Judicial Assistance Extended.

Comity Defined

"A principle of community spirit, friendliness, and good manners between states. It is invoked by some jurists as justifying the recognition and enforcement in one state of rights acquired in another state and under its legal system and hence under international private law. Sometimes it is regarded as a stimulus to a pattern of behaviour which develops into international custom".

The Oxford Companion to Law, David M. Walker, 1980, Clarendon

Constitution of the Channel Islands

Jersey and the other Channel Islands, Guernsey, Alderney and Sark are part of the British Isles but do not form part of the United Kingdom. Their constitutional make up derives from their having been ruled by the Dukes of Normandy at the time of the Norman Conquest of England. William did not make Jersey part of his English Kingdom. Jersey continued to be ruled from Rouen. When William died in 1087 it was his son Robert who inherited Normandy and was recognised by the people of Jersey as their Duke, and not his second son Rufus who inherited the English Crown.

Later Williams third son became the King of England and Normandy; again uniting Jersey, as part of Normandy under the same ruler. King John lost possession of Normandy but retained the Channel Islands as Duke of Normandy and Aquitaine and Henry III accepted money for Normandy and yet the Channel Isles remained true and faithful to the King of England.

The Channel Islanders fundamental constitutional rights, liberties and privileges rest not on any Act of Parliament, but on the ancient laws and customs of Normandy and the Royal Charters which were granted them by the successors of their Duke from 1341.

Charles I was executed on 29th January, 1649 and on 17th February. 1649, the day after the official news of the execution reached Jersey, a proclamation of the States was read out in the Market Place in St Helier which proclaimed Charles II the only true and lawful Sovereign to whom they owed "all obedience, allegiance, honour and service". During the following years Jersey gave Charles II refuge from the Parliamentarians and after the Restoration he confirmed in gratitude the ancient privileges and immunities of the inhabitants of the Islands in the Charter of 1660, but presented a silver mace in 1662 which is still carried before the Bailiff today and in 1664 granted to Lord Berkeley and Sir George Carteret who had attempted to defend Jersey from invasion by Cromwells forces, all the land between the Hudson and Delaware rivers in America which he named New Jersey.

William III had not descended from the Dukes of Normandy. He belonged to the House of Orange and was imported by Parliament from the Netherlands who made him King upon his acceptance of the Bill of Rights. The people of Jersey accepted the King as their Sovereign, although not legally compelled to do so.

Although no further Royal Charters appear to have come into existence after 1687 due to Parliament now being in a different relationship to the King, it does not follow that the Channel Islanders should have lost their rights which the Royal Charters confirmed and conferred on them, nor does any Act of Parliament exist which denies or abridges them except in relation to specific matters.

The Royal Charters were not given with the consultation of Parliament and contain no reference to Parliament even though Parliament had since the 13th/14th century become a separate body distinguishable from the Kings Great Council.

English people owe their fundamental rights and liberties to the Common Law of England; Magna Carta and, to a Parliament which they evolved and shaped to represent them and to a Petition of Right and such legislative measures as the Bill of Rights and to the Act of Settlement. The People of Jersey on the other hand owe their fundamental rights and liberties to the ancient customs and laws of Normandy; to the Charters which their royal Dukes and those Kings and Queens who claimed descent from them granted to them, mostly in gratitude for loyalty and services; and to those basic principles of government and constitutional law which they have always shared with Englishmen.

The Islanders have never had anything to do with the establishment or evolution of Parliament and have never been represented by it, so it would be surprising if their fundamental rights and liberties did depend on Parliament. This does not mean that their fundamental rights and liberties are different. Any difference is one of source rather than of kind.

The Place of the Privy Council in the Constitution of Jersey

The Privy Council is in direct line of descent from the Curia Regis of the Norman and Angevin Kings. The Curia Regis was a large and undifferentiated Court, composed both of the leading nobility lay and spiritual and of royal officials by means of which the King carried on all the business of the central government - judicial, legislative and executive. In the 13th Century, large councils of nobility which met the representatives of the boroughs and shires had a parliament and developed into the House of Lords and together with the King and the House of Commons, had become the King in Parliament - the highest governmental authority in the Kingdom.

The judicial jurisdiction of the House of Lords extended no further than the domestic jurisdiction of the Parliament of which it formed part, first England, then Great Britain and the United Kingdom. It never extended to the Kings territories beyond the seas. The King in Council, as distinct from the King in Parliament retained the jurisdiction as a Court of last resort in all matters civil and criminal arising from the Kings lands beyond the seas.

Gradually under pressure of judicial work placed upon the Privy Council, it split into two - a Judicial Court and an Administrative Council.

Jersey Assistance to Foreign Courts

In Showlag v Mansour and Others, Jersey Unreported, March 15, 1994, the Privy Council (on appeal from the Jersey Court of Appeal) referred to the English case of Owens Bank Limited v Bracco [1992] AC 443 and quoted from the judgement of Lord Bridge as follows:-

"A foreign judgement given by a Court of competent jurisdiction over the defendant is treated by the Common Law as imposing a legal obligation on the judgement debtor which will be enforced in an action on the judgement by the English court in which the defendant will not be permitted to reopen issues of either fact or law which have been decided against him by the foreign court."

The Privy Council, in Showlag v Mansour and Others, observed: "That statement holds good in Jersey as it does in England".

The conditions for a foreign judgement to be enforceable in Jersey included that the judgement "must have been final and conclusive" and not liable to be set aside.

The Court in Hambros Bank (Jersey) Limited v Eves, Jersey Unreported January 11, 1995 said where the point at issue was whether leave to appeal was required. This in turn depended on whether the decision appealed from was interlocutory or final:

"The question whether an Order of this Court is an order from which this court has power to grant leave to appeal does not depend on the technical consideration distinguishing final from interlocutory judgements. It depends on the much more pragmatic test stated by Lord Black: 'Is it an order determining the rights of the parties by definitive sentence?'

The Royal Court In re Geoff Bell Holdings Limited, looked at section 10 of the Foreign Judgements (Reciprocal Enforcement) Act 1933 and found that the Judicial Greiffer of the Royal Court of Jersey was bound to receive and register the judgement under The Jersey Judgements (Reciprocal Enforcement)(Jersey) Law, 1960 without being under any duty to examine the matter further. The Royal Court thereby acknowledged that a summary judgement obtained in the UK is properly registerable in Jersey assuming the appropriate certificate has been issued.

A Recent extension of Judicial Assistance

A recent decision of the Royal Court of Jersey illustrate that the Jersey court will assist Plaintiffs enforcing interim freezing, third party disclosure and third party payment orders against the assets of a Defendant and against the assets of entities owned by a Defendant on the basis of comity.

In the recent case the Petitioner issued divorce proceedings in the Family Division of the High Court in England. The Petitioner then obtained a Freezing Order in the English High Court in October 2001 prohibiting the removal or disposal of assets up to [pound]6.4 million with the usual exceptions. The Respondents assets listed in the Freezing Order included certain assets known to in be Jersey. The Respondent was believed to be residing abroad.

Jersey Advocates Voisin & Co and in particular Dexter Flynn and Ashley Hoy, on instructions from Michael Reason solicitors of London and John Mc Linden of counsel obtained an Order of Justice from the Jersey Deputy Bailiff freezing certain assets in Jersey along with disclosure orders.

The English High Court subsequently amended its Freezing Order permitting monthly payments of interim maintenance to be paid from the accounts in Jersey in the Respondents name. The Respondents bank being Jersey registered would not act on the English court's order for the payment of interim maintenance or the variation of the interim Freezing Order. The Petitioner was however able to return to the Jersey Court to have the amended English order reflected in an amended Jersey Order in Aid which the Jersey bank would act upon.

The Jersey Court ordered that as a consequence of the Respondent not appearing in the Jersey proceedings the Jersey Attorney General should appear as "partie publique" to make submissions on the Petitioners applications. The Respondent was very wealthy, was in contempt of orders of the English and Jersey courts, was attempting to conceal his assets and was failing to maintain his wife. The marriage was one of a lengthy duration.

The issue decided by the Jersey Court was whether it had the power to extend the orders sought by the Petitioner pursuant to the rules of comity or whether the Petitioner could invoke the reciprocal mutual enforcement law, requiring a final judgement.

The decisions reproduced on the Jersey Courts web site establish that the Royal Court of Jersey will assist English Plaintiffs enforcing third party freezing, disclosure and payment orders in Jersey on the basis of comity.

Conclusion

It is possible to see this case in the context of the Isle of Man Civil Jurisdiction Bill 2001 which will allow the Isle of Man courts to grant interim relief pending trial where proceedings are commenced in a territory outside the Isle of Man and which shows which way "the wind is blowing".

The OECD and EU are presently applying pressure on the Channel Islands and the Isle of Man to eliminate the discriminatory taxation treatment of island residents on one hand and exempt companies trading outside the territories on the other hand on the grounds of "unfair tax competition". The desire of this Channel Island jurisdictions to show that it is willing as always to be friendly towards its large neighbour who shares its Queen and perhaps also to its nearest neighbor which hosts the OECD and rules its Norman cousins suggests that the canny Channel Islanders will find a way to maintain their ancient "privileges, immunities, exemptions and customs" without "imposition or molestation".

Whether the doctrine of comity will be extended in Jersey as a "stimulus to a pattern of behaviour which develops into international custom" to assist the courts of other jurisdictions or whether this recent decision was a peculiar instance if judicial intervention distinguishable by its own facts of remains to be seen.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

Mr Michael Reason

Michael Reason Solicitors

4 Helmet Row

London

EC1V 3QJ

UNITED KINGDOM

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