHE, BAILIFF:

Introduction

This is a summons brought in the context of a claim by the plaintiffs alleging that the actions of the defendants have caused damage to their properties. Originally, the action was framed in both negligence and voisinage. It has been accepted, however, that the cause of action in negligence is prescribed, the Order of Justice having been served more than three years after the cause of action arose. On August 3rd, 2006, the Master certified as a preliminary question, pursuant to r.7/8 of the Royal Court Rules 2004, what was the applicable prescription period for a claim in voisinage as set out in the Order of Justice.

2 The factual background may be very shortly stated for the purposes of this judgment. The plaintiffs own a number of properties on La Grande Route de St. Aubin. The first defendant is the owner of a block of flats known as Rockhampton Apartments which were developed by the second defendant on the site of the former Rockhampton Hotel. The third defendant was the main contractor carrying out the construction works. During those works it is alleged that the actions of the defendants caused the plaintiffs' properties to crack and subside, resulting in substantial damage to them.

3 The plaintiffs contend that the relevant prescription period for a claim in voisinage is 10 years. The defendants contend that, if there is a cause of action in voisinage, it is prescribed by the lapse of 3 years, by analogy with tortious causes of action. Miss Lawrence's principal argument, however, was that this court erred in Searley v. Dawson (18) and that voisinage is not part of the law of Jersey. Searley v. Dawson was, in counsel's submission, wrongly decided and ought not to be followed. If that contention were to be upheld, the plaintiffs' claim would be prescribed.

Searleyv.Dawson

4 The facts in Searley v. Dawson were not too dissimilar to the facts alleged in this case. The defendant had caused his property, which adjoined the plaintiff's property at Gorey, to be demolished and replaced with a much larger house. Those works of demolition and reconstruction caused serious cracking to the front and rear elevations of the plaintiff's house and internal cracks to rooms on the ground and first floors. The ceiling on the first floor landing...

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