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A Glossary of Legal Terminology (4.11.16)

Extent - Jersey

Up-dated - 1 November, 2016

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 Glossary of Legal Terminology

 

This Glossary has been prepared by the Judicial Greffe and Law Officers’ Department. It is intended to assist you with the terminology that you are likely to come across in the course of your dealings with the legal system in Jersey. Its contents are made publicly available for information purposes only.

 

The contents of this Glossary are not, and should not be taken as or relied upon as, legal advice.

 

The explanations provided in this Glossary are summary only and are subject to the submissions of the parties in particular cases and should not be interpreted as the position of either the Judicial Greffe or the Law Officers’ Department.

 

This Glossary was last updated on 1 November 2016. Its contents are non-exhaustive and may be amended from time to time. No liability shall attach to the Judicial Greffe or Law Officers’ Department in relation to the contents of this Glossary.

 

If you come across a legal term that is not contained in this Glossary and you need to have it explained please send a request to This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

 

 

A

 

 

Access

See Contact

 

Access Right

In property law, the term “access right” is used to describe the right for a property owner to access a neighbour’s property in order to maintain, repair or replace pipes, drains or cables, situate on the neighbour’s land connecting the landowner’s property to mains services or to maintain a structure belonging to the property owner built on or near the boundary between their respective properties. This is not to be confused with a right of way (droit de chemin et passage) which is the right for a property owner to come and go to and from his property over a neighbouring property.  All these rights are conferred in the title deeds which are registered in the Public Registry.

Acquit

A decision by the trial jury or judge that a person is not guilty of a criminal offence. In criminal trials, the burden is on the prosecution to satisfy the judge or jury beyond ‘all reasonable doubt’ that the accused committed the offence charged.

Act

‘Act’ is also 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 Jersey.  (An Act of the States is no more than an official record of a States’ decision.)

‘Act’ also refers to the Act of Court prepared by court staff recording the order(s) made by the court. The Act does not set out the reasons for the court’s decision in that case. The reasons for the court’s decision are recorded in its Judgment. Historically, all Acts of court were written in the French language and an Act is sometimes referred to as an Acte.e.g. a plaintiff may ask for an Acte Vicomte chargé d’écrire or for an Acte enregistré

See Judgment; jugement motivé

Acte Vicomte chargé d’écrire

This is a necessary step in degrévèment (and realisation) proceedings which are the procedures ordered against the property of a debtor subject to an involuntary cession where his property is renounced. It occurs where the judgment debtor who owns immovable property in the Island has failed to satisfy a judgment of the Royal Court or the Petty Debts Court. Prior to instituting degrévèment   proceedings the judgment creditor (who is usually a secured creditor) has to apply to the Court for the Acte Vicomte chargé d’écrire i.e. an order from the Court directing the Viscount to write to the judgment debtor informing him that unless the debt is satisfied within the relevant time period the plaintiff may apply to the Court without further notice for an order that the debtor’s immovable property be adjudged renounced (adjudication de renunciation).

Acte enregistré

An order that the Act be registered in the Public Registry the effect of which is to create a hypothèque judiciaire (judicial hypothec), or charge, against any immovable property registered in the name of the judgment debtor.

Action

A legal demand for a right asserted by instituting a case in court.

Address for Service

An address for service is an address in Jersey chosen by each of the parties in civil proceedings to which all summonses, correspondence, notifications etc. must be sent to that party. The plaintiff or defendant may change their address for service by giving written notification to the Judicial Greffe and to each of the other parties to the action.

Adjourn

To defer a case. The case may be adjourned to a specific date or adjourned sine die which is a Latin phrase meaning ‘without a specific date’.

Adjudication de Renonciation/Adjugé renoncé

Where a debtor fails to satisfy a debt following an order by the Viscount to do so (Acte Vicomte Chargé d’écrire), his property may be adjudged renounced by the court and a dégrèvement of his immovable property shall follow (and also possibly a réalisation of his movable property).

 

Administrateur

Person appointed by the court to administer the affairs of a person who is absent from the Island and has left no person to administer his property and affairs. The Court may appoint an administrator on an ex parte application or its own motion if it is satisfied expedient that it is expedient to do so. Not to be confused with an administrator who is appointed to administer the estate of a deceased person who has died intestate without making a valid will.

Advocate

The name given to those Jersey qualified lawyers who have a right of audience in the Island’s courts; an advocate essentially combines the roles of an English solicitor and barrister.

A Jersey solicitor is the other branch of Jersey qualified lawyer and are sometimes referred to their historical title of écrivain. Advocates and écrivains sit the same local examination papers to qualify to practice at the Jersey Bar or be registered as a solicitor as the case may be (otherwise the qualification requirements for the two professions are slightly different).

See Ecrivain.

Affidavit (Serment)

A written statement of evidence which the maker swears before an advocate or notary public (or other person authorised to administer oaths) to be true.

After-Acquired Property

Property which has been acquired by, or has devolved upon, a debtor (including, theoretically, a company) since the date of a declaration en désastre.

Age of Majority

In Jersey, the age of majority is 18. Anyone under this age is a minor and does not have legal capacity to enter into contracts (see Capacity).

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, briefed about the dispute and chairs a meeting 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 sometimes refer to cases as ‘Smith and Jones’ rather than ‘Smith versus Jones’ or ‘Smith v Jones’.

Answer

A pleading submitted by a defendant or respondent in response to allegations asserted by the plaintiff. May contain a counterclaim.

Antecedents

In a criminal case the ‘antecedents’ are a person’s previous criminal record.

Anton Piller Order

An exceptional interim order obtained on an ex parte basis in civil cases from a judge in chambers requiring a potential defendant or third party to permit the plaintiff’s lawyers to enter and search premises for the purpose of inspecting, seizing, copying or obtaining information or documents where they otherwise might be destroyed or become unavailable for use in court proceedings. Contained within the order would be a requirement that the plaintiff’s lawyers be accompanied by the Viscount, or one of his officers, to exercise an independent supervisory role.

Appeal

A proceeding to have a case examined by a higher court to see if a lower court’s proceedings and decisions were made correctly.

Appellant

The person who files a notice of appeal.

Appellate Court

The court which hears and determines an appeal.

See Appeal.

Applicant

The person making an application to the court.

Arpenteur Public

A land measurer sworn before the Assise d’Héritage.  The Royal Court can only accept certain measurements taken by an Arpenteur Public.

 

Arrest Warrant

A court order directing the Viscount to arrest/seize a named person to bring her or him before the court.

Arrêt

A French word meaning literally ‘arrest’ that refers to the distraint upon a debtor’s goods. There are various forms of arrêt in Jersey procedural law, ranging from an arrest of wages as a means of satisfying a money judgment to seizure of goods by the Viscount. An interim arrest or distraint of movable property is referred to as an arrêt entre mains.

Assize d’Héritage

Annual gathering of the Royal Court where seigneurs come to answer for their fiefs and advocates renew their oath of office. Thought to be one of the oldest property court sittings in Europe.

Assize Trial

A trial which takes place in the Royal Court before a Presiding Judge, (Bailiff, Deputy Bailiff or Commissioner) and a jury of twelve lay persons. This mode of trial is engaged where the offence being tried is a customary one such as murder, rape or grave and criminal assault (as opposed to a statutory offence which is tried by the Inferior Number).

Equivalent of Crown Court trial in England and Wales.

Attorney General (Procureur Général)

An officer appointed by the Crown to act as constitutional and legal adviser to the States of Jersey, the Council of Ministers and Committees and Panels of the States. The Attorney also advises the Crown on matters of Jersey law. The Attorney is also the partie publique which involves representing the public interest in civil matters e.g. in some proceedings concerning charities. i.e. as a guardian of the public interest and justice. The Attorney General is the chief public prosecutor in the Island. Other functions include the central authority for mutual legal assistance with other jurisdictions and the titular head of the Honorary Police.

The Solicitor General (Avocat Général) – also a Crown appointee – is the Attorney’s deputy and may carry out any functions of the Attorney.

It is an explicit legal requirement for the Attorney General or Solicitor General to be a Jersey qualified lawyer i.e. an advocate or a solicitor (écrivain).

 

B

 

 

Bail

When the accused (a person charged with having committed a criminal offence) 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.  Any Centenier has the right to grant bail. The States of Jersey Police may also grant bail pending the defendant’s first appearance in court.

Bailiff

Civic head and Chief Justice of the Island. President of the Royal Court, where he is the judge of law. The Bailiff is also the President of the Court of Appeal. He is a member and the presiding officer of the States Assembly, but he has no right to vote. His functions may be discharged by the Deputy Bailiff, or (in the case of his judicial functions only) by a Lieutenant Bailiff or Commissioner. The Bailiff’s office is a customary one and he is appointed by Her Majesty.

Balance of Probabilities

This is the standard of proof applied in civil proceedings i.e. the party seeking to prove a fact must establish it on the balance of probabilities which essentially means that it must be more likely than not that the alleged fact is true.

Balance Sheet Test

The test applied when seeking the recall of a désastre as to whether the assets of a debtor exceed the debtor’s liabilities.

Bankers Trust Order

An exceptional interim order obtained from a judge in chambers requiring disclosure of information and documents by a bank to a plaintiff who has commenced civil legal proceedings. Named after the English case of Bankers Trust Co. -v- Shapira [1980] 1 WLR 1275.

Bankrupt/Bankruptcy

Defined in Article 8 of the Interpretation (Jersey) Law 1954 to mean

(i)                      A person (an individual or a legal person) who has been declared en désastre by the Royal Court (see Désastre),

(ii)                    an individual who has been granted a remise de biens (see Remise des Biens), a cession des biens (see Cession Générale)  a debt remission order, whose property has been adjudged renounced (see Adjudication de Renounciation and Cession Générale (Involuntary)).; or

(iii)                  a company which is subject to a creditors’ winding up.  

Basnage (Henri)

An advocate whose works (in the seventeenth century) are referred to in the courts as an authority in relation to customary law matters.

 

Beddoe Application

This takes its name from an English case. A Beddoe application is where a trustee seeks directions from the Court authorising him to bring or defend an action in his capacity as a trustee. Authorisation from the court will generally allow the costs of the litigation to be borne by the trust and the trustee shall be indemnified against any actions by the beneficiaries for using the trust to fund the litigation.

Bench Warrant

An English expression which refers to an order issued by the court for the arrest of a defendant who has failed to appear in court as directed.

 

Beyond Reasonable Doubt

This is the standard of proof applied in criminal proceedings i.e. the prosecution must prove to the jurats or jury that the defendant’s guilt is beyond reasonable doubt. The direction usually given is that the jury/jurats must be ‘sure’ the accused is guilty before convicting (see Summing Up)

Bien-fonds

Parcel of land.  See Corps de bien-fonds

 

Billet

In criminal cases, the billet is the document on which the indictment (charges against the accused) are set out together with names of the prosecution and defence witnesses.

In civil cases, the billet is the document that is required to be filed with the Judicial Greffe in order for a new civil case to be entered on the list of cases (known as the Table) to be called in the Royal Court on a Friday afternoon. It sets out the names of the parties, a record of service (simple summons actions only), has the relevant court stamps affixed to it and is the document that the Greffier records the result of the case on.

A witness billet is a document prepared by the parties to a civil action and provided to the Court at least 48 hours prior to trial with the names of the witnesses who will give evidence at that trial.

Bond

A loan document which sets out the terms of the borrowing agreed between the parties.  The action for the acknowledgement of the debt by consent (reconnaissance) which refers to the bond is presented to the Court.  The Court will order the Act acknowledging the debt to be registered in the Register of Obligations in the Public Registry

Branchage

See Visite du Branchage

C

 

Calderbank Offer

This is another case which gave its name to a court procedure.  A ‘Calderbank offer’ 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.  Such offers can be made in general civil proceedings,  and can be financial or be an offer to do an act or refrain from doing a specific act.

Capacity

Regarding a natural person, i.e. a human being, whether s/he has capacity  will be determined by a combination of their age, mental state and conduct.  A legal person’s capacity is limited by its very nature and also by legislation and its foundation documents, which for a company is its memorandum and articles.

 

One of the four fundamental elements for a valid contract.  See under Contract.

Caption

The heading of a pleading or case file, indicating the parties, the Court, case number and other pertinent information.

Care Order

On an application by the Minister for Health & Social Services the Court may make a care order placing the child in the care of the Minister, provided that the Court is satisfied that the child is suffering or is likely to suffer significant harm, and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given, not being what it would be reasonable to expect a parent to give. Before making a final order the court can make an interim care order renewable every 28 days until final determination of the matter.

 

Cashflow Test

The test applied under Article 1(1) of the Bankruptcy [Désastre] Law (Jersey) 1990, when seeking a Désastre. Namely, whether a debtor can meet his or its debts as they fall due.

Cause

An element necessary to the validity of a contract in Jersey. Cause broadly replaces the concept of ‘consideration’ as a necessary ingredient of an English contract, but note that contracts can be ‘gratuitous’ in Jersey law (as in Scots law).

Pronounced “coze”

Cause de Brievété

Subject matter requires proceedings to be brought expeditiously. The requirement to table the matter is dispensed with.

 

Caveat

A caveat (also known by the French word opposition) is a protective measure. It is a restriction on the sale of immovable property, which when imposed renders the sale void as a matter of law. Therefore, it acts as a form of injunction to prevent the sale of the immovable property asset and dissipation of the proceeds of sale. Caveats are usually applied for ex parte and once a caveat is imposed, anyone affected by it may apply by summons for its discharge. A caveat once signed by the Bailiff has to be lodged in the Public Registry. A caveat lasts for 6 months but may be renewed by the Bailiff.  

See Insolvency.

Centenier

A member of the Honorary Police elected by members of the Parish for a 3 year term of office. Next in seniority to the Connétable. The number of Centeniers varies from parish to parish, but each has at least two. Centeniers have powers to arrest, search, and grant bail.  Only a Centenier may formally charge a person. Centeniers present defendants before the Magistrate’s Court and read out the charges. For minor matters the Centenier will present the case to its conclusion.

Cession de Biens

See Cession Générale.

Cession Générale (Voluntary)

A discretionary procedure principally governed by the customary law and also by the Loi (1832) sur les décrets. Historically, it was only available where an embarrassed individual debtor was at risk of being imprisoned, or had been imprisoned, for debt by virtue of an acte à peine de prison. A person may no longer be imprisoned for debts for which he is unable to pay. A debtor may seek cession if he has obtained an Act of Court publishing his intentions 15 days prior to the cession, and he must simply  show hardship (without having to have been imprisoned).

If cession is ordered, a dégrèvement follows for the debtor’s immovable property and/or a realisation for his movable property.

 

Cession Générale (Involuntary)

A creditor may apply for an acte vicomte chargé d’écrire where a judgment debt has remained unpaid for one month. The Viscount notifies the debtor that he has two months (or three months if a debt less than £10,000) to satisfy the debt. If the debtor fails to comply then the property is adjudged renounced (adjugée renoncée) and a dégrèvement follows for the debtor’s immovable property and/or a realisation for his movable property.

An application for remise de biens can be made by a debtor against whom dégrèvement proceedings have been instituted at any time before the Royal Court makes an order vesting the immovable property to the tenant après dégrèvement.

See Dégrèvement.

Chambers

A judge’s office, normally, but may include e.g. the Attorney General’s Chambers

Charge

A term not strictly known to Jersey law, but for the purposes of this text - a right of security given to a creditor to have a designated asset of the debtor appropriated to the discharge of defined obligations, but not involving any transfer either of possession or ownership.

A ‘fixed charge’ is a charge attached to specific assets, which has the effect of preventing the company concerned from dealing freely with assets which have been identified for the purposes of the security. It is related in origin to the pledge and lien but without the need for delivery up to the creditor.

A ‘floating charge’ is a charge attached to a company’s assets as a whole. However, a floating charge may become a fixed charge under certain circumstances, such as in the event of liquidation.  

See Security

See Security Interests

 

Citation or Cite

A group of numbers and letters used to locate a previously decided case in a law casebook.  May also refer to the citation i.e. short title of a statute.

Citizens’ Advice Bureau

An independent organization which provides free advice to Islanders on a range of issues.

Clameur de Haro

An ancient right of a person in possession of land to raise an immediate injunction to restrain a wrong in the course of its commission which disturbs such possession. To raise it incorrectly can render the criant liable to damages.

 

Code Civil

This collectively refers to French codes comprising a body of rules. Influential in Jersey in the context of contract law, and to some extent, land law

Codicil

A document supplementary to a will which amends or adds to the will.

 

Comity

The friendly recognition, as far as is practicable, by different jurisdictions of each others laws, usages and judicial decisions, particularly where reciprocity is offered by the jurisdiction whose laws and usages fall to be considered.

Commissioner

A judge of the Royal Court appointed by the Bailiff either for a particular term or to hear a particular matter under authority conferred by Article 10 of the Royal Court (Jersey) Law 1948. When presiding in court, they have the same powers as the Bailiff.

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 two forms of committal for trial: the old ‘style’ and ‘paper’ committals. In an ‘old style’ committal the Magistrate has to hear witnesses and read statements to satisfy himself that there is a prima facie case against the accused. ‘Paper’ committals were introduced in 1996 in order to streamline the committal process, which often led to undue delay. A paper committal can only be employed where; a) the evidence before the Magistrate consists exclusively of written statements tendered pursuant to the provisions of Article 9 of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998; b) the accused is represented by an advocate; and c) the advocate for the accused advocate accepts the contents of the said written statements establish a prima facie case against the accused.  In the above circumstances the Magistrate may commit the accused to the Royal Court without the need to hear any witnesses or to consider the contents of the written statements.

The Magistrate’s Court is generally the entry court for criminal cases and so the majority of cases before the Royal Court will originally have been committed from the Magistrate. However, the Attorney General has a customary law power to indict cases directly before the Royal Court where appropriate.

Common Law

Common law refers to case law (i.e. judges’ decisions) in England and Wales and other common law jurisdictions. (It is not to be confused with the ‘droit commun’ which means the collection of civil codes, penal codes, judicial codes, etc. in Continental jurisdictions.)

Jersey is a mixed jurisdiction and its principal sources of law are legislation, customary law and case law.

See Customary Law.

Community Service

A criminal sentence requiring a convicted person (aged 15 years or more) to perform a number of hours of unpaid work in the community. Available only when a person is guilty of an offence punishable by imprisonment (other than murder) and may be imposed if the court is considering passing a sentence of imprisonment or youth detention. A community service order is thus a direct alternative to custody. The Royal Court may impose a maximum Community Service Order of up to 480 hours whereas the Magistrate/Youth Court can impose a sentence of up to 180 hours (minimum for both is 40 hours).

Orders of 240 hours or less must be performed within 12 months. Orders in excess of 240 hours must be completed within 24 months.

 

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. 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 in certain circumstances and can be disqualified by the court from acting as a director. A Jersey incorporated company is registered at the Companies Registry of the Jersey Financial Services Commission. Such companies may be incorporated with limited or unlimited liability.  They may be limited by shares or by guarantee.  They may be ‘public’ companies or ‘private’ companies.  They may issue shares with or without a “par” value. Companies incorporated in other jurisdictions including England and Wales may also trade in Jersey subject to the business licence requirements under the Control of Housing and Work Law.

 

Compensation

In criminal sentencing, the court may make an order for the defendant to compensate the victim for criminal injuries pursuant to the Criminal Justice (Compensation Orders) (Jersey) Law 1994. Can be made in conjunction with any other sentence but is to be given priority to a fine if the defendant would not have the means to satisfy both.

 

Complainant

A plaintiff.

 

Complaint

The initial pleading in a civil action formally setting out the allegations in issue.

See Statement of Claim; Order of Justice; Petition

 

Concur

Opinion of a judge or justice of an appellate court which is in agreement with the decision rendered by another judge for the same or different reasons.

 

Concurrent Sentence

When a court directs that two or more sentences to be served at the same time as opposed to consecutively.

 

Connétable/Constable

There is a Connétable in each of the twelve Parishes, elected by his/her Parishioners. Connétables are ex-officio members of the States of Jersey  (with the right to speak and vote).

 

Consecutive Sentence

When a court directs that two or more sentences are to be served successively, as opposed to at the same time (concurrently)..

 

Consent

One of the four elements for a valid contract. Essentially, there must be a meeting of minds including a valid offer and valid acceptance, and an intention to create legal relations. See under Contract.

 

Constable’s Officer

The most junior member of the honorary police.

 

Contact

In family law, contact describes the right of the child to have a direct or indirect relationship with a named person usually but not necessarily a non-resident parent. The welfare of the child is the paramount consideration. A contact order can be made in private or public law proceedings.

 

See Private Law; Public Law

 

Contempt of Court

An act done with the intent to embarrass, hinder or obstruct a court from the administration of justice. Direct contempt is an act done in the presence of the court. Indirect contempt is the willful disobedience of a court order.

Contract

A legally binding arrangement between parties. In Jersey, for a contract to be valid, there must be four elements: capacity, consent, objet and cause.

See Capacity, Consent, Objet and Cause.

 

Contract Lease

A lease in respect of immovable property which exceeds 9 years must be passed as a contract before the Royal Court and registered in the public Registry. This type of lease can be hypothecated (see Hypothèque).

 

Contravention

A statutory offence. Distinguished from customary law offences of crimes and délits.

See: Infractions

Conviction

In a criminal case a conviction is the result of a finding of guilt at the end of a trial or the result of a guilty plea.

Copropriété 

See Flying Freehold

Corps de bien-fonds

A single and distinct parcel of land capable of being hypothecated.

 

Costs

The word ‘costs’ refers to the lawyer’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 costs against their opponent and vice versa if they are unsuccessful. In civil cases there are two basis of costs; standard and indemnity costs. The normal award of costs is on the standard basis. If costs cannot be agreed between the parties they are taxed (assessed) by an officer at the Judicial Greffe. In assessing costs on a standard basis, any doubt as to reasonableness is resolved in favour of the paying party. The Royal Court has issued guidelines as to the hourly rates that can be claimed by a successful party. The amount of costs that a successful litigant can recover from his opponent is less than the amount of costs that he would have paid his lawyer. This is a deliberate policy to encourage parties to settle cases. In assessing costs on the indemnity basis any doubt as to reasonableness is resolved in favour of the receiving party. An award of costs on an indemnity basis is an exceptional order and is usually made where the court wishes to mark its displeasure at the conduct of the unsuccessful party in relation to the litigation.  Where a costs order of the indemnity basis is made any doubts as to the reasonableness of the costs is resolved in favour of the receiving party.  A court can also order that an interim payment of costs is made in respect of a proportion of the costs.

In criminal cases a court can award costs of a person who has been discharged from the prosecution (acquitted) and may order a person who has been convicted to pay the prosecution’s costs.

Counsel

Another name for the lawyer who appears to argue a case in court (as opposed to ‘council’, as in the local council or Council of Ministers).In Jersey counsel refers specifically to Jersey qualified advocate. In England and Wales counsel would refer to a barrister.

Counterclaim

Claim (or cross-claim) lodged by a defendant in opposition to, or over and above, the claims asserted by the plaintiff.

Court

There are various courts in the Bailiwick of Jersey; the Magistrate’s Court, Youth Court and Youth Appeal Court, Petty Debts Court, the Royal Court and Court of Appeal. Above these is the Judicial Committee of the Privy Council which sits in London.

There are also several tribunals in Jersey for matters such as Employment and Discrimination, Income Support, Health and Safety, Social Security and Mental Health. Decisions from these tribunals may from time to time come before the Royal Court on appeal.

Court of Appeal

The Court of Appeal in Jersey is comprised of judges appointed by Her Majesty. The Bailiff is the President of this Court but in practice the judges are senior counsel from other jurisdictions such as England and Wales and Scotland.

 

Court of Justice of the European Union

This court comprises the courts of the European Union and is divided into three bodies – the Court of Justice, the General Court and the Civil Service Tribunal. It is based in Luxembourg and should not be confused with the European Court of Human Rights. 

Its function is to ensure that EU law is interpreted uniformly across the Member States. It settles legal disputes between national governments and EU Institutions and can be used by individuals, companies and organisations to challenge alleged infringements of EU rights.

Creditor

An individual or company or other organization to whom money is owed and including a party claiming repossession of goods. In Jersey insolvency the principal categories of creditor are; secured, priority and unsecured.

Creditors’ Winding Up

A winding up governed by the Companies Law, undertaken where a company is insolvent or, where, following the commencement of a summary winding up, it becomes apparent that the company will not be able to meet its liabilities within the following six months. A winding up is initiated by a special resolution – namely, one passed, or deemed to be passed, by two-thirds of the members voting thereon. Creditors cannot actually apply for a creditors’ winding up but they can in appropriate cases apply for désastre, and in a creditors winding up it is the creditors who appoint the liquidator. A liquidator has similar powers as the Viscount as regards transactions at an undervalue, preferences and disclaiming onerous property.

Crime

A crime is any of the more serious of the customary law offences and (though the distinction is nowhere defined) therefore not a délit.

Pronounced “cream”

See Délit.

Cross-Examination

The questioning by a party or his/her advocate of another party or a witness called by another party.

Crown Advocate

Advocate appointed by the Attorney General to discharge his functions in Court generally or for a particular matter.

Crown Officer

The Lieutenant Governor, Bailiff, Deputy Bailiff, Attorney General, and Solicitor General are the Crown Officers. The Dean and Receiver General are also appointed by the Crown.  

Curatelle

Collective name for the électeurs who used formerly to nominate a curateur. Curatelle procedure was abolished by the Mental Health (Jersey) Law, 1969, and a curator is now appointed in accordance with the provisions of that Law.

Curateur/Curator

The legal guardian of an adult appointed by the Court where the adult is unable to manage or administer his or her own property and affairs.

Custody

In criminal cases the term ‘remanded in custody’ is used to describe the situation where the accused is not released on bail but is kept in prison until his next appearance before the Court.

Customary Law

The basis of Jersey law deriving originally from the laws, customs and procedures of the Duchy of Normandy as subsequently supplemented by Norman, French and Jersey writers, as well as judgments of the Royal Court, the Jersey Court of Appeal and the Judicial Committee of the Privy Council.

D

Damages

An award ordered by the court to compensate a wronged party in civil proceedings i.e. where there has been a breach of contract or a person has suffered damage by reason of another’s civil wrong (i.e. tort).

De Cujus

A latin term meaning the person by, through, from, or under whom another claims. Used in succession terminology to describe the deceased person.

De Novo

From the Latin for ‘anew’; usually used to mean a new hearing.

Debtor

A person who owes money to another (including a company or other legal entity). In relation to an application for a declaration en désastre, an individual or a company who, or which, is insolvent on the cashflow test and whose property is, or is liable to be, subject to a declaration en désastre.

Déception d'outre moitié du juste prix

A customary law doctrine that provides a remedy to the vendor of a corps de bien fonds (i.e. land) where the agreed price is less than 50% of the market value (juste prix). The remedy is to make good the price up to the juste prix otherwise the contract is voidable at the insistence of the vendor. The doctrine does not apply to movables, land sold by public auction or profit dependent on uncertain event, short leases, gifts, bargain prices, shares in a company, grants of servitudes or other items where it is difficult to establish the market price.

Declaratory Judgment

A judgment of the Royal Court declaring the rights or obligations of parties. Although such judgment is binding on the parties and 3rd parties, it does not order a party to take any action.

Decree

Decision or order of the court. It usually refers to orders made in the Family Court e.g. Decree Nisi of divorce (conditional order) or Decree Absolute of divorce (final order).

Defendant

In a civil case this refers to the person being sued.

In a criminal case this refers to the party accused of committing the offence charged.

Dégrèvement

A process by which Jersey immovable property is disencumbered (i.e. freed from all judicial, legal or other hypothecs or charges thereon). If a judgment remains unsatisfied and a creditor has a debtor’s property adjudged renounced, the procedure can be invoked to disencumber Jersey immovable property pursuant to the Propriété Foncière Law. The procedure may have apparently harsh consequences for the debtor in that one of his creditors will become vested of the immovable property under disencumberment as tenant après dégrèvement in settlement of his claim and will not be bound to account for any surplus.

This procedure superseded the ‘décret’ process and allowed for separate parcels of land (corps de biens fonds) to be disencumbered individually.

Délit

Any of the less serious of the customary law offences and (though the distinction is nowhere defined) therefore not a crime.  The term denotes a civil wrong (delict) in respect of which the Attorney General might once have moved for a criminal penalty, but it is used today to describe an ordinary criminal offence not serious enough to rank as a crime.  The distinction between the two lost much of its relevance when proceedings for a délit no longer had to be brought within 3 years.

See Crime.

Demande

 Any request to the Royal Court, e.g. seeking a declaration en désastre.

Deposition

Testimony of a witness recorded or transcribed in writing who may not be present in court.

Deputy Bailiff

The Deputy to the Bailiff is appointed by Her Majesty and has the same powers as the Bailiff.

Désastre

When a person becomes cash flow insolvent (i.e. unable to pay his or her debts as they fall due) he/she may be declared to be en désastre; with the consequence that all the person’s movable and immovable assets, whether vested or contingent, present or future, wherever situated are vested in the Viscount. Property acquired after the declaration of en désastre but before a discharge is also caught. The Viscount has powers to attack vulnerable transactions such as preferences, transactions at an undervalue or excessive pension contributions and thus increase the pool of assets subject to the désastre. The Viscount will sell the assets, and distribute the proceeds among creditors according to the law and their priority. It is the most common form of insolvency procedure, initiated by the debtor or a creditor having a liquidated claim in the minimum sum. The procedure is only available if the debtor has realisable assets. 

Directions Hearing

A procedural hearing in civil or criminal proceedings, usually heard by a single judge or the Master of the Royal Court, designed to ensure that cases are dealt with efficiently and any matters of law or issues are dealt with prior to the trial. The judge will normally issue directions to the parties on how the pre-trial steps shall proceed.

Distinguished from a Trustee Directions Hearing

Director

A person occupying the position of company director by whatever name called (Article 1 of the Companies (Jersey) Law 1991).

Discharge

Conditional and Absolute.

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 undertake 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.” Where one party obtains documents or information about the action pursuant to statutory rules.  Parties to civil litigation have an obligation to disclose all relevant documents in their possession  custody or power (save for privileged items-See Privileged Communications or Information) relating to the matters in issue between them.  Parties must disclose both documents which help their 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. Orders for discovery may also be made against 3rd parties if the court thinks necessary (see Norwich Pharmacal Order).

Dismissal

An order by the court ending a civil action for a specified reason.

Dissolution

This occurs by striking a company off the Register of Companies after a winding up or a désastre has been completed or where the company has failed to file its annual return to the Jersey Financial Services Commission.

May also refer to the civil partnership equivalent of divorce.

Dol

In the context of a contract, it can be void if there has been a fraud (dol)

Doléance

Literally ‘doleful grievance’. A procedure (by petition) to have a decision of a court reviewed where no express right of appeal lies, in order to prevent an injustice. This is rarely exercised and is only possible from the Inferior Number to the Superior Number where no other right of appeal applies.

Donner et retenir ne vaut

A customary law, rule or maxim, meaning that when transferring an asset the donor cannot both make the disposition and retain power and control over the asset. If he does so the transfer will be void. The rule donner et retenir ne vaut, does not affect the validity, effect or administration of a trust, or transfer or other disposition of property to a trust -  Article 9(5) Trusts (Jersey) Law 1984.

Douaire

See Dower.

Dower

The right of a surviving widow to claim a usufruct (ususfruit)/life enjoyment of one-third of the Jersey immovable property of the her deceased husband. Only applies in testate succession i.e. where there is a will. Surviving widowers and civil partners also enjoy a life enjoyment of one-third of the Jersey immovable property of their deceased wife/civil partner.

Previously a widower enjoyed the entire immovable estate under Viduité but this has now been abolished and surviving male and female spouses, and civil partners, enjoy the same (reciprocal) rights. Can be lost if certain statutory or customary circumstances apply. There is no time limit for a person to claim dower.

Also known as Douaire.

Droit de Discussion

A customary law right held by guarantors to require that a person enforcing a guarantee shall first have recourse to and exhaust the assets of the principal debtor before making a claim against the guarantor. This right may be and usually is expressly waived by an appropriate clause in the guarantee so as to avert such difficulty for a party attempting to enforce a guarantee.

Droit de Division

A customary law right of a co-guarantor to oblige the holder of a guarantee to make simultaneous claims in appropriate proportions upon his co-guarantors, so limiting his own liability. Accordingly, where it is intended that co-guarantors should be jointly and severally liable, the droit de division will be waived by a suitable clause in the guarantee.

Due Process

Law in its regular course of administration through courts of justice. Due process means that no person may be deprived of life, liberty or property or of any right granted by law, unless the matter involved shall first be adjudicated upon a trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing.

E

 

Easement

Easement is a term of English land law not used in Jersey.  See Servitude.

Eboulement

Fall of objects, especially rocks, earth etc. from higher ground onto lower ground. Can in certain circumstances give rise to an action by the owner of the lower lying land against the owner of the higher lying land.

 

Ecrivain

The historical name for a Jersey qualified Solicitor. An écrivain does not enjoy the same rights of audience as an advocate but can carry out any other functions such as witnessing affidavits and signing orders of justice.

 

Electeur

In the context of a Tutelle, one of the body of people, usually seven, who appear before court to nominate some person, usually but not invariably one of their number, to be appointed by the court to manage and administer the affairs of a) a minor (a person under eighteen years of age) who has received an inheritance and who, by law, lacks legal capacity, or b) an adult who for some reason cannot manage or administer their own property and affairs. This will be abolished on the coming into force of the Children’s Property and Tuteurs (Jersey) Law 201- (adopted by the States of Jersey on 12th April 2016). 

 

See Administratelle.

See Tuteur.

Emergency Protection Order

On an application by any person the Bailiff sitting alone may make an emergency protection order authorising the removal of a child to accommodation provided by the Minister for Health & Social Services, or requiring the child to remain in a place where he currently is (e.g. in hospital). An order can only be made if the Bailiff is satisfied there is reasonable cause to believe the child is likely to suffer significant harm. An application for an emergency protection order can be brought ex parte.

 

Empêchement d’agir

A customary law rule whereby a party (usually the Plaintiff) is impeded (empêché) from being able to bring an action within the prescription period because of a legal (de droit) or practical (de fait) reason. It is for that party to establish there was an  empêchement in his claim or counterclaim.  

Minority (where there has been no tutelle appointed) and unsoundness of mind (where there has been no curator appointed) are recognized examples of empêchement de droit. For empêchement de fait to be established, it must be assessed as to whether or not it was practically impossible for a plaintiff to exercise his rights. This is a fact-based test which is applied in each case.

See Prescription

 

Empiètement

Encroachment.

En Indivis

See Ownership in Common.

Enjoin

An English expression that requires an individual to refrain or to perform an act.

Entrapment

The acts by agents of the government to induce a person to perform a criminal act for the purpose of prosecuting that individual.

Erreur

A contract may be invalid if there has been a fundamental mistake as to its terms, or there has been unintentional misrepresentation.

Escrow

A deed, writing or fund delivered to one person to be held until specified acts are performed or certain conditions are met.

Estop

To bar or impede.

Eviction

The process by which a landlord may apply to the Petty Debts Court for an order requiring a tenant, former tenant or occupier to vacate the landlord’s premises. However, there are differences depending upon whether the lease concerned is a contract lease, a residential tenancy or a service tenancy.

A contract lease requires cancellation in the Royal Court and it is after this point that the Royal Court may make an order putting the landlord into possession.

Where the tenancy is ‘residential,’ the landlord has no automatic right to evict the tenant where there has been a breach of the tenancy agreement. Instead, notice must be given to the tenant to cease and desist and/or to remedy the breach. Where action is not taken and/or the breach remains unremedied, the landlord may then apply to the Court for termination and eviction.

The expulsion of a tenant under a service tenancy (which is usually deemed a ‘licence’) should be brought before the Samedi Division of the Royal Court and not before the Petty Debts Court.

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 a party may be seeking an order for the immediate removal of a child who has suffered significant harm or is at risk of suffering significant harm,  to freeze an opponent’s assets or 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

 

European Convention on Human Rights (ECHR)

European Convention on Human Rights is implemented in Jersey through the Human Rights Law 2000. It provides all citizens with certain fundamental rights. Public authorities must adhere to the ECHR in the actions they take and legislation must also be compatible with the ECHR. The Royal Court is obliged to read legislation in a manner which is human rights compatible and may make a statement of incompatibility where legislation does not comply with the ECHR.

The European Court of Human Rights (ECtHR)

The ultimate arbiter of ECHR Law is the European Court of Human Rights, which is based in Strasbourg. This is not an institution of the European Union and is not to be confused with the Court of Justice of the European Union.

 

 

F

 

Fait Obligatoire

A bond.

False Arrest

An unlawful physical restraint of an individual.

Family Court Advisory Service

This service looks after the interests of children involved in family court proceedings. Officers advise the Court about what should happen in private law children proceedings, act as guardians for children in public law proceedings and advise as to whether an adoption should be made.

Family Division

A division of the Royal Court which deals with matrimonial causes,  any other private family issues, and administration of adoption applications.

 

Family Registrar

An officer of the Judicial Greffe. The Family Registrar hears and determines private family cases including divorce and dissolution, financial matters and ancillary relief.

Fees

Court fees are charged for various applications that are made to the court. The fees are set out in the schedules to the Stamp Duties and Fees (Jersey) Law 1998 and the fees paid in special court stamps. There are two types of court stamps: ordinary stamps and Jurat stamps. Both are obtained from the States Cashiers, Cyril Le Marquand House, The Parade, St. Helier. The court stamps are attached to specified documents described in the schedules to the Law.

See Stamp Duty.

Ferme/Fermier

A ferme is an agreement by which the owner of land, or a rente, or a right, grants another the enjoyment of it for a certain price, i.e. lets or leases it. A fermier can mean a tenant of a lessee, as well as a farmer. Thus, in the case of Daisy v. Clementine, Le Droit d’un fermier à la terre qu’il exploite en vertu d’un bail means ‘The right of a lessee to the land which he exploits by right of a lease, and not, ‘The right of a farmer to the land which he exploits by right of a lease’.

Fidéicommis

A trust of immovable property created under the Loi (1862) sur les teneures en fidéicommis et l’incorporation d’associations. In practice these are not commonplace and Incorporated Associations are used more commonly (under the same 1862 Law) to own Jersey land.

 

Fiduciary

One who acts on behalf of another and has duties flowing out of this. For example, a trustee owes a fiduciary duty to the beneficiaries of the trust and company directors owe a fiduciary duty to the shareholders of the company.

Financial Services Regulation

Financial services businesses (banks, certain form of investment businesses, insurers, trustees and company administrators) are regulated by the Jersey Financial Services Commission.  Essentially any such business must be licensed by the JFSC.  There are strict requirements governing licensees for the protection of the public.  Breach of those requirements leads to various penalties. Designated Non-Financial Businesses or Professions (“DNFBPs”) such as lawyers, estate agents and gambling providers are regulated separately.

Firm

A firm is a business owned and 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 limited liability company.  It is wrong to refer to a company as a firm.

Flying freehold

This refers to a block of immovable property which has been divided into flats or ‘lots’ which can be owned outright by separate persons. A person’s lot may also comprise additional parts of land such as a garage or parking space. Flying freeholds are governed by the Loi (1991) sur la copropriété des immeubles bâtis, and the co-ownership rights and obligations of the owners in the block will be set out in the declaration of co-ownership.

Fondé en héritage

The status of a person who owns immovable property, which includes leasehold ownership of Jersey immovable property for a period in excess of 9 years, or ownership of an hypothèque conventionelle simple. Such a person is said to be fondé en héritage. Persons owning share transfer property have been found to be fonde en heritage for the purposes of applying for a remise de biens.

Foreclosure

An English term which describes proceedings whereby a mortgagee (usually a bank) seeks to take title to or forces the sale of the mortgagor’s (for example, a homeowner’s) property in satisfaction of a debt. For Jersey equivalents see dégrèvement and/or bankruptcy.

See Dégrèvement.

See Bankruptcy.

Foundation

A body corporate which is governed by a council in accordance with its objects, pursuant to the Foundations (Jersey) Law 2009. A foundation is a distinct and unique legal entity but has characteristics similar to both a company and a trust.

 

Fraud

An intentional misrepresentation, deceit or perversion of the truth.

See also Dol

Fraudulent Trading

Where the business of a company has been carried on with intent to defraud creditors, or for any fraudulent purpose, those persons knowingly involved can be required by the Royal Court to make contribution to the company’s assets, notwithstanding any criminal liability, and therefore possible custodial penalties, which may arise.

Freeing for Adoption

On an application by the Minister for Health & Social Services the Court can make an order declaring a child free for adoption, this can be done by agreement of the birth parent, or absent agreement the court may dispense with the parent’s consent provided certain grounds are met.

Freezing Order

An interim order which the Court may make freezing a person’s assets prohibiting the person from dealing with or disposing of any of his/her movable or immovable assets.  These orders are usually sought by those intending to bring a claim against a person who they 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.

See Caveat.

See Mareva Order.

 

G

 

Governor

See Lieutenant-Governor.

Greffe

Organises the running of the courts and related administrative duties.

See Judicial Greffe.

Greffier

There are two Greffiers, the Judicial Greffier and the Greffier of the States.

See Judicial Greffier and Greffier of the States.

Greffier of the States

The Greffier of the States is the clerk to the States Assembly. He/she is appointed by the Bailiff with the consent of the elected States members.

 

Guarantee

A contingent obligation to pay a debt or to perform a service primarily due by another (the principal debtor) if the principal debtor fails to do so.

See also Droit de Discussion and Droit de Division.

Guardian

In family law, the term guardian has dual meanings: (i) a person appointed by the court to have parental responsibility for the child, where there is no one with parental responsibility for him; (ii) the appointment by the court under Article 75 of the Children (Jersey) Law 2002 of an officer usually from the Jersey Family Court Advisory Service (JFCAS) to represent the best interests, and wishes and feelings of a child in private or public law proceedings.  However, it can be an advocate if the child is sufficiently mature and disagrees with the guardian’s view as to what is in his best interests.

 

Guardian ad litem

A person, usually an advocate, appointed by the court in accordance with Royal Court Rule 4/2 to look after the legal interests of an infant or an incompetent for the purpose of Court proceedings. A minor  (person under the age of 18 years) lacks legal capacity and can only sue or be sued in civil proceedings through the court appointed guardian ad litem.

 

H

 

Habeas Corpus

The name given to a variety of writs or court orders whose primary purpose is to bring a party before a court or judge to determine if that person is being unlawfully deprived of his or her liberty.

Hearsay

Hearsay means an out of court statement, being offered by a person who did not make it, for the truth of its contents i.e. it is not “first hand” or direct evidence.  For example, person A may give evidence of seeing Person B drive into the back of a car.  But if it is not Person A giving evidence but in fact Person C giving  evidence that Person A told him about seeing Person B driving into the back of the car , then that is hearsay. 

The hearsay rule still applies in criminal cases so that a statement other than one made by a person while giving oral evidence in proceedings before the court is inadmissible as evidence of the matter stated. An out of court statement may be admissible if the mere fact that it was made is of some relevance to the proceedings but cannot be relied upon as evidence.

In civil cases, hearsay is not prohibited but less weight may be attached to it, and notice must be given to the other parties of an intention to introduce hearsay evidence.  In children’s proceedings hearsay evidence is routinely included in expert and social work reports without notice being given to the parties.  If an opinion is based on disputed facts, the evidence would not be excluded but the court must form a view on whether the facts upon which the expert has relied are established facts.

 

Her Majesty in Council

Primary legislation adopted by the States of Jersey must be given Royal Assent by Her Majesty the Queen, acting on the advice of Her Privy Councillors (i.e. senior MPs and Lords). Other Orders in Council which may affect Jersey are also made by HMiC.

See Queen.

Héritage division

A division of the Royal Court dealing with immovable property matters.

H.M.

Stands for ‘Her Majesty’s’. For example, H.M. Attorney General.

Hypothèque (Hypothec)

A form of security over Jersey immovable property. It is a ‘droit réel’ (a real right) in land which continues to exist regardless of who owns the land going forward. It is considered an ‘accessory right’ which cannot exist independently of the principal obligation.

An hypothèque is capable of taking various forms – conventionelle, judiciaire, or légale. An hypothèque differs from an English legal mortgage in that no transfer of the property occurs.

Hypothèque Conventionelle Simple (Conventional Hypothec)

A hypothèque created for a maximum period of 30 years either in a contract of sale (consentie) or in a separate contract (créée) passed before the Royal Court which is then registered at the Public Registry.

Hypothèque Judiciaire (Judicial Hypothec)

A hypothèque created by a judgment, whether à l’amiable (i.e. by consent), or otherwise, which is then registered at the Public Registry and must be re-registered every 10 years if the loan is still outstanding.

Hypothèque Légale (Legal Hypothec)

A hypothèque created by operation of law: e.g. that arising in favour of a widow securing dower rights.

 

I

 

Immeuble

See Immovable Property.

Immovable Property

Buildings and land as well as contract leases for more than nine years which are registered in the Public Registry. A hypothèque conventionelle simple and a rente are also forms of immovable property.

In any event

A favourite expression of lawyers (one of many).  It means ‘regardless’.  The lawyer is saying that regardless of anything else, the following holds true.

The court may also make cost orders in pre trial applications in favour of a party ‘in any event’. This means that the party in whose favour the costs order is made, receives his costs of the pre-trial application, even if that party loses at trial.. An order that costs are ‘in the cause’ means that whichever party succeeds at trial will also be awarded the costs of the pre-trial application.

Income Execution

A method to satisfy a judgment by levying a portion of the defendant’s wages.

See Wages Arrest.

Incorporated Association

 

Associations incorporated under an Act of Court pursuant to the Loi (1862) sur les teneures en fidéicommis et l’incorporation d’associations. Such bodies may hold immovable property and are formed for specific purposes listed in the 1862 Law including sports, charitable and other community purposes. For an Association to be incorporated, it must designate a representative who will be answerable to court for the Association.

The Constitution of an Association and any amendments to it must be approved by the Court (although the latter is done by the Greffier in chambers), acting on the recommendation (conclusion) of the Law Officers’ Department. Many Incorporated Associations will also be registered with the Jersey Financial Services Commission as Non-Profit Organisations.

See Fidéicommis.

See  Non-Profit Organisations.

 

Indemnity

A primary obligation assumed by one party to compensate another party for particular loss, quantifiable in money terms, incurred in certain agreed circumstances. The extent to which indemnities are effective may be limited by law (e.g. in the case of those in favour of fiduciaries).

Indictment

A document signed by the Attorney General setting out the criminal charges against an accused. An indictment contains separate counts in which a statement of offence and the particulars (or specific details) of the offence are set out.

Individual

A natural, human person as opposed to a legal person; i.e. as opposed to a company or foundation.

Inferior Number

The Inferior Number of the Royal Court is comprised of the Bailiff/Deputy Bailiff/Commissioner and two Jurats.

This is the composition of the Court for civil matters unless it is law alone to be determined in which case the Bailiff (or his substitute) may sit alone. If law and facts are to be determined the Bailiff may also sit alone if the parties apply to the Judicial Greffier to certify that the cause or matter is suitable for trial by the Bailiff alone, the Judicial Greffier agrees and certifies this because he is of the opinion that the matters raised are predominantly of law, and the Bailiff thinks it fit to sit alone.

In Criminal matters, the Inferior Number sits for the trials of statutory offences including, for example, drug trafficking offences. The Bailiff or his substitute is the judge of law and the Jurats are the judges of fact, and they also determine damages and the criminal sentence (maximum four years’ imprisonment for the Inferior Number). Where the Inferior Number considers that the sentence(s) should exceed four years, it shall commit the person to the Superior Number for sentence.

 

Infraction

A breach of a statutory requirement such as under Health and Safety or Control of Housing and Work legislation.

 

Inherent Jurisdiction

The Royal Court, as a court created by customary law, may exercise powers even in the absence of a statute providing it with such powers, provided that certain conditions are fulfilled. Such inherent jurisdiction cannot however be used to override statutory law. Statutory courts such as the Magistrate’s Court and Petty Debts Court are more limited and cannot exercise inherent jurisdiction.

 

Injunction

An order of the court requiring a person either to do or refrain from doing 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. A person who knowingly assists another to breach a court order is also liable to be found in contempt and punished.

See Caveat.

See Freezing order.

Insolvency

The factual situation arising when a debtor is unable to pay his or her debts on the cashflow test or when there are insufficient assets to meet all debts and liabilities on the balance sheet test. (The statutory definition provided by Article 1(1) of the Désastre Law reads: ‘insolvency’ means the inability of a debtor to pay his debts as they fall due).

See Caveat.

Instructions

An Advocate appearing before the court will have “instructions” from his client or an intermediary setting out the relevant facts and what the client wishes his advocate to do or not do.

 

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.

Interlocutory Summons

A summons that is issued after the proceedings have commenced but prior to the trial. Interlocutory summons are generally heard before the Master of the Royal Court.

Interrogatories

From the same root as the English word ‘to interrogate’, these are formal written questions which may be put to an opponent before any trial takes place, in order to find out important facts about a case. 

Intestate

When an individual dies without leaving a valid will. A person can die partially testate and partially intestate e.g. where he has left a valid will (complying with the necessary formalities) for part of his estate.

Ius Commune

Pronounced “Jus Commune” this is a Latin term referring to law common to a number of different localities.  See reference to ‘droit commun’ under Common law.

J

Jersey Financial Services Commission (JFSC)

An independent organization which regulates and supervises providers of financial services in Jersey, as well as being the Registry of Companies.

Joint Ownership

One of the two methods of holding co-owned property in Jersey. In the absence of any intention to the contrary (unlike under English common law), co-owned property is presumed to be held by co-owners as owners in common and not as joint owners. Accordingly, in order to establish joint ownership, clear intention must be expressed. This confers no individually ascertainable share but a contingent right to the individual ownership subject to surviving the other joint owner(s) (bien future a venir). A joint owner’s share passes by operation of the law, under the doctrine of survivorship (jus accrescendi), to the survivor(s) of the joint owners and does not form part of the deceased joint owner’s estate.

See Ownership in Common.

Judgment

Judgment can refer to the orders made by a court at the conclusion of a civil case. The court grants judgment in favour of the plaintiff in the sum of £1,500 in respect of an account rendered, contractual interest from 1st January 2010 and to fixed costs. This form of judgment is formally recorded in the Act of Court. 

Judgment can also refer to defiled written reasons given by the court in reaching the conclusions of the law and the facts of a particular case. These types of judgments form the basis of case law and law reports.

Judgment in default

When a party fails to answer or appear in the prescribed time period.

Judicial Committee of the Privy Council

The supreme appellate court of appeal for Jersey criminal and civil proceedings.

 

Judicial Greffe

The Greffe is the court office and derives from an old French word. The Judicial Greffe based in the Royal Court building provides administrative and other support services for the Royal Court and the Court of Appeal. The Magistrates Court, Youth Court and Petty Debts Court are served by the Magistrates and Petty Debts Court Greffe based in Union Street.

Judicial Greffier

The Judicial Greffier is responsible for the running of the Judicial Greffe which includes the Probate Registry and Public Registry. He or she has power to hear and determine interlocutory procedural matters in civil cases and is also the clerk to the Island’s courts. He is assisted by a number of Greffiers substitute, including the Master of the Royal Court who discharges the interlocutory judicial function (see Master of the Royal Court).

The Judicial Greffier is appointed by the Bailiff.

 

Judicial Review

Where there is no statutory right of appeal, 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. There are also strict time limits within which an application must be made and leave (or permission) is required from the Bailiff before such proceedings are instituted. The procedure is set out in the Royal Court Rules.

Judicial Separation

A decree of the court declaring the separation of a married couple falling short of divorce.

Jugement Motivé

A decision of the Royal Court which is in the form of a reasoned judgment.

See Judgment.

Jurat

There are twelve Jurats who are elected by an Electoral College in accordance with the provisions of the Royal Court (Jersey) Law 1948. Jurats hold office until they reach the age of 72 but may be used as a relief Jurat until 75. They are judges of fact in all civil and mixed matters, and in trials for statutory criminal offences. Jurats also  determine any damages and decide on all sentences following a guilty plea or conviction in the Royal Court (whether the person was convicted by Jurats or a Jury) and in some cases following a guilty conviction in the Magistrate’s Court where it has been committed up to the Royal Court for sentence.

The presiding judge has a casting vote if the Jurats are divided on any matter.

The Inferior Number of the Royal Court is constituted by the Bailiff (or other presiding Judge), and two Jurats. The Superior Number consists of the Bailiff (or other presiding Judge), and (save where otherwise provided by statute) not less than five Jurats. The Superior Number is convened to determine sentence when it is likely to be in excess of four years’ imprisonment.

Jurats also carry out other functions outside of court such as acting as an Autorisé (returning officer) at public elections, sitting on the Prison Board of Visitors and sitting on charitable fund boards.

Jurisdiction

The territorial and ‘type of actions’ limitations of a court.

Jury

Lay persons who are on the electoral role and eligible for jury duty are selected by a process known as the Tirage, administered by the Viscount. The Crown and the defendant(s) have certain objection rights to persons selected to serve on the jury. The jury is formed when there are 12 individuals chosen and they are sworn in.

The jury is the tribunal of fact to decide the verdict in trials for customary law offences in the Royal Court.  Examples of customary law offences examples are murder, rape, and grave and criminal assault

If the Royal Court trial is for a statutory offence, the tribunal of fact is the Inferior Number, i.e. the Bailiff/Deputy Bailiff/Commissioner and two Jurats.

The Jury has no jurisdiction to sentence a person who has been found guilty by it: all sentencing in the Royal Court is carried out by the Inferior Number (Bailiff/Deputy /Commissioner & two Jurats) or the Superior Number (Bailiff etc. and at least 5 Jurats).

Just and Equitable Winding Up

A company may be subject to a Just and Equitable Winding Up if the court is of the opinion that it is just and equitable to do so or it is in the public interests to do so. A director or member of the company, the Minister for economic Development, the JFSC or a Proceeds of Crime Supervisory Body may apply for such a winding up on just and equitable grounds, and the Minister/JFSC may apply on grounds of public interest.

If ordered, the court appoints a liquidator and directs the manner in which the winding-up is to be conducted.

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 alternative sentence, on condition that the person does not re-offend within a certain time in default of which the person will be sentenced both for the new and the original offence.

 

L

 

La convention fait la loi des parties

A customary law maxim meaning that an agreement between the parties creates legal obligations between them and that parties are, in principle, free to contract on whatever basis they see fit. 

Accordingly, high regard is paid to the sanctity of contracts and their enforcement unless there are valid reasons (such as on grounds of public policy) for them to be set aside.

 

Law

In Jersey the word law (with a small ‘l’) has its normal sense of ‘law’ as a general concept; it also refers (with a capital ‘L’) to primary legislation e.g. Misuse of Drugs (Jersey) Law 1978.

See Legislation.

Law Officers

H.M. Attorney General and H.M. Solicitor General are the Island’s Law Officers and they are assisted by the Law Officers’ Department.

See Attorney General.

Le Geyt (Phillippe)

A former Greffier, Jurat and Lieutenant-Bailiff of Jersey in the seventeenth/eighteenth century, he is recognised as one of the leading writers on Jersey customary law.

Pronounced “le jet”

 

Le Gros (Charles Sydney)

 

An advocate, Bâtonnier, Viscount, Jurat and Lieutenant-Bailiff in the late nineteenth to the twentieth century, his works were published in 1943. He is often cited in cases concerning customary law.

 

Le criminel tient le civil en état

A customary law maxim signifying that where both criminal and civil proceedings arise out of the same circumstances, the criminal proceedings must generally be determined before the civil proceedings (some limited exceptions apply).

Lease

A grant by the owner of immovable property (the landlord/lessor) to another person (the tenant/lessee) to enjoy the exclusive possession of the dwelling for a fixed or periodic term at a stated rent. The Tenant should be able to keep out all third parties including the landlord unless the latter is exercising a specific right reserved to him in the lease e.g. a right to re-enter to view and repair the property.

 

This is distinguished from a licence where the licensee does not have exclusive possession.

Leases may be Contract Leases (more than 9 years) or Paper Leases (9 years or less)

Legal Aid

The Legal Aid Scheme is administered by the Acting Bâtonnier. At present there is no state funded Legal Aid Scheme and advocates and solicitors fulfil their legal aid responsibility on a pro bono or reduced fee basis. There are criteria determining whether Legal Aid will be granted, depending on the type of case involve, the means of the applicant and the merits of his or her case.

See http://www.jerseylawsociety.je/.

Legislation

Legislation refers to law which is promulgated by the legislature/parliament or another governing authority. In Jersey’s case, legislation is for the most part made by the States of Jersey or a Minister. In very limited circumstances and where the States of Jersey consents Jersey legislation may take the form of an Order of Her Majesty in Council registered by the Royal Court.  Such Orders in Council may remit Acts of Parliament for registration where the Act is expressed to apply directly or may extend an Act subject to specified modifications, if there is a permissive extent provision in the Act.  A UK Minister may sometimes be empowered under such extended provisions to make orders or regulations, which in turn must be registered by the Royal Court if they are to have effect as legislation in Jersey.

See Law, Regulations, Triennial Regulations, Ministerial Order and Rules.

 

Légitime

A testator can freely dispose of one-third of his/her movable estate (the partie disponible or tier disponible) but the remaining two-thirds are ring fenced in a testate succession for the surviving spouse/civil partner and any surviving issue.

This entitlement is known as Légitime. The onus is on those entitled to claim légitime to make an application to reduce the will “ad legitimum modum” so that the proper share of two-thirds of the movable estate is preserved for the spouse/issue. This must be applied for within a year and a day of the will being admitted to probate.

 

See Partie Disponible

 

Les usages sont les meilleures interprètes des lois

A customary law maxim meaning that practice and custom are the best guides to the interpretation of laws.

Licensing Assembly

The Assembly of the Governor, Bailiff and Jurats sits quarterly to determine licensing applications for inter alia, pubs, hotels, off-licences, restaurants and night clubs. In practice, the Governor does not sit with the Assembly and the Licensing Assembly is comprised of the Bailiff/Deputy Bailiff and Jurats.

Licitation

It is a principle of Jersey law that joint owners of land cannot be compelled to remain as joint owners or owners in common.  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. The property is put up for auction to the highest bidder and co-owners and third parties are entitled to bid.

Lien

A claim, encumbrance, or charge on property for payment of some debt obligation or duty.

Lieutenant-Bailiff

The Bailiff may appoint one or more senior Jurats to the customary role of Lieutenant-Bailiff. Historically the holder of the role carried out the daily duties of the Bailiff who was not resident in the Island. The Lieutenant-Bailiff may in theory discharge any of the functions of the Bailiff but in practice it will not be possible, for example, for he or she to preside over a trial unless legally qualified and such duties will instead be carried out by the Deputy Bailiff or Commissioner.

 

Lieutenant-Governor

The representative on the Island of (and appointed by) Her Majesty The Queen, and the official channel of communication with H.M. Government in the United Kingdom. The Lieutenant-Governor also has executive responsibilities regarding immigration, nationality and deportation.

Limitation Period

The English term, sometimes used in Jersey also, to describe the time within which a civil claim must be commenced.  The correct term in Jersey law is prescription.

See Prescription

Liquidated Claim

A claim by a creditor against a debtor in respect of an ascertained and specific sum e.g. £5,000.

Liquidation Committee

A committee of creditors comprising a maximum of five persons which may be formed in a creditors’ winding up (and which receives information from a liquidator and supervises and/or sanctions the exercise of his powers).

Liquidator

A person authorised under the Companies Law to act as liquidator in a winding up of a Jersey company or as a liquidator under foreign law.

Livre des Obligations

Literally ‘Book of Obligations’. Historically the books were located in the Public Registry but today the information is held in the online records of the Public Registry. These particular records contain details of borrowings secured against and by means of hypothèque judiciaire.

See Hypothèque Judiciaire.

 

Loi

See Law.

M

 

Magistrate

A judge appointed by the Bailiff to hear matters within the jurisdiction of the Magistrate’s Court, Petty Debts Court and Youth Court.

The Magistrate is assisted by a full time Assistant Magistrate and part time Relief Magistrates.

 

Magistrate’s Court

Located in Union Street in St Helier. The Magistrate (including the Assistant Magistrate or a Relief Magistrate) has jurisdiction to impose a sentence not exceeding twelve months and/or a fine not exceeding £5000 (revised to £10,000 pending the coming into force of the Criminal Justice (Miscellaneous Provisions No. 3) (J) Law 2016).

Appeals from the Magistrate’s Court are heard by the Royal Court, and where a person has been convicted in the Magistrate’s Court, the matter may be committed to the Royal Court for sentence if the Magistrate considers the potential penalty to be in excess of his or her maximum jurisdiction.

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. Third parties who are otherwise neutral (parties à la cause or parties cited such as banks or account holders) are cited as additional parties in the proceedings to ensure compliance with the order.

Master of the Royal Court

An officer of the Judicial Greffe (strictly speaking a ‘Greffier Substitute’) who hears and determines certain interlocutory applications and gives directions on the management, conduct and preparation of civil cases before the Royal Court. The Master of the Royal Court is also responsible for making case management directions in civil proceedings, including third party planning appeals, and may determine such appeals on the papers.

McKenzie Friend

A person who may assist a litigant in person in Court (usually in family proceedings), e.g. by giving emotional support and taking notes (not necessarily addressing the court).

 

Mediation

A process whereby a mediator is appointed jointly by the parties to a dispute to see whether he can broker an agreement through negotiation and 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 an 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’. The majority of the contested cases that come before the Petty Debts Court are referred to mediation.

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 of association 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.

Meuble

See Movable Property.

Meuble n’a point de suite par hypothèque

A customary law maxim which will here be taken to be synonymous with the rule that movable property is not capable of providing security (hypothèque), though, strictly, the meaning of the maxim is ‘movable property may not be followed into the hands of a third party by an hypothecary creditor’. A notable exception to the rule exists where security is created pursuant to the Security Interests Law; and a quasi-exception exists in the case of a pledge of tangible assets (coupled with physical delivery thereof to the pledgee). Aircraft may also be “mortgaged” pursuant to the Aircraft Registration (Jersey) Law 2014 and ships pursuant to the Shipping (Jersey) Law 2002.

See Hypothèque.

Minister

An elected member of the States of Jersey who has been chosen by the States to have responsibility for a specific area of government.

Ministerial Order

A form of subordinate legislation. A Law or Regulations (permanent or triennial) may contain a delegated power for the Minister to make an Order which may amend a Law/Regulations and/or provide for the finer details of legislation. No States debate is required for an Order to be made but the Order is laid before the Assembly (which may annul it) and published in the Jersey Gazette.

 

Minor

A person under the age of 18 years old. See Age of Majority.

Mistrial

An invalid trial.

Mitigation

A speech in mitigation is made in a criminal case by or on behalf of the Defendant 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 sentencing court to reduce or 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. 

Mode of Trial

Some offences are by their nature comparatively trivial and can only be dealt with in the Magistrate’s Court.  Some offences are so serious that they can only be dealt with in the Royal Court.  There are many offences which fall between these two categorisations and which could (depending on the facts of the particular case) be dealt with in the Magistrate’s Court or the Royal Court.  The Magistrate will decide whether he or she has jurisdiction to hear the case (and the decision is based on whether the Magistrate would have the necessary sentencing power).  

In the Royal Court, customary law offences i.e. crimes such as murder, rape, grave and criminal assault are tried before a jury at a criminal assize. Statutory offences (infractions or contraventions) such as importation of drugs, planning or health and safety law infractions are tried before the Inferior Number (Bailiff and two Jurats).

See Crime; Délit.

See Magistrate.

See Jurats and Inferior Number.

See Jury and Assize Trial.

Mortgage

An English term meaning a transfer by way of security of an interest in non-Jersey land or other property in certain jurisdictions outside Jersey. This may be contrasted with an hypothèque in relation to Jersey immovable property.

See Hypothèque.

Movable Property

All property that is not immovable, e.g. personal belongings, cars, money, shares, etc., and includes hypothèques judiciaries and may be tangible or intangible. Clearly, ‘new economy assets’ such as website domain names and software licences are capable of falling within this category.

Mutatis Mutandis

The necessary changes having been made; changing whatever is required to be changed. As in: "The amendments to the first deed apply mutatis mutandis to the second and third deeds."

N

Nemo plus juris ad alium transferre potest quam ipse haberet

A Roman law maxim meaning that where a person sells movables, he can pass no better title than he himself has (for example a person who has hired a car cannot transfer the ownership to another)

Netting

The ability to set off reciprocal claims on the insolvency of counterparty. For example, where party A owes party B £1 million, in the event that party A becomes insolvent, if party B can set off the reciprocal obligations, his exposure is nil. If not, his exposure is £1 million.

Newton Hearing

A mini hearing to establish facts for the purposes of sentencing where there is a factual dispute following a guilty plea (may exceptionally be allowed where there has been a guilty verdict). For example, a person may have pleaded guilty to grave and criminal assault but disputes a particular aggravating factor alleged by the Crown (e.g. that s/he kicked the victim whilst on the floor) which would if accepted by the Court potentially increase the sentence.

 

Nominee

A person acting as agent or trustee who is duty bound to follow instructions from his principle.

Non-Profit Organisation

An organisation is classed as a Non-Profit Organisation or “NPO” if it is established solely or primarily for charitable, religious, cultural, educational, social or fraternal purposes with the intention of benefiting the public and it raises or disburses funds in pursuance of those purposes. An NPO must register with the Jersey Financial Services Commission and comply with the obligations of the Non-Profit Organisations (Jersey) Law 2008 (e.g. retaining financial records, providing information to the Commission) unless it has raised funds in the preceding 12 months which do not exceed £1,000.

 

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 see Ouster Order.  Breach of such orders can lead to arrest and imprisonment for being in contempt of court. 

Norwich Pharmacal Order

An exceptional interim order obtained ex parte from a judge in chambers requiring disclosure of information and documents by a third party to a plaintiff to enable him to identify the correct defendant.  (From Norwich Pharmacal Co v. Customs and Excise Commissioners (1974) AC 133).

Nuisance

The English concept of tortous nuisance does not apply in Jersey but instead Voisinage applies. There is however legislation governing statutory nuisance.

See Voisinage.

See Statutory Nuisance.

Nul n’est héritier qui ne veut’

 

This maxim means that “no one can be made to inherit against their will” and may therefore repudiate a legacy.

 

Nulle Promesse à héritage ne vaut

 

A promise to buy/sell immovable property, create a servitude or a contract lease cannot be specifically enforced.

Nulle servitude sans titre

Meaning a servitude cannot exist without title i.e. it cannot be obtained through mere usage.

O

Objet

The object or subject matter of a legal contract.

 

Offence

Conduct for which a sentence to a term of imprisonment or to a fine is provided by any law, statute, or Common law rule governing conduct.

Onerous property

In the context of a désastre or a creditors’ winding up, this refers to unprofitable contracts and to movable property wherever situate, contract leases, and other immovable property situate outside Jersey which is unsaleable, or not readily saleable, or which might give rise to a continuing liability to pay money or perform any other onerous act. The Viscount or the Liquidator, as the case may be, may give notice and disclaim the onerous property within six months of commencement of the désastre or creditors’ winding-up.

Order in Council

A legislative direction made by HM with the advice of her Privy Council, in London, whereby a Law or other instrument is sent to the Royal Court for registration in order to acquire good effect in Jersey.

Order of Justice

A detailed statement of facts making a claim and setting out the relief sought such as damages, declaration, injunctions, other relief, or interest and costs. This is an originating process to commence litigation, which may otherwise proceed by demande, summons or Representation. It can be signed by an advocate or solicitor but must be signed by the Bailiff if it contains injunctions. Personal service is required for Orders of Justice.

Ordinary resolution

An act of the membership of a company approving a decision/action. For an Ordinary Resolution to be carried, there needs to be a simple majority of the members voting in favour.

Ordre provisoire

An ancient remedy, facilitating the recovery of a liquidated claim, granted by a judge in chambers making an interim order for the immediate saisie (seizure) of a tangible, or, exceptionally, of a person. It can be obtained where e.g. a cheque has been dishonoured or the debtor is not fondé en héritage and there is a perceived risk of his fleeing the jurisdiction.

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.

Ownership in common

One of the two methods of holding co-owned property, to be distinguished from the other method known as joint ownership. Under Jersey law, in the absence of any intention to the contrary (unlike under English common law), co-owned property is presumed to be held by co-owners as owners in common and not as joint owners. Each owner owns an undivided share of the whole (une part indivise) i.e. there is no exclusive possession to a particular part. The part indivise forms part of the owner’s estate on his death and passes to his heirs and during his lifetime, an owner of a part indivise may sell or gift his share. In a désastre, jointly owned property is converted by operation of law to a property owned in common and the debtor’s share is held by the Viscount as an owner in common.

See Joint ownership.

 

P

 

Paper lease

A paper lease is a lease which does not exceed 9 years and does not therefore have to be registered before the Royal Court. Despite the name, paper leases were not traditionally required to be in writing, although if providing for the exclusive possession of a dwelling, they are subject to the Residential Tenancies (Jersey) Law 2011 and must in fact be in writing.

 

Parental Responsibility

All the rights, duties, powers and responsibilities a parent holds in relation to a child.  Where a mother and father are married to each other at the time of the child’s birth they each have parental responsibility for the child. Where they are not married the mother has parental responsibility and the father does not, unless he acquires it by agreement with the mother, or by order of the court. A person who is not a parent may acquire parental responsibility for a child if a Residence Order is made in his favour. Where a Care Order is made the Minister for Health & Social Services acquires parental responsibility for the child and shares this with the parent/s.

 

See Care Order; Residence Order.

 

Parish

The Island is divided into twelve parishes. The parishes are administered by honorary officials elected by the parishioners, of whom the senior is the Constable, or Connétable.

Parish Hall Enquiry

A non judicial hearing by the Centenier to deal with certain minor offences under road traffic, licensing and parochial legislation such as the Rates (Jersey) Law 2005. The person reported for the offence may refuse the jurisdiction of the Centenier and elect to have the matter dealt with in the Magistrate’s Court. Sanctions include written caution, supervision order by the probation service, or a fine of up to £200.

 

Partage

A process by which land was divided by heirs following an intestate death. Since 1993, the property automatically devolves on the heirs at death in an intestate succession, pursuant to Article 4 of the Wills and Successions (Jersey) Law 1993.  

Particulars of claim

A detailed written pleading setting out a plaintiff’s claim in civil proceedings. A Statement or Particulars of Claim is required where an action commenced by simple summons is placed on the pending list by the defendant (or is sent to pleadings in the Petty Debts Court).

 

Partie Disponible

A testator may freely dispose of one-third of his movable estate and this is referred to as the partie disponible or tier disponible. The remaining two-thirds are preserved for the surviving spouse and/or issue.

See Légitime

 

Parties à la cause/Parties cited

Neutral parties who the plaintiff has no direct cause of action against but cited to ensure compliance with a court order. A common example is a bank cited when the plaintiff seeks a Mareva injunction freezing the defendant’s assets pending the outcome of the action.

 

Partnership

In Jersey, there are various forms of partnership; a customary law partnership, a limited partnership, a limited liability partnership, an incorporated limited partnership and a separate limited partnership.

 

Pauline Action

An action whereby a creditor seeks to have set aside a gratuitous transaction seeking to defraud him or defer his claims (i.e. a disposal at an undervalue of assets by an insolvent debtor to a third party, with an intention to defraud the creditor or defer the creditor’s claims.)

Payment into Court

A payment into court may be at any time by a defendant (to a claim or counterclaim) in satisfaction of any cause of action in respect of which a claim is made. This is done when a party acknowledges that an amount of money is owed to the other party but not as much as is being claimed; in other words there is a dispute as to the balance or where the defendant simply wishes to protect himself as to costs.  If the plaintiff fails to beat the payment made by the defendant then the normal rule that costs follow the event is diluted and the defendant is entitled to his costs after the payment, although this remains ultimately in the discretion of the court. The Judge and Jurats 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 a plaintiff is resident in a jurisdiction where enforcing costs order may prove difficult.

See Security for Costs.

Pending List

If a defendant wishes to contest or defend a claim brought by a plaintiff, the defendant requests that the matter is placed on the pending list. The request is usually made when the action is called in court on a Friday afternoon. The Royal Court Rules require that the defendant provides an address for service.

Peremptory Challenge

The right of an accused to dismiss a two prospective jurors without citing a reason. The prosecution have no right of peremptory challenge but both the prosecution and the accused can challenge the appointment of a juror for cause (i.e. there must be a reason). There is no limit on how many challenges either side may make for cause.

Person

A legal entity.  A person can be an artificial person (e.g. a company) or a natural person (a human being). 

Personalty

An English law term for property which is not realty (another English law term).  Real property is typically the right of ownership of land and certain other limited rights 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 etc.

 In Jersey the terms ‘immovable’ and ‘movable’ are used instead of ‘realty’ and ‘personalty’.

See Movable Property.

See Immovable Property.

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, or for a decree of legitimacy/illegitimacy.  The other party is known as a respondent.

Petitioner

The party initiating a proceeding by way of a petition or the party bringing an appeal to a higher court.

Petty Debts Court

Court exercising jurisdiction in minor civil cases up to a monetary limit of £10,000 as well as landlord and tenant matters such as eviction and rent arrears. The Petty Debts Court is presided over by the Magistrate or the Assistant/Relief Magistrate. Decisions by the Petty Debts Court may, with leave of the Bailiff, be heard on appeal by the Royal Court.

Plaintiff

An individual who brings a civil action.

Plea

A criminal defendant’s response to the charges, i.e. guilty, not guilty or not guilty by reason of insanity.

There are also pleas in bar i.e. autrefois acquit (that the defendant has been previously acquitted of the offence) or autrefois convict (that the defendant has been previously convicted of the offence). Very rare is “demurrer” meaning the offence does not exist in law.

Pleadings

The written documents setting out the parties’ cases in litigation.  The plaintiff’s pleading is called ‘the Order of Justice’ or ‘Particulars of Claim’, the defendant’s ‘the Answer’.  There are other forms of pleading as well; for example, Reply, Rejoinder, admissions, further and better particulars and interrogatories. An opposing party may ask for a copy of any document referred to in a pleading. 

See Representation (Proceedings in the Royal Court may also be brought by Representation which the Court orders to be served on the interested parties.)

See Request for Further and Better Particulars.        

Poingdestre (Jean)

A former Jurat and Lieutenant-Bailiff of Jersey in the seventeenth century, he is recognised as one of the leading writers on Jersey customary law.

 

Possession quadraginaire

Prescriptive possession was a customary law codified in the Code of 1771. Forty years peaceable, uninterrupted and unchallenged possession of land can give good title to that land.

 

Pothier

Robert Joseph Pothier was a 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 influential both in French and English law.  He also re-edited the Emperor Justinian’s work on Roman law and produced a commentary on the customary law of Orléans as well as many other treatises.

Pothier’s works are often cited when matters of contract law come before the courts of Jersey.

Power of Attorney

Authorisation for one person to act as the agent of another. Attorneys are required to register the power of attorney. Under the Powers of Attorney (Jersey) Law 1995 a registrable Power of Attorney cannot be used for a transaction which is required to be registered (e.g. a contract of purchase of immovable property) until the Power of Attorney has been registered in the Public Registry.  A Power of Attorney can either be general or specific i.e. can only be used for the purpose specified in the Power of Attorney.

Preference

A payment or other transaction made or entered into by an individual or company which places a creditor, surety or guarantor of a debtor in a better position than otherwise would have been the case. Where, in effecting such payment or transaction, the debtor desired such a result, and was insolvent at the relevant time, or became insolvent as a result of it, the Viscount or liquidator may seek an order setting aside the transaction providing the payment or transaction took place in the twelve months preceding the declaration en désastre or the commencement of a creditor’s winding up.

Pre Trial/Plea and Directions Hearing

A pretrial hearing conducted by a judge for case management purposes: to determine issues at trial, see what can be agreed and what evidence needs to be oral and what can be reduced to writing. Admissibility of evidence may also be determined.

Preparatory Hearing

A special pre-trial hearing reserved for cases with special circumstances such as where the trial is likely to be lengthy or complex, or evidence is likely to be given by a child or via a video link.

Prescription period

The period allowed by law for bringing a civil claim.  The periods vary depending on the action (i.e. three years for tort, ten years for contract, 40 years for property (see Possession Quadragenaire)). It is very similar to the idea of a limitation period in English law.  The onus is on the defendant to plead prescription in his Answer.  Claims can sometimes be brought outside the prescription period, where the plaintiff has a legitimate reason that prevented him from bringing the action within the prescription (see Empêchment).  As regards criminal offences, prescription was historically only available for minor customary offences (délits) and statutory offences but this was abolished in 1996 and is not an available defence for any criminal offence in Jersey.

Prima facie

A Latin expression which 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 more closely.

Priority creditors

These are creditors given priority status by Article 32 of the Désastre Law, which is applied to a creditors’ winding up by Article 166 of the Companies Law. Such creditors have priority over unsecured creditors when funds are distributed by the Viscount or a liquidator.

Private Proceedings

This refers to proceedings between private individuals such as a contract dispute, a trust matter or family proceedings.

Privileged communications or information

Made between persons in a particular relationship which is not subject to disclosure without the permission of the individual benefiting from the privilege (i.e. lawyer-client).

Privy Council

May refer to the Judicial Committee of the Privy Council or to Her Majesty in Council.

See Judicial Committee of the Privy Council.

See Her Majesty in Council

Probate division

A division of the Royal Court which deals with inheritance matters whether there is a will (testate) or not (intestate).

Probation

If a person is convicted of a criminal offence, a probation order may be made as part of a conditional discharge in which an accused undertakes, amongst other things, to be 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 abide by the terms of the probation order they face being re-sentenced. Probation orders may be made in conjunction with Community Service Orders.

Pro bono

Legal services provided without cost.

Probate

The process of proving a will.

Procureur du bien public

Two Procureurs are elected by parishioners for each of the twelve Parishes. Parish finances are raised by means of rates payable by parishioners. The function of the 2 Procureurs is to ensure that the parish finances, accounts and property are well looked after, in good order and that the Parish delivers value for money.

Prohibited steps order

An order in family proceedings preventing a party from doing something such as taking a child out of the jurisdiction.

 

Proof of claims

The process under which evidence is submitted by a creditor to the Viscount in a désastre or a liquidator in a winding up substantiating the amount of a claim and establishing whether it is secured or has priority.

Propriété foncière

Land ownership.  The Loi (1880) sur la propriété foncière is concerned mainly with charges on land i.e. hypothecs and the procedures for creditors and others to realise such charges.  The Loi of 1880 also reformed the system of rentes.

Prosecutor

The Attorney General is the chief prosecutor. In the Royal Court, he may be represented by the Solicitor General or Crown Advocates. In the Magistrate’s Court or Youth Court he may be represented by an advocate or a police Legal Adviser.

 

Protocol 3 to the UK Act of Accession

An instrument governing the Island’s relationship with the European Union by reference to the EU treaties (the most recent being the Treaty on the Functioning of the European Union (‘TFEU’)). In brief terms, the Island is part of the EU as regards free movement of goods and the customs union. Free movement of persons, services and capital do not apply to Jersey.

Jersey cannot discriminate between different citizens of the European Community i.e. it cannot afford preferential treatment to citizens of the UK over citizens of France, Portugal, Poland.

Provable debts

All certain debts and liabilities, present, future or contingent, to which a debtor is subject at the time of a declaration en désastre or at the commencement of a winding up, or to which he or it becomes the subject before payment of the final dividend by reason of any obligation incurred before the date of the declaration or the commencement of the winding up.

Public Registry

In the Public Registry are registered all contracts passed before court relating to immovables; all other documents transferring title to immovables, e.g. vesting orders, records of tenure après dégrèvement or wills of immovable property and all documents giving rise to judicial hypothecs.

There is also the Probate Registry, the Aircraft Registry, the Shipping Registry, and the Companies Registry

Public Proceedings

This refers to proceedings where the state (i.e. the Crown, the States of Jersey, a Minister) is engaged such as criminal proceedings, care proceedings in respect of a child, judicial review etc.

 

Q

 

Queen

Jersey is a Crown Dependency with its own autonomous parliament and judicial system. However, Her Majesty, acting through Her Privy Council has ultimate responsibility for the good government, defence and international representation of Jersey. The Islands’ link with the United Kingdom is via the Crown as the successor to William the Conqueror, Duke of Normandy. 

 

R

 

Rapport à la masse

An heir who receives an advance (avance) of the deceased’s movables during the latter’s lifetime can be called upon by co-heirs to bring the advance back into the estate prior to division (essentially this doctrine prevents the deceased from defeating légitime during his lifetime). The co-heir(s) must bring the action within a year and a day of the deceased’s death.

 

Réalisation

A procedure ancillary to dégrèvement which applies to movable assets pursuant to the Loi 1904 (Amendment No.2) sur la propriété foncière.

Realty

An English law term.

Real property is essentially land or an interest in land; realty is contrasted with personalty. In Jersey the equivalent term for ‘realty’ is ‘immovable property’

See Immovable Property.

Recusal (Récusation)

A challenge made to a Judge on the basis of actual or apparent bias.  It is a request that the Judge discharge himself from sitting on that particular matter. 

Registrar

May refer to a person responsible for the administration of a Registry such as the Registrar of Companies or the Registrar of Deeds.

May also refer to judge. See Family Registrar

 

Registre

See Public Registry

 

Regulations

The States of Jersey may make Regulations pursuant to a “delegated power” in a Law or Order in Council. Regulations follow the same procedure as a Law save that there is no requirement for Royal Assent (the Guernsey equivalent is called an Ordinance). Regulations are invariably made to provide the more detailed aspects of what the Law provides (i.e. “the flesh on the bones”), or are used to amend parts of the Law. Regulations are usually permanent, although some have a limited lifespan of three years (see Triennial Regulations).

Under Acts of the U.K. Parliament which have been extended to Jersey by Order in Council, there may be delegated powers which allow a Minister of H.M. Government to make Regulations and these may be extended to Jersey but only have effect once they have been registered by the Royal Court.

 

Relief

An offset.  Boundary structures (including boundary stones) can be owned with or without a relief.   A standard relief is 1½ Jersey feet (1 foot 4½ inches imperial) wide but this measurement can vary in certain circumstances.

 

Remise de biens

A suspensory procedure under the Loi (1839) sur les remises de biens. The procedure is only available to debtors who own immovable property (“fondé en héritage”) and where the Jurats estimate that a sale of all the debtor’s movable and immovable property will result in all the secured creditors being paid off in full and a dividend being available for unsecured creditors. The property of the debtor is placed entre les mains de la justice (surrenders property to the Royal Court) to afford protection to the debtor and to secure an orderly sale of properties, so as to discharge the debts.

Rente

An annual payment charged on land.  There are several kinds of rente.

 

Reply

A plaintiff’s pleading in response to a defendant’s Answer (Plaintiff must do this where the defendant has made a counterclaim to avoid judgment in default on the counterclaim).

Representation

A form of application to the Royal Court seeking relief where neither a summons nor an Order of Justice is appropriate because it only effects the representor or there is no specific cause of action.

See Pleadings.

Request for Further and Better Particulars

A form of pleading, requesting more information concerning a written claim or Answer e.g. asking when alleged events occurred, who was present, what was said, whether there was any related documentation etc.

See Pleadings.

Residence Order

An order settling the arrangements with whom a child is to live. An order can be made in favour of more than one person specifying the periods of time the child should live with each person. If a residence order is made to someone who does not already have parental responsibility for the child that person will acquire parental responsibility for the duration of the residence order. The making of a residence order does not remove parental responsibility from a parent who already holds it.

See Parental Responsibility.

Résolution

The cancellation of a contract.  All contract leases may only be cancelled by the court.

Resolution

For a company to take certain decisions, the Companies Law or its Articles of Association may require the decisions to be made by shareholder/member resolutions.

See Ordinary Resolution and Special Resolution.

Respondent

The defending party in proceedings brought by petition, or the party against whom an appeal is brought.

Royal Court

The principal court of original customary jurisdiction in Jersey that hears both civil and criminal cases. Divided into four divisions: Samedi, Probate, Family and Héritage.

See Bailiff; Jurats; Inferior Number; Superior Number; Jury; Assize Trial; Samedi Division, Probate Division, Family Division and Héritage Division.

 

Royal Court Table

The list of cases that are to be called in the Royal Court during private business on a Friday afternoon. The Table (or list) is displayed outside the Royal Court on Thursday afternoon immediately preceding the sitting at the Court on the Friday until the close of business on Friday. The table is also available for the current week at: http://www.gov.je/JudicialGreffe/rctable.htm

 

Rules of court

Similar to Ministerial Orders, Rules are subordinate legislation. Rules of Court are made by the Royal Court (Superior Number). Rules generally provide for court procedure; examples are the Royal Court Rules, the Children Rules or the Désastre Rules.  

Rules other than Rules of Court may be made by a Minister e.g. the Prison Rules are made by the Home Affairs Minister.

S

 

 

Saisie

A right to seize assets or, exceptionally, the person (e.g. pursuant to an ordre provisoire).

Saisie Conservatoire

A form of arrêt available under the customary law by way of which assets are frozen pending a court decision.

See Arrêt;  Arrêt entre mains

Saisie Judiciaire

A statutory order, pursuant to the Proceeds of Crime (Jersey) Law 1999 which vests the property of a person in the Viscount, where the person is subject to a confiscation order or proceedings are on foot for a criminal offence and the court has reasonable cause to believe that the defendant has benefited from criminal conduct.

Samedi Court

Under the Royal Court Rules of Court the Samedi Division of the Royal Court can and indeed, does sit on any day of the week. However, the court session which deals with the ordinary business of the Samedi and Héritage divisions tends to be referred to as “the Samedi Court” (having historically sat on a Saturday) and it sits on a Friday; dealing with public matters including criminal sentencings in the morning, and dealing with immovable property contracts and other private civil matters in the afternoon.

 

Samedi Division

A general division of the Royal Court that deals with matters which do not fall within the jurisdiction of the Probate, Family or Héritage divisions. Civil claims, where the claim currently exceeds £10,000.00, are dealt with in the Samedi Division of the Royal Court (claims lower than this, and paper lease cancellations where the rent does not exceed £15,000, are dealt with in the Petty Debts Court). Any criminal matters which are committed to the jurisdiction of the Royal Court are also dealt with by the Samedi Division.

Search Warrant

An order issued by a judge in chambers directing the search of a particular location for particular items.

Secure Accommodation Order

On an application by the Minister for Health & Social Services the Court may make an order authorising a child to be kept in secure accommodation. An order can only be made to restrict the child’s liberty if the Court is satisfied (i) the child has a history of absconding and if he absconds he is likely to suffer significant harm, or (ii) the child is likely to injure himself or others if kept in any other type of accommodation.  Greenfields is the designated secure accommodation unit in Jersey.

 

Secured creditor

A creditor having the benefit of, e.g. a security interest or an hypothèque.

Security

A right held by a secured creditor over assets taken to secure an obligation.

Security for Costs

Court order for a Plaintiff to give the defendant security for costs by making payment into a court or an escrow account. This is to protect the defendant in the event that the claim fails. A defendant may also be ordered to give security in respect of a counterclaim.

 

Security Interest

A special right over, or interest in, intangible movable property (e.g. shares, money etc.) other than a lease, that secures payment or performance of an obligation under the provisions of the Security Interests Laws of 1983 or 2012.

Self-defence

The protection of one’s property or person against injury attempted by another. The force used must be reasonable in the circumstances for it to be capable of being used as a legal defence.

Serve

The post or delivery of legal papers to the person required to respond to them. The method of service for civil actions is specified in the Royal Court Rules. Personal service (delivery of the papers by the Viscount) is required where the action has been commenced by Order of Justice for example, whereas ordinary service (post, fax, leaving at address) may be used for summonses.

Leave of the Court is required to serve process outside of the jurisdiction.

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 such as by operation of law or by contract. They cannot arise through usage/prescription i.e for servitudes other than those arising by operation of law title is required (see nulle servitude sans titre). The servitude however can be lost through non usage for a period of 40 years or more.

Set off

The taking of an account of mutual credits, mutual debts or other mutual dealings between a creditor and a debtor. These are totaled and the balance of the account becomes a claim or an asset in a désastre or winding up, and can also be claimed in a contractual case.

Settle

Where a case is settled, this means it has been resolved by a settlement or agreement. This may be an out of court settlement involving a financial sum paid by the defendant in return for the plaintiff agreeing not to pursue his claim. In some circumstances a consent order is put before the court for approval.

Settlor

The person who establishes a trust by ‘settling’ money or other property upon a trustee(s).  The person or persons benefiting from the trust are called beneficiaries.  The trustee owes duties to the beneficiaries and is accountable to them.  A settlor can be a beneficiary depending on the terms of the trust.

Sham

A fiction, something which does not reflect reality and will not be upheld if challenged in a court of law. 

Share Transfer Property

A person may buy shares in a company for the right to possess exclusively a portion of immovable property.

Sine Die

See Adjourn.

 

Solicitor

In Jersey, this is one of the branches of the legal profession and is sometimes referred to by its ancient French title, écrivain. An écrivain does not enjoy the same legal rights of audience as an Advocate but can carry out other functions such as witnessing affidavits and signing orders of justice.

“Solicitor” may also refer to persons qualified in other jurisdictions such as England and Wales.

 

Solicitor General

See Attorney General.

 

Special Resolution

This is defined as a resolution of the members of a company or a class of members passed by two thirds or more of those who voted in person or by proxy at a general or separate class meeting where not less than 21 days’ notice of the meeting has been given unless not less than 95% of those having the right to attend and vote resolve to accept a shorter notice (Article 90 of the Companies Law). Special Resolutions must be filed with the Registrar of Companies (Article 100 of the Companies Law).

Specific Issue Order

An order in family proceedings deciding a particular issue such as which school a child should attend

 

Specific Performance

A remedy by which the court may order a party to carry out a specific act e.g. the act which he promised to do as part of a contract. This is not available where the promise is to do an act relating to immovable property (see Nulle Promesse à héritage ne vaut).

 

Stamp Duty

A tax or stamp duty payable on transfer of immovable property or prior to obtaining a grant of probate or letters of administration to administer the estate of a deceased person who has property on the Island. Document duty is also payable for various company matters. Land Transaction Tax is charged on the transfer of share transfer property.

States of Jersey

The legislative body of the Island comprising the elected members of Senators, Deputies and Connetables. The States is presided over by the Bailiff or his Deputy. Other non-voting members are the Lieutenant-Governor, the Dean of Jersey, the Attorney General and Solicitor General. The States is assisted by the Greffier of the States and his department, and the Viscount is the executive officer of the States.

Statute

See Legislation.

Statutory Nuisance

The Minister may serve an abatement notice on a landowner if satisfied there is a nuisance and the court has applied the same test as voisinage i.e. determine what a reasonable person would tolerate.

Not to be confused with the English concept of nuisance for which there are civil remedies as opposed to the administrative remedy for statutory nuisance.

See Voisinage

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.

Strike Out

Where the Court strikes out a pleading or part thereof

Subponena duces tecum

Process by which a person is compelled to produce records or other documents.

Succession Law

The law relating to inheritance.

Succession Vacante

Where there is an estate, but no heirs to inherit. The Viscount will be empowered to advertise for heirs but if there are none then immovable property may ultimately escheat to the Crown.

Summary Judgment

Judgment given in a civil matter on the basis of affidavit evidence if plaintiff proves that the defendant has no defence to the claim or part of the claim.

 

Summary Winding Up

A solvent winding up under the Companies Law where the shareholders have passed, or are deemed to have passed, and filed, a special resolution to do so and the directors have confirmed: either that the company has neither assets nor liabilities; or that the company has assets but no liabilities; or that the company will be able to discharge all liabilities within six months of the commencement of the summary winding up.

Summing Up

At the conclusion of a criminal trial’s evidence, the presiding judge will sum up the evidence for the benefit of the jury/jurats and give directions.

 

Summons

A summons that institutes the claim. Summonses are used for brief and simple matters such as liquidated debts. If the matter is more complex then an Order of Justice is required. A summons must have a return date for 2.30pm on a Friday afternoon when the Samedi Division of the Royal Court is sitting.

A summons may also refer to a means of seeking interlocutory relief in existing proceedings and should be signed by an Advocate or Solicitor and the Judicial Greffier or a Judge. (See Interlocutory Summons).        

Superior Number

The Superior Number of the Royal Court comprises the Bailiff (or Deputy Bailiff or Commissioner) and not less than 5 Jurats. This formation of the court sits for criminal sentencing where the sentence is likely to be in excess of four years. The Superior Number also sits to hear a rare form of civil appeal known as Doléance and to determine advocates’ and solicitors’ professional misconduct cases.

The Superior Number also has certain legislative responsibilities i.e. it is empowered to make rules of court. (See Rules of Court).

Supervision Order

On the application of the Minister for Health & Social Services the Court may make a supervision order requiring the Minister to appoint a supervisor to advise, assist and befriend the supervised child. To make a supervision order the Court must be satisfied that the child is suffering or is likely to suffer significant harm, and that the harm or likelihood of harm is attributable to the care provided or likely to be provided, not being what it would be reasonable to expect a parent to give.  This is the same test as for a care order. Before making a final order the Court may make an interim supervision order renewable every 28 days until final determination of the matter.

Suspended Prison Sentence

Prison sentence passed on a convicted person (over 21 years old) but he or she is not imprisoned unless any further offences are convicted within the period of the suspended sentence.

T

Tabling

A procedural step by which the plaintiff tells the court that an action (which has been served) is proceeding. Failure to do so renders an action discontinued and the plaintiff will be required to serve fresh process unless the court dispenses with tabling.

 

Tacit reconduction (reconduction tacite)

A customary law doctrine by which a tenancy can automatically renew upon expiry if the parties continue as they were i.e. the tenant remains in occupation and pays rent without objection from the landlord.

Terrien

Terrien was the last great Norman commentator on the Grand Coutumier a 13th century collation of Norman customary law. He is often cited in the courts as regards Norman customary law and Jersey customary law.

Territoriality

The principle that the legal consequences of proceedings apply only to the territory of that state in which the proceedings have been opened – hence, the converse of universality.

Testator

The maker of the will.

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. B can issue his own proceedings against party C in an appropriate case.

Tiers Disponible

See Partie Disponible

 

Totality principle

Where the court imposes a number of sentences against a person in respect of different counts, it will ask itself whether the total is just and proportionate, and may reduce the total sentence if necessary to achieve a just and proportionate sentence.

 

Tort

In English law, an injury or wrong against a person. A civil wrong as opposed to a criminal wrong. The word derives from the French for wrong. Torts include, but are not limited to, the following; defamation, false imprisonment, negligence, trespass to the person, trespass to property.

Transaction at an undervalue

A gift or a transaction where a benefit is transferred by a debtor for a value significantly less than its true worth within 5 years before the commencement of a désastre or a creditors’ winding up which can challenged by the Viscount in a désastre or by a liquidator in a winding up, and potentially be set aside by the court.

Transcript

The official record of a proceeding.

Treaty

An agreement under international law entered into by sovereign states or international bodies. A treaty may also be referred to as an international agreement, protocol, convention, covenant, pact and exchange of letters.

Trespass

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

Triennial Regulations

 

Triennial Regulations are not permanent and last for 3 years but can be renewed and re-enacted. These are made pursuant to powers in Orders of Council of 1771 and 1884. Triennial Regulations are usually used for testing the water on issues before making permanent legislation or dealing with issues on which the States cannot reach a long term consensus.

 

Trust

The holding of property by one person on behalf of one or more others, either voluntarily (instrument or oral declaration) or by operation of law (e.g. through conduct).  The trustee typically holds the legal title to property, i.e. he is the owner of the property, but in fact holds it subject to the terms of a trust and  for the benefit of the beneficiaries, to whom he owes fiduciary duties.  A trust is not a legal person.

See Fiduciary.

Trustee directions hearing

An application by a trustee to the court for directions concerning the manner in which the trustee may or should act in connection with any matter concerning the trust.

See Beddoe Application.

 

Tuteur

Whenever immovable property or movable property of a value of £25,000 or more is owned or due to a minor (person under 18), an application must be made by a parent/relative/guardian to the Royal Court for the appointment of an individual person as a tuteur to administer the minor’s property (exceptions apply). Subject to the coming into force of the States of the Tuteurs Law (adopted by the States 12.4.16)

See Guardianship.

 

U

Universality

The principle that an insolvency declared in one jurisdiction is effective as regards all the property of the debtor wheresoever that property is situate.

Unliquidated Claim

A claim in respect of an uncertain amount which will usually only become ascertained and specific upon the happening of a specific event or determined in court proceedings (e.g. by the quantification of a claim for general and/or special damages resulting from negligent conduct).

Unreported Judgments

Judgments of the Jersey courts which are not reported in the Jersey Law Reports.

Unsecured Creditor

Strictly, any creditor in a désastre or creditors’ winding up who does not hold security. More commonly, this term is used to refer to any ordinary creditor who has no secured or priority rights. Their claims can therefore only be met after the claims of secured and priority creditors have been discharged.

Usufruit or Usufruct

A term with origins in Latin meaning the right of a person to enjoy the use of an asset (typically a house) which is owned by another person, for a period of time (usually until death). The asset is to be left undiminished in the sense that for example a person may enjoy the right to live in or let a property but cannot sell it as he does not own it. The Latin translates as literally the right to use and enjoy the fruits (or property) as opposed to alienating the property.  Usufruits can be created by a voluntary act such as in a will or by operation of law (e.g. dower, or the intestate matrimonial home usufruit).

 

V

 

Vices du Consentment

Defects in a contract which may vitiate its validity. See Dol, Erreur and Violence.

Vingtenier

A member of the honorary police, junior to a Centenier but senior to a Constable’s officer.

Violence

A contract may be void if the consent by a party is induced through physical violence or undue influence.

Viscount

Executive Officer of the Island’s courts and the States, who is appointed by the Bailiff.  Responsible for ensuring that the decisions of Jersey’s courts and States Assembly are carried out. Amongst the office’s variety of duties are that of the Island’s  Coroner, the administration of the jury process, and the administration of the désastre insolvency process.

Visite du branchage

An inspection carried out by parochial officials to ensure that landowners have complied with the branchage requirements as set out in the Loi (1914) sur la voirie. Landowners are required to cut back branches and other plant vegetation which encroach onto public roads or footpaths.

Visite Royale

Each year, the Royal Court visits two parishes to inspect the parochial accounts and also adjudicate on any issues between landowners. The Royal Court is assisted on the Visite Royale by 12 Voyeurs (sworn witnesses) and an arpenteur public.  Nowadays, 2 Parishes are visited each year between 24th June and the 1st and 3rd Wednesday in August.

Voisinage

A customary law quasi-contract which governs the relationships between neighbouring landowners which essentially means a landowner can only enjoy his own property to the extent it does not injure his neighbour. In the past it was confused with “nuisance” but the Royal Court has made clear that the English concept of nuisance does not apply in Jersey.

 

See Statutory Nuisance.

Vue de Justice

Proceedings resulting from an appeal against the findings of a Vue de Vicomte.  The Bailiff and two Jurats preside over a panel of 12 experts (the six from the Vue de Vicomte and six more).  There is no right of appeal against a decision of the Vue de Justice.

Vue de Vicomte

Proceedings initiated by an Act of the Royal Court in order to delimit a disputed boundary between two adjoining properties.  The Viscount presides over the Court of Reference which includes a panel of six experts (conveyancing professionals) assisted by an arpenteur public.  An appeal against the findings of a Vue de Vicomte results in a Vue de Justice.

W

 

Wages Arrest

When the court authorises the Viscount to arrest the wages of a defendant in order to satisfy a judgment debt.

Will

A will sets out the way in which a person wishes their movable and immovable property to be disposed of on their death. The power to dispose of movable and immovable property on death is also subject to exceptions in Jersey law protecting the rights of spouses and descendants. 

See Dower and Légitime.

Winding Up

A company may be placed into three forms of winding up: a summary winding up, a creditors’ winding up, or a just and equitable winding up.

See Summary Winding Up.

See Just and Equitable Winding Up.

See Creditor’s Winding Up.

Witness

One who testifies as to what they have observed.

Writ

An English term referring to an Order from a court requiring a certain act to be done or a form of English originating process.

Wrongful Trading

Applies to a company if it is en désastre or subject to a creditors’ winding up where a director permits the company to continue trading in circumstances where he should have concluded, or was reckless in failing to conclude, that there was no reasonable prospect of avoiding a Désastre or an insolvent winding up. Such a director may be found personally liable for any of the company’s debts unless the court is satisfied that the director took reasonable steps with a view to minimizing loss to the creditors.

Y

Youth Detention

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

Youth Court

A court comprised of the Magistrate/Assistant Magistrate/Relief Magistrate and two lay panel members. This Court has jurisdiction to deal with persons under the age of 18 unless special circumstances apply.

Youth Appeal Court

This Court is comprised of the Bailiff/Deputy Bailiff/Commissioner and three lay panel members, and has jurisdiction to hear appeals from the Youth Court.