Jersey Unreported Judgments

[2007]JCA117B

COURT OF APPEAL

15^th June 2007

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		Plaintiffs/Respondents
	(2) Anthony Gabriel Webber Clarke
And	(1) Rockhampton Apartments Limited		Defendants/Appellants
	(2) Antler Property CI Limited

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.

Advocate K. J. Lawrence for the Appellants.

Advocate D. Gilbert for the Respondents.

JUDGMENT

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 referred to as 'the doctrine of voisinage' appears in the decision of the Royal Court in Searley v. Dawson [1971] JJ 1687. In the Royal Court below the learned Bailiff indicated that there seemed to be no reference to voisinage in the writings on the customary law of Normandy: paragraph 15. The more detailed researches of counsel for the purpose of the hearing in this Appeal have confirmed that there is no such direct reference to a doctrine in the texts to which recourse is made in normal course: see paragraphs 32 to 34 below; but see also paragraphs 69 to 77. 

9.        The circumstances of Searley v. Dawson were that the plaintiff brought an action alleging negligence, on the part of a neighbouring owner and the latter's architect and building contractor, resulting in subsidence and damage to a gable wall. The damage was found to have been caused by negligent excavation some three feet away from the wall during construction work on the adjoining land.  Having found that there had been negligence, the Court felt it necessary to consider the question as to whether the owner of the property, on which the negligent act had been committed, owed a duty of care to the owner of the damaged property (and whether, if he did, it was a duty the performance of which he could not delegate to another).

10.      In proceeding to answer that question, albeit within the bounds of an action where the Order of Justice was based on negligence (see pages 1697 - 1698) the Court referred immediately to a leading English authority dealing with Nuisance, namely Dalton v. Angus & Co. (1881) 6 App Cas 740, HL.  The learned Bailiff (Le Masurier) understood from that decision that, in considering a question such as the one then before the Royal Court, the law of England would have arrived at an answer in the following way (p.1698):-

"I.       In the natural state of land, one part of it receives support from another - upper from lower strata, and soil from adjacent soil.  That support is a natural right annexed to ownership.

 II        A similar right becomes annexed to the ownership of [a] building, by prescription after twenty years.

III                    Those rights of support are classed as easements and, accordingly, the owner of the servient tenement interferes with them at his peril and cannot transfer that peril to an independent contractor."

11.      The learned Bailiff next indicated that another approach to the question (as to duty of care) might be to apply the maxim "Sic utere tuo ut alienum non laedas", which he translated as "So use your own property as not to injure the rights of another".  He then said: "The result is that one is led straight back to the right of support, and the duty of the owners of land to respect it." (1699).

12.      The Bailiff then observed that the difficulty in adopting the same reasoning under the law of Jersey lay in the maxim "Nul (sic) servitude sans titre" and proceeded to quote the relevant section from Poingdestre's "Remarques et Animadversions sur la Coutume Reformée de Normandie" as follows.

"["Les Servitudes tant urbanes que prédiales ont été obmises par le Coutumier.  Et la Glose ny le style de procéder, ny même Terrien, qui les a suivis de bien loin n'en ont presque rien dit.  De ce silence nous conjecturons que lesdites servitudes étaient peu en usage, et que chacun possedait son héritage libre de telles subjections, ou à tout le moins il fallait montrer titre pour telles choses, et n'y faisait rien l'allégation de quarante ans, parce qu'en telles choses il arrive le plus souvent que par amitié, voisinage familiarité courtoisie ou semblables causes, les voisins et amis s'entre supportent mutuellement et permettent de passer et repasser par leurs terres, de puiser de l'eau aux puits et fontaines l'un de l'autre, y abreuver leur bétail et choses semblables; sur lesquels offices d'amitié et de familiarité ce serait la plus injuste chose du monde de pouvoir fonder un droit, et tourner la courtoisie de son voisin à sa perte et sa franchise en servitude. Et partant notre Coûtume ne recoit aucne allegation de possession tant ancienne soit elle, mais requiert qu'on montre titre par lequel la servitude ait été constituée."

I translate this passage as follows -

"Servitudes, not only urban but also those relating to the countryside, have been omitted by the writers on custom.  Neither the Glose nor the Style de Proceder, nor even Terrien who has followed them from afar have said much about them.  From his silence we surmise that the said servitudes were little used and that everyone possessed his property free of such burdens or at the very least that it was necessary to show title for such things, and the allegation of forty years' enjoyment did not make a servitude because in such matters it most often happens that out of friendship, neighbourliness, familiarity, courtesy or similar causes neighbours and friends support each other mutually and permit each other to  pass  and re-pass over their land, to draw water from each other's wells and fountains, to water their cattle and similar things; on the basis of such friendship and familiarity it would be the most unjust thing in the world to be able to found a legal right and to convert the courtesy of one's neighbour to his detriment and his indulgence into a servitude.  And consequently our custom does not allow any allegation of possession however longstanding it may be to found a servitude, but requires one to show the title by which the servitude has been constituted."

Although, as will be seen, Le Masurier, Bailiff went on to refer to the writings of Pothier dealing with voisinage, he made no comment upon the use of the word in the passage from Poingdestre. 

13.      Having so identified what appeared to him to be the difficulty in Jersey in approaching matters from the standpoint of Dalton v. Angus & Co., the learned Bailiff in Searley v. Dawson then returned to the maxim "sic utere" and quoted from Domat, "Loix civiles", Tome I, Titre 12, Section II, paragraphe 8, page 117 in the following terms:-

"Quoiqu'un proprietaire puisse faire dans son fonds ce que bon lui semble, il ne peut y faire d'ouvrage qui ôte à son voisin la liberté de jouir du sien, ou qui lui cause quelque dommage."

14.      This could be translated as:-

"Although a proprietor may do on his land whatever seems good to him, he may not carry out work which takes away from his neighbour the freedom of his neighbour to enjoy his own land, or which causes his neighbour damage."

15.      The Bailiff noted that the passage occurred in Domat's Treatise "Des Servitudes" and also that, under the civil law, a servitude could be acquired by prescription.  He made no further comment.

16.      He then turned immediately to Pothier and his writing "Des servitudes réelles" in the Le Trosne edition 1844, Volume 16 Titre XIII. He stated (again this Court is indebted to the Bailiff in the Court below for the translations):

"Despite the fact the he asserts that a servitude cannot be acquired by possession nevertheless he goes on to say in Article 1 of the same title in paragraph 22 at page 170 -

'Il est traité, sous ce titre, non-seulement des servitudes qu'un héritage peut devoir à l'héritage voisin, mais de plusieurs autres matières qui concernent le voisinage ....'  [Under this title are dealt with not only the servitudes that one property can owe to a neighbouring property, but several other matters concerning 'voisinage'.]

And in paragraph 24 he goes on -

'Il est aussi traité, sous ce titre, des obligation que forme le voisinage entre les voisins.' [Obligations formed by 'voisinage' between neighbours are also dealt with under this title.]

That is immediately followed by his first rule which is he says -

'Chacun des voisins peut faire ce que bon lui semble sur son héritage, de manière néan-moins qu'il n'endommage pas l'héritage voisin.'  [Each neighbour can do as he thinks fit on his property, so long as he does not cause damage to the neighbouring property.]

That he qualifies by a second rule -

'Je puis faire sur mon héritage quelque chose qui prive mon voisin de la commodité qu'il en retiroit, par exemple, des jours qu'il en retiroit.'  [I can do on my property something which deprives my neighbour of the convenience that he derives from it, for example light that he was enjoying from it.]

and of which from the authorities quoted to us can be added the example of water not in a natural and defined watercourse.

On what principle then is founded the rule cited by Pothier?  The answer is to be found in Volume V in the Second Appendix to his "Traité du Contrat de Société" at page 240, paragraph 230 -

'Du voisinage

Le voisinage est un quasi-contrat qui forme des obligations réciproques entre les voisins, c'est-à-dire, entre les propriétaires ou possesseurs d'héritages contigues les uns aux autres.'  ['Voisinage' is a quasi-contract formed by the reciprocal obligations between neighbours, that is to say, between the owners or persons in possession of properties adjacent to one another.]

In paragraph 235 of the Second Article of the Appendix, at page 245, he goes on -

'Le voisinage oblige les voisins à user chacun de son héritage, de manière qu'il ne nuise pas à son voisin.' " ['Voisinage' obliges each neighbour to use his property in such a way that he does not cause damage to his neighbour.]"

17.      The learned Bailiff then summarised the decision of the Court on the relevant matters as follows:-

"1.     Mr. Searley and Mr. Dawson are neighbours. 

2.              Each is under an obligation to the other arising quasi ex-contractu not to use his property as to cause damage to the property of the other, and an obligation pre-supposes a right. 

3.      Mr. Dawson cannot divest himself of that obligation by transferring it to another.

4.      Resulting from the use made by Mr. Dawson of his property that of his neighbour sustained damage."

18.      As Miss Lawrence's challenge to the decision in Searley v. Dawson is one of manifest error on the part of the then Bailiff, it is of interest to note that the learned Bailiff, while Deputy Bailiff, had presided over the Inferior Number some nine years previously in two potentially relevant cases. The first was the decision on damages in Lysacht v. Channel Islands Property Holdings Limited [1962] 254 Ex. 10. In that case (see also [1961] 253 Ex. 204 (Merits)) it appears that works of demolition and reconstruction took place on a property contiguous to that of the plaintiff in a manner which caused undue inconvenience and some business interruption.  However, damages were restricted to £50 as profits did not appear to have been affected.  The only point of note is that, whilst in the second decision the court, under Le Masurier, DB, indicated that the earlier court had held that the operations amounted to a legal nuisance, the word "nuisance" does not appear in the earlier decision. 

19.      He had presided as Deputy Bailiff also in the case of Shaw v. Regal, [1962] JJ 189.  In that case the plaintiff had alleged that, as a result of building operations, noise vibration and dust had put her into a state of nervous disorder and caused physical damage to her house.  Whilst the rubric of the report commences with the words "Nuisance - Building operations" the word "nuisance" nowhere appears in the reported decision; but what may be of interest is the identification of principles which the learned Deputy Bailiff set out:-

"Counsel for both parties cited to us a number of authorities and cases, and, although each one appeared to turn on the facts relevant to itself, the following principles did emerge.

(i)        The occupier of land is entitled to the quiet and unimpeded enjoyment of that land.

(ii)       The owner of land is entitled to do as he pleases with that land."

It is obvious that in many cases, as happened here, these two principles can give rise to a direct conflict of interest and, accordingly, both are subject to some limitation.

The limitation to which the first is subject is that the quiet and freedom from impediment must be related to the needs of the average person in the particular neighbourhood and furthermore that those needs must be average needs and subordinated at times to the particular needs of others.  The limitation to which the second principle is subject is that the occupier of land can do with that land only that which is lawful, a great limitation at the present day, and, within that which is lawful, that which will not give rise to emanations which might unreasonably interfere with his neighbours." (p.192)

20.      I pause to observe that, whilst the "authorities and cases" are not disclosed, the impression obtained from the use of the words 'authorities' is that something other than case records, for example commentaries, were considered by the Royal Court.  It is also worthy of note that the learned Deputy Bailiff expresses the principles as entitlements relating to the ownership or occupation of land and that the limitations on those entitlements are ascertained by reference to the reasonable expectations of "neighbours" and "neighbourhood".  There is no reference to concepts such as nuisance, negligence or duty of care. 

21.      In du Feu v. Granite Products Limited [1973] JJ 2441, the Deputy Bailiff (Ereaut) founded upon the passage in Shaw v. Regal which I have quoted at paragraph 19 above as "the two basic principles underlying all actions based on the tort of nuisance" albeit, as I have observed, the word "Nuisance" appears only in the rubric and not in the judgment.  There is no reference to the decision in Searley v. Dawson given just over two years before; but it may be of importance to note that the circumstances complained of in du Feu were of dust being dispersed into the atmosphere through stone crushing and stone processing, with no allegation of loss of support.

22.      On the other hand, only some six months before du Feu, Mr. Ereaut, Deputy Bailiff, had presided over the Inferior Number in the case of Macrae, née Tudhope v. Jersey Golf Hotels Limited [1973] JJ 2313 where one of the issues related to the different standards of liability for a hotel owner towards his guests in (a) tort and (b) contract.  The Royal Court held that in Jersey, as in England, it was necessary to plead all the material facts but not the branch of law on which the action was based. 

23.      The Court made specific reference to Searley v. Dawson and observed that, whilst that action had been founded on negligence, the judgment identified an obligation between neighbours arising quasi ex-contractu.  The Deputy Bailiff said (2325):

"We think it is clear, both from the ratio decidendi and from the remainder of the judgment, that the conclusion of the Court was based, not on negligence on which the action had been founded, but on an obligation arising quasi ex-contractu, notwithstanding that such obligation, and therefore the breach of it, had not been pleaded.  Thus, as it seems to us, the Court adopted the practice in force in England, to which we have already referred, under which, where all the material facts are disclosed in the action, the Court will supply the "legal label"."

Whilst the correctness or otherwise of the decision in Searley v. Dawson would not have been an issue before the Royal Court in the case of  Macrae, née Tudhope, the learned Deputy Bailiff must have considered the ratio decidendi and conclusion sufficiently sound to be one of the foundations for the decision in the case before his Court. 

24.      Searley v. Dawson was followed in Browne v. Premier Builders (Jersey) Limited [1980] JJ 95.  In that case there were neighbouring houses which shared a common gable.  One of the houses was demolished in order to permit redevelopment, and damage was sustained by the gable as a result of underpinning works to enable the existing foundations to be used for the new building.  Again the opening words of the rubric may be of interest.  They are:

"Neighbouring properties - Demolition of defendant's property - structural damage ..." 

Giving the judgment of the Inferior Number, the Deputy Bailiff (Crill) expressed the view of the Royal Court in the following way:

"The plaintiff founds his action on the failure by the company to fulfil its duty of care.  This duty of care was laid down in Searley v. Dawson and Another, J.J. 1687. 

There the Court said "Each (neighbour) is under an obligation to the other arising quasi ex contractu not so to use his property as to cause damage to the property of the other and an obligation pre-supposes a right".  But that type of obligation is we take it, akin to the duty imposed in tort.  Did the company adopt a reasonable method therefore of carrying out its work and at the same time fulfilling its duty to the plaintiff?"

25.      The Deputy Bailiff then turned to passages from Charlesworth on Negligence and eventually determined "that the company failed in its duty to its neighbour." (106). Again it appears that the Royal Court was prepared without hesitation to look to the decision in Searley v. Dawson for guidance in the circumstances which had arisen.

26.      Searley v. Dawson was referred to also in Mitchell (née Bird) v. Dido Investments Limited [1987 - 88] JLR 293.  There the Deputy Bailiff (Tomes), giving the judgment of the Royal Court, quoted the entirety of the passages set out in paragraphs 10 to 16 above (1971 JJ at 1698 - 1701): see 310 (line 35) to 312 (line 15).  The Court found that the issue of support did not advance the defendants case as, although the duty of support was one between the plaintiff's property, as servient tenement, to the defendant's property as dominant tenement,  neither the plaintiff nor defendant had done anything to remove support.  The Deputy Bailiff then continued (page 312, line 29):

           "It appears to the Court that whether the action lies in nuisance or in negligence and whether the action lies in nuisance or in removal of support, the overriding principle is the same.  It is that neighbours must behave to each other as good neighbours.  In the words of Pothier: 'Le voisinage oblige les voisins à user chacun de son héritage, de manière qu'il ne nuise pas à son voisin.'  The Court is content, therefore, to decide this matter on those principles of the law of nuisance which we have cited earlier from Halsbury's Laws of England." 

27.      So, whilst the Royal Court decided the matter on principles of the law of nuisance cited from Halsbury, the Court found the decision in Searley v. Dawson and the writings of Pothier equally of assistance and identifying the same overriding principle, namely, that neighbouring properties had an obligation of support one to another. 

28.      Finally within this section comes the decision in Cornick v. Le Gac [2003] JLR N-43, [2003] JRC 169.  The case was an action for trespass and nuisance based upon the intrusive nature of scaffolding erected for the purpose of building work on the property neighbouring that owned by the plaintiff.  In making submissions as to nuisance, Counsel for the plaintiff contended that the leading case was du Feu v. Granite Products, cited above, particularly at pages 2447 - 2449.  This is the section commencing with reference to the "two basic principles underlying all actions based on the tort of nuisance [as] set out in Shaw v. Regal": (paragraph 110).  The learned Commissioner (Le Cras), giving the judgment of the Royal Court, dealt with the matter shortly (paragraph 118):

"It is clear from the precedents that an owner is entitled to do what he wishes with his property but on condition of not unreasonably causing his neighbour a real inconvenience as to comfort, (du Feu v. Granite Products Limited)".

29.      Whilst the reference is short, and to the cases of du Feu and Shaw v. Regal, the decision is a further reference to principles relating to occupation and ownership of land with specific emphasis on the importance of relationships between direct neighbours.

30.      In presenting the conclusions of the Royal Court on the issue of nuisance, the learned Commissioner stated:-

"134    Although the nuisance was perhaps not as severe as is claimed by the Plaintiff, .... the actions of the Defendant did cross the border line, and the Plaintiff is entitled to damages for nuisance as well as for trespass."

31.      With the exception of Cornick and du Feu, a unifying theme in all these cases is an issue of physical damage to land or building through a neighbouring use causing or alleged to have caused loss of support. In Cornick there was also an actual trespass. These are distinguishing features from the cases set out at paragraphs 85 to 109 below. Further, whenever Searley v. Dawson has been referred to in cases dealing with issues other than interference with support, the Royal Court has founded upon it to provide part of the basis for its reasoning.

Customary Law Sources

32.      As I noted at paragraph 7 above, the researches of Counsel disclose no specific references to a doctrine of voisinage in the texts of any of the commentators - other than Pothier - to whom reference is generally made for consideration or ascertainment of the customary laws of Jersey and Normandy.  Miss Lawrence's researches indicated that no mention had been found in the following texts.

(i)        Grand Coûtumier.

(ii)       Le Rouillé's 1539 /De Gruchy's 1881 edition of the Grand Coûtumier du Pays et Duchy de Normandie.

(iii)      Terrien's  1574 Commentaire du droit civil tant publique privé observe au pays & Duché de Normandie.

Norman Customary Law

(iv)      Basnage's: Le Coûtume du pays et Duché de Normandie (commentary on Coûtume Réformée)

(v)       Berault/Godefroy/D'Aviron commentary on the Coûtume Réformée 1776

(vi)      Pesnelle 1771 Coûtume Réformée

(vii)     Flaust 1781 Explication de la Coûtume et de la Jurisprudence de Normandie dans an ordre simple et facile.

(viii)    Houard 1780 Dictionnaire de la Coûtume de Normandie.

(ix)      De Merville (1708) la Coûtume de Normandie, Réduite en Maximes, Selon le sens littéral, & l'Esprit de chaque Article.

(x)       Routier (1742) - principes Généraux du droit Civil et Coûtumier de la Province de Normandie.

Jersey customary law

(i)               Poingdestre's Remarques et Animadversios sur la Coûtume Réformée de Normandie (as applying in Jersey and Guernsey).

(ii)     Poingdestre's Lois et Coûtumes de I'lle de Jersey.

(iii)    Le Geyt's Lois et Usages de Jersey (Manuscript Le Geyt) and Priviléges Loix et coûtumes de l'Ille de Jersey (Code Le Geyt)

(iv) Le Gros's Traité du droit Coûtumier de l'Ille de Jersey.

33.      As noted above at paragraphs 11 and 12 above, Poingdestre's Remarques do contain a reference to voisinage, but I agree with Miss Lawrence's construction of the passage. Whilst Poingdestre uses the word "voisinage", it seems to me clear that he uses it as an ordinary word and not as a word employed as part of a legal phraseology and having a recognised technical signification, such as a right of action.  In the learned Bailiff's translation it is taken to be "neighbourliness", as is consistent not only with the sense of the context (being "amitié, ..., familiarité, Courtoisie ...") but also with the concluding words of the penultimate sentence in the passage which specifically exclude a right of action.

34.      For reasons which I shall explain in paragraphs 69 and following below, however, I consider that the writings of Le Gros are of considerable assistance.

35.      Separately, it was brought to the attention of this Court that voisinage has been discussed in recent professional writings on the law of Jersey, published and in the public domain.  In The Jersey Law of Property by Paul Matthews LLB and Stéphanie Nicolle (1991), the concept of voisinage, as examined by the Court in Searley v. Dawson, was considered: paragraphs 1.50 - 1.53.  At the commencement of paragraph 1.50 the learned authors stated "Voisinage imposes on the owners of adjoining properties certain reciprocal rights and duties, which do not constitute servitudes, nor indeed do they require any titre to establish their existence."  We were further informed that voisinage has formed part of the Jersey Advocates exam syllabus since at least 1998.  There is no evidence of any contrary academic or professional writings to those of Mr. Matthews and Madame Nicolle.  Nor is there evidence of a dispute as to the inclusion of voisinage into the exam syllabus since its introduction.

Indexing

36.      Prior to the decision in Searley v. Dawson there is no indication in the Tables des Decisions nor in the indices to the Jersey Judgments and Law Reports to voisinage as a separate matter.  After the decision in Searley v. Dawson, it appears that voisinage has been listed within the index to the Jersey Law Reports as follows:

"VOISINAGE.  See TORT (Negligence - voisinage),  (Nuisance - voisinage)" : see the Index &

37.      In the Court below, Miss Lawrence for the defendants submitted, among other matters, that Voisinage was a foreign doctrine from Orléans and inconsistent with existing Jersey law at the time of Searley v Dawson.  Counsel submitted that, while Pothier's writing on the Roman law and civil law have been accepted in Jersey as highly authoritative in relation to the law of contract, the custom of a province other than Normandy was not so regarded, was not necessarily relevant and could be misleading. She repeated those submissions to this Court. 

38.      In rejecting this submission as going "a little too far", the learned Bailiff indicated that the writings on the custom of Orléans, Paris and Brittany, could be regarded as authority in certain circumstances:  paragraph 14.  In particular, he quoted the following from the decision in La Cloche v. La Cloche (1870) VI Moo.N.S. 383 at 401 (Privy Council) -

"The Coûtume d' Orléans and the Coûtume d'Paris (although they differed in this, that the Coûtume d' Orléans included heritable property, and did not confine the rule to moveables) appear to have contained the same Law or custom with regard to the sasine of executors as that stated in the passage cited from Terrien, and embodied in the Article of the Coûtume Reformée as cited from Godefroy and Basnage.  These Coûtumes may be legitimately referred to for the purpose of testing the interpretation we have put on the custom as stated by Terrien, and also for the purpose of explaining the force and effect of particular expressions."

39.      The Bailiff, having accepted that there appeared to be no reference in the writings on the customary law of Normandy to voisinage, turned to consider Miss Lawrence's submission that there was no evidence that in Normandy or in Jersey there was ever adopted an approach to relations between neighbours based upon quasi contract. 

40.      In the Bailiff's opinion there was no doubt that quasi contract was known to the customary law of Normandy and he referred to a short definition to be found in Houard's Dictionnaire de Droit Normand (1782 edition) Volume 4, page 3, which the learned Bailiff translated as follows:-

"The name [quasi-contract] is given to the obligation which arises from equity, without the need for any agreement between the parties.  Thus, for instance, a quasi-contract is formed between an absent person and one who, during his absence, does some necessary thing for him; for the absent person, by reason only of equity, will be bound to reimburse any necessary and appropriate expenditure made on his behalf". 

I might pause to observe that this concept is well known to all students and practitioners of Scots law as the obligation Negotiorum Gestio also held to arise under quasi contract. 

41.      The Bailiff then indicated (at paragraph 16) that, as quasi contract was part of the law of Jersey, but the customary law of Normandy was silent or brief on the meaning and extent of the term, it was legitimate to look at other customs to explain the force and effect of the expression.  He particularly noted that the custom of Orléans should be an appropriate source because the author of the commentary in question was an author upon whom very great reliance was placed in Jersey in the context of the law of contract.  

42.      Miss Lawrence had also submitted that there appeared to be aspects of the law of voisinage in Orléans which were incompatible with established principles of Jersey law. A prime example was the provision at Article 247 of Pothier's Traité du Contrat de Société which provided that the owner of a wall adjacent to his neighbour's land might be bound, if his neighbour wished to build against the wall, to sell him the co-ownership of the wall for a value to be assessed.  It was submitted that this principle clearly offended against the maxim nulle promesse à héritage ne vaut.  The response of the Bailiff was to indicate that clashes of such a kind were an almost inevitable consequence of assimilating principles of law from other legal systems and that those principles had to be adapted to conform with the body of law of the receiving country: paragraphs 18 and 19. 

43.      The learned Bailiff also reminded himself of certain of the views of Hoffman JA (as he then was) in Re Barker (1985-86) JLR 186, 191. These were that the Court of Appeal should be reluctant to overrule the decision of a judge well versed in customary laws where the decision had stood for many years without criticism and, if a decision on title to land, might well have been relied upon by persons advising on title. Such decisions should be overruled only if plainly contrary to earlier authority or the cause of some practical injustice. The learned Bailiff also reminded himself of the duty of a subsequent Royal Court to follow a previous Royal Court decision unless convinced that the earlier decision was wrong.

44.      He then concluded by referring to certain indications that the judgment in Searley v. Dawson set a number of provisions of the law relating to immoveable property in their proper jurisprudential context.  First, the law relating to éboulements, where the owner of lower land had to accept anything falling or descending naturally from higher land.  Next, the law relating to water; where the owner of lower land was obliged to receive water flowing naturally from the higher ground.  He referred also to the law that the owner of a bank separating his land from that of his neighbour must maintain it as an enclosure; and the law relating to trees where a land owner was bound to cut back branches overhanging his neighbour's land.  The learned Bailiff indicated that none of these obligations was founded in contract and, whilst all of them could perhaps be characterised as natural servitudes, they could equally well be analysed as obligations arising in quasi contract to be a good neighbour: paragraph 22. 

Submissions to this Court

45.      Before us, the defendants repeated the submission, among other matters, that the evidence of the cases and writings by Jersey and Norman customary law authors demonstrated that a doctrine of voisinage did not form part of Jersey law at the time of Searley v. Dawson. 

46.      Referring to the absence of specific reference in the usual sources, Miss Lawrence submitted that it was reasonable to expect that, had there been a locally recognised doctrine of voisinage - concerned as it was with rights and obligations associated with use of properties - it would have been addressed in such writings if it formed part of the law of either Jersey or Normandy.  She submitted further that the writings of Poingdestre were instructive both for what was included and for what was omitted.  The passage cited in Searley v. Dawson clearly referred to neighbourliness in a sense other than that of creating mutual rights and obligations.  She referred this Court also to Poingdestre's Commentary on Articles 608 and 609 in the chapter De Servitudes.  Article 608 is the basis for the rule, "nulle servitude sans titre".  Article 609 provides, in translation:-

"Whoever has the fonds may build and construct above and beneath his said heritable property and make wells, cellars or other lawful things so long as there is no contrary title."

Poingdestre then comments:-

"This article is based on the old maxim of the Coûtume de Normandie above that all properties are free which do not show that they have been made servient: because if I have my fonds free, who may prevent me from using this freedom in building above or excavating below for my convenience according to law and custom, even though some person may suffer some inconvenience with his windows, drains and other things?  No one who is lawfully using his property can be said to be causing injury to a third party.  He who uses the freedom which the Coûtume affords him cannot be said to cause harm or injury to another.  In order to restrict that liberty, there has to be a contrary title, not an imaginary title, but one which is certain and valid." 

47.      The defendants further submitted that the learned Bailiff below was ill founded, at paragraphs 15 to 17, in proceeding upon the basis that because quasi contract was a principle recognised by the law of Jersey, and because the customary law of Normandy was silent, or brief, on the meaning and extent of the term "quasi contract", it was permissible to look at the customary law of Orléans to explain "the force and effect of the expression" quasi contract.  Miss Lawrence contended that it was fallacious to assert that, because a general principle was known in the law of two jurisdictions, every area of law related to that principle known in one jurisdiction also became a part of the law of the other.  By analogy she pointed out that, whilst both Jersey and French jurisprudence contained principles of criminal law, one could not extrapolate specific Jersey offences by reference to those that exist within the French penal code.

48.      She also noted that whilst Pothier had devoted the bulk of his First Appendix to his Treatise on the law of Partnerships (entitled Quasi Contracts of Partnership) to a quasi contractual presentation of the principles of mur mitoyen, the law of Jersey had never treated such subjects in such a manner.   She further pointed out that servitudes, under the law of Jersey, have never been described by commentators as quasi-contractual relationships.  She submitted that the learned Bailiff had erred in postulating that certain provisions of Jersey law (éboulements, l'eau de source and l'eau courante) could be characterised as quasi contracts without noting that they had never been so characterised in the law of Jersey. 

49.      It was submitted further that the learned Bailiff had erred in relying on Pothier as the relevant writings related to Orléans and were in conflict with existing Jersey law. Miss Lawrence repeated before us her submissions to the learned Bailiff that, having regard to Article 247 of Pothier's Traité du Contrat de Société, Tome 4, the ability of a neighbour, wishing to build up against an adjacent wall, to force the owner of the wall to sell co-ownership of it for a value to be assessed, clearly offended against the maxim nulle promesse à héritage ne vaut. 

50.      Finally, under this section, Miss Lawrence noted that the law of Guernsey appeared to have no separate doctrine of voisinage but relied on the English tort of nuisance: see Fruit Export Company Limited v. Guernsey Gas Light Company Limited (May 3rd 1994).  Her researches had also noted a reference to a treatise on voisinage in a further Guernsey case: Caine v. Gillespie and Ford (2nd April 2003) which dealt with rights of way.  The treatise referred to was by Jean Fournel (1805), who, she said, was unknown as an authority in Jersey, either on servitudes or on any other subject.

Discussion

Searley v. Dawson

51.      I look first at Searley v. Dawson. As was not uncommon for its time, neither the report nor the Judgment of the Court identify the totality of the submissions made to the Court.  I consider it clear, however, as Miss Lawrence submitted, that the decision is based on Pothier's approach.  Not only had there had been detailed consideration of at least some of the older writings, the Bailiff's judgment was astute to seek to balance consideration of the Customary Law and English Law, to both of which Jersey Law has regard. Having noted the difficulty in adopting the English Law approach, he is careful to identify not only the rule enunciated by Pothier but also the principle upon which that rule is based: (p.1701).  The Bailiff's first summarised point is that the parties are neighbours (and we know from the report that the properties were contiguous: (p.1688)).  This reflects 'voisinage' in a practical sense. His second summarised point identifies an obligation arising by reference to quasi contract.  His fourth identifies damage sustained by a neighbour's property. There can be no doubt but that these views are based on Pothier's approach.

52.      It may be that the learned Bailiff had a concern not only as to being able to adopt the English approach in Jersey but also as to whether an action based on negligence might have permitted delegation thus absolving the owner. The avoidance of this concern, taken with Pothier's own identification that, as in Jersey, a servitude could not be acquired by possession, would have led him to view Pothier's solution as sound in Jersey Law and of not dissimilar effect to that suggested by the English Law on Nuisance.

53.      In any event the Bailiff, notwithstanding that the case was brought in negligence, felt obliged to turn immediately not to the earlier Jersey Jurisprudence in relation to interference with enjoyment of land but to the law of England in relation to rights of support, then to consider Poingdestre, then Domat and then Pothier.  The clear impression which one gains from reading the judgment is that the learned Bailiff has identified the right of support, and the duty of the owners of land to respect it, as a matter of particular concern; page 1699.  The references to the older writers are detailed and given without hesitation and the only note of objections, at page 1701, is to the possible sterilisation of surrounding land by erecting an unduly heavy building.

54.      It seems to me also that the decision in Searley v. Dawson did not suddenly emerge without hinterland. In Shaw v. Regal, the same presiding judge had felt it important to discern certain principles which were clear, and of potentially wide application. There, in the first reported judgment in this area of law since the introduction of the English style of judgments in 1950, it is noteworthy that the principles which the Deputy Bailiff had found to emerge seemed to bring with them a very distinct resemblance to the writings of Domat (referred to above at paragraphs 13 and 14) and Pothier (referred to above at paragraph 16). Further, the concept of neighbourhood played an important part in his reasoning. 

55.      I turn now to the later cases. Some eleven years after Shaw v. Regal, the Royal Court in du Feu v. Granite Products Limited relied on Shaw, apparently without citation of Searley v. Dawson; and, as noted above at paragraph 21, referred to the former as an authority on Nuisance. However, like Shaw, the case had involved machinery and dust; and, in any event, the decision reinforces the importance of the principles identified. Then, in 1980, the Royal Court, in Browne v. Premier Builders (Jersey) Limited, gains some assistance from the "duty" laid down in Searley v. Dawson. Moving on to 1985, in In Re Barker, at page 192, albeit in a different context, reference to Domat Lois Civiles and to Pothier, Traités des donations, du domaine de propriété are accepted. Finally, the principles set out in Shaw v. Regal were again used in Cornick v. Le Gac in 2003. 

56.      Had the approach of the Royal Court in Searley v. Dawson, and in particular the reference to Pothier, been so manifestly contrary to principle in the law of Jersey - either by reference to its source, by reference to its use of the concept of quasi contract or by reference to incompatibility - one might have expected there to be either an appeal to the Privy Council or, in Browne v. Premier Builders (Jersey) Limited, an attempt to use a different route. On the contrary, as I have noted above, the decision has been referred to in subsequent cases with no indication other than that of soundness. Further,  the concept of voisinage was clearly brought into the public domain, for those interested in the development of the law of Jersey, by Madame Nicolle and Mr. Matthews and has for some years been part of the Jersey Advocates exam syllabus; again without demur. 

57.      Accordingly, for similar reasons expressed by Hoffman JA in In Re Barker, I would have been extremely reluctant to suggest that this Court take the view that Searley v. Dawson was wrongly decided on the issue of the existence of the doctrine of voisinage in the law of Jersey at the time of that decision.  It also seems to me that, following the approach outlined by Madame Nicolle in The Origin and Development of Jersey Law, it is by now part of the law of Jersey.  As Searley v Dawson has stood undisputed for 35 years, has been the subject of specific reference in subsequent text books and has formed part of the syllabus of the Advocates examination for almost 10 years as part of the law of property, it seems inconceivable, even though the issue has not reached the courts, that the concept has not been relied on by some professional advisers in considering relationships between owners of contiguous properties.  As with Hoffman JA, therefore, I would be prepared to suggest that the decision in Searley v. Dawson should be overruled only if I was satisfied that it was plainly contrary to earlier authority, incompatible with any other rule of law or the cause of some practical injustice. 

58.      I turn now to suggested conflict with existing Jersey Law, issues relating to Nuisance aside.

59.      On this matter the only suggestion of the decision being contrary to earlier authority was said to be in respect of the writings of Poingdestre in the commentary on Article 609, see paragraph 46 above.  In my view, this suggestion is not made out. Whilst, at first sight the passages might be thought to support the contention that a doctrine of voisinage did not form part of Jersey law at the time of Searley v. Dawson, in my opinion, a closer examination of the words and their context militates against that view. The learned author is writing about lawful use of property and what is, in all probability, transient inconvenience in the neighbour's use of property: the reference is to "some inconvenience with his windows, drains and other things". 

60.      It respectfully seems to me to be all but inconceivable that Poingdestre might have had in mind an unfettered power to quarry or excavate right up to the boundary with the neighbouring land with the only natural result being that the neighbouring soil and subsoil fell into the void unless the neighbouring proprietor accepted that he was forced to the inconvenience and expense of himself excavating and building a retaining wall to whatever depth the excavating neighbour desired.  Indeed, it might reasonably be said that Poingdestre's earlier writings in the introduction to the chapter indicate an expectation of such "friendship, neighbourliness, familiarity, courtesy or similar causes [through which] neighbours and friends support each other mutually" that he would have thought such actions on the part of one proprietor to be a gross invasion on such neighbourliness.  In my opinion, therefore, the decision in Searley v. Dawson does not run contrary to the writings of Poingdestre. 

The acceptability of Orleans Law

61.      I now turn to Miss Lawrence's submissions as to the inappropriateness of looking to sources as far away as Orleans. Here Miss Lawrence had contended that the error in the Court below became manifest when it was identified that what Pothier described as obligations coming within the overall doctrine of voisinage were, under Jersey law, known as servitudes. 

62.      In the first place this line of argument, in my view, may misunderstand the approach of the learned Bailiff.  In a small jurisdiction, with limited litigation and only relatively recent reported reasoned decisions - and bearing in mind the approach to customary law set out by Madame Nicolle - the Court, when seized of a relatively novel issue, must be entitled to identify an appropriate classification for what had not previously been classified, or had been classified in a way which might not now seem appropriate.  In Jersey there are some fundamental guiding principles such as nulle servitude sans titre and nulle promesse à héritage ne vaut.   However where, as here, the Royal Court has been astute to identify the singular importance of a right of support, it may be important, in appropriate cases in the future, to identify whether certain other matters should be reclassified.  That, as I understand it, is what the learned Bailiff is indicating in paragraph 22. 

63.      Put another way, the fact that certain other matters are classified in a particular way under a current approach through customary law, does not mean that they will not be open for reconsideration if an appropriate case comes before the Royal Court.  Such a reclassification, of course, need not necessarily have a significant impact on the nature of the rights and obligations arising out of the relationship which the law either recognises or imposes. It is, of course, a result for which Miss Lawrence was contending in submitting that the classification of quasi contract was outmoded.

64.      In the second place, with an argument based on existing classification one must be clear as to the firmness of the classification. In Jersey the very existence of servitudes is restricted by the maxim nulle servitude sans titre. Further, Le Geyt (1698) states in title 11 "on Servitudes":  "Whoever has title to the land may build both above and below and also make wells and cellars and other lawful things, so long as there is no contrary title and so long as that is not done in order to harm ("nuire") his neighbour, with the intention of doing harm ("animo nocendi"), which should not be allowed generally in the use of any servitude".  Whilst the remainder of the title deals with matters more readily recognisable as coming under the classification "servitudes", a provision such as this is probably at the edge of such a classification. 

65.      The contentions which Miss Lawrence draws from this provision by Le Geyt are (a) that the land owner was entitled to great latitude and restrained only by contrary title or by having to avoid intentional harm and (b) that, had a concept of voisinage existed, it would surely have been referred to.  The former construction is one which the passage will bear, but the latter must give way to the results of the search for the customary law, where not all writers will necessarily have covered all issues. For example, whilst Poingdestre is in almost identical terms at paragraph 609, it seems to me pertinent to recollect that, in the passage from Poingdestre set out at paragraph 12 above, the point made is that servitudes were little used. 

66.      Miss Lawrence submitted that the approach of the learned Bailiff below was misconceived also when, in paragraph 22, he indicated that the concept of quasi contract was helpful in setting, in their proper jurisprudential context, a number of provisions of the law relating to immoveable property.  In that paragraph he had referred to the law relating to éboulements, where the owner of lower land is bound to accept anything falling naturally from higher ground, to the obligation of the owner of lower land to receive water flowing naturally from higher ground, to the obligation relating to enclosure by banks, and to the obligation to cut back branches overhanging a neighbour's land.  Most, she showed, were referred to in Le Gros.  None were referred to by reference to voisinage or by reference to quasi contract.  Some provisions relating to water were covered by the statutory code of 1771: see Le Gros "de la servitude".  Certain water rights were also covered by the 1771 code.  The 1771 code was also the basis for the obligation to cut back trees: see Le Gros, "branchage". (As Miss Lawrence reminded the court, this is a different obligation to the perhaps better known twice yearly inspection of roadways to ensure that proprietors have cut back trees and hedges on the sides of public roads and lanes.) 

67.      In my view it is pertinent to recollect that different lawyers may adopt different classifications and for different purposes.  Some commentators, such as Le Gros, might feel it unnecessary to adopt a system of classification at all.  In the present circumstances, however, it was entirely appropriate, to my mind, for the learned Bailiff to proceed to consider various apparently related obligations and to seek to identify a proper jurisprudential context.  In particular this was, and is, important in proceeding to consider how the law of prescription is to be applied to such obligations as are properly identified as coming within the obligation of voisinage.  If I am correct in this view, it would be appropriate also for the Bailiff, having identified that Pothier proceeded upon a classification under quasi contract, and having identified - through Houard - that quasi contract was part of Jersey Law, to return to Pothier to explain and examine the appropriate force, effect and extent of the concept (of quasi contract) for Jersey: La Cloche v. La Cloche, in the passage cited above at paragraph 38.

68.      The point here is that Pothier, an eminent and respected jurist, has indicated a classification.  It seems to me that there is eminent sense in the adoption of that classification where the principal matters which Pothier seeks to cover in respect of voisinage relate to or flow from the fact of being the proprietors of directly contiguous properties, such as boundary demarcation.  There may be other matters, treated by Pothier as within voisinage, which the law of Jersey has chosen to treat under its code of 1771, or which are accepted as the obligation of a passive recipient.  As regards the latter, it seems to me not at all illogical to indicate, as the Bailiff does, that such matters might be characterised as natural servitudes, but could equally well be analysed as obligations arising just as if under contract.  After all, the lower land is bound to accept the naturally descending object or water; the banks must be repaired and the trees must be cut back.  These obligations do not give a servitude right to encroach upon the other piece of heritage and therefore do not fall foul of the maxim nulle servitude sans titre.  Equally, given the nature of such obligations, it would be entirely inappropriate to attempt to characterise them by reference to the more ordinary standard of duty to take care used in negligence.

69.      As the debate progressed, it seemed to me that consideration of this issue was assisted in no small measure by reference to the account of the state of the law in Jersey to be found in Le Gros, Droit Coûtumier de Jersey (1943). Whilst not referring to voisinage, it seems to me that his writings may assist in understanding the operation of the law in times when few writers on law had begun to consider it potentially helpful to a growing profession to identify as a matter of legal analysis what categorisation of obligations there might be, far less to emphasise their own analysis either of overarching concepts or of subsets within categories. This problem is discussed recently in Dimensions of Private Law (2003, CUP) by Stephen Waddams, Goodman /Shipper Professor of Law at the University of Toronto.

70.      In the Préface to his work, Le Gros (at that time Vicomte and, formerly, Bâtonnier) indicated a principal objective of providing practitioners in Jersey with a treatise on the customary law and application of relevant principles.  It seems clear, also, that, as customary law in Jersey was an evolving system, he sought to bring up to date earlier works such as those of Poingdestre and Le Geyt.  It is appropriate to observe, in this context, that Le Gros' treatise form part of the reasoning of the judgment of the majority in Snell v. Beadle [2001] JLR 118: see paragraphs 33 to 44. The passage which seems to me to be of particular assistance is the chapter on "Bornage" at page 10.  Before doing so it is appropriate to set the context. 

71.      The principal context is to carry out further search of the writings on customary law to gain a better understanding as to whether, there being no direct reference to a doctrine of voisinage, the available indications as to customary law in Jersey might indicate that adoption of such a doctrine was either consistent with or inconsistent with the customary law.  Le Gros' work deals with numerous rights and obligations.  The Respondents observed that there was no superstructure imposed by him on his work and various rights were not grouped together in a systematic fashion.  I agree: but what one can identify, immediately, is the treatment of numerous of the rights described by Pothier when considering the scope of the concept of voisinage.  Le Gros, of course, does not refer to voisinage as a particular right or obligation, nor does he group various rights or obligations together as, for example, incidents of voisinage.  Nor does he group any matters together as instances of nuisance.  Some writers might have classified a number of the rights as "servitudes" or "easements" but in his chapter "De La Servitude" Le Gros deals with joint ownership of walls, eaves and obligations in respect of rain water.  What is undoubted, however, is the apparent depth of research and examination carried out by Le Gros in order to substantiate his treatise.  His is not, in whole, the approach of an Institutional Writer working on principles taken from early Roman law, the Digest and eminent Jurists.  But much of his material gives a clear understanding of the way in which issues were dealt with in recorded litigations.

72.      "Bornage" is, essentially, the law relating to boundary demarcation and Miss Lawrence accepted that it was indeed part of the Ancien Coûtume.  It will be recollected that Pothier identified it as the "principal obligation" within the scope of the concept of voisinage and, after dealing with it at some length, moved on to identify other rights and obligations which he saw as arising as part of the obligation of voisinage.  It seems to me that, in the opening paragraphs of Le Gros' treatise on "bornage" one gains a similar impression of a fundamental importance of regulating the relationship between contiguous neighbours in this part of the world, in earlier times and in respect of an agricultural economy on fertile land. 

73.      In the first paragraph Le Gros indicates that "bornage" is a measure implemented with the object of marking physical limits between two contiguous heritable properties with the aid of stone markers or other devices.  The second paragraph is in the following terms:-

"L'intérêt du particulier et le bon voisinage exigent que les propriétés contiguës appartenant à des propriétaires différents soient délimitées au moyen de bornes.  Tel est le fondement de l'action en bornage qui n'est pas sujette à la prescription." (my emphasis).

74.      It seems to me that here we have the most direct relationship between what might otherwise be the ordinary words "bon voisinage" and those words being used to identify something which imposes - or requires - ("exigent") something on the proprietors of the neighbouring properties.  Such matters are too important to be left to contract; which might never come to pass if consensus could not be reached.  And the concept "voisinage" imposes positive obligations and not merely an obligation to restrict one's operations having regard to some objective test.  Further, the "action en bornage" is of such fundamental importance to the community that it is not to be subject to prescription. 

75.      Thus we have, in the clearest possible terms, an indication of the importance in the customary law of regulating relationships between contiguous neighbours.  The supporting evidence cited by Le Gros emphasises the importance of boundary demarcation in practice and also that boundary location litigation also embraced other issues as between contiguous neighbours: see the 1270 memorandum referring to the dispute between Félicie de Cheney and Thomas de Vic where the dispute included both demarcation and the damaging effects of a pond of stagnant water.  Again in 1668 a case dealt not only with the removal of boundary markers from certain côtils together with excavations to divert water flows and allowing cattle to run loose on the complainer's land.  These indications from earlier times make clear what is not surprising, namely, that an agricultural economy which had early developed a legal system for land owners and occupiers had felt it important to emphasise the obligations as between contiguous neighbours.  This, it seems to me, is precisely what was being set out by Pothier in a slightly more refined and systematic fashion in his works on customary law. 

76.      While not used as a title heading, specified doctrine or classification, the concept of voisinage is found in the works of Le Gros.  The setting is the second paragraph of a chapter entitled "Du Bornage" where Le Gros states:  "L'intérêt du particulier et le bon voisinage exigent ..." makes it permissible, in my opinion, to carry out further searches within other older writings to which recourse is usually made in order to identify whether there might be other matters covered by the concept of voisinage.  This leads one to Pothier and the passages to which reference has been made. With indications in Le Gros as to the exceptional importance of bornage, and with such pre-1971 case reports as have been placed before this court dealing with matters other than interference with support, I cannot accept Miss Lawrence's submission that there was no evidence that the law of Jersey ever accepted Pothier's approach based upon the Coûtume d' Orléans and that the evidence disclosed that Jersey had developed such matters through the law of nuisance. 

77.      In my opinion, whilst Searley v. Dawson is the first recorded occasion on which general principles are stated by reference to the doctrine of voisinage, the writings of Le Gros, in 1943, confirm that a concept of voisinage imposed obligations on contiguous neighbours.  While certain of the matters included by Pothier under voisinage might also be embraced by the law of nuisance (for example smoke and noxious fumes: article 241), there is nothing to indicate that the Bailiff in Searley v. Dawson, or the Bailiff in the court below, was precluded from looking to Pothier for assistance in respect of a matter for which the Jersey law of nuisance had not been used, and in respect of which the Bailiff in Searley v. Dawson had identified a difficulty in using. 

78.      Always leaving aside for the moment whether the law of nuisance in Jersey might have afforded a remedy, it seems to me that in circumstances (a) where there was no specific provision before the Court from Jersey sources or Normandy sources and (b) where a specific provision could be found in the works of an older writer already respected in Jersey - albeit in respect of different  areas of law - the learned Bailiff below and the learned Bailiff in Searley v. Dawson were entitled to consider the writings in question and,  where the nomen juris (quasi contract) was one recognised in Jersey, see whether the principles enunciated could be adopted into the law of Jersey without difficulty.

79.      In his Judgment, at paragraph 19, the learned Bailiff accepted Miss Lawrence's submission that the principle expressed by Pothier offended against the maxim nulle promesse à héritage ne vaut, but indicated that clashes of such a kind were an almost inevitable consequence of assimilation of principles of law from other legal systems and that such principles had to be adapted so as to conform with the body of law of the receiving country.  I agree with that approach.  It is consistent with much of the development of law in various countries over the last century.  The greater reporting of reasoned decisions and the availability of those decisions electronically (whilst having certain problems unduly extensive citation of authority) has enabled individual jurisdictions to benefit from the consideration of similar problems in others.  Jersey has a very special jurisdiction and the ambits of its development and how it develops are known to be within particular boundaries, as the decision of the Privy Council in Snell v. Beadle, cited above, identifies.  As is implied in the views expressed by the learned Bailiff below, the proper approach is not to dismiss an otherwise helpful concept because of potential and hypothetical difficulty but rather to accept what can be accepted in a particular case and to accept that, in a subsequent case, a particular rule of law in the receiving jurisdiction will prevent a more extensive application of the principle currently identified as acceptable. 

80.      Finally, I do not consider that Miss Lawrence's submissions on the Law of Guernsey in paragraph 50 above impinge on the views which I have set out so far. In the whole circumstances, and still leaving aside whether such matters were already covered by the Jersey law of nuisance, the approach of the Royal Court in Searley v. Dawson and the views of the learned Bailiff below in the present case seem to be unobjectionable.

81.      While Pothier's eminence as a Jurist would not, in itself, be a sufficient reason for the Courts in this jurisdiction to resort to him, given the issues which have been before this court, it is appropriate to add a few words as to the standing in which he has been held.

82.      In 1822 in England, Best J. (sitting in Common Pleas with Abbott C.J., and himself later a Chief Justice of the Common Pleas) said:

"But the authority of Pothier is expressly in point.  That is as high as can be had, next to the decision of a Court of Justice in this country.  It is extremely well known that he is a writer of acknowledged character; his writings have been constantly referred to by the Courts, and he is spoken of with great praise by Sir William Jones in his Law of Bailments, and his writings are considered by that author equal in point of luminous method, apposite examples, and a clear manly (sic) style, to the words of Littleton on the laws of this country.":  Cox and Others v. Troy (1822) 5B.& ALD. 474, 480-1. 

83.      Writing in his invaluable treatise on the Laws of Guernsey, Gordon Dawes refers to Pothier as "a figure still central to Guernsey (and Jersey) law": see pages 692-693.  As Dawes indicates in footnote 10:-

"It is hard to underestimate his standing among his contemporaries and subsequently, not just in France but throughout Europe and the common law jurisdictions.  Dupin in his 1827 edition of Pothier said this: ... "Indeed, few men have attained to such a high degree the esteem of their contemporaries and the respect of future generations"." 

84.      Lest it be thought that interest in Pothier is largely historical, Pothier's writings both in the Coûtumes  des Duché, Bailliage et Prévôté d' Orléans, 20.5.1 and Traité des Obligations, 2.6.4 and 3.1.6.2 were used for confirmation of analysis by the then Lord President of the Court of Session in Scotland in Caledonia North Sea Limited v. London Bridge Engineering Limited [2000] SLT 1123, 1140 - 1141 (the Piper Alpha litigation). 

NUISANCE

Jersey decisions

85.      Recorded Jersey judgments from the late 19th century are, as has been said on numerous occasions, jugements motivés in the then French fashion - and in contrast to what by then had become the Scottish and English fashion - no reasoned explanation is given for the judgment of the Court.  In many cases, the best which one can do is to identify the nature of the order sought, consider the factual findings or allegations upon the basis of which that order is sought and then identify the nature of the order actually pronounced.  It was not thought necessary to analyse legal arguments, relevant legal relationships or the basis in law upon which the order was pronounced.  Even with a number of recorded decisions in relation to similar factual circumstances, often it is not possible to gain a clear insight as to any systematic classification in the mind of the various Courts, or as to what circumstances are required in order to bring a civil litigant's claim within a specific sector of the civil law. 

86.      In a system based on principle rather than precedent, this can be acceptable as the principles can be identified in the works of Institutional Writers.  But if the Institutional Writers do not cover a particular matter, and the records of the decisions do not include references to Institutional Writings, Coûtumes or earlier decisions, an attempt to identify an existing or emerging classification may be all but impossible.  Such Courts and their decision making processes may be perfectly satisfactory in their times when there are few civil claims and Courts and practitioners are well aware of the general circumstances which will be taken to come under a general concept; but it may be that they are of restricted assistance in seeking to identify, a century or more later, what were the cardinal requirements to support a successful claim under some or other identifiable cause of action. 

87.      With this in mind, I now turn to the authorities placed before us; which, on this matter as with voisinage, were more extensive than those placed before the learned Bailiff. 

88.      The first case is Curry v. Horman (1889 - 213 Ex. 511).  The occupier of a house brought a claim against the lessee of a piece of land, separated only from the house by the width of a road (about 18 feet).  Cartloads of refuse had been deposited on the land about seventy feet away from the house and this gave rise to a nauseating stench spreading throughout the house.  An order was sought that the lessee be summoned by the Court to exploit the piece of land in such a way as not to harm the occupier of the house and, in addition, that he should be sentenced to pay the sum of £50 sterling, not only for the "tort" caused to the plaintiff by reprehensible behaviour but also for extraordinary costs.  The defendant contended that, as a farmer, he must be permitted to manure his land in his own way and in the manner generally accepted by farmers. 

89.      In the translation of the case placed before the learned Bailiff and before this Court, the conclusion expressed in the record states:-

"But, considering that the defendant has covered the said pile of sweepings with earth even before the notification of the Order of Justice in the way which is accepted by the plaintiff and this with the object of diminishing as much as possible the nuisance in question, the Court has confined itself to sentencing the defendant to the costs of the present action.".

90.      As the learned Bailiff indicated below, if one looks at the original French text of the record, the plaintiff's claim concluded with the words "affin qu'il lui soit intimé par la Cour d'exploiter ladite pièce de terre de façon à ne pas nuire [the plaintiff]".

91.      I see no reason to disagree with the views expressed by the learned Bailiff that when one considers the use of the verb "nuire" and the noun "nuisance" towards the end of the record, there is no context indicating that these words were used with any technical meaning such as might be found in a reasoned judgment clearly dealing with "the tort of nuisance".  It seems to me that this is particularly so when, on page 512, one sees in close proximity the phrase "à ne pas nuire" and "tant pour le tort causé".   It is therefore entirely possible that, in this passage, "nuisance" is being used as an ordinary word in the French language as opposed to a word with legal significance and that "tort" is being used simply to mean "wrong".   Certainly, there is no reference to, for example, "le tort de nuisance". 

92.      The second case is Arm v. De La Mare (1899) 220 Ex. 28: a Court record not before the Bailiff.  This case involved a complaint about thick smoke and cinders constantly emanating from the chimney of furnaces opposite the plaintiff's land.  The plaintiff contended that it was "not only a nuisance but a danger to the neighbourhood" and that the defendant had "caused serious tort" to the plaintiff.  He sought sentence in the sum of £300 sterling "not only by way of compensation for the losses suffered.....as a consequence of the refusal, the negligence and stupidity of [the defendant] but also by way of indemnity for extraordinary costs".  Towards the end of the record, a reference to the Order of Justice refers to the conclusion "for the "tort" suffered in that the defendant has refused to put an end to the "nuisance" ".  Again, the context does not persuade me that these words should be construed as terms of art relating to a specific "tort of nuisance". 

93.      Next, in chronological sequence, comes Dutton v. Constable of St. Helier and Others (1901) - 221 Ex. 120 again not before the Bailiff below.  When the plaintiff purchased his house, a quarry on the neighbouring land was used exclusively for extraction of stone.  Since then the authorities established a rubbish incinerator at a distance of just over 14 feet from the plaintiff's house.  The house was subjected to a fetid odour which penetrated the house and the property.  There is a reference to the "désagréments et nuisances dont se plaint [the plaintiff]" and reference to "tant pour le tort qu'il a subie".  Again I do not gain any sense that these words ought to be read as being terms of art. For example, the record after sundry procedure indicates, in translation, that "the Court has judged, in fact, that it is established that the factory in question has been more or less harmful to the petitioner ... and has thus cost him material prejudice for which reparation is due to him ... and in addition an injunction is made on the defendants in their official capacity, to have in the future, to exploit the said factory in such a way that the Petitioner is not unduly inconvenienced".  As noted, the translation given to the Court, with which I agree uses the words "more or less harmful" whereas the original is "plus ou moins nuisible" which again supports the views of the learned Bailiff at paragraph 11 of the judgment below.

94.      In Chisholm v. Glendewar (1924) - 233 Ex. 31 there were complaints that the motor of an electricity generator was making repeated noisy explosions and emitting acrid putrid odours and greasy soot.  Again, whilst the word "nuisances" appears in the record, so do other similar words and the ultimate finding of the Court, after taking time to consider its judgment, was that the emanations had been "excessive and harmful to the petitioner whom they have inconvenienced in the enjoyment of his immoveable ... [and it] enjoined on the defendant to have to take without delay all measures necessary in order to put an end to the said nuisance and to inconvenience the neighbourhood no longer. 

95.      In Keough and Wife v. Farley (1937) 12 CR 373, (a case put before the learned Bailiff below), noises from and the oscillations of a mechanical installation working every day were said gravely to threaten the health of the occupants of a house and that, were the plaintiffs to see themselves forced to quit their property they would not be able to sell the house except at a very low price and great loss. 

96.      The Court found it established by proof that the noise and oscillations had been excessive, that it was only recently that the defendant had "remedied this nuisance, that while the said nuisance existed it had been judged prejudicial not only to the state of health of the plaintiffs but also to the enjoyment of their proprietary rights."  Again, as the Bailiff below has noted, there was no reference to words such as "le tort de nuisance".

97.      The next authority, again in chronological sequence, is Penseney v. Philip Le Sueur and Sons Limited (1951) - 247 Ex. 117; again not before the Bailiff.  Here the plaintiff was the owner of a house and shop, and the neighbouring property belonging to the defendants was used by them as a coal depot.  It was claimed that dust harmed the décor and decoration both externally and internally, that the crashes of coal caused serious problems for the occupants of the house and that the storing of large quantities of coal against the gable wall and party owned wall unduly strained the gable and wall.  Here it is perhaps of interest that the defending company contended, among other matters, that the petitioner had no right to complain about attacks made on rights of enjoyment, but only on attacks made on proprietorial rights.  The case was put out for further procedure with which the record does not deal. 

98.      In Coutanche v. Lefebvre and Others (1955) 249 Ex. 390, granite powder from an adjoining quarry created dust which killed some of the plaintiff's trees and smothered the growth of potatoes and tomatoes.  It was also contended that it made breathing difficult.  What is noteworthy here is that there is no reference to "nuisances", but to the hope that the defendant would "mettre fian à ces torts" and the seeking of an injunction to put an immediate end "le tort causé".  Further, whilst the plaintiffs estimated the damages caused to property and crops at the sum of £150 sterling, the total compensation claimed was the sum of £500 sterling.

99.      In Lysacht v. Channel Islands Property Holdings Limited (1961) 253 Ex. 204 (Merits) and (1962) 254 Ex. 10 (Damages), already referred to at paragraph 18 above,  I have already noted that whilst the demolition and construction operations on a contiguous property amounted to a legal nuisance, the word "nuisance" does not appear in the merits decision. 

100.   Again, chronologically, the next case before this Court was Shaw v. Regal (1962) JJ 189 (referred to at paragraphs 19 and 20 above).  Here, whilst the rubric commences with the word "nuisance" that word is not to be found in the report.  As already noted the learned Deputy Bailiff at page 192 refers to principles relating to occupation and ownership of land with specific reference to neighbourhood and "emanations which might unreasonably interfere with his neighbours".  At page 194 the judgment notes that the Inferior Number was "of the opinion that no actionable damage has been done to the exterior of the house".  It is, I think, noteworthy that by the time of this decision in 1962, the system of reasoned judgments had been in existence for over ten years and, had the learned Deputy Bailiff had in his mind a particular, well known, sector of Jersey law such as nuisance - being a term of art bringing with it understood connotations by way of legal requirements, etc., - it is surprising that it was not used. 

101.   From that case one moves, chronologically, to the decision in Searley v. Dawson where, as observed, in a dispute between neighbours arising out of work on adjacent property, the claim was raised in negligence and the experienced Bailiff made no reference to nuisance.

102.   In 1973 the decision was given in du Feu v. Granite Products Limited, (referred to in paragraph 21 above).  Here the head note commences with the word "nuisance" and on page 2442 it is noted that the plaintiff commenced the action alleging that "the Defendant Company continues intermittently to cause serious nuisance and annoyance to the plaintiff and his family".  On page 2443 the Court identifies the first issue before the Court as being whether or not the plaintiff had "suffered an actionable nuisance at the hands of the defendants".   Dealing with that question the Court considered first the circumstances and then moved directly to consider Clerk and Lindsell on Torts.  As indicated above at paragraph 22 the Inferior Number, at page 2447, indicated "the two basic principles underlying all actions based on the tort of nuisance were set out in Shaw v. Regal ..."   As I have already observed, this is not the wording which one sees in that case report; and du Feu is the first occasion in the reports or records before us where the phrase "the tort of nuisance" is used. 

103.   In Mercer v. Bauer (1973) JJ 2453, again a case before Le Masurier, Bailiff in the Royal Court, the plaintiffs complained that a piggery had become a nuisance and the defendants contended that the inconveniences to which the plaintiffs had been subjected could not in law amount to a nuisance (page 2456).  The learned Bailiff and the Inferior Number proceeded to identify that the plaintiffs had been prevented from enjoying their properties at a standard of comfort appropriate to the locality and, for the nuisance inflicted on them in the past were entitled to some compensation, in respect of which the question of quantum was stood over: page 2457.  It is noteworthy that, by this stage, the declared reasoning begins to display consideration of what may and what may not be an actionable nuisance. As the learned Bailiff indicates, at page 2457: "if an affront to the eye were a nuisance, which it is not ...".  However it is not clear what compensation was envisaged as being due. 

104.   The case of Dale v. Dunnell's Limited (1976) JJ 291 dealt with a gate swinging out across a public highway.  In addition to finding for the plaintiffs in negligence, the Inferior Number found the defendant company liable to the plaintiffs in nuisance.  At page 298 the judgment reads

"As regards the claim in nuisance, the gate was a dangerous obstruction on the public highway.  Persons who placed such obstructions thereon whereby passers-by are injured are liable for the resulting injuries.  It makes no difference whether the obstruction is, for example, the leaving of an unlighted heap of soil on the public road (see Penny v. Wimbledon U.D.C. [1899] 2 QB 72) or emanates from premises for example by allowing a piece of fat from a butcher's shop to get onto the footpath (as in Dollman v. Hillman [1941] 1 All ER 355)." 

Thus, by the mid 1970's, the Jersey Courts were beginning to make specific reference to English cases.

105.   Moving forward some years I come to the decision in Magyar v. Jersey Strawberry Nurseries Limited [1982] JJ 147.  This was an action for nuisance brought by the plaintiffs in respect of an amount of noise caused by glass blowing activity by the defendant, a circumstance which the defendant did not expect to arise from the machinery which he had acquired and in respect of which the defendant took immediate steps to try to change matters.  The Deputy Bailiff, giving the judgment of the Inferior Number, referred to the case of du Feu v. Granite Products Limited, to the general principles of the law of torts by Professor James and to Halsbury.  What may be of interest is one section on page 149 where the Deputy Bailiff (Crill) indicates "however again it is not the law that a person may not be actioned for nuisance even if he took reasonable steps to prevent a nuisance occurring".

106.   I now come to Mitchell (née Bird) v. Dido Investments Limited, cited above at paragraph 26 where the Royal Court, presided over by Tomes, Deputy Bailiff, made some observations which are important for these present purposes.  At page 304, line 32 the Deputy Bailiff said:-

"The Court is satisfied that, in respect of nuisance, the law of Jersey follows the law of England and, therefore, we can have regard to the English authorities (see Dale v. Dunnell's Limited)".

107.   Then, at page 307, line 19, the Deputy Bailiff said:-

"The instant case is not one concerning landslide or éboulement.  The law of Jersey on landslide or éboulement was not argued before us and we are not prepared to say, therefore, whether Mesny v. Marett should be overruled on the basis of Leakey v. National Trust & c.   Moreover, in Leakey v. National Trust & c  the defendants were aware of the danger and of the possible consequences; there was knowledge that a potential nuisance of a significant nature existed and the defendants failed to take steps to prevent damage occurring.  There is nothing in the report of Mesny v. Marett to show that the defendants knew or ought to have known of the risk of encroachment.  Nor are we prepared to decide, without full argument, whether Leakey v. National Trust & c should overrule the principle of Jersey common law that the fonds inférieur is bound to receive the éboulement which, without human intervention, descends upon it from the fonds supérieur.

But, as a proposition of the general law of nuisance, we adopt the principle of English law contained in Leakey v. National Trust & c in which Megaw, L.J. said ([1980] 1 All ER at 35): 

"This leads on to the question of the scope of the duty.  This is discussed and the nature and extent of the duty is explained, in the judgment in Goldman v. Hargrave.  The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. ...". "

108.   Finally, under this head comes the decision of this Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited etc [2002] JLR 443.  An issue in this investor protection case was whether action by the Jersey Financial Services Commission requiring payment to compensate investors was a regulatory power in public law or an action in tort.  As with the present action, an important result of the distinction was the identification of the appropriate provision of the law on prescription.

109.   Among other matters, Southwell, JA, delivering the judgment of the Court said:-

"20.     The essentials of a right of action in tort, and therefore of an action "founded on tort" for the purposes of art. 2(1) of the 1960 law, were considered by me when delivering the judgment of the Court of Appeal in Arya Holdings Limited v. Minories Fin. Limited.  Those essentials include a duty owed to the plaintiff by the defendant otherwise than by virtue of a contract or trust, whether pursuant to Jersey common law or statute, a breach of this duty by the defendant, and actual or threatened damage caused by and flowing from the breach (which in some torts may be assumed), giving rise, accordingly to a right of action which the plaintiff can require the Court to uphold.

21.      Arguments have been advanced as to the extent to which tort (in French) as part of Jersey common law may differ from tort (in English) as part of English common law.  One example of a difference between Jersey law and English law in this regard can be seen in Arya, where a Jersey right of action described as a d'allain claim, unknown to English law, was held to be a right of action in tort in Jersey law.  What is significant for the present case is that a d'allain right of action involves, just as much as other rights of action in tort in Jersey law, the three essentials of duty, breach of duty and damage.  Whatever differences there may be between Jersey law and English law as to the range of torts on which reliance may be placed under either legal system, torts under each system involve the existence of those three essentials.". 

Other Jersey Sources               

110.   Miss Lawrence brought our attention to certain other sources where "nuisance" is mentioned.  The earliest is the 1789 report to the Privy Council by Hemery & Dumaresq as to the trial procedures in the Royal Court in criminal, civil and mixed causes.  At page 30, in treating of subjects recognisable by "the saturday's Court" the authors wrote:-

"Those we are now to speak of, concern corporeal heriditiments.  And these are principally actions of waste, nuisance, trespass, disturbance, and such like injuries, committed to the prejudice of houses, woods or lands.  Actions of Novel Disseisin and other possessory actions, which more immediately affect the substance of real property, are likewise of the competency of the saturday's Court."

It is to be noted, on page 31, that in dealing with the well known Clameur de Haro, the authors write:-

"It appears likewise, that if it were cried à tort (improperly) the plaintiff was to be fined; owing, no doubt, to the heinousness of a wrongful accusation of such an atrocious nature, and the solemn manner of treating the action.

The causes of which Haro is cried at this time, are totally different from what they were, anciently, in Normandy.  No criminal prosecution is instituted by the Clameur de Haro.  The injuries, which give rise at present to this remedy, are some of those above mentioned, viz: novel disseisin, nuisances, and the like; in which no greater proportion of crime exists, than belongs, generally, to civil injuries."

111.   These are indications of a right of action based upon some form of "nuisance", committed to the prejudice of land, woods and buildings but, in my opinion, one cannot take it from the passages that they are references to the adoption of the English law "tort of nuisance" into the law of Jersey. Nor, in my view, can one take from the lack of reference to such as 'action in voisinage' any indication that such did not exist. Miss Lawrence had indicated that an 'action en bornage' as referred to in Le Gros was part of the Ancien Coutume; and further, Le Gros, upon historical analysis, emphasised the importance of the obligation. In my opinion whilst a source such as the 1789 Report can be used to confirm the existence of an action based upon nuisance, without any other evidence as to special reliance on particular forms of action it cannot be given such weight as to indicate that actions such as those 'en bornage' would be treated as nuisance when the writing of Le Gros shows the impositions of the concept of bornage to be of a quite different order. 

112.   Miss Lawrence, for the Appellants, also drew our attention to references to "nuisance" in certain statutes enacted both before and after Searley v. Dawson.  These are as follows.

113.   In the Loi of 11 November 1869 for the Jersey Railway Company Limited, Article 45 provides among other matters (in translation):-

"... the company shall be bound to conform to all Regulations which may from time to time be made by the States Committee for the Superintendence of Main Roads, in order to prevent nuisances which might arise in the manner in which they shall carry on their undertaking.  ..."

114.   The relevant words "pour empêcher des nuisances" can hardly be a reference to nuisance, as the general concept of law giving rise to a right of action.  The Railway Company, as statutory undertakers, were doubtless absolved from what would otherwise be a potential civil suit because of the noise and dirt produced by the railway.  Further, those creating regulations and enforcing them would be unlikely to have in mind finer points of the law of nuisance, if such finer points there indeed were.  In my opinion, a reasonable reading of the article is that provision has been made in the regulations to restrict the impositions on the neighbourhood of the running of a railway and the company had to adhere to those regulations. 

115.   Second, there is a Loi of April 1872 for the Jersey Eastern Railway Company Limited.  Article 46 is in similar terms to Article 45 of the 1869 Act.  Article 50 is in the following terms, among others (in translation):-

"The company, in using or benefiting from the rights and powers accorded by the present Article, shall take care that the least damage and inconvenience shall be caused, either to the public or private individuals, or to the properties, to whomsoever they may belong; and it shall be bound to compensate, in accordance with the direction of experts,  the parties harmed for all "tort, perte, au donmage" which it may have caused in the exercise of the rights and powers granted by the present Article."

116.   It is somewhat difficult to know how this provision should be - or was - construed.  By Article 50 the company is given power to construct and operate the railway.  But, if it has taken care that the least damage and inconvenience would be caused, would it be bound to make compensation?   How would the standard of care be assessed seeing as the company was empowered to construct and operate a railway?  Would it only be a "wrong" if there was proved to be a failure of reasonable care?  In my opinion, in the whole circumstances, it is difficult to take this provision further than an indication, within the grant to a statutory undertaker, that certain claims for loss and damage might be permissible.  I do not consider that it could be taken as an indication that the law of Jersey had adopted a "tort of nuisance".

117.   Next came the Loi of 1 February 1934 on public health.  By virtue of Article 8, the Constables were given certain powers.  Among other matters these included the power to remove dangers to public health.  Under Article 8(c) there was a power to order the person responsible to "clean out lavatories ... to cause them to cease being a nuisance".  The order continued:  "In case of negligence or refusal to comply ... a fine not exceeding £50 sterling."  It is perhaps interesting that the issues dealt with in paragraphs (a) and (b), whilst having potential to harm the health of inhabitants of the neighbourhood, are not referred to as a nuisance.  It is also of interest that the fine is exigible in case of "negligence or refusal to comply".  In my opinion these provisions cannot be taken as any guidance in relation to the private law of Jersey in relation to private actions relating to matters alleged to be a "nuisance".

118.   Article 6 of the Cremation (Jersey) Law 1953 states:- 

"Nothing in this Law shall authorize the creation of a nuisance."

A provision of this nature recognises that the works being authorised might be open to complaint and confirms that the statutory undertaker cannot hide behind the statutory authorisation as a simple answer to a claim.  Again, however, the provision cannot give guidance as to how the civil law classifies and deals with actions relating to what might commonly be perceived as nuisances.

119.   The Island Planning (Jersey) Law 1964, Article 16, deals with orders for the preservation of trees.  Article 16(3) provides:-

"Without prejudice to any other exemptions for which provision may be made by an order under this Article, no such order shall apply -

(a)       To the cutting down of trees which are dying or dead or have become dangerous or so far as may be necessary for the prevention or abatement of a nuisance". 

The comments which I have made in respect of the Cremation (Jersey) Law of 1953 are equally applicable to this provision. 

120.   Article 6(4)(a) of the Dangerous Wild Animals (Jersey) Law 1999 provides:-

"The Committee shall not grant an application for a licence unless it is satisfied as to all of the following matters -

(a)       That it is not contrary to the public interest, on the grounds of the safety of human beings or animals (whether or not they are dangerous wild animals) or of nuisance or on any other grounds, to the application;"

Again my comments in paragraph 118 above are applicable.

121.   Finally under this head, the Statutory Nuisances (Jersey) Law 1999, among other matters, empowers the Health and Social Services Committee to serve an abatement notice in instances where it is satisfied that a statutory nuisance exists.  Article 2, which the States may by Regulations modify, contains a list of matters constituted as "statutory nuisances" for the purposes of that law.  They are set out in the following fashion:-

"(a)     Any premises in such a state as to be prejudicial to health or a nuisance". 

The word "nuisance" is not defined in Article 1 and, accordingly, it appears to be left as a matter of common sense for the Committee to determine whether the matter in question constitutes a nuisance. 

122.   Again, whilst indicating that the concept of a "nuisance" giving rise to a right in another party - here, the Committee on behalf of the States - there is nothing to give guidance as to  how the civil law identifies actionable claims and what rights or obligations it grants or imposes.

Submissions before the Bailiff

123.   Before the Bailiff, Miss Lawrence submitted that, since at least 1889, the tort of nuisance was established law in Jersey.  The submission was made by reference to the decisions in Curry v. Horman, cited above, and Keough v. Farley, cited above. Having considered these cases, the learned Bailiff responded as follows:-

"13.     These were jugements motivés, and no reasoned explanation was given for the judgment of the Court.  I do not find any persuasive evidence in these two cases that the English tort of nuisance had at that time been assimilated into the law of Jersey.  On the contrary, the phraseology employed indicates to me that the conduct complained of was regarded as an interference with a proprietary right and a breach of the obligation to use one's property in such a way as not to harm or cause damage to one's neighbour.  It may be that the elements of the quasi-contractual duty of voisinage have much in common with the ingredients of the English tort of nuisance, but that is not evidence that the English tort has been incorporated into our law.  Indeed the comments of Le Quesne, Lieutenant Bailiff, in Guernsey States Insurance Authority v. Ernest Farley & Son Limited (1953) JJ 47 tend to suggest that in the early 1950's it was certainly not the case.  The judge stated at 48 -

"Can this claim, which arises out of the accident and is not brought by Mr. Le Cras but by the Insurance Authority, be enforced in this Court in Jersey, or does the law of Jersey prevent it from being enforced here because it is based on the assignment of a right of action arising from a tort?  The word "tort" is used here in the sense in which it is commonly used by English lawyers when they speak of the law of torts as opposed to the law of contracts.  On grounds of convenience this may be permitted provided that it is done without losing sight of the fact that this is a Jersey Court administering Jersey law, whether it be internal domestic law of Jersey or the principles of private international law as they are applied by Jersey Courts."

124.   Later, in his section headed "Voisinage and the law of torts", the learned Bailiff said:-

"It is true that many of the elements of voisinage are to be found in the English concept of "nuisance" and the possessory action is similar to the action of trespass.  It is also true that in some cases since 1960 the Court has appeared to embrace concepts such as nuisance and trespass as if they were part of the law of Jersey." (paragraph 27).

Submissions before this Court

125.   Before us, Miss Lawrence contended that the Bailiff's remarks to which we have just referred (at paragraphs 13 and 27) constituted an unambiguous finding that nuisance did not form part of Jersey law.  It was further submitted that the learned Bailiff had erred in ignoring the weight of all other cases and other references to nuisances and "torts", together with their absence of reference to voisinage and quasi-contract. 

Discussion

126.   For my own part, I am by no means confident that the learned Bailiff below was in fact indicating that there was no law of nuisance in Jersey, rather than saying that Jersey had not adopted the English Law tort of nuisance. In any event, this Court has now had the opportunity to consider all the earlier cases to which I have referred and the further references in the statutes and in the 18th century Privy Council paper.

127.   As regards earlier cases it was submitted that the learned Bailiff had failed to attach sufficient weight to the use of nuisance as a term in the cases before him, particularly in the absence of any other type of claim - specifically, voisinage - and in finding (a) in relation to Curry v. Horman that the words might not "necessarily" have been meant to have any technical meaning and (b) in relation to Keough v. Farley, that whilst there was a reference to nuisance, there was not a reference to " le tort de nuisance": see paragraphs 11 and 12 of the judgment.  It was further contended that whilst theoretically possible that the reference to nuisance was not intended in a precise technical context, the better view was that by the time of Keough v. Farley, if not by the time of Curry v. Horman nuisance had a clear technical meaning in English law and it would have been very surprising if the Royal Court in those cases was not fully aware of this. 

128.   In my opinion, the Bailiff was well founded in the views which he expressed in relation to these two cases and, in my further opinion, those views are equally applicable to the remainder of the cases put before this Court.  Even if it could be shown that, by a particular time, the law of England had developed a particular and clear technical meaning for the concept of nuisance and even if it could be shown that the Bailiff or Deputy Bailiff in question had been trained in English law and was cognisant with that area of English law, given the separateness of the jurisdictions, it would, in my opinion, require quite clear wording to show not only that the Bailiff or Deputy Bailiff was using the word nuisance in accordance with that technical meaning but also that he was suggesting that the law of Jersey had adopted or should adopt the law of England on this matter rather than its own law.  On this point, the Privy Council paper may be instructive.   The order of the Privy Council giving rise to the statement was issued on the 21st July 1789, that is 7 days after the storming of the Bastille.  A mere 8 years had passed since the defeat of the French in the Battle of Jersey.  Even by that stage, the paper indicates that an action of or remedy in nuisance existed in the Island.  What, in those days, were understood to be the basis in law or legal requirements for such an action or remedy, we cannot tell at this remove unless it is revealed from other sources.  But, with an existing action or remedy, there is no basis for the submission that the words "tort" or "nuisance" had a particular technical meaning which required its association with the law of England.  Equally, it seems to me, that the fact that the Privy Council paper and the late 19th, early 20th century decisions do not refer to voisinage or quasi contract does not mean that one must exclude from consideration the possibility that the foundation for some actions and remedies might be either voisinage or quasi contract. 

129.   A further point of interest from the Privy Council paper is that the writers moved from consideration of actions relating to incorporeal real property to actions relating to "corporeal hereditiments".  They then referred to certain identifiable types or forms of action which they categorised as "injuries, committed to the prejudice of houses ...".  They then identified possessory actions.  They then went on, in the same paragraph (page 30) "and all these may be instituted, either by bill, by writ, or by petition, according to the nature and circumstances of the case; there being no fixed rule of process for any of them, except where the King's Procureur joins the plaintiff in the action ...".  This is an indication of one clear distinction between the law of Jersey and the law of England which, in the 18th century and for about 100 years later, laid immense stress on particular form of action for a particular remedy, let alone the continuing division between the separate systems of law and equity not fused until the Supreme Court of Judicitor Acts 1873 and 1875.   Indeed, even as late as 1948, Lord Greene MR could write: "Nevertheless, if the claim in equity exists, it must be shown to have an ancestry founded in history and in the practice and precedence of the Courts administering equity jurisdiction.  It is not sufficient that, because we may think that the "justice" of the present case requires it, we should invent such a jurisdiction for the first time.": see Re Diplock, Diplock v. Wintle [1948] Ch 465, 481-482.  The tort of nuisance, in English law, was a creature of the common law. 

130.   The cases from Curry v. Horman to Coutanche v. Lefebvre are all instances where the physical manifestations alleged to be injurious are of the type which systems of law including the law of England and of Scotland would recognise as giving rise to a right of action, usually by reference to the word "nuisance".  The manifestations include noise, cinders, soot, odours and dust.  What is of immediate interest, however, is the nature of the compensation sought or awarded.  In Curry v. Horman it is expressed in general terms as a claim for a wrong caused by reprehensible behaviour.  In Arm v. De La Mare the plaintiff had suffered considerable losses due to damage to his merchandise as a general draper and he sought £300 sterling not only by way of compensation for the losses suffered by him but also as a consequence of the refusal, negligence and stupidity of the defendant.  In Dutton v. Constable of St. Helier the plaintiff claimed £1,500 for depreciation caused to his property as well as £300 sterling for the wrong he had suffered by being exposed to the smoke and acrid, unpleasant smell from the incinerator chimney.   In Chisholm v. Glendewar, the plaintiff complained about nuisance and threats to the health of his wife and himself as well as inconvenience in the full and complete enjoyment of his property and was awarded £56 by way of compensation and costs.  In Farley v. Keough the Court found that while the noise nuisance existed it had been prejudicial not only to the state of health of the plaintiffs but also to their enjoyment of their property rights and awarded the sum of £200 by way of damages and costs.  As noted earlier, in the 1951 case of Penseney v. Le Sueur the defending company had contended that the petitioner had no right to complain about attacks made on rights of enjoyment but only on attacks made on proprietorial rights, where one of the contentions had been that the crashes caused by the fall of coal constituted serious problems for the occupants of the premises.  In  Coutanche v. Lefebvre, one of the allegations was that the dust made breathing difficult and exercised a deleterious effect on the health of the plaintiffs and their children.  They had estimated the sum of £150 for damages to their property and crops but claimed a total of £500 sterling. 

131.   Whilst there is a limit to what one can take from such records as identifying what may have been in the minds of the pleaders or the Court, the impression gained is that both pleaders and Court were prepared to entertain claims related to damages for injuries to the body and injuries to personal or business property and not merely damage arising to the interest in land such as is embraced within the English law concept of nuisance as a "tort against the land": see Hunter v. Canary Wharf Limited [1997] AC 655, 687G - 688C (Lord Goff of Chieveley), 702G - 703C (Lord Hoffmann, 723D - G (Lord Hope of Craighead). 

132.   The first reference to "nuisance" in a more formal sense in the reports is found in the rubric for Shaw v. Regal; but, as I have already noted, the word "nuisance" does not appear in the judgment.  Given the way the judgment is expressed by the then Deputy Bailiff (Le Masurier), especially at page 192, it seems to me likely that the Inferior Number had been addressed by reference to Jersey authorities and not for example, by reference to Clerk and Lindsell on Torts or Halsbury.  Indeed the reference to "cases ... although each one appeared to turn on the facts relevant to itself" is very apt to cover the cases to which we have been referred in this Court.  The principles enunciated by learned Deputy Bailiff do relate to occupation and ownership of land, albeit by reference to the needs of the average person in a particular neighbourhood.  In referring to "emanations which might unreasonably interfere with his neighbours", it is perhaps preferable to construe this as being a reference to interference with enjoyment of land as opposed to interference with the body or health of neighbours.  But that is conjecture on my part. 

133.   When one therefore comes to the decision in Searley v. Dawson the material available to the Royal Court (and probably before the learned Bailiff when Deputy Bailiff in Shaw v. Regal) indicates the ability of the Royal Court to deal with "nuisances" of the sorts dealt with in those earlier cases but nothing approaching a systematic analysis of a defined technical right of action nor, in my respectful view, anything approaching the formalising of references to nuisance as being necessarily references to the English tort of nuisance.  Indeed, as I have indicated, the expectation that the Royal Court might deal with damage to person and personal or business property would seem to run counter to that suggestion. 

134.   The first reference to English law comes in du Feu v. Granite Products Limited where, after identifying the nature and content of the complaint, the Deputy Bailiff moved initially to Clerk and Lindsell on Torts in order to seek to identify into which type of private nuisance the plaintiff's action was properly based.  It is noteworthy, however, that in between references to Clerk and Lindsell and Halsbury's Laws of England, the learned Deputy Bailiff specifically refers to the principles set out in Shaw v. Regal.  The impression immediately gained, therefore, is that, whilst those principles are referred to as "underlying all actions based on the tort of nuisance", these principles were to be identified from Jersey sources in the first instance and not from Clerk and Lindsell or Halsbury. 

135.   Thereafter, in Dale v. Dunnell's Limited the ancillary  nuisance claim, referred to at page 298, was considered firstly in general terms and then by reference to the law of England for examples.  In Browne v. Premier Builders (Jersey) Limited the learned Deputy Bailiff (at page 104) noted that the plaintiff founded his action on a failure by the company to fulfil its duty of care and indicated that the duty was laid down in Searley v. Dawson.  As I have already observed, the Deputy Bailiff stated "There the Court said "Each (neighbour) is under an obligation to the other arising quasi ex contractu not so to use his property as to cause damage to the property of the other and an obligation pre-supposes a right".  But that type of obligation is we take it, akin to the duty imposed in tort.  Did the company adopt a reasonable method therefore of carrying out its work and at the same time fulfilling its duty to the plaintiff?"  After which reference is made to Charlesworth on Negligence.  Thus the Royal Court, in 1980, had no difficulty in identifying that a duty could emerge in respect of an obligation arising quasi ex contractu according to Jersey law, applying the words of Pothier.   We do not know what other authorities were cited to him but, certainly, he does not suggest that the obligation arises out of a "tort of nuisance"; only that the type of obligation is "akin to the duty imposed in tort".  As a matter of pure legal analysis, this approach may be thought unsatisfactory without more detailed consideration.

136.   The matter becomes even less clear when one turns to the ensuing case of Magyar v. Jersey Strawberry Nurseries Limited in 1982, where a different Deputy Bailiff states (at page 149) "However again it is not the law that a person may not be actioned for nuisance even if he took reasonable steps to prevent a nuisance occurring.".  Such an approach might be thought to be more closely related to the approach in England and in Scotland: it was not the approach in Browne and it may be inconsistent with the approach in the older cases. 

137.   I now return to the case of Mitchell (née Bird) v. Dido Investments Limited 1987 - 88 JLR 293.  It is in this case that the Royal Court states, at page 304 "The Court is satisfied that, in respect of nuisance, the law of Jersey follows the law of England and, therefore, we can have regard to the English authorities (see Dale v. Dunnell's Limited)."   The statement comes within the section of the judgment headed "Nuisance" and is in somewhat surprisingly straightforward terms.  The judgment commenced:-

"It is unnecessary for the Court to recite all the authorities that were cited to us.  We were referred by both counsel to certain passages from 34 Halsbury's Laws of England, 4th ed., and the following will be sufficient for our purposes:"

138.   Everything which is interposed between that last quotation at page 302 line 10 and the earlier quotation at 304 line 32 is from Halsbury.  Apart from the Jersey cases cited in other portions of the judgment, the only apparently relevant additional case cited by counsel but not referred to in the judgment would have been Shaw v. Regal.  Whilst in Dale v. Dunnell's Limited, the Royal Court had been prepared to have regard to English authorities, there is no clear indication in that decision - or indeed in any of the other decisions put before this Court, albeit not before the Court in Mitchell (née Bird) - that the law of Jersey had decided to follow the law of England and had done so after argument and upon a reasoned analysis.

139.   Lest these last observations be thought unduly critical, I feel it important to bear in mind the words of this Court given by Southall, JA in JFSC v. A P Black [2002] JLR 443, 454-5 to which I have already referred.  There in paragraphs 19 - 22 the Court confirmed the essentials of a right of action in tort but noted at least one difference between Jersey law and English law albeit that torts under each system involved the existence of the same three essentials.  Those views referred back to the decision in Arya Holdings v. Minories Finance Limited [1997] JLR 176 where, at 181 Southall JA, again delivering the judgment of the Court stated:-

"The Jersey law of torts derives primarily from the Jersey common law which has its origins in the Norman law of the ancienne coûtume.  In relation to the tort of negligence, Jersey follows the law of England "T.A. Picot (C.I.) Limited v. Crills (5) (except as regards any point on which a different rule has been established in Jersey).  In relation to other torts or other aspects of the law of tort, although careful attention is paid to decisions on English common law, the Courts of Jersey have to find themselves on the common law of Jersey.  Thus there may be causes of action in tort which are available in England but not in Jersey and vice versa."

140.   When one turns to the decision in T.A. Picot (C.I.) Limited v. Crills [1995] JLR 33 and considers page 46 in the judgment of Le Quesne, JA at line 42, one finds:-

"It is common ground that excepting any point upon which a local rule has been established, on questions of liability for negligence the law of Jersey follows the law of England.  This means that on these questions the Jersey Courts apply the whole law of England. It does not mean they are free, following not any local rules (of which ex hypothesi there are none) but their own preference to accept some features of English law and reject others."

141.   At page 47, line 27, Le Quesne, JA indicated

"Secondly, I agree, of course, that our system gives scope for judges to develop or change the law; but the scope is not unlimited.  One of the limitations, as I understand them, is that judges are not free to develop the law in a manner inconsistent with decisions of the supreme tribunal binding upon them." 

142.   For the reasons which I have already given, the statutes do not, to my mind, give any assistance in identifying that Jersey law had adopted the concept of "nuisance" as an individual defined concept of law with particular characteristics.  It was submitted before us that it was not tenable to find that a law draughtsman could have used such words as "nuisance" not intending them to have a particular meaning.  I agree: but ordinary rules of statutory interpretation identify that words will have their ordinary meanings unless a particular meaning is ascribed to them either in the definitions section of the statute in question, of a related statute whose definitions are adopted, or where the word is a term of art and it is appropriate to adopt the meaning properly to be given to that term of art.  The word "nuisance" is indeed an ordinary word, whether in English or French, and it seems to me that there is no difficulty, initially, in proceeding to interpret it according to that ordinary usage so far as the statutes are concerned.  Further, as my earlier remarks have identified, it seems to me that in certain contexts the word could not have been used as having a meaning which identified a particular cause of action.  Going further, it seems to me that there is nothing in the statutes which suggests that Jersey necessarily had adopted the English law tort of nuisance or to suggest the particular characteristics of a right of action in Jersey founded upon allegation of nuisance. 

143.   It is therefore my opinion, in line with the views expressed by the learned Bailiff below, that there is no persuasive evidence that the English tort of nuisance had, either at the time of the decision in Searley v. Dawson or by the present time been assimilated into the law of Jersey.

VOISINAGE, TORT AND NUISANCE                                                                               

The boundaries of the law of tort in Jersey

144.   It seems to me that the depth of analysis which the assiduous researches of counsel in this case has enabled this Court to enter upon, and which I have sought to set out above, goes a long way to answer some of the issues raised by the learned Bailiff below in paragraphs 23 to 29 of the judgment of the Royal Court. 

145.   In paragraph 23 the Bailiff refers to Madame Nicolle's The Origin and Development of Jersey Law, as he had more briefly in the judgment of the Royal Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited [2002] JLR 294 at paragraph 32.  I repeat the passages:-

"15.24 Though English influence may have come late to the law of tort, when it came it came in an overpowering wave.  Guernsey States Insurance Authority v. Farley was probably almost the last, if not the last, occasion for over forty years upon which a Court was to advert, explicitly or implicitly, to the difference between a "tort" and a tort.  By the time the distinction was recognised again [Arya Holdings Limited v. Minories Finance Limited (unreported 93/135)] it was only to acknowledge that over the years Jersey law had moved ever closer to the English concept of tort, and that from the 1970's onward, the English concept of tort governs Jersey legal thinking.

15.25   By and large this creates no particular problems.  It does however run into conceptual difficulties in that area of law where neighbouring property owners dispute over an alleged injury which in the English system is classified as a tort (whether negligence, nuisance or trespass to property), but in Jersey sits more comfortably as part of that area of law relating to property known as "voisinage" which deals with the reciprocal rights and obligations of neighbouring property owners." 

146.   In giving the judgment of the Royal Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited, having referred to the "overpowering wave" point, the learned Bailiff went on to note that Southwell, JA, giving the judgment at the Court of Appeal in Arya Holdings Limited v. Minories Finance Limited in the passage to which I have already referred, pointed out that it was only in relation to the tort of negligence that Jersey specifically followed the law of England and that, in relation to other torts or other aspects of the law of tort, the Courts of Jersey had to found themselves on the common law of Jersey.

147.   Assuming for present purposes that Nuisance in the law of Jersey is a tort, or aspect of the law of tort, the analysis which this Court has been able to carry out supports the views enunciated by Southwell, JA in Arya Holdings Limited v. Minories Finance Limited in identifying that it is not an area of law where the Courts of Jersey have consciously decided, after due consideration, to follow the law of England.  This position, therefore, goes a not inconsiderable way to answer the concern expressed by the learned Bailiff in paragraph 24 in the judgment of the Court below as to where the "overpowering wave" should be stopped.  In my opinion, it is not so much a case of the Royal Court or this Court of Appeal necessarily stopping the wave.  Rather it is that there is no indication that, after reasonable consideration and upon reasoned analysis, the Courts in Jersey have permitted the wave to proceed as far in other areas of tort as they have in respect of the tort of negligence.  This therefore leaves open consideration as to how the Courts in Jersey deal with the law of nuisance - whether as a tort, technically so called, or otherwise - and with appropriate elements of the law relating to heritable property.  In particular, as with the views of this Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited [2002] JLR 443, they do not impinge upon the learned Bailiff's analysis of the origin of the Jersey law of torts set out in the decision of the Royal Court in that case: [2002] JLR 294. 

148.   Consequently if, in Madame Nicolle's writing the word "tort" is changed to "the tort of negligence" on the last two occasions when it is used within paragraph 15.24, this, to my mind, elides the conceptual difficulties to which she refers in paragraph 15.25. 

149.   In continuing with his careful appraisal of the relationship between voisinage and the tort of nuisance and other torts, the learned Bailiff below proceeded to refer to paragraphs 20 and 21 of the judgment of this Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited, delivered by Southwell, JA.  Again for ease of reference I repeat those passages:-

"20.     The essentials of a right of action in tort, and therefore of an action "founded on tort" for the purposes of Article 2(1) of the 1960 law, were considered by me when delivering the judgment of the Court of appeal in Arya Holdings Limited v. Minories Finance Limited.  Those essentials include a duty owed to the plaintiff by the defendant otherwise than by virtue of a contract or trust, whether pursuant to Jersey common law or statute, a breach of this duty by the defendant and actual or threatened damage caused by and flowing from the breach (which in some torts may be assumed), giving rise, accordingly, to a right of action which the plaintiff can require the Court to uphold.

21.      Arguments have been advanced as to the extent to which tort (in French) as part of Jersey common law may differ from tort (in English) as part of English common law.  One example of a difference between Jersey law and English law in this regard can be seen in Arya, where a Jersey right of action described as a D'allain claim, unknown to English law, was held to be a right of action in tort in Jersey law.  What is significant for the present case is that a "D'allain" right of action involves, just as much as other rights of action in tort in Jersey law, the three essentials of duty, breach of duty and damage.  Whatever differences there may be between Jersey law and English law as to the range of torts on which reliance may be placed under either legal system, torts under each system involve the existence of those three essentials."

150.   Such general statements are often subject to exception and the present topic of nuisance - assuming it to be a tort - is such. 

151.   If one turns, briefly, to the law in relation to nuisance as it is in England and as it is in Scotland, whilst in the former nuisance is classified as a tort and in the latter properly given an individual classification, a similar position can be seen.  Most importantly, the concept of "breach of duty", bringing as it does connotations of reasonable care, has no place in the defence to an action of nuisance.  In both jurisdictions, the most usual defences will be statutory authorisation, prescription, self protection and, more unusually, acquiescence.  If one of these defences is established, it entirely removes the right of action.  Otherwise, a person creating, adopting or authorising a nuisance will be liable.  Because, in almost all instances, the concern of the plaintiff is not to obtain redress in respect of a single act or omission but, rather, to prevent the continuance of the restriction on his reasonable enjoyment of his property, it is no answer for a defender to say that he or she is taking reasonable care in carrying out the operations.  If the operations constitute a nuisance, they will be brought to an end by an order of the Court.  To this I have to add that, so far as the law of Scotland is concerned, where damages are sought in addition to cessation some level of fault will be required: see RHM Bakeries (Scotland) Limited v. Strathclyde Regional Council [1985] SC (HL) 17.  As I understand it, a similar position is adopted under the law of England: see Cambridge Water Co. v. Eastern Counties Leather plc [1994] 2AC 264, 300 (Lord Goff of Chieveley). 

The boundaries of the law relating to nuisance in Jersey

152.   If the views which I have just expressed in the immediately preceding paragraphs are correct, these deal with the issue of demarcation identified by the learned Bailiff in paragraph 26 of the judgment below.  If I am wrong, I agree with the Bailiff that an alternative approach seeking to provide demarcation might be to insert after the word "trust" in paragraph 20 of the judgment of this Court in Jersey Financial Services Commission v. A P Black (Jersey) Limited the words "or quasi-contract or land law".  If I have a hesitation about this latter approach, it is that it merely compounds the difficulties which arise when one tries to encapsulate in very short compass the complexities of numerous branches of the law. 

153.   For those trained in Scotland or England, - as also, I have no doubt, in Jersey - there is such a great distinction between the law of contract and the law of tort, or delict, in that, when one is working within the one area, one is immediately conscious of the particular legal issues which it brings with it.  Thus, for example, the measure of damages is quite different.  For the breach of contract, the measure relates to the position in which the innocent party would have been had there been no breach.  In a case of negligent breach of duty, the measure is based upon the position in which the innocent party would have been had the negligent act or omission not occurred.  The end result will not always be the same.  Sometimes therefore, in actions pleaded both in contract and negligent breach of duty, it may be of importance that only one element of the claim is proven. 

154.   So too as regards the basis for the claim.  The action in negligence will proceed upon a comparison with the actings of the reasonable man or woman or the member of the same profession of ordinary skill and competence acting with reasonable care.  In contract, subject to a few limitations on the enforceability of particular contractual stipulations, a party will be liable for breach even although, to most reasonable people, the stipulation into which that party entered might otherwise be thought to be an unreasonable burden upon him.  In common, therefore, with the views expressed by the learned Bailiff at paragraph 25 in the judgment of the Court below, it seems to me that it is in the public interest that there be certainty as to a dividing line if, otherwise, it might be thought that there could be an overlap between the law of tort in Jersey and elements of land law in Jersey as regards the issue currently before us.

The boundaries of voisinage in Jersey

155.   Assuming that I am correct in the views which I have expressed in paragraphs 51 to 84 above to the effect that voisinage could be part of the law of Jersey, it is clear that, in principle, it was open to the Court below, as it was to the Royal Court in Searley v. Dawson, to place reliance upon the concept. 

156.   As with many institutional or customary law writers, Pothier expresses himself both by reference to principles and by reference to particular instances or examples.  It is, thereafter, for the relevant Courts to apply those principles and consider those examples in the circumstances as they exist in their own time: see Snell v. Beadle, cited above, paragraph 20 (Lord Hope of Craighead). 

157.   Certain of the words used by Pothier in his writings "du voisinage" might be thought to indicate that the concept extends to covering personal injury to the neighbour.  For example Section 235: "qu'il ne nuise pas à son voisin" (that he does not harm his neighbour); and 245: "qui puisse lui nuire" (which may harm him).  However, all examples in the writings relate to changes to the land, trees, crops etc. and it seems to me that that context therefore excludes merely personal harm or inconvenience.  A further restriction comes from the opening section, Section 230 where the relationship is said to be formed between proprietors or possessors "d'héritages contigus" (neighbouring properties), it this is emphasised by the fact that the principal obligation concerns the marking out of boundaries "bornage".  Therefore, whilst some of the rights and obligations set out by Pothier may now be covered by other areas of Jersey Law, where there are contiguous properties and where there is substantial damage to land or buildings, these should be covered by voisinage.

QUASI-CONTRACT IN THE LAW OF JERSEY

Submissions

158.   Before us, Miss Lawrence did not seek to challenge that part of the judgment below where the learned Bailiff indicated that quasi-contract was part of the law of Jersey (paragraphs 15 and 16).  As he had indicated, the customary law of Normandy appears to be silent or brief on the meaning and extent of the term quasi-contract but Houard's Dictionnaire de Droit Normand (1782 Edition) contained the following (in translation):-

"The name [quasi-contract] is given to the obligation which arises from equity, without the need for any agreement between the parties.  Thus, for instance, a quasi-contract is formed between an absent person and one who, during his absence, does some necessary thing for him; for the absent person, by reason only of equity, will be bound to reimburse any necessary and appropriate expenditure made on his behalf". 

159.   However, Miss Lawrence returned to certain arguments which she had placed before the learned Bailiff, which he recounts at paragraph 32 together with his rejection of them.  In particular, she submitted that relationships which Pothier described as quasi-contractual were not now, if ever they were, viewed as such under Jersey law.  Instead, Jersey law would frequently apply a tortious or fiduciary analysis to the relationship: Pothier, Traite des Obligations Volume 1 Section 2 paragraphs 113 - 115. 

160.   She submitted (a) that the nature of the duty owed by heirs to legatees, tutors to minors and curators to their wards far better described as imposing in part a tortious duty of care and in part a fiduciary relationship in the context of dealing with another's assets and being accountable for them.  (b) As to money paid under a mistake, this was usually treated as imposing fiduciary duties by way of a constructive trust, as to which she referred us to Lewin on Trusts (17th Edition) paragraph 7-25.  (c)  As to management of another's affairs without their permission, this imposed a fiduciary obligation giving a duty to account or constructive trusteeship which was akin to a trustee de son tort (again under reference to Lewin on Trusts at paragraph 7-15. 

161.   By contrast, she indicated that actions which under Jersey law were recognised as creating quasi-contractual relationships appeared confined to more obviously contractual or commercial scenarios such as the principle of quantum meruit whereby a person had a right to be paid for the value of services provided: see Louis v. Le Liard (1990) JLR N-13.  She also referred to Golder v. Société des Magasins [1967-69] JJ 721. 

162.   In conclusion, she contended that either the label quasi-contract should be dispensed with in most cases, and in light of developments in the law, action should be given the more precise description now available by which designate them or, if the label was to be retained, it should be accepted that to refer simply to quasi-contract was not sufficient as there were varieties some more tortious in nature and some more fiduciary in nature, or indeed more contractual in nature.

Discussion

163.   In my view, these submissions are not well founded.  On the material available to this Court, I do not see how we could take the view that, so far as the present law of Jersey was concerned, quasi-contract was an outmoded concept.  Starting with Golder v. Société des Magasins, cited above at paragraph 161, it seems clear that the concept was treated as part of the law of Jersey and the principles as stated by Pothier (as set out in that judgment) considered to be the principles of the law of this Island.  The references are to Pothier Traite des Obligations, Chapter I (Tome I); Section II of Article 8, Section 3 of the same Article and Part 4, Chapter III, Article III: see pages 729 - 730.  This can only be considered as a very strong indication, as at 1967 - and again from the then Bailiff, Sir Robert Le Masurier - that Pothier's description of the principles of quasi-contract are part of the law of Jersey. 

164.   Given such an approach, it is perhaps not surprising, therefore, that the same Bailiff, in Searley v. Dawson did not baulk in issuing a judgment specifically providing that the two neighbours are each under an obligation to the other "arising quasi ex-contractu".  Indeed, at page 734 of the report, one perhaps gains a helpful insight both as to the breadth and depth of Sir Robert's experience as also to the then understanding of the inter-relationship of authorities locally respected. There Sir Robert states, just before proceeding to quote from Domat - to whom he refers as 'an eminent jurisconsult of the XVIIth century who did so much to order and clarify the principles of Roman Law':

"The passages from Terrien and Poingdestre quoted in Scarfe and others v, Walton - Jersey Judgments, p.387, at p.388, show that the principles of the civil law speak for us when the custom of the Duchy of Normandy is silent."   

165.   The other relevant decisions appear to be, firstly Macrae, née Tudhope v. Jersey Golf Hotels Limited, cited above at paragraph 23, where the Deputy Bailiff (Ereaut) specifically referred back without demur to the use of quasi contract in Searley v. Dawson. Second there is Louis v. Le Liard, cited above, where the Royal Court has no difficulty in identifying circumstances giving rise to "an implied contract of employment". 

166.   Again remembering the words of Hoffmann JA in Re Barker, and with a decision so clear as that in Golder v. Société des Magasins having stood for forty years, I would be exceedingly reluctant to suggest that it could be overruled.  Miss Lawrence did not ask us to deal in such a way with the decision and, of course, it is not binding upon this Court.  For my own part, however, where earlier Courts and writers have been astute to ascertain identified principles, I would not readily respond to an invitation - no matter how cogently presented - to determine that there were defined categorisations under a particular label and that other labels were outmoded. Where matters have been identified according to principle, an appellate Court, in my opinion, should intervene only where the decision of the lower Court to accommodate a matter within that principle was contrary to reason.  Otherwise, the application of the principles to individual facts, in the first instance, must be for the Royal Court. 

167.   Further, however, given the views which I have expressed above as to the restricted nature of voisinage and given that, here, the issue of causing subsidence could not be more directly in point as regards the relationship between contiguous proprietors, it seems to me that the matter is exactly such as, in a jurisdiction accepting the concept of quasi-contract, ought to be covered by the principles appropriate to that concept. 

168.   Once restrictions such as these are identified, it seems to me that Pothier's classification of this concept as a "quasi contract" continues to be acceptable.  Pothier deals with quasi contracts in his Traité des Obligations Volume 1, Section 2 paragraphs 113 and following (in the 1806 Evans translation):-

"[113]  A Quasi contract is the act of a person permitted by the law which obliges him in favour of another, without any agreement intervening between them.

 [114]  In contracts, it is the consent of the contracting parties which produces the obligation; in quasi contracts there is not any consent.  The law alone, or natural equity, produces the obligation, by rendering obligatory the fact from which it results.  Therefore these facts are called quasi contracts; because without being contracts, and being in their nature still further from injuries, they produce obligations in the same manner as actual contracts."

Evans, in his footnote states

"We have no term in the English law strictly corresponding with that of quasi contract in the civil law; many of the cases falling within the definition of that term, may be ranked under the denomination of implied contracts, but that denomination is applicable rather to the evidence than to the nature or quality of the obligation, as in judgment of law an actual promise is deemed to have taken place, and the consequences are the same as if such promise had been declared by the most expressed and positive language."

169.   These straightforward statements again allow one to understand why a jurist such as Pothier might choose to classify the matters of which he speaks in "du voisinage" as quasi contracts: one cannot necessarily expect the neighbours to enter into individual contracts but the issues which might arise between them are remote from "injuries".  What he seeks to identify is that the nature of the relationship is one which produces actual obligations just as if there had been a contract.  This method of classification and analysis, accordingly, reaches a similar result to that reached in other areas of the laws of obligations where strict or absolute liability is imposed. 

170.   In my opinion there is logic in this result, at least when one is looking at an obligation not to interfere with support.  Assuming, for the moment, that the obligation cannot be avoided by delegation, and if circumstances required to be addressed as a duty of care, would the duty of care be referable to the standard applicable to a lay individual, to an experienced builder, to a practising architect or a practising civil or structural engineer?  Would breach be appraised by taking into account factors such as the impecuniosity of the developing land owner, commercial pressures for speed of construction or pressures of time brought about by commencing works too close to the end of the period of the year favourable for building works?  In the whole circumstances it seems to me consistent with the nature of the relationship between the properties that the obligation be absolute.

171.   For completeness I must add that, whilst Miss Lawrence referred this Court to the decision in Donoghue v. Stevenson [1932] AC 562, 579-580 (Lord Atkin), there is, in my opinion, neither basis nor need to resort to that well known approach.  Put simply, under the concept of voisinage as set out by Pothier, no one needs to resort to the semi-rhetorical question of "Who is my neighbour?"

CONCLUSION ON MATTERS OTHER THAN THE APPROPRIATE PRESCRIPTIVE PERIOD

172.   In considering this matter, which bears closely upon the nature of customary law in general and its place in Jersey law in particular, it is essential to bear in mind the advice of the Judicial Committee of the Privy Council as set out by Lord Hope of Craighead in Snell v. Beadle (née Silcock) [2001] JLR 118 especially at paragraphs 16 to 21.  Commencing with the last sentence of paragraph 19 (page 128), his Lordship, delivering the judgment of the majority, said:

"... The present action relates to property rights under the law of Jersey, where the customary law has not been codified or enshrined in a coûtume. 

20.  In this context, the word "custom" is used to describe all sources of law other than statute.  As Stéphanie Nicolle, Q.C. has observed in The Origin and Development of Jersey Law at para. 12.4 (1998), customary law which, like the customary law of Jersey, has not been enshrined in an official coûtume can and does change.  It is therefore capable of development by judicial decision as well as by statute.  In this respect, it may be regarded as being what may be described, in modern terminology, as "the common law" of the island.  Like other customary law systems, Jersey law had recourse to the ius commune for areas not covered by municipal customary law: see Nicolle (op. cit., at para 14.7).   The principle which is at issue in the present case is an example of the reception of a principle of Roman law through the ius commune in Jersey law by way of the customary law of Normandy. 

21. For these reasons, their Lordships consider that, as the customary law of Jersey has not been enshrined in a coûtume, the proper approach is to regard it as being still in state of development.  It is capable of being refined or clarified by judicial decision as the customary law is applied to a new set of facts.  This may be done by reference to other customary law sources.  In the present context, the search for guidance as to the content and the proper application of the principle must be conducted in the first instance by examining the works of the writers on the customary laws of Normandy.  It will be helpful also to examine the Roman law, as the origins of the customary law rule lie in the Roman law.  ....". 

173.   I bear in mind also the views of this Court stated by Hoffman JA (as he then was) in Re Barker, cited above at page 191, where reference is made not only to the longevity and lack of criticism of a judgment, but of the understanding of the senior members of the Royal Court as to the customary laws of Jersey. 

174.   It is therefore my opinion that both the learned Bailiff below and the Royal Court in Searley v. Dawson in 1971 were not only entitled but correct in applying the concept and principles of voisinage to issues between neighbouring proprietors such as those giving rise to the respective litigations.  This view therefore covers the submissions made to the learned Bailiff below and to this Court that, having regard to the views expressed in Official Solicitor v. Clore [1983] JJ 43 it was in error for the Royal Court both in Searley v. Dawson and in this case to fail to apply the Jersey law on nuisance and, instead, to apply the concept of voisinage as enunciated by Pothier.

THE APPROPRIATE PRESCRIPTIVE PERIOD

Before the Bailiff

175.   The law of prescription in Jersey is judge made. This Court was informed by Counsel that in Jersey the words 'prescription' and 'limitation' are used almost interchangeably: and this was observed in a number of the authorities cited. In other jurisdictions a distinction may be drawn between the two: 'prescription' being used to denote the extinction of a substantive right and 'limitation' being used to identify a procedural bar. See, for example, Johnston, Prescription and Limitation (1999: W. Green & Son). In this Judgment and in this context I have used and shall continue to use the word 'prescription'; although I have noted that in decisions such as Gallaher v. Dauny [2001] JLR 302, it appears that the prescriptive period can be waived.

176.   Before the Bailiff the present appellants submitted that the prescriptive period for an action in voisinage should be three years.  They submitted that, on a proper analysis, what was regarded in the 18th century as an obligation arising under quasi-contract would today be regarded as an obligation arising by reason of a tortious or fiduciary relationship and thus attract a prescriptive period of three years.  It was also submitted that, having regard to public policy in favour of more speedy and cost effective justice, the court should prefer a three year period of prescription to that of ten years where there was no authority directly in point.  

177.   The learned Bailiff below indicated that it was clear that the law of prescription in Jersey was ripe for reform: paragraph 38.  However he held that an action in voisinage was an action personnelle mobilière and, no other statutory period being applicable, it prescribed by the lapse of ten years. He referred to the authority of Albright v. Wailes [1952] JJ 31.

Before this Court

178.   The appellants contended that the learned Bailiff erred.  It was submitted that it was not sufficient for him to state that voisinage was an action in quasi contract and not tort.  Miss Lawrence contended that the quasi contractual label should have been abandoned as outmoded; but that, whether abandoned or retained, the nature of the action should be recognised for what it was, an action seeking remedy for a tort. 

Discussion

179.   In my opinion, the Bailiff's views on this matter were correct. I have already expressed my own views as to the concept of quasi contract not being outmoded in Jersey. It is undoubtedly correct that the courts must strive continuously to maintain access to justice which is both speedy and cost effective.  However, the law of prescription (with what may in certain jurisdictions be varying periods) exists, among a number of reasons, to identify an appropriate balance between disallowing stale claims and allowing litigants time to discover that circumstances justifying a claim have arisen, to investigate those circumstances and, thereafter, to present a claim which is sufficiently well investigated and researched that it can be prosecuted expeditiously.

180.   For my own part I am of the view that without systematic consideration and reform carried out by the appropriate authorities, the Courts should be slow to address issues of prescription such as the present between competing parties by reference to public policy.  

181.   As with the learned Bailiff below, it seems to me that much assistance is gained from the judgment of the Deputy Bailiff (Birt) in Re Esteem Settlement [2002] JLR 53.  There, the learned Deputy Bailiff held that, where there was no precedent, it was helpful to have regard to the nature of the action: paragraph 252.  He further held that the ten year prescriptive period should be a general period, taken to apply to all personal actions and all actions concerning moveables, save to the extent that they had already been held to be subject to a different period - for example, tort, actions concerning estates, etc - or that some other period was, by analogy, clearly more applicable (paragraph 257). 

182.   Miss Lawrence, in her submissions before this court, questioned whether the Deputy Bailiff, at paragraph 257, was indicating that all torts would necessarily be action personnelle mobilière. There was the possibility that a tort against land might be an action personnelle immobilière. However she also drew attention to the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960. This, which provided that the period within which action founded on tort may be brought was extended to three years from the date on which the cause of action accrued (see Article 2) also provided by Article 1 that in the Law "tort" meant a "tort personnel" or a "tort matériel". This, at first sight, would seem to cover all torts - for the purposes of that Law.

183.   Given the views which I have expressed in the earlier part of this Opinion, I have no difficulty with the classification of an action in voisinage as one where the rights and obligations are considered quasi contractual.  For the reasons which I have given I therefore do not accept Miss Lawrence's submissions that voisinage should be treated as a tort, or so akin to a tort that the tortious prescription period is, by analogy, clearly more applicable.   

184.   Returning to the Judgment in Re the Esteem Settlement, in considering the appropriate classification of actions for the purposes of prescription the learned Deputy Bailiff relied on the French writers, Guyot, Dalloz and Pothier: see paragraphs 247 - 249.  Whilst giving different classifications, it seems that those writers drew a particular distinction between actions which seek to recover property and actions which do not.  An action in voisinage, at least of the nature brought here, does not seek to recover property and it would seem must be considered as an action personnelle mobilière with a resultant ten year prescriptive period: see Albright v. Wailes, cited above.

185.   Looking at the matter broadly, this does not seem to me to be an inappropriate period.  It must be highly likely that when an infringement or anticipated infringement occurs, a claim - and if necessary, action - will be brought immediately.  However, given the nature of the problem which this action presents - interference with support - there could easily be instances where structural damage, or the severity of structural damage, is not evident for a number of years.  This is quite different from noise nuisance, noxious fumes or unacceptable levels of dust.  Having considered the decision of the Royal Court in Charles Church (Spitfires) Limited and Anr v Aviation Jersey Limited and Anr [1993] JLR 93, I note that individual circumstances relating to the nature of a defect may determine the time at which it has caused personal injury or damage to property so as to result in the accrual of a right of action and commencement of the prescriptive period. This may leave an uncertainty which is better avoided and for these further reasons I consider the Bailiff's view that a ten year period is applicable to be appropriate. 

Conclusion

186.   For all these reasons I would dismiss the appeal. 

Beloff JA, President: I agree and have nothing to add.

 

Vaughan,JA: I also agree.

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) 5B.& 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] 2AC 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.