Representation of De Gruchy and the Parish of Trinity: [2024] JRC 082

The Representor (“Ms De Gruchy”) purported to raise the ancient customary law remedy of Clameur de Haro (the “Clameur”) to prevent the Parish of Trinity or its Connétable (hereafter the “Parish”) from carrying out work to cut back certain alleged encroachments from certain fields belonging to Ms De Gruchy’s (the “Land”) over Rue Becq (being a road under the administration of the Parish) (the “Road”).

Ms De Gruchy contended that the Land did not encroach over the Road as the Road was a chemin de huit pieds (namely a parish road with a width of eight Jersey feet (seven feet four imperial inches).The Court had the benefit of a site visit and noted that the tarmacked part of the Road exceeded huit pieds.It was also clear to the Court based on the available evidence that a width of greater than huit pieds had been tarmacked for a considerable period without challenge before the Courts or otherwise.

The main argument before the Court was whether or not the raising of the Clameur was available to someone who was, asserting ownership over parts of the Road which was in dispute, as opposed to current possession of those disputed parts.

Having considered the previous authorities and commentaries relating to the Clameur, the Court concluded that the following principles apply to raising the Clameur:

1.  It must be shown to the Court that there is an appert péril (which has been defined as “visible”, “evident” and “manifest”);
2. The appert peril must be shown to be a wrongful act in the course of commission;
3. There must be possession of the land which is being sought to be conserved and there is no need to prove title;
4. The Clameur must be raised against the person committing the wrongful act and not the person who instigated it.The Court held that Ms De Gruchy needed to be able to demonstrate that she had been in possession of the disputed land.If she was not in possession of the land (but merely claimed ownership of the land) she would need, to commence proceedings to establish her titled to that land.

The Court held that the fact that the Parish had tarmacked the Road in excess of huit pieds was an unequivocal assertion by the Parish of a proprietary right and a de facto possession of the Road.On this basis the Court concluded that at the time the Clameur was raised by Ms De Gruchy, she was not in possession of the disputed land. As such the Court concluded that the Clameur had been incorrectly raised.

The Court therefore fined Ms De Gruchy the sum of £1,000.00.

The Court then went on to consider the matter of costs. The Court noted that the Clameur has none of the safeguards of modern injunctions (such as an undertaking by the seeker of an injunction to compensate the party to whom the injunction is imposed upon, should it be found to have been obtained improperly). The Court concluded that in this case, the raising of the Clameur was not only improper but also arguably unreasonable. Despite this, it accepted that there was a genuine dispute about ownership of certain parts of the Road. As such it held that the costs of the Parish arising from and incidental to the Clameur be paid by Ms De Gruchy.

Comment

This is the second case in almost three years where the Clameur has been purportedly raised. In both cases the Court held that the Clameur had been raised unsuccessfully. However, this case is a clear reminder that in order to raise the Clameur the raiser must be in possession of the land in question.If that is not the case, the Clameur will not be successful. Instead, if the raiser is not in possession of the land, separate proceedings should be issued to vindicate title or ownership.

KEY WORDS: Clameur de Haro; Land; Costs

This was an interesting case providing further guidance and commentary on the ancient customary law action of Clameur de Haro.This is the second case in almost three years that has considered this ancient customary law action. The analysis in this case centred on whether the Clameur could be raised despite there being a dispute as to who owned the land said to be suffering an appert péril.

In this case the raiser of the Clameur was held to have raised it incorrectly and the Cour then went on to assess whether they should pay the costs of the Defendants on either the standard basis or the indemnity basis.