The Guernsey Bar

A

À quoi recours: Literally “to which recourse”.  The phrase is used in a pleading (statement of case); typically when a document has been referred to.  It is shorthand for saying that the party intends to refer to the document more fully at the trial for its full terms and effect on the matters in dispute.

Access: In family law this is the term used to describe visiting rights between a child and the parent who does not have the day to day care and control of the child.  Access can take the form of simple visits during the day or else staying access overnight or for a longer period.  In England access is now called “contact”.  Access is these days viewed as the right of the child as much as (if not more than) the right of the parent.  All such matters are judged by what is in the best interests of the child or children.  The child’s welfare is the paramount consideration.

Act: The English word for a statute or Act of Parliament.  This is primary legislation made by Parliament and is the equivalent of a Law in Guernsey (note the capital L).  You will hear reference also to an “Act of Court” by which is meant simply a Court order.

Adjourn: To defer a case to another day.  The case may be adjourned to a specific date or adjourned “sine die” which is a Latin phrase meaning without a specific day being fixed.  Cases are often adjourned in their early stages for another step to be taken, e.g. the summons for defences to be produced, for lists of documents to be exchanged and so on.  Criminal cases are also frequently adjourned at the various different stages of the proceedings.

Advocate: The name given to Guernsey qualified lawyers; an Advocate combines the roles of an English solicitor and barrister.

Affidavit: A formal sworn statement of evidence.

Alternative dispute resolution: The current phrase to describe ways of resolving disputes other than by going to court.  The chief example is that of mediation.  A mediator is appointed and briefed about the dispute and chairs a meeting at which both sides attend to see whether an agreement can be reached.  The mediator often engages in “shuffle diplomacy” between the different camps in separate rooms.  The process is confidential.

Ancillary relief: The term describing proceedings between husband and wife (or former husband and wife) to resolve financial issues on divorce.

 

And: This simple word only appears because lawyers refer to cases as Smith and Jones rather than Smith versus Jones or Smith v Jones.

Antecedents: In a criminal case the “antecedents” are a person’s previous criminal record.

Anton Piller order: A form of court order made in commercial cases, typically permitting the search for and seizure of confidential materials said to be wrongfully in the possession of another.

Arrêt: A French word meaning literally “arrest”.  There are various forms of arrêt in Guernsey procedural law, ranging from an arrest of wages as a means of satisfying a money judgment to seizure of goods by the sheriff.

 

B

Bail: When a criminal defendant is brought before the Court he will either be remanded in custody until the next time the case is in Court (e.g. for sentence or trial) or else remanded on bail.  Bail simply means that a person is released from custody on condition that he attends the next Court hearing in his case.  Bail can have extra conditions attached, such as to report to the police station, to surrender a passport or not to contact certain people or to stay away from certain addresses.  There is now a Bail (Bailiwick of Guernsey) Law 2003 dealing with all such matters.

Bailiff: The senior Judge in the Island of Guernsey, presiding officer of the States of Guernsey and first citizen of the Bailiwick.  The expression has its origins in Latin and French and refers literally to someone who is given the care of something.  The office dates back to at least Norman times.

Bankruptcy: The term “bankrupt” is, strictly speaking, an English term referring to the insolvency (i.e. inability to pay debts) of an individual (as opposed to a company).  There is no true equivalent of bankruptcy in Guernsey law; only a comparatively little used procedure called désastre where a person’s assets are literally liquidated and distributed, leading to a possible state of insolvency and eventual renunciation; a form of discharge.  The law in this area is overdue for reform.

Bond: The equivalent of the English mortgage.  A way of securing monies against the real property owned by the borrower.  There are some subtle differences between a bond and a mortgage, but essentially they perform the same function.

 

C

Cadastre: The Island’s equivalent of a rating registry, from the French word meaning registry.

Calderbank offer: This is another case which gave its name to a court procedure.  A “Calderbank offer” is typically made in matrimonial financial proceedings.  It is an offer made without prejudice save as to costs; which means that the Judge can only be told about it at the end of the case when it comes to deciding who should pay the costs of the proceedings.  If, for example, the husband has offered a substantial proportion of the capital and generous maintenance for the wife and children and the wife then goes on to seek more, but fails to better the offer, the husband will have a strong argument for not paying her costs from the date of the offer and even for requiring her to pay his costs.  In practice it is comparatively rare that costs orders are made in family proceedings.  Similar sorts of offers can be made in general civil proceedings, but usually where there is something more than merely money at stake.  If it is simply about money, the offer ought to be accompanied by an actual payment into court.  Again the Judge will not know of the offer until the conclusion of the case.

Cause: Civil proceedings begin when a written statement of claim is delivered to the Sergeant to be served on the opposing party.  This document is called a summons and the case it sets out is called the Cause, in the same sense as having a cause i.e. a cause or right of action.

Committal: In criminal law this term refers to the sending of a case from the Magistrate’s Court for trial in the Royal Court.  A case is “committed” from the Magistrate’s Court to the Royal Court; typically because it is so serious that it is a matter which may only be dealt with in the superior court or because it is sufficiently serious that the Magistrate’s sentencing powers are likely to be inadequate.  There are other matters which can only be dealt with in the Magistrate’s Court.

Common law: The two principal sources for law are legislation and case law.  Legislation is reasonably straightforward, comprising Acts and statutory instruments in England and their equivalents in Guernsey, Laws and ordinances (although there are also statutory instruments).  Of course it is, generally speaking, only Guernsey Laws and ordinances which have direct effect in Guernsey.  Apart from legislation there is “common law” which essentially comprises case law; i.e. previous decisions or directions by Guernsey judges as to the law.  The higher the court the more binding such decisions will be.  Lawyers rely on earlier decisions of the Court as authorities to illustrate how a new case should be decided.

Company: A company is a “legal” person as opposed to a “natural” person or individual.  Companies are formed pursuant to the relevant statute conferring various rights and obligations on such legal entities (The Companies (Guernsey) Law 1994, as amended).  A company can generally do what a human person can do, subject to physical limitations.  The principal purpose of a company is to allow business to be carried on with limited liability only.  It is in the public interest that businessmen have such protection.  If those privileges are abused personal liability can follow.  Directors of companies also owe duties to companies.

Comptroller: HM Comptroller is one of the two “Law Officers” of the Crown; the other being HM Procureur.

Conviction: In a criminal case a conviction is the result of a finding of guilt at the end of a trial or else the result of a guilty plea.  Exceptionally the Magistrate might dispose of the case in such a way that the result does not count as a conviction; e.g. because the matter was very trivial or the mitigation (i.e. reasons why the offence was committed) very powerful.

 

Costs: The word “costs” refers to the Advocate’s fees and disbursements (i.e. expenses, e.g. the cost of employing an expert) incurred by a client in pursuing or defending a claim.  In civil cases a successful litigant will usually be awarded “recoverable” costs against their opponent and vice versa if they are unsuccessful.  Recoverable costs is the standard rate of costs which the Court allows to be recovered and is very likely to be less than the successful litigant has in fact paid to his own lawyer.  This is quite deliberate policy to encourage parties to settle.  In criminal cases there is currently some doubt whether the Magistrate can award costs; equally there seems no doubt that the Royal Court can.

Court: There are various Courts in the Bailiwick.  There is the Court of the Sénéschal in Sark, the Court of Alderney in Alderney and the Magistrate’s Court and Royal Court in Guernsey.  Each Court has an unlimited civil jurisdiction, although both Sark and Alderney have a very limited divorce jurisdiction.  There is generally a right of appeal from one court tier to the next.  Above the Royal Court is the Court of Appeal, made up, for the most part, of eminent British QCs and the Bailiffs of Jersey and Guernsey (although obviously the Bailiff of Guernsey will not sit in a case in which he was involved below).  Above that is the Privy Council sitting in London. There are other more specialist courts comprising the Contracts Court (commonly known as the conveyancing court) and the Ecclesiastical Court.  The Ecclesiastical Court is another very ancient Guernsey institution.  Its principal job these days is to deal with grants of probate and letters of administration in respect of estates of personalty; which is essentially a person’s property other than their interests in land. In Guernsey the Magistrate also performs the function of coroner.

Counsel: Another name for a lawyer (as opposed to “council”, as in the local council);

Creditor: When a person borrows money from the other the borrower is the debtor (i.e. he is in debt) and the lender is the creditor (i.e. the person who has extended credit to the debtor).  The creditor is entitled to be repaid by the debtor, subject to the precise terms agreed.  Likewise, when proceedings are brought and a person obtains a judgment they are described as the judgment creditor and the person against whom the judgment is obtained is the judgment debtor.  The former is entitled to execute the obligation contained in the judgment against the latter.

Curateur: The legal guardian of an adult; see guardianship.  The state of an adult guardianship is known as “curatelle”.

Custody: In family law this is the term used to describe the right of a parent to make major decisions for a child.  This is by contrast to simple care and control which relates to the day to day care of a child.  A typical order on divorce would be joint custody of the children to the parents with care and control to (mother) alone (access would also be dealt with).  This means that the father would still have the right to be consulted on major issues concerning the child (e.g. a change of schools) as opposed to the humdrum business of everyday life if care and control was given to the mother.

Customary law: Another general term for common law or case law.  It has a specialist meaning in Guernsey law referring to the ancient laws which form the basis of areas of Guernsey law such as conveyancing and succession (inheritance), ie Norman customary law.

 

D

Debtor: The person who owes money to his creditor (see creditor).

Defendant: The party defending a criminal or civil case.

Désastre: When a person becomes insolvent (i.e. unable to pay his or her debts) he may be declared to be en désastre; with the consequence that the individual’s moveable assets (i.e. apart from realty and the further concession of the tools of his trade and various household necessaries) may be sold and the proceeds distributed rateably between creditors.

Discharge: In criminal proceedings the Magistrate may find the matter proved but, because of the circumstances, may make no order or discharge the defendant conditionally.  If no order at all is made this amounts to an absolute discharge.  The condition usually attached to a discharge is to take an oath not to re-offend within a given time or else face being sentenced for the original matter as well as the new matter.  Discharges do not amount to convictions.

Discovery: Also known as disclosure.  Parties to civil litigation have an obligation to disclose documents relating to the matters in issue between them (which goes beyond the merely “relevant”).  You must disclose both documents which help your case and those which do not.  Parties to litigation should take care to gather together and preserve material documents at an early stage.  Lists of documents are exchanged after the written stage of the case (i.e. after the exchange of pleadings - the written documents setting out each party’s case) is complete.

Document duty: What amounts to a tax or stamp duty payable on certain documents; the chief examples are conveyances (3% of the realty purchase price, subject to a sliding scale downwards to a cut-off of £150,000) and bonds (0.5% of the secured figure).  Document duty is also payable for various company matters.

 

E

Élection de domicile: The French expression for an address for service; i.e. the address a party gives for service of documents upon him.  When he is represented by an Advocate the address is that of the Advocate’s office.  A defendant is required to give an address for service at the start of a civil case.

Eviction: The process by which a landlord may apply to the Royal Court for an order requiring a tenant, former tenant or occupier to vacate the landlord’s premises (or rather to have the Sheriff put them out).  There is no true security of tenure (i.e. protected tenancy rights) beyond purely contractual rights.  The Court has, however, considerable powers to grant a stay of eviction.

Exceptions: This is a French word (pronounced “exsepseeon”) which, in a legal context, means a preliminary objection to a claim.  The first stage in Guernsey proceedings is the service of the summons.  The defendant will indicate whether or not the claim is defended.  Assuming it is defended the defendant will then be required to lodge its written defences.  It is at this stage that the defendant can raise exceptions. There is the exception de forme, which is literally a complaint that the form of the claim is not sufficiently fully particularised or detailed to allow the defendant to know precisely what the case is that he has to respond to.  This type of exception is a series of questions designed to find out what the defendant says he needs to know.  Another form of exception is the exception de fond which literally means a fundamental exception.  Examples would be when the defendant alleges that the claim is outside the permitted period to bring it or even that the wrong person has been sued.  There are other more subtle exceptions; such as complaining that a claim is premature on the basis that the sum claimed is not (yet) due.

Ex parte: A Latin term indicating an application or hearing made or dealt with in the absence of the opposing party or parties.  There has to be a good reason for proceeding in this way; for example you may be seeking to freeze an opponent’s assets or else seeking an order preventing domestic violence.  Notice of the application might provoke exactly what the injunction is intended to avoid.  Whenever an order is made ex parte the person who is the subject of the order will have an opportunity to challenge or “set aside” the order.  Meanwhile it must be obeyed.  Again you should seek an Advocate’s assistance.

 

F

Financial services regulation: Financial services businesses (banks, certain form of investment businesses, insurers, trustees and company administrators) are regulated by the Guernsey Financial Services Commission.  Essentially any such business must be licensed by the GFSC.  There are strict requirements governing licensees for the protection of the public.  A breach of those requirements leads to various penalties.  The GFSC website is at: http://www.gfsc.gg/The-Commission/Pages/Home.aspx

Firm: A firm is a business carried on by partners.  A firm can be distinguished from a business carried on by an individual alone and a business carried on by a company.  It is wrong to refer to a company as a firm.

Freezing order: An order which the Court may make, literally freezing a person’s assets in the sense of prohibiting them from dealing with or disposing of their assets, e.g. money in bank accounts or real property.  These orders are usually sought by those intending to bring a claim against a person who they (have good reason to) fear will dispose of their assets as soon as they know of the proceedings.  This form of order is sometimes known as a “Mareva” order; the name comes from an English case where the orders were first used.

 

G

Greffe: The Greffe is the Court office, from an old French word.  The Greffe is also the Island’s registry for companies, births, deaths, marriages and changes of name.  It also holds all conveyancing records and wills of realty.

Greffier: The senior clerk or registrar at the Greffe.  HM Greffier is a Crown appointment.

Guardianship: Guardianship is the status of a person who has been committed to the legal care or custody of a competent adult.  Typically this concerns either children or else adults who have lost the ability to manage their own affairs, typically elderly relatives of the guardian.

 

H

Haro: The Clameur de Haro is an ancient self-help remedy or injunction.  Clameur literally indicates a great noise, like the English word “clamour”.  If a wrong is being done by one person to another’s real property (e.g. by trespass (e.g. knocking down a wall) or nuisance (e.g. causing noxious fumes to spread into a neighbouring property) then the person being wronged may drop to his knees in the presence of two witnesses and say the following:  “Haro!  Haro!  Haro!  À l’aidemon Prince, on me fait tort.”  Which means literally “Haro!  Haro!  Haro!  Help me my Prince, I am being wronged.”  The Lord’s prayer and grace are then recited in French.  The appeal is thought to be to the first Norman Duke, Rollon, also known as Rollo, Rolf or Hrolfr.  The person against whom the Clameur is raised must stop immediately the action complained of or face proceedings for contempt of court.  The person raising the Clameur must register the act with the Court (which may refuse to register the Clameur if wrongly raised) and then commence proceedings against the alleged wrongdoer within a year and a day, or else the clameur will lapse.  These days one would only use the Clameur where time did not permit any other more certain remedy and you were very confident of the circumstances.  Seek the advice of an Advocate.

Hearsay: The rule against hearsay is a rule which prohibits the introduction of “hearsay” evidence in court cases.  Hearsay means an out of court statement, the truth of which goes to the issue in the case.  This sounds rather complicated, and it is!  Essentially a witness may only give evidence of facts and events which he or she has experienced directly.  Thus John may give evidence of seeing Bob drive into the back of Bill’s car.  But Jake cannot give evidence about what John told him about the accident.  That is hearsay.  John must come to court and give the evidence himself.  It is the same with documents.  Jake cannot produce a letter in which John writes about the accident.  Again John must come to court to give the evidence.  There are various exceptions to the hearsay rule.

 

I

In any event: A favourite expression of lawyers (one of many).  It means “regardless”.  The lawyer is trying to say that regardless of anything else, the following holds true.

Individual: A natural person as opposed to a legal person; i.e. you or me as opposed to a company.

Injunction: An order of the court requiring a person either to do or not to do something.  Breach of a court order is a contempt of court and punishable by a fine or imprisonment.  However, the person who is the subject of the order must have been served with it or at least know of the order.  Any civil obligation of this kind is in addition to the criminal law.  A person who knowingly assists another to breach a court order is also liable to be found in contempt and punished.

Insolvency: The state of not being able to pay one’s debts.  You can have individual insolvency (bankruptcy in England) or corporate insolvency (called liquidation).

Interest: Essentially the price of borrowing money or credit.  Often the rate will be expressly agreed when money is loaned.  Many commercial contracts will also state an interest rate payable if payments are late.  If interest has not been expressly agreed the Court may award interest on monies payable to a claimant.

Interrogatories: From the same root as the English word “to interrogate”, these are formal questions which may be put to an opponent before any trial takes place, in order to find out important facts about a case.  Given that there is no automatic exchange of witness statements in Guernsey procedural law this is a potentially very helpful tool.

 

J

J’ensupplie: An old French phrase which you will sometimes hear an Advocate use.  It is simply a request that whatever has been applied for be granted; literally, “I so beg”.

Judgment: A Court’s judgment is the conclusion it reaches concerning a civil case.  If it is a matter in which he is sitting alone the Judge will give his own written or oral judgment.  If he is sitting with Jurats it is the Jurats who will give their decision, supported by reasons.  The actual result is also known as the judgment; i.e. that so much be paid by one person to another.  Judgments are executed by the Sheriff.  Note that the Court’s “judgment” has only one “e” as opposed to the exercise of an individual’s “judgement” concerning whatever it is.

Judicial review: A person may challenge administrative decisions made by public bodies affecting his or her private rights by bringing proceedings in Court against the decision maker, requiring the Court to review the decision made.  Note, however, that there are very specific (and limited) grounds for challenge; typically that the decision was either unlawful or irrational, or else that there has been procedural impropriety (breach of natural justice).  The word “irrational” has a particular meaning in this context.  It is not a ground for challenge merely that the Court would have reached a different conclusion from that of the decision maker.

Judicial separation: A decree of the court declaring the separation of a married couple falling short of divorce.  Judicial separation is quite common in Guernsey because it is generally accompanied by what is intended to be a binding agreement dealing with all ancillary matters, notably children and the division of assets.  A divorce usually follows, typically two years after the initial physical separation depending upon the reason for the divorce.

Jurat: There are 12 Jurats at any one time.  Jurats are the equivalent of a full-time lay magistrate.  They sit with the Bailiff, Deputy Bailiff or Lieutenant Bailiff in both criminal and civil Royal Court cases.  They decide issues of fact whereas the Judge decides issues of law and court procedure.  Jurats also sit in the Contract Court where the making of conveyances and other formal documents is witnessed by them.

 

K

Keeping the peace: The opposite of breaching the peace.  A magistrate can “bind over” a person to keep the peace instead of imposing an immediate sentence, on condition that he does not re-offend within a certain time in default of which he will be sentenced both for the new and the old matter.

 

L

Law: In Guernsey the word law has its normal sense of “law” as a general concept; it also has a particular sense of statute; i.e. the equivalent of an Act of Parliament.

Law Officers: HM Procureur and HM Comptroller.  Their English equivalents are HM Attorney General and HM Solicitor General.  In Guernsey they carry out a variety of functions, including the bringing of criminal prosecutions on behalf of the Crown, the preparation of legislation for the States of Deliberation, provision of legal advice to the States and representation in civil proceedings involving the Crown and the States; e.g. pursuing unpaid taxes, defending appeals against Department decisions, and so on.

Legal Aid: States funding for the defence of criminal proceedings or the bringing or defending of civil proceedings.  There are strict criteria determining whether Legal Aid will be granted, depending both on the means of the applicant and the merits of his or her case.

Licitation: It is a principle of Guernsey law that co-owners of land cannot be compelled to remain co-owners.  If they cannot agree on a physical division or sale of the land, one or other may apply to the Court either to compel a physical division or sale.  The sale is known as a “licitation” from the Latin licitor, to bid for.

Limitation period: The English term, sometimes used in Guernsey also, to describe the time in which a civil claim must be commenced.  Typically the limitation period is 3 years from the date of injury for a personal injury or fatal accident claim (with time only starting to run from the “date of knowledge” if later), and 6 years for other civil claims save for claims relating to land which generally have a 20 year limitation period.  The best advice is to act swiftly rather than sit on your rights.  See an Advocate sooner rather than later; this is a complicated area.

Liquidation: When a company is insolvent the Court may order that it is to be “liquidated” or “wound up”.  A liquidator is appointed for the purpose.  He gets in the company’s assets and distributes the net proceeds to the creditors and what is left (if anything) to the shareholders.  A company may also go into liquidation voluntarily.

Livre des Hypothèques, Actes de Cour et Obligations:  Literally a book at the Greffe in which actual or prospective legal liabilities are entered as against an individual's interests in Guernsey realty.  The world at large is bound by what appears in the book from the date of entry.  Hypothèque is a French word meaning security.  The reference to Acts of Court refers to the circumstance where, under Guernsey procedural law, one can apply for new proceedings to be registered against the realty of the defendant as a form of security for eventual payment of any money judgment.  Obligations refers to contracts, typically leases.  The Livre is a way of letting the world know that property has been affected by some sort of legal burden and that anyone buying that property will take subject to that burden.

 

M

Mareva order: An alternative term for a “freezing order”.  It is used to freeze the assets of an opponent who is otherwise likely to dissipate those assets in order to avoid his liabilities.

Mediation: A process whereby a mediator is appointed jointly by the parties to a dispute to see whether he can broker an agreement through bringing an objective viewpoint.  A day or more may be set aside for the mediation.  There are a series of meetings between the mediator and both parties and the mediator and the individual parties to see what progress can be made.  Even if the mediation is not immediately successful it often leads to agreement soon afterwards.  The cost of the mediation is usually shared.  The mediator is not there to judge the rights or wrongs of the issue; merely to see if agreement can be reached or “facilitated”.

Memorandum and articles: These are the foundation documents of a company.  The memorandum sets out the company’s name, objects (i.e. purposes), the number of shares and so on.  The articles amount to the set of rules governing how the company is to be run.  The memorandum and articles are akin to a contract between the shareholders (members of a company) and between the shareholders and the company.

Mitigation: A speech in mitigation is made in a criminal case after conviction, but before sentencing.  Whether or not a person is represented there is always an opportunity given to explain the circumstances of the offence and the person who committed it.  The purpose of mitigation is to persuade the Judge to restrict the sentence to its proper minimum.  Examples of what might be good mitigation include youth, a guilty plea, remorse, reinstatement of what was stolen or damaged, a previous good record and so on.  Letters might also be produced testifying as to the good character and worth of the individual.  Witnesses may be called.

Mode of trial: Some offences are by their nature comparatively trivial and can only be dealt with in the Magistrates Court.  Some offences are so serious that they can only be dealt with in the Royal Court.  There are a great many offences which can either be comparatively trivial or very serious, which means that they can be tried either in the Magistrate’s Court or the Royal Court.  There is a brief hearing before the Magistrate when it is decided where such a case will be heard.  As a general rule if either the Magistrate, prosecution or defence wish the case to go to the Royal Court then it will; which means that all three must, in effect, agree that a case should stay in the Magistrate’s Court.  In fact the vast majority of matters are dealt with in the Magistrate’s Court.

 

N

Niances: In a civil case a plaintiff (the claimant) sets out their case in the summons or “Cause”.  The defendant must respond to the Cause when required to do so by the plaintiff.  These are the defences and comprise “niances” and “prétentions”.  These are both French words.  A niance is an indication of whether a certain paragraph of the Cause is either denied or admitted or not admitted.  If you know positively that you agree or do not agree with an allegation then you deny or admit it.  If something is within the knowledge of the plaintiff or if you simply do not know whether an allegation is correct you would simply not admit it; this requires the plaintiff to prove the allegation.  The prétentions are a defendant’s positive case, i.e. what is positively asserted by the defendant.

Non-molestation order: This is a form of court order made against a spouse or partner or former spouse or partner, typically when relationships have broken down and violence or threats of violence are alleged to have been made.  The court can order an individual not to assault, molest or interfere with another person and can also, in a very serious case, order that person to leave and not return to the shared home.  Breach of such orders can lead to arrest and imprisonment for being in contempt of court.  It is very sensible to seek an Advocate’s assistance at the earliest opportunity if orders have been made against you.  It is not at all uncommon for orders to be made initially without the respondent having been heard (an ex parte order or order made “without notice”).  If that is the case there will always be an opportunity to challenge the order; but it is essential not to make matters worse in between times.  The order must be respected while it is in force.

 

O

Ordinance: The States of Guernsey makes legislation in the form of projets de loi (literally law projects) which go for Royal Assent and then become Laws.  The States of Guernsey can also make legislation in the form of an ordinance.  Ordinances do not need Royal Assent and can be made either pursuant to powers given to the States by a Law or else through the inherent power of the States to make legislation in certain, comparatively narrow areas.

Ouster order: This is a form of order made in domestic violence proceedings.  It literally “ousts” the person against whom it is directed from the shared home.  That person is required to vacate and not return to the home, except perhaps on certain conditions and only for limited purposes.  The order will say exactly what is required.

 

P

Partage: Literally a division or sharing.  This is most commonly found when land is inherited and then divided between heirs.  These days it is more common for land to be sold and the proceeds divided.  If neither a partage nor a sale can be agreed, an application may be made to the court to determine the issue.

Payment into court: A payment into court is made when a party acknowledges that an amount of money is owed to the claimant but not as much as is being claimed; in other words there is a dispute as to the balance.  The defendant can protect himself as to costs by paying in what he says is owed.  If the plaintiff fails to beat that offer subsequently then the defendant can usually expect to recover his costs from the time of the payment in.  Again the Judge will not know of the payment in until the conclusion of the proceedings.  Sometimes a party is required to pay money into court for other reasons; e.g. to provide security for the costs of an opposing party, typically where there is a non-resident plaintiff.

Person: A legal entity.  A person can be an artificial person (e.g. a company) or a natural person (a human being).  We talk about the legal “capacity” of a person.  In a human being this will be determined by a combination of their age, mental state and conduct (a prisoner’s rights are restricted for example).  A company’s capacity is limited by its very nature and also by its foundation documents, which are known as its memorandum and articles.
 
Personalty: Property which is not realty.  Real property is typically the right of ownership of land and certain other limited rights in land, e.g. a usufruit (typically a life interest in land).  Personalty comprises all the everyday assets one can think of apart from land; e.g. furniture, clothing, books, ornaments, money, shares, contractual rights and so on. 

Petition: A form of court action in which the claimant (petitioner) seeks a particular remedy from the Court.  Petitions are made principally to obtain certain family law remedies such as divorce.  The other party is known as a respondent.

Pettifogger: A paltry cavilling lawyer.  A lawyer who takes excessively technical points, raises trifling objections or false arguments to delay or spin out a case to nobody’s advantage, save perhaps his own, and not even his own when viewed properly.  The Court deals harshly with pettifoggery.

Pleadings: The written documents setting out the parties’ cases in litigation.  The claimant’s pleading is called “the Cause”, the defendant’s “the defences”.  There are other forms of pleading as well; for example the exception (see separate entry) or the request for further and better particulars or interrogatories.  Strictly speaking an affidavit is also a pleading.  One thing to note is that an opposing party may ask for a copy of any document referred to in a pleading.

Pothier: Robert Joseph Pothier was a very distinguished French jurist who lived between 1699 and 1772.  He was professor of law at the University of Orléans.  He wrote a treatise on contractual obligations which was deeply influential both in French and English law.  He also re-edited the Emperor Justinian’s massive work on Roman law and produced a commentary on the customary law of Orléans as well as many other treatises.

Prescription period: The period allowed by law for bringing a claim.  It is very similar to the idea of a limitation period.  The technical difference is that a limitation period merely extinguishes the legal remedy, whereas prescription extinguishes the right itself.  There is little practical difference in day to day practice.  Time can sometimes be extended for bringing a claim in personal injury and fatal accident cases.  The best advice is that if you have a legal right you wish to enforce then act sooner rather than later.

Prétentions: Prétentions are the positive assertions made by a defendant, as opposed to simple denials or admissions (niances).  The prétentions are the positive case of a defendant; i.e. what he or she positively says happened or what the true legal consequences of whatever has occurred are said to be.

Prima facie: A favourite expression of lawyers.  It is Latin and means “at first sight” or “taken at face value”.  It indicates the starting point, as opposed to the conclusion after an issue has been looked into rather more closely.

Privy Council: The supreme court of appeal for Guernsey criminal and civil proceedings.  There is an ascending order of courts starting with the Magistrate’s Court , then the Court of Appeal followed by the Privy Council.

Probation: If a person is convicted of a criminal offence, a probation order may be made as part of a conditional discharge and the taking of an oath of good behaviour.  The offender is placed under the supervision of a probation officer for a period of up to three years.  If the offender does not respect the probation order they face being re-sentenced.  Probation orders are often used for matters which might attract a sentence of imprisonment, were it not for mitigating factors such as a previously good record.

Procureur: One of the two Law Officers, the other being HM Comptroller.  Her Majesty’s Procureur is the senior Law Officer.  The position is also known as HM Attorney General.  Appointment to the office is made by Her Majesty the Queen.

 

Q

Queen: The Islands’ link with Britain is via the Crown as the successor to William the Conqueror, Duke of Normandy.  Hence the special relationship between Her Majesty and the Islands.

 

R

Realty: Real property is essentially land or an interest in land; realty is contrasted with personalty.

Récusation: A French term describing a challenge made to a Judge on the basis of actual or apparent bias.  It is a request that the Judge disqualify himself from sitting on that particular matter.  Very often it is a Judge who will “récuse” himself at the outset.

Renunciation: What amounts to the discharge of a Guernsey bankrupt.

Request for further and better particulars: A form of pleading (see separate entry) requesting more information concerning a written claim or defence; e.g. asking when alleged events occurred, who was present, what was said, whether there was any related documentation and so on.

Retainer: The contract between a lawyer and his client.  It is very important that the terms of the retainer are well understood between lawyer and client; particularly the nature of the task being entrusted to, or the advice sought from, the lawyer and what those services will cost.

Retraitlignager: The right of a relative of a person who has sold real property to have that real property conveyed to the relative on condition that the purchaser is reimbursed the price that he has paid for the property, together with expenses incurred (but excluding whatever has been paid for personalty as opposed to realty, i.e. curtains, carpets etc.).  The right to retrait must be exercised within one month of registration of the conveyance (3 months in Alderney, 40 days in Sark).

Rôle des causes à plaider: When a case is first in court the defendant (or his advocate) will say whether the case is defended or not.  If it is defended it is said to go “inscrite”, i.e. inscribed, on the “rôle des Cause à plaider”, literally the roll of cases for pleading, or the pleading list.  It simply indicates that the case has progressed to the stage where a written defence may be requested.

Rôle des Cause en preuve: When written defences are supplied the case will move onto the rôle des causes en preuve, literally the roll of cases in evidence; or on the witness list.  The case has reached the stage where documents must be exchanged and a trial date will eventually be requested.

 

S

Saisie: The means by which a judgment is executed against a person’s interest in land.  A three stage procedure is initiated leading to the seizure and forfeiture of the land by the debtor.  The first stage is to obtain a preliminary vesting order then an interim vesting order leading eventually to a final vesting order.  Considerable care is required.  By initiating saisie proceedings you give up the right to execute against personalty.

Sergeant: A court officer responsible for serving Court proceedings.  The sergeant works closely with the sheriff.

Servitude: A servitude is a right in or over land retained by, or else a right granted to, a neighbouring land owner.  Typical examples include a right of way over a drive or the right to park a car or place rubbish in a certain place.  Servitudes can arise in a number of ways.  Guernsey law is quite distinct in this area and draws heavily on Norman customary law.

Settle: The word settle is used in a number of different ways in law.  You can talk of settling the pleadings, which is an old-fashioned way of describing the drafting of pleadings.  More common is to talk of a case “settling” or being “settled”, which means resolved by a settlement or agreement; e.g. the defendant will pay the plaintiff the sum of £x in full and final settlement of the claim, inclusive of costs and disbursements (expenses).

Settlor: The person who establishes a trust by “settling” money or other property upon a trustee.  The person or persons benefiting from the settlement are called beneficiaries.  The trustee owes duties to the beneficiaries and is accountable to them.  A settlor can make himself a beneficiary.

 

Sham: A fiction, something which does not reflect reality and will not be upheld if challenged in a court of law.  Very often creditors will challenge transactions made by an insolvent person in order to reconstitute their estates.

Sheriff: A court officer with the responsibility of enforcing Court judgments, typically by taking possession of a judgment debtor’s assets and then selling or otherwise realising them.

Statute: A Law or Act as opposed to an ordinance or statutory instrument.  A primary piece of legislation as opposed to secondary.  In Guernsey the States make and pass projets de loi which go for Royal Assent.  Once assent is given and registered in the Royal Court, the projet becomes a Law or statute.

Stay: If proceedings are stayed it means that no further step may be taken, unless and until the stay is lifted.  It is a procedural bar.

Succession law: The law relating to inheritance.  There are three separate systems of succession law in the Bailiwick, namely Guernsey, Alderney and Sark succession law, although they have much in common.  The essential point to note is the restriction under Bailiwick law as to whom you may leave your personalty or realty.  Typically, upon intestacy (i.e. where there is no valid will) a surviving spouse will be entitled to an absolute interest in a share of the personalty and a lifetime interest in a proportion of the realty.  Likewise children will be entitled to a share of the personalty and all of the realty (subject to the widow’s life interest).  A person who has a wife and children cannot avoid certain minimum obligations towards them in any event.  Those obligations take different forms as between the islands.  This is a very complicated area where advice really should be taken.

Summons: A document served by the Sergeant requiring a person to attend court on a certain date and at a certain time to answer whatever proceedings the summons relates to; typically a Cause or a summons to produce defences.

Summons for defences: After proceedings have been commenced and the defendant has indicated that the claim is defended he will be summonsed again to produce his written defences.  Confusingly this new summons will look very like the first summons, except that at the top of the first page will be a heading “rôle des causes à plaider” which simply means that the case is already on the pleading list and therefore what is expected is your defences.  If in doubt ask either the Greffe or the opposing advocate.

 

T

Terre à l’amende: Literally “penalty land”.  An owner of land may apply to the Royal Court for permission, in effect, to declare his land penalty land.  It gives him or her the right to issue what amounts to parking tickets for the sum of £50, enforceable by way of a petty debt court summons.

Terrien: Terrien was the last great Norman commentator on the Grand Coutumier or “Great Customary”, a 13th century collation of Norman customary law.  When Elizabeth I, Queen of England, wanted to know what Guernsey law was, the Bailiff and Jurats took Terrien’s book (published in 1574) and wrote a report saying what was and was not Guernsey law by referring to Terrien.  That report (called L’Approbation) became a statute in 1583; which means that Terrien remains very much a part of Guernsey law.  A translation of the frontispiece and preface to his commentary can be found here.

Third party: This expression is used in a number of ways.  The first principal way is when you are talking about, say, parties to a particular agreement as opposed to “third” parties, i.e. parties who are not bound by the agreement.  My contract with you will not affect the rights of a stranger to the contract, i.e. a third party.  In road traffic accidents an insurer will refer to the third party as the person who their insured collided with.  The insurer has a contract with their insured, the other person does not, they are a third party to the insurance contract.

Third party proceedings: Where proceedings have commenced between party A and party B it may well be that party B wants to involve party C, either because B says that C was to blame for whatever has gone wrong or for some other reason, e.g. because C is B’s insurer and is refusing an indemnity.  B can issue his own proceedings against party C in an appropriate case.  A might then join C as a second defendant, depending on the circumstances and whether A has a direct Cause of action against C.

Tort: A civil wrong as opposed to a criminal wrong.  The word derives from the French for wrong.  Torts include the following:  defamation, false imprisonment, negligence, nuisance, trespass to the person, trespass to property.  This area of law does not stand still and various civil wrongs continue to emerge and develop, particularly the so-called economic torts.

Trespass: An unlawful interference either with another’s person or their property; e.g. a physical assault or trespass to land.

Trust: The holding of property by one person on behalf of one or more others, either voluntarily or by operation of law.  The trustee typically holds the legal title to property, i.e. he appears to be the owner of the property, but in fact holds the property for the benefit of others, the beneficiaries.  He is merely a titular owner with obligations towards those who in fact are entitled to enjoy the property.  His rights typically comprise payment of his fees, if he is a professional trustee and the trust instrument (i.e. document creating the trust) permits this.  Sometimes a person can find himself as a result of his actions, e.g. interfering with or misappropriating another’s property or assisting a true trustee in a breach of trust.

Trustee: A person who, voluntarily, or as a matter of law, holds property for the benefit of one or more others.

Tutelle: See tuteur.

Tuteur: The guardian of a child in guardianship.  The state of guardianship of a child is known as “tutelle”.  See guardianship.

 

U

Uninsured driver: It is an obligation for every driver to be insured against liability for loss and damage to third parties (i.e. every other person).  It is not uncommon for a person to find themselves involved in an accident when the other person is not in fact insured.  Notwithstanding the lack of insurance claims can be brought which will be paid by a body called the Motor Insurer’s Bureau or their nominated insurer agent.  Again you will require the assistance of an Advocate.  Considerable care is required.  If there is any doubt about the identity or insurance of another driver involved in a road traffic accident of any significance then report it to the police as soon as possible.

Usufruit: A term with its origins in Latin meaning the right to enjoy a capital asset (typically a house) for a period of time (usually until death).  The capital asset is to be left undiminished in the sense that a person may enjoy the right to live in or let a property but not sell it outright.  The Latin translates as literally the right to use and enjoy the fruits (of property) as opposed to doing away with the property altogether.

 

V

Versamerci: A French expression meaning a judgment entered by consent; i.e. the defendant agrees that the monies are owing and that judgment may be entered against him.  Such a judgment has a lifetime of six years in which it may be enforced.

Versarrêt: A French expression meaning a judgment entered in default of appearance.  Such a judgment has a lifetime of only 3 years.  It follows that a defendant is better off letting judgment go by default rather than positively consenting to judgment.  Equally the time for enforcing a judgment of either kind can be extended if application is made before it expires.

 

W

Will: A will sets out the way in which a person wishes their real and personal property to be disposed of on their death.  In Guernsey law there ought to be separate wills made of realty and personalty (but there are exceptions).  The power to dispose of realty and personalty on death is also subject to exceptions in Guernsey law protecting the rights of spouses and descendants.  The assistance of an Advocate is required.

 

Y

Youth detention: The equivalent of a sentence of imprisonment for a person aged less than 21.