Jersey Unreported Judgments

Clameur de Haro - reasons and costs

[2024]JRC082

Royal Court

(Unknown)

9 April 2024

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Hughes and Opfermann

 

IN THE MATTER OF THE REPRESENTATION OF NICOLA ROSELLE DE GRUCHY AND THE PARISH OF TRINITY

AND IN THE MATTER OF A CLAMEUR DE HARO

Advocate H. B. Mistry for the Representor

Advocate C. J. Scholefield for the First Respondent.

The Connétable of the Parish of Trinity appeared on their own behalf.

HM Solicitor General for the Party Convened.

judgment

the bailiff:

1.        On 5 October 2023, Nicola Roselle De Gruchy ("the Representor") purported to raise the Clameur de Haro in a manner that would prevent the Parish of Trinity, or the Connétable of the Parish of Trinity (respectively the First and Second Respondents), from carrying out work to cut back encroachments from the Representor's land over Rue Becq, which is a parish road under the administration of the First Respondent.  

2.        The Clameur de Haro ("the Clameur") was raised in front of the tractor driver who was about to commence the work and its invocation operated as an immediate injunction preventing the work from continuing until the Court shall have determined whether or not the Clameur was appropriately raised.

3.        At a hearing on 22 November 2023, this Court declared that the Clameur had not been correctly raised and fined the Representor £1,000 for incorrectly raising the Clameur.  The issue of the costs of the proceedings before the Court was left over for determination.  On that occasion, this Court indicated that it would give further reasons for its decision.  This judgment contains in brief those reasons and the determination of the costs of the application.

The background

4.        The Representor is the owner of fields T1267 and T1214, which run on either side of a length of Rue Becq.  She asserts in her pleadings that this length of Rue Becq is a chemin de huit pieds, namely a parish road with a width of eight Jersey feet or seven feet four inches imperial.  She also contends that, accordingly, on that measurement, things on her field do not encroach over Rue Becq or the reliefs of the fields and therefore she cannot be required to cut them back. 

5.        The Parish does not accept that the width of Rue Becq is as contended for by the Representor.  However, the main thrust of the Parish's contentions, and indeed that of the Solicitor General who appeared as partie publique to assist the Court, addressed whether or not the Clameur had been properly brought by the Representor.  In essence, the main argument before the Court was whether or not raising the Clameur was available to someone who was, in effect, asserting ownership of parts of the road which were in dispute, as opposed to current possession of those disputed parts.

6.        The Court had the benefit of a site visit and looked carefully at the measurements and markers which had been placed on this length of Rue Becq.  It is clear that in so far as it is contiguous with the Representor's fields, the tarmacked part of Rue Becq exceeds huit pieds.  It is also clear from the evidence available to the Court that a width of greater than huit pieds has been tarmacked for a considerable period and this without challenge before the Courts or otherwise. 

7.        Although a number of other arguments were also deployed before the Court to which we will make reference hereunder, in essence, both the First and Second Respondents and the partie publique submitted that, in effect, the Representor was making a claim in ownership but could not establish that she had been in possession of the disputed parts of Rue Becq in the preceding year and a day.  This was necessary, so it was argued, to enable her to bring a Clameur and absent such evidence of possession the Clameur had been improperly raised.  If the Representor, so it was argued, had wished to make a claim in title, then she should have done so, but she could not properly bring a claim alleging possession when it was quite clear that Rue Becq had been tarmacked and accordingly possessed by the Parish for a significant period.  In short, it was contended, that the Clameur de Haro is a draconian application that can only be properly brought where it is alleged that a person is acting in a way that infringes the criant's rights to possess the land that they had been continuously enjoying. 

Clameur de Haro

8.        The Court of Appeal considered the raising of a Clameur in the Representation of D J Sheppard [2021] JCA 088.  That Court made the following observations:

"2. The effect of raising the Clameur was to frustrate the Order of the Court of 27 November. As Le Geyt, Lieutenant Bailiff of the Island, described in his Privileges, Loix & Coustumes de L'Isle de Jersey in 1698, Titre VIII at page 37:

"Article 2

S'il arrive quelque trouble en la possession, on doit, pour s'y maintenir, interjetter sur le Champ la Clameur de Haro contre le Turbateur, sans qu'il soit permis de repousser la force par la force, si ce n'est au mesme instant, principalement après avoir en vain interrjetté la Clameur.

Article 3

La Clameur de Haro sequestre tacitement la chose en main de Justice; elle oblige les parties à donner caution respective, l'une de poursuivre & l'autre de soutenir, si elles sont capables d'en donner, elle ne se peut vuider sans amende & se traite à present à la Cour de Brièveté, trois jurez pour le moins assistans."

3. The requirement for three Jurats to sit has long since gone, but this extract demonstrates the immediacy of the remedy provided by raising the Clameur. Indeed, writing some thirty years earlier, Poingdestre, also Lieutenant Bailiff of the Island, in his Commentaires sur L'Ancienne Coûtume de Normandie said this:

"Le Chapitre de Harou est non seulement practique au regard des causes criminelles, comme anciennement, mais on l'a estendu à toutes a uses possessoires, et a la force d'un interdit (retinendae possessionis) en tous cas où il peut arriver force, dessaissine, empiètement ou empeschement; et non seulement pour les terres mais aussi pour rentes, services, servitudes..."

4. Thus the Clameur operated in modern terminology as an injunction restraining those against whom it was raised from disturbing the possession which the Appellant as criant had in the property which she occupied. It is particularly unusual as an injunction process because it requires no affidavit from the person raising it, no undertaking in damages and indeed no justification other than that that person's rights to possession were being disturbed. There is no order from a Court granting it; and in a case like the present, there is no doubt at all that the Court would not have granted it, had there been an application in the usual way by Order of Justice, for the reasons to which we will come."

9.        At paragraphs 31 to 32 of the judgment the Court stated as follows:

"31. The Clameur de Haro in this, and a neighbouring, jurisdiction allows to the individual a very considerable power to prevent legal wrongs being done. There may be occasions when there is doubt as to whether a legal wrong is being done. This is not one of them. The Appellant has been well aware of the finality of her claims to avoid loss of her property since the middle of 2018. As a result of the Order of the Royal Court on 22 April 2016 ordering a dégrèvement to take place, the Appellant's property was adjudged renounced and she no longer had more than a "precarious interest" in it, as described by Sumption JA in re Super Seconds Limited [1997] JLR 112. Although the Appellant was later granted a remise, that process failed. On the conclusion of the remise process, her status was that of a person who has "bare title to the property but no valuable interest" [per Sumption JA, supra]. That "bare title" she lost when the tenancy was confirmed in November 2020. Accordingly, she had no right to the possession she had in fact. The Royal Court had given her time to 31 January to vacate the property and after that date, she was in effect a trespasser in it.

32. The Criant was required to say "Haro, Haro, Haro, à l'aide mon Prince, on me fait tort". That demonstrates that there must be a wrong committed before it can be said the Clameur is properly raised. Here there could have been no proper perception of wrong when the Clameur was raised because the Criant had no title to the property and no right to possession of it; and indeed because the Royal Court had expressly said so in November 2020 when confirming the tenancy of the Respondent and his wife. Accordingly, there is no basis upon which this court can or should interfere with the determination of the Royal Court and accordingly the Appeal is dismissed."

10.     In Attorney General and de Carteret (Ajoint) v Le Marquand [1987-88] JLR 626, Tomes, Deputy Bailiff stated as follows:

"The court was satisfied that the overwhelming weight of authority was that the action pursuant to the raising of a Clameur de Haro is an action possessoire. It is to be compared with an action in nouvelle dessaisine and contrasted from an action pour exhiber titres which is an action pétitoire".

11.     The Court then went on to say:

           "The Clameur de Haro is a matter of summary procedure; the test is to decide who was in possession during the year and a day preceding the declaration. Of course, in order to do so, the court can have regard to acts of possession in earlier years and even to title, but this court adopted the statement of d'Aviron, contained in Pissard's La Clameur de Haro dans le Droit Normand, at 123 (1911): it is sufficient to allege title and to prove possession.""

12.     In terms of the formalities, C.S. Le Gros, in the chapter headed "De La Clameur de Haro" of his Traité du droit coûtumier de l'Isle de Jersey, published in 1943, states:

"La personne qui interjète la clameur se met à genoux sur le terrain- même où le tort se commet et étant nu-tête, les mains jointes, fait cet appel à la sainte mémoire de son prince en la présence de deux personnes : Haro ! Haro ! Haro ! à l'aide mon Prince ! on me fait tort. Si ces formalités ne sont pas observées, le « criant » est condamné à l'amende de la clameur."

13.     In Attorney General and Flint (Ajoint) v Sarre (née Young) [2000/206A] it was stated that a Clameur may only be raised "pour conserver, et non pour recouvir".

14.     We think it clear from authorities that the following principles apply:

(i)        the Court must show a péril, that is appert (defined as "visible", "evident", "manifest");

(ii)       the appert peril must be shown to be a wrongful act in the course of commission;

(iii)      there must be possession of the land which is being sought to be conserved and there is no need to prove title;

(iv)     the Clameur must be raised against the person committing the wrongful act and not the person who instigated it.

Decision

15.     In the light of the above it is clear that to successfully raise a Clameur in the instant case the Representor would need to have been able to demonstrate that she had been in possession of the disputed land.  If she was not in possession of the land (but merely claimed ownership of the land) then she would need, in order to vindicate that ownership, to commence proceedings to establish her title.  She would not be entitled to the urgent injunctive relief provided for by the Clameur.

16.     As we have foreshadowed above, the evidence in this case was to our minds conclusive.  The mere fact that the Parish had tarmacked the road was an unequivocal assertion by the Parish of a proprietary right and a de facto possession of the roadway.  This includes all of the parts where ownership by the Parish is not challenged, and those parts where ownership is challenged, but which have nonetheless been tarmacked.  Covering land to operate for a public purpose - in this case to function as part of a roadway - is to us a clear assertion of possession.

17.     Accordingly, it was clear that the Representor, irrespective of what her rights might be as to title in any part of the land currently tarmacked - and we make no comment or observation about that whatsoever - clearly was not at any material time in possession of it and the carrying out of a public duty by the Connétable of the Parish and the Parish itself could accordingly not be an infringement of that possession.

18.     In our judgment therefore the Clameur had been incorrectly raised and we considered the appropriate penalty.  The Solicitor General as partie publique moved for the imposition of a fine as is usual in the circumstances.  Historically, perhaps because cases relating to the Clameur are extremely rare, the fines have been almost nominal by today's standards.  We do not consider that a nominal fine would have been appropriate.  There is no doubt that the Clameur de Haro is a valuable ex parte and interim remedy in the appropriate cases relating to possession, but it is nonetheless draconian and inevitably involves considerable inconvenience. 

19.     Having heard the Solicitor General we afforded the Representor the opportunity to make submissions relating to means, but we were told that if the Court was going to make an order as suggested by the Solicitor General then it was within the means of the Representor to pay.  Accordingly, we imposed a fine of £1,000. 

20.     As indicated above, a number of other arguments were advanced in the course of this matter.  It was argued that the Clameur had been improperly raised in part because of a want of formality and other public law arguments were also deployed before us.

21.     We do not propose to deal with those arguments in this judgment because of the clear view that we have taken that the Clameur was incorrectly raised for the reasons set out above.

22.     Without determining the matter, however, it would seem to us that whilst the Clameur de Haro is an ancient remedy, the practicalities of its use must yield to modern sensibilities.  It would to us seem very strange indeed, for example, if an individual who was infirm by reason of age or otherwise was required to go on one knee were it to be difficult for them to do so.  However, we leave those points, if they ever arise, for another time.

Costs

23.     The issue as to the costs of the proceedings was left over and the parties were invited to make written submissions which they accordingly did.

The Law

24.     In Watkins v Egglishaw [2002] JLR 1, Page, Commissioner dealt with the principles relating to costs in the following terms:

"7  The principles that should guide the court in the exercise of its discretion in this area appear to me, therefore, to be as follows, stating them as shortly and simply as possible:

(a) The court's overriding objective in considering costs is, as in everything else, to do justice between the parties.

(b) In many cases, that objective will be fulfilled by making an award of costs in favour of the "winning" party, where a "winner" is readily apparent. In any event, the "follow the event" rule can still be a useful starting point.

(c) It is a mistake, however, to strain overmuch to try to label one party as the "winner" and one as the "loser" when the complexity or other circumstances of the litigation do not readily lend themselves to analysis in these terms.

(d) The discretion as laid down in art. 2 of the Civil Proceedings (Jersey) Law 1956 is a wide one and ought not to be treated as fettered by any particular supposed rule or practice, other than that the discretion should be exercised judicially and broadly in accordance with the guiding principles referred to in In re Elgindata (No.2) (5) and A.E.I. v. Phonographic Performance (1).

(e) It is, accordingly, open to the court to have regard to any and all considerations that may have any bearing on the overriding objective of doing justice. Its task is to take an overview of the case as a whole (Bank of Credit & Commerce Intl. v. Ali (No. 4) (3), per Lightman, J.). The new Civil Procedure Rules governing civil litigation in the English courts provide that the court "must have regard to all the circumstances" and then go on to spell out certain matters that such circumstances include, the "conduct of all the parties" being one and "whether a party has succeeded on part of his case, even if he has not been wholly successful" another (Civil Procedure Rules, para. 44.3(4)). To a large extent, however, the particular matters mentioned do no more than state the obvious and it is unnecessary to import them verbatim, in any formal way, into the practice of the Royal Court.

(f) It is implicit in this that, even though a party would otherwise be regarded as having been "successful," justice may require that costs should not automatically follow the event."

25.     In Marrett v Marrett [2008] JLR 384, the Court of Appeal said this with regard to indemnity costs:

"An indemnity costs order could be made if it were justified by some special or unusual feature, culpability, abuse of process such as deceit, underhanded or unreasonable behaviour, abuse of Court procedures or the submission of voluminous and unnecessary evidence."

26.     In C v P-S [2010] JLR 645, the Court of Appeal said:

"The question will always be-is there something in the conduct of the action by one of the parties or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs, recognizing that there will usually be some degree of unreasonableness? We do not consider that there is a need for the claiming party to show a lack of moral probity or conduct deserving of moral condemnation, or malicious or vexatious conduct."

And went on to say:

"...the circumstances in which an award of indemnity costs may, as a matter of discretion, be ordered are less restrictive than they used to be; there must, ex hypothesi, still be something to take the case out of the ordinary, but the range of potentially relevant considerations, as described by Millett, J. (later Lord Millett) in Macmillan Inc. v. Bishopsgate Inv. Trust-�.-�.-�. is considerable and need not involve any finding of a lack of moral probity; the test, in a word, is unreasonableness; the purpose of such an award is to achieve a fairer result for the party in whose favour it is made than would be the case if he were only able to recover costs on the standard basis; in the end, it is a question of what would be fair and reasonable in all the circumstances."

The Representor's argument

27.     The Representor argues that there should be no order for costs and each party should bear his own costs of and incidental to the Representation or, alternatively, that the costs of and incidental of the Partie Publique should be paid by the Representor on a standard basis to be taxed if not agreed, and the reasonable costs of and incidental of the Respondents will be paid by the Representor on the standard basis to be taxed if not agreed, although the costs of and incidental  to the Representor's application in respect of the without prejudice communications being relied on at the substantive hearing should be paid by the Respondents on an indemnity basis, to be taxed if not agreed, and to be set off from any costs ordered against the Representor in the respect of the Respondents.

28.     In support of the first argument, that there be no order as to costs, the Representor primarily deploys her arguments about the correct width of Rue Becq and correspondence between herself and the parochial authorities, where she relies on attempts to try to negotiate with the parochial authorities on the correct width of Rue Becq and that an order as to costs will not do justice between the parties.  This, it seems to me, ignores the fact that the issue in respect of which I am deciding where costs should fall, was not the merits substantively of the Representor's case, nor indeed the nature of correspondence between herself and the Parish with regard to that or the branchage generally, but rather the recourse to the inappropriate procedure of the Clameur de Haro with all of the expense that that entails.

29.     On this issue, it is clear that the Respondents have prevailed as has, indeed, the submission made by the Partie Publique. 

30.     The Representor also argues that costs have been expended in preparing for an application to remove certain 'without prejudice' materials from the bundles.  This had been conceded by the Respondents and therefore the Representor claims those costs.  I do not think it is appropriate in this case to make a separate order dealing with those costs.  It was a procedural argument, incidental upon the application of the raising of the Clameur, and I do not think it appropriate to deal with that as a distinct issue.  It is, in my view, part of the general costs of this application.

31.     The Representor also argues that the Court should be concerned with proportionality given that the costs of the Respondents exceed her costs considerably.

The Respondents' argument

32.     The Respondents argue, firstly, that costs should follow the event and that they were successful in their argument that the Clameur de Haro had been improperly raised and, in any event, the Representor's actions were unreasonable in the circumstances.

33.     The Respondents submitted that they had sought to engage with the Representor over several months and there were a number of offers, including one that the Parish carry out the branchage without prejudice to the Representor's right to advance her arguments as to the future.  It is clear from a perusal of the correspondence that the Representor, through counsel, maintained her stance. 

34.     It is equally clear that the Respondent, in the light of escalating costs, on 14 November 2023, suggested that the Representor discontinue her action and bring if she wished, a subsequent claim with regard to her assertions as to the boundaries of her land, and that the Parish could continue to deal with the branchage until the issue of ownership was resolved.  There was also a requirement that the Representor pay the Parish's costs to date.  The Respondents further intimated that as a public body and an elected officer they would be required to seek costs on an indemnity basis if the matter proceeded.

35.      In the circumstances, the Respondents seek an order for indemnity costs against the Representor.

36.     It seems to me that to open the doorway for consideration of costs on an indemnity basis, one would need to be satisfied that the paying party's stance was unreasonable in all of the circumstances.  That by itself will not necessarily give rise to an order for indemnity costs and the factors that the Court can take into account in determining costs are wide.  What the Court is concerned with is, what is right to do justice between the parties and what would achieve the fairest possible result.  We accept, of course, that the Representor cannot be taken to be an expert in the customary law of the island in general, or in the Clameur de Haro in particular.  She was advised throughout by counsel and indeed by Advocate Richard Falle, an expert in customary law.

37.     It seems to the Court that whatever the Representor's beliefs in the rights and wrongs of her claim to ownership, about which no comment at this point can be made, it is abundantly clear, as the Court has determined from authority, that the raising of the Clameur de Haro is an action possessoire and is dependent upon the possession (as opposed to ownership) of the land in question.

38.     The Clameur de Haro has none of the safeguards of more usual modern injunction procedure.  Accordingly, it must be employed with circumspection.  There are other remedies available to vindicate title / ownership and indeed to create an ex parte holding position by application to the Court in the usual way.

39.     In our judgment, the raising of the Clameur de Haro was not only improper in the circumstances but it was, in the light of the correspondence, arguably unreasonable.  However, we accept that there is a genuine dispute about ownership, and we are not in a position to determine that on the merits, the Representor not having commenced proceedings to determine ownership, and the correspondence was directed to the presentation of an argument on the merits.

40.     In the circumstances, the justice of the case is met by an order for the costs of the Respondents and Partie Publique of and incidental to the Clameur de Haro to be paid by the Representor on the standard basis to be taxed if not agreed, and that is the order of the Court.

Authorities

Representation of D J Sheppard [2021] JCA 088. 

Attorney General and de Carteret (Ajoint) v Le Marquand [1987-88] JLR 626. 

Traité du droit coûtumier de l'Isle de Jersey. 

Attorney General and Flint (Ajoint) v Sarre (née Young) [2000/206A]. 

Watkins v Egglishaw [2002] JLR 1. 

Marrett v Marrett [2008] JLR 384. 

C v P-S [2010] JLR 645.