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

JurisdictionJersey
CourtCourt of Appeal
JudgeBeloff, Vaughan and McNeill, JJ.A.
Judgment Date15 June 2007
Date15 June 2007
COURT OF APPEAL
Beloff, Vaughan and McNeill, JJ.A.

Miss K.J. Lawrence for the appellants;

Miss D. Gilbert for the respondents.

Cases cited:

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

(2) Arm v. De La Mare (1899), 220 Ex. 28, unreported, considered.

(3) Arya Holdings Ltd. v. Minories Fin. Ltd., 1997 JLR 176, considered.

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

(5) Browne v. Premier Builders (Jersey) Ltd., 1980 J.J. 95, considered.

(6) Caledonia North Sea Ltd. v. London Bridge Engr. Ltd., [2000] S.L.T. 1123, referred to.

(7) Cambridge Water Co. v. Eastern Counties Leather PLC, [1994] 2 A.C. 264; [1994] 1 All E.R. 53, referred to.

(8) Chisholm v. Glendewar (1924), 233 Ex. 31, unreported, considered.

(9) Church (Charles) (Spitfires) Ltd. v. Aviation Jersey Ltd., 1993 JLR 93, considered.

(10) Cornick v. Le Gac, 2003 JLR N [43], considered.

(11) Coutanche v. Lefebvre (1955), 249 Ex. 390, unreported, considered.

(12) Cox v. Troy (1822), 5 B. & Ald. 474; 106 E.R. 1264, dicta of Best, J. considered.

(13) Curry v. Horman, Royal Ct. (1889), 213 Ex. 511, unreported, considered.

(14) Dale v. Dunell's Ltd., 1976 J.J. 291, considered.

(15) Dalton v. Henry Angus & Co. (1881), 6 App. Cas. 740, referred to.

(16) Diplock, In re, Diplock v. Wintle, [1948] Ch. 465; [1948] 2 All E.R. 318, dicta of Lord Greene, M.R. considered.

(17) du Feu v. Granite Prods. Ltd., 1973 J.J. 2441, considered.

(18) Dutton v. Constable of St. Helier (1901), 221 Ex. 120, unreported, considered.

(19) Esteem Settlement, In re, 2002 JLR 53, applied.

(20) Fruit Export Co. Ltd. v. Guernsey Gas Light Co. Ltd., Guernsey Royal Ct., May 3rd 1994, unreported, referred to.

(21) Gallaher v. Dauny, 2001 JLR 302, referred to.

(22) Golder v. Société des Magasins Concorde Ltd., 1967 J.J. 721, applied.

(23) Hunter v. Canary Wharf Ltd., [1997] A.C. 655; [1997] 2 All E.R. 426, referred to.

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

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

(26) Key (née Shaw) v. Regal, 1962 J.J. 189, considered.

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

(28) Louis v. Le Liard, 1990 JLR N-13, referred to.

(29) Lysaght v. Channel Islands Property Holdings Ltd. (1961), 253 Ex. 204; (1962), 254 Ex. 10, unreported, considered.

(30) M'Alister (or Donoghue) v. Stevenson, [1932] A.C. 562; [1932] All E.R. Rep. 1, distinguished.

(31) Macrae (née Tudhope) v. Jersey Golf Hotels Ltd., 1973 J.J. 2313, considered.

(32) Magyar v. Jersey Strawberry Nurseries Ltd., 1982 J.J. 147, considered.

(33) Mercer v. Bower, 1973 J.J. 2453, considered.

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

(35) Official Solicitor v. Clore, 1983 J.J. 43, referred to.

(36) Penseney v. Philip Le Sueur & Sons Ltd. (1951), 247 Ex. 117, unreported, considered.

(37) Picot (T.A.) (C.I.) Ltd. v. Crills, 1995 JLR 33, dicta of Le Quesne, J.A. considered.

(38) R.H.M. Bakeries (Scotland) Ltd. v. Strathclyde Regional Council, 1985 S.C. (H.L.) 17; [1985] S.L.T. 214, referred to.

(39) Russell v. Gillespie, Guernsey Royal Ct., Judgment 17/2003, April 2nd, 2003, unreported, referred to.

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

(41) Snell v. Beadle (née Silcock), 2001 JLR 118, dicta of Lord Hope of Craighead considered.

Texts cited:

Dawes, Laws of Guernsey, at 693 (2003).

Hemery & Dumaresq, A Statement of the Mode of Proceeding and of Going to Trial in the Royal Court of Jersey, at 30-31 (1789).

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

Le Geyt, Privilèges, Loix et Coustumes de L'Isle de Jersey, art. 1, at 65 (1953).

Le Gros, Traité du Droit Coutumier de l'Ile de Jersey, at 10; 20-21 (1943).

Lewin on Trusts, 17th ed., para. 7-15, at 189; para. 7-25, at 193 (2000).

Matthews & Nicolle, The Jersey Law of Property, para. 1.50, at 13 (1991).

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, Traité des Obligations, paras. 113-115, at 61-62 (1827 ed.).

Pothier, Traité des Servitudes Réelles, para. 22, at 426 (1827 ed.).

Pothier, Traité du Contrat de Société, para. 230, at 549; para. 235, at 552; para. 241, at 554; para. 245, at 556; para. 247, at 556 (1827 ed.).

Pothier, Treatise on the Law of Obligations or Contracts, transl. Evans, vol. 1, s.2, paras. 113-114, at 69 (1806).

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—action in voisinage is action personnelle mobilière and prescribed after 10 years

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

The respondents claimed that construction works on the first appellant's property had caused substantial damage to their neighbouring properties. They brought proceedings against the appellants 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 Royal 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 appellants submitted before the Royal Court 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 respondents' action was prescribed. The respondents submitted that voisinage was part of Jersey law and that the prescription period for such actions was 10 years.

The Royal Court (Bailhache, Bailiff) held that the quasi-contractual doctrine of voisinage formed part of Jersey law and that the prescription period for such an action was 10 years (in proceedings reported at 2007 JLR 27).

On appeal, the appellants submitted that (a) voisinage was not part of Jersey law and the Royal Court had erred in following the 1971 decision; (b) the Royal Court had also erred in holding that the law of nuisance did not form part of Jersey law, and it should have been used instead of the quasi-contractual doctrine of voisinage; (c) quasi-contract was an outmoded concept in Jersey law and voisinage, if it were found to exist, should be treated as a tort; and (d) the Royal Court erred in holding that the appropriate prescription period for an action in voisinage was 10 years and the action should be recognized as an action in tort.

Held, dismissing the appeal:

(1) The Royal Court had correctly held that the quasi-contractual doctrine of voisinage formed part of Jersey law. The 1971 case, in which voisinage had been applied, had stood unchallenged for 35 years, had been referred to in subsequent cases and legal textbooks and had formed part of the Jersey Advocate's exam syllabus. The concept must, therefore, have been relied on by professionals when advising on the relationships between owners of contiguous properties. As the 1971 case was not contrary to earlier authority, incompatible with any other rule of law or the cause of some practical injustice, the Royal Court had been correct to follow it. Furthermore, the court in the 1971 case and the Royal Court below had been entitled to look to Pothier's Coutumes d'Orléans for guidance as to the meaning and extent of voisinage, as there had been no explanation in Jersey or Norman sources and Pothier was already a well-respected writer in Jersey (albeit in respect of different areas of law). While certain aspects of the doctrine of voisinage conflicted with principles of Jersey law, e.g. with the maxim nulle promesse à héritage ne vaut, the Royal Court had correctly held that 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 case and the decision of the Royal Court below had correctly applied the concept and principles of voisinage to the issues between the neighbouring property owners ( paras. 54-55; paras. 74-77; para. 171).

(2) It could not be said that the court in the 1971 case and the Royal Court below should have applied the Jersey law of nuisance rather than the quasi-contractual doctrine of voisinage. The Royal Court had correctly found that there was no persuasive evidence that the English tort of nuisance had been assimilated into Jersey law and that the adoption of voisinage had therefore been unnecessary. It was only in respect of the tort of negligence that Jersey tort law specifically followed English law. Other torts in Jersey were based on the Island's common law. Assuming that nuisance was a tort in Jersey law, it did not follow the English law of nuisance. Although some of the instances included by Pothier in voisinage might now be treated as nuisance, cases of substantial damage caused to land or buildings on contiguous properties should be dealt with under the quasi-contractual doctrine of v...

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