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An Introduction to Guernsey's Legal System

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An Introduction to Guernsey's Legal System JERSEY GUERNSEY LONDON BVI SINGAPORE GUERNSEY BRIEFING August 2015 An introduction to Guernsey's legal system This briefing is intended to provide a high-level overview of Guernsey's status as a self- governing jurisdiction with its own independent legal system and jurisprudence. It will be of interest to clients who may not be familiar with Guernsey's unique constitutional background or its principal judicial organs. Historical aspects position has enabled Guernsey (and, In keeping with its location within sight of the separately, its sister island Jersey) to develop French coast, Guernsey was originally part of and maintain a legal and political "For practical purposes, the ancient Duchy of Normandy. At the time independence from both the European Guernsey and its of the Norman Conquest of England in 1066, continent and the United Kingdom, which is a parliamentary assembly, the therefore, Guernsey was on the side of the tradition that continues strongly today. States of Deliberation, have invaders. After the Conquest, Guernsey complete political and continued to be administered as part of the The modern constitutional position legislative independence Duchy, rather than the Kingdom of England, For practical purposes, Guernsey and its from the United Kingdom in even though for most of this period the Duke parliamentary assembly, the States of all matters except foreign of Normandy and the King of England was one Deliberation, have complete political and affairs, defence, and other and the same person. legislative independence from the United matters touching upon the Kingdom in all matters except foreign affairs, Royal Prerogative" In 1204, however, the Duchy was confiscated defence, and other matters touching upon the by King Philippe II of France, whose armies Royal Prerogative. The United Kingdom drove English King John's troops out of Parliament has asserted a theoretical ability to Normandy and most of his remaining French legislate for Guernsey, but historical attempts possessions besides. Peace negotiations to do so outside those strictly limited areas culminated in the 1259 Treaty of Paris, when were always resisted, and largely successfully. John's son Henry III formally renounced The modern constitutional position, accepted English legal claims to sovereignty in on both sides, is that the United Kingdom Normandy and the title of Duke. However, in would not attempt to legislate for Guernsey in respect of those islands which had not been respect of domestic matters unless there was occupied by French forces, the Treaty of Paris a serious breakdown of civil order. Similarly, left de facto sovereignty where it lay. when the United Kingdom government proposes to enter international obligations Since that time, those islands (which are now which may affect Guernsey, it is obliged by known as the British Channel Islands) have constitutional convention to consult the remained dependencies of the English Crown, Guernsey authorities in advance. as notional successor to the ancient Dukes. However, they are not and never have been Relations with Europe part of England or of the United Kingdom, Guernsey is not a member of the European send no representatives to Westminster, and Union, and the provisions of the various are not subject to the jurisdiction of the European Treaties have been extended to English courts. This unique constitutional Guernsey only to a very limited extent. bedellcristin.com GUERNSEY BRIEFING 2 Guernsey is bound to observe European When the Royal Court sits in a civil capacity, it Union law in respect of certain aspects of free usually comprises a judge sitting with two or trade (principally in agricultural produce) and three jurats – their full title being "jurés to respect the principles of free movement of justiciers". The role of the jurats is one of the persons and non-discrimination between distinct features of Guernsey's legal system. European Union citizens of different They are not lawyers and are elected by the nationalities. Otherwise, Guernsey has a fast- States of Election, which has a wider track ability to adopt European legislation as it membership than but includes all the sees fit, but this is a matter for the Guernsey members of the legislative States of authorities and is principally used as the most Deliberation. Whilst jurats are lay members efficient means of adopting international of the court, they are frequently elected to sanctions and customs tariffs. fulfil the role by virtue of having some particular relevant professional experience, Guernsey's legal heritage such as in banking or accountancy. Their Guernsey reaffirmed its position as a civil law function is to determine questions of fact and jurisdiction, following largely the customary they also decide on sentencing in criminal "In those areas where laws of Normandy, in 1583. Whilst the cases. A judge of the Royal Court may sit common law principles are influence of common law principles is clear in without jurats when deciding a question of dominant, such as the law modern company and commercial legislation, law or ruling on costs. By virtue of recent of trusts, corporate law and the roots of Guernsey's legal system continue reforms, and provided all the parties agree, it financial services law more to reflect the ancient customary laws of is now also possible for civil trials to proceed generally, English and other Normandy, such that even today Guernsey before a judge sitting alone. common law authorities are lawyers are required to attend the University regularly relied upon before of Caen before they can be admitted to the Procedural or other interlocutory matters are the Guernsey courts. Bar as Advocates. In appropriate cases, it is heard routinely by either the Deputy Bailiff or However, although such still necessary to refer in court to medieval a Lieutenant Bailiff (often a senior practitioner authorities are always Norman or early modern French legal texts. or QC from the English Bar). respected and often viewed This is particularly so in areas such as land law as highly persuasive, they and the laws of inheritance, which contain The Royal Court sits in different formations, are not binding on Guernsey concepts that many English lawyers would the most common being as a Full Court (a judges" find quite alien. The influence of French law judge plus up to twelve jurats), an Ordinary can also be felt in areas of the law of contract, Court (a judge either sitting alone or, if jurats although the law of tort now largely reflects are required, with two or, more commonly, the law of England. three jurats) and an Interlocutory Court (a judge sitting alone to deal with procedural In those areas where common law principles and various interlocutory applications). are dominant, such as the law of trusts, corporate law and financial services law more Rights of appeal proceed from the Royal Court generally, English and other common law to the Guernsey Court of Appeal, which sits authorities are regularly relied upon before once a quarter and whose membership panel the Guernsey courts. However, although such comprises the Bailiffs of Guernsey and Jersey authorities are always respected and often and a number of senior judges from England viewed as highly persuasive, they are not and Scotland. Appeals are generally heard by binding on Guernsey judges, who are free to three Judges of Appeal. The final right of adopt alternative solutions in appropriate appeal is to the Judicial Committee of the cases. Privy Council in London, whose membership is identical to the United Kingdom Supreme Guernsey's civil courts Court. At all stages, it is Guernsey law that is The Royal Court of Guernsey is the court of applied. first instance for all Guernsey civil cases with a value above £10,000. In cases which touch on the extremely limited areas in which Guernsey is bound to observe The Royal Court is presided over by the Bailiff, European Union law, there is the possibility of who is the Island's chief justice, president of referring cases to the European Court of First the Royal Court and Court of Appeal, and the Instance or the European Court of Justice. No civic head of the Island. If the Bailiff does not such references are known to have been preside at a sitting of the Royal Court, then made by the Guernsey courts to date. the Deputy Bailiff, an appointed Lieutenant Bailiff or a Judge of the Royal Court will do so. bedellcristin.com GUERNSEY BRIEFING 3 Conclusion Guernsey's legal system has an ancient pedigree and remains clearly distinct and independent from neighbouring legal systems. However, its rich and unique traditions are combined with a distinctly modern and flexible outlook, especially in commercial and financial services matters. It is well placed to deal with the demands of litigation in the 21st Century. bedellcristin.com Continued on following page GUERNSEY BRIEFING 4 For further information, please contact: Guernsey Alasdair Davidson Jon Barclay Partner Partner T +44 (0)1481 812819 T +44 (0)1481 812818 E [email protected] E [email protected] © 2015 Bedell Cristin The information contained in this briefing is intended to provide a brief update in relation to the topics covered. The information and opinions expressed in this briefing do not purport to be definitive or comprehensive and are not intended to provide legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained. No responsibility or liability is accepted in connection with the content of any bedellcristin.com websites to which you may gain access from this briefing. .
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