Jersey & Guernsey Law Review – June 2011 A VERY PARTICULAR REMEDY: DOLEANCE IN THE CROWN DEPENDENCIES Lucy Marsh-Smith This article examines the origin, scope and extent of the Doléance1 remedy in the Channel Islands and the Isle of Man, concluding that the remedy has developed on diverse lines, so that the common name gives rise to actions very different in scope when one compares the customary law with Manx common law. 1 In the Guernsey case of Bassington Ltd v HM Procureur,2 Collins, JA, President said— “The inhabitants of Guernsey, Jersey and the Isle of Man have certain very particular remedies each of which is named a Doléance. Both the Channel Islands and the Isle of Man have in the past considered the remedy peculiar to themselves, without apparent knowledge of the existence of a remedy similarly named in the other jurisdiction. Thus the Deemster in Re the Attorney General of the Isle of Man3 considered it was unique to the Isle of Man, and there is one reference to it having been said that it is peculiar to the Channel Islands (see Bentwich—Practice of the Privy Council in Judicial Matters 3rd ed (1937), at p 54). The nature of the remedy and the means by which it is employed may differ. In the Isle of Man and Jersey it is already well established that the local Courts have jurisdiction to hear a Doléance. In Guernsey the position is much less clear.” Doleance in the Isle of Man 2 Before considering the position in the Channel Islands any further it is helpful to set out the main features of the doleance remedy in the Isle of Man, a jurisdiction where one would not expect to find the use of a French term. The Chancery Division of the High Court of Justice of the Isle of Man has a supervisory jurisdiction with respect to the lawfulness of decision-making by public bodies. The remedy is an important element of Manx jurisprudence being, in effect, the Island’s equivalent to the remedy of judicial review as it exists in England and Wales. A 1982 essay recently cited judicially concluded that— “there are several differences between the two procedures, and it has always been stressed in the Manx courts that the petition of doleance is very much a 1 In the Isle of Man the word is doleance (no accent). The distinction is maintained in this article when referring separately to the Manx remedy. 2 [1998] 26 GLJ 105 at 113. 3 1997/8 1 OFLR 49 & 419; appeal case reported sub nom In Re Frederiksen 1996–98 MLR 286. uniquely Manx remedy and that it is not simply a rather quaint Manx term for the English procedures.”4 However, with the changes in England and Wales following the new Order 53 in 1977 and the later developments, the two jurisdictions have become much closer in their respective approaches, as the following account of the development of the remedy intends to show. 3 The most comprehensive judicial account of the remedy is that of Deemster Doyle in the 2004 case of MTM (Isle of Man) Ltd v Financial Supervision Commission.5 The Deemster stated that the term “petition of doleance” is explained as far back as 1524 as a proceeding by way of complaint,6 and considered the Island’s “well established jurisprudence in respect of petitions of doleance” including a reference to it in Johnson’s Jurisprudence of the Isle of Man in 1811. 4 The classic definition of the petition of doleance, which has been approved in subsequent cases, is set out in Corkish v Boyd7 in 1904 where Sir James Gell CR said— “This petition is one of doleance, seeking the relief which in England is obtained by the prerogative writ of certiorari. There is no such writ here, neither have we any of the English prerogative writs such as habeas corpus, mandamus etc. Substantially, however, the relief obtainable by means of these writs is obtained here by a different mode of procedure, namely the petition of doleance, formerly heard in the Court of the Staff of Government Division but, since the passing of the Judicature Act 1883 in (the Chancery Division) of the High Court … The procedure here is entirely different from that in England. A petitioner in this Island must prove his case as in any other matter of petition.” 5 In In Re Martin8 in 1943, Deemster Farrant described “doleance” as an obsolete word from the French meaning a complaint, stating that “this court has jurisdiction upon a petition of doleance to entertain cases such as would be in England applications for writs of certiorari and habeas corpus”. This is, however, a narrow application of Sir James Gell’s 4 ATK Corlett (now Deputy Deemster Corlett), The Petition of Doleance in Manx Law and the Comparable Remedies in England, The George Johnson Law Prize 1982, Isle of Man Law Society, cited in In Re Haffner 2007 MLR 180 at 193. 5 2003–05 MLR 415. For a later exposition of doleance from Deemster Doyle, see In Re Haffner 2007 MLR 180 at 192. 6 See statement of Deemster Kneale at 1952–60 MLR 401 at 402. In the MTM case, Deemster Doyle cited the Oxford English Dictionary definition that included “complaining, complaint … 1524 St Papers Hen. VIII, iv. 104 Albeit ye make some doleance in your letter. 1524 in Strype Eccl. Mem. 1 App. xii. 30 Any motion, by way of complainte of doliaunce. 1591 Horsey Trav (Hakl. Soc) 198 All their dollinces herd and remedied.” Though these references are not to doleances in the legal process sense, footnote 40 gives a further example of the word’s use in England in the sixteenth century. 7 (1904) C.P. 17; 1522–1920 MLR 389. 8 1921–51 MLR 317 at 319. judgment and in In Re Kerruish9 in 1971 Bingham, JA applied it rather more precisely, also describing its purpose as— “…to provide within a comparatively compact community a simple and speedy means for the ordinary citizen to obtain redress for injustices which in England would be remedied by orders of habeas corpus, certiorari and the like. The essence of the petition of doleance is that it should be simple and, therefore, unencumbered by legal formality and also speedy so that the cases can be tried quickly.” 6 From the earlier Manx cases10 it can thus be discerned that before the English jurisdiction had, in 1977, moved towards a single public law remedy, the Manx courts had developed a single, swift procedure for challenging the exercise of executive power. 7 A hallmark of the petition of doleance is its discretionary nature11 and the fact that it is intended as a remedy of last resort, where no appeal or other remedy exists.12 In In re Nicholson (IOM) Ltd13 in 1980 Glidewell, JA said— “The petitions are what are known in the Isle of Man as petitions of doleance. A petition of doleance is a form of proceeding peculiar to the Isle of Man, which takes the place of the prerogative orders of mandamus and certiorari in England but may also be brought on the relation of the Attorney General. In essence, by a petition of doleance, a party is entitled to move the court to exercise its equitable jurisdiction to redress a wrong for which no other remedy is available. It is obviously a remedy of considerable scope and utility, and is intended to lead to a wrong being righted as soon as possible.” 8 On the question of locus standi, the Court of Appeal held in this case that a Petitioner who is a private individual or company that has suffered particular damage is entitled to present a petition of doleance. If the wrong is purely a public wrong and the Petitioner cannot show any particular damage, the proceedings should be brought in the name of the Attorney General. It is also now established, however, that the court has a discretion to allow a petition by a private individual to redress a purely public wrong in the absence of the Attorney General’s consent if he did not object and that post-1977 English authorities are of value in deciding how that discretion should be exercised.14 9 The grounds upon which administrative action is subject to control by petitions of doleance are set out in the MTM case and are those familiar to the English administrative lawyer: illegality, irrationality (Wednesbury unreasonableness) and procedural impropriety. 9 1961–71 MLR 374 at 390. 10 For an account up to 1984 see the note on the petition of doleance by Fiona McLean at 3 MLB 50. 11 See also In re Bride Parish Commrs 2001–03 MLR 436 at 454. 12 See In re Kenyon 2001–03 MLR 1; In re Ackernley 1961–71 MLR 354. 13 1978–80 MLR 327. 14 In re Cussons 2001–03 MLR 418 and 539. Deemster Doyle dismissed MTM’s petition having examined these grounds, finding that the petitioner had failed to establish that the FSC had breached any of them. His judgment quoted the following passage from page 483 of Solly’s Government and Law in the Isle of Man— “If a public body strays beyond its powers, then there is a procedure whereby a citizen affected by such ultra vires action can seek a remedy from the courts. Public bodies must act within the powers given to them by Act of Tynwald and they must exercise any discretion granted to them in a proper and reasonable way. Furthermore, these bodies and indeed other entities must act in accordance with basic principles of natural justice.