Defining moments of customary law

The power of the judiciary to develop and modify the common or customary law of Guernsey was recently considered by the Guernsey Court of Appeal in a decision that may have wide-reaching implications throughout the Channel Islands.

The court has always been able to develop the customary law, and this decision defines the circumstances in which it may do so by reference to some “aids to navigation across an uncertainly charted sea”.

Guernsey law has its origins in the ancient customary law of mainland Normandy rather than the common law of England. Originally, the customary law as applied by the Duchy of Normandy was an expression of the customs of the people. As the the customs of the area developed to meet changing circumstances, the customary law also developed and changed.

In 1584, the Privy Council approved for Guernsey a report that defined the laws of the island by reference to a commentary on the customary law of Normandy which had been written by Maitre Guillaume Terrien of Dieppe and published in Paris in 1574. Today, Terrien remains an authoritative statement of certain aspects of Guernsey law.

In modern times, and in those areas where Terrien is silent or inadequate, Guernsey has looked to English law. This is especially so in matters of tort, contract and company law where the English common law is invariably applied and where Guernsey legislation is often similar to corresponding English statutes. As a result, Guernsey legislation is often similar to corresponding English statutes. Consequently Guernsey law has become a blend of Norman customary law, English common law and modern statute.

In many instances the customary law may be silent and the English common law may have been amended by statutes that have not been replicated in Guernsey. Such was the situation that the Guernsey Court of Appeal (Sir Louis Blom-Cooper QC, Richard Southwell QC and Jonathon Sumption QC) faced in 1996 in the case of Morton v Paint & Bramall & Aylward. The appeal involved a preliminary point of law, namely the nature of the duty of care owed by the occupier of premises to a lawful visitor. Terrien is silent on the point and the English common law had ceased to develop following the Occupiers Liability Act 1957.

Before then the English common law had identified different categories of lawful visitor to each of whom a different duty of care was owed by the occupier. Parliament had intervened principally to remedy defects in the common law arising from the unsound distinction between two categories of lawful visitor, invitees and licensees. As the 1957 Act applied only to lawful visitors, the common law continued to develop in relation to trespassers until the Occupiers Liability Act 1984.

Guernsey had not enacted any legislation along the lines of the 1957 Act and in the intervening period there had been decisions in Guernsey which had applied the English common law.

In Morton, the court had to decide whether to continue to apply the English common law as it had existed in 1957 with the possible result that, in some circumstances, a trespasser might be better placed than a lawful visitor to recover damages from the occupier of premises in which he was injured.

In some other common law jurisdictions, including certain Australian states, later developments of the common law illustrated how the English law might have changed if Parliament had not intervened.

The Guernsey Court of Appeal held that because the customary and common law of Guernsey has always developed by judicial decision, it could continue to do so. The Court referred to a number of English judicial decisions on the common law and approved the five “aids to navigation” set out by Lord Lowry in C (a minor) v DPP (1996) 1 AC I HL (E). These are:

if the solution is doubtful, the judges should beware of imposing their remedy;

caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched;

disputed matters of social policy are less suitable areas of judicial intervention than purely legal problems;

fundamental legal doctrines should not be lightly set aside;

judges should not make a change unless they can achieve finality and certainty.

Applying those to Morton, the Court of Appeal held that in Guernsey the law had continued to develop after 1957 so that the duty of care owed by an occupier to a lawful visitor is a duty to have done what a reasonable man would have done in the circumstances by way of response to the risk, insofar as is foreseeable, in accordance with the Donoghue v Stevenson principles of the law of negligence.

The Court of Appeal thereby reformed the Guernsey law to something similar to what had required statutory reform in England.

In due course, we will learn whether this assertion by the court of its powers will encourage the court to intervene more frequently in areas where it might previously have been considered that law reform could only be achieved by legislation. Practitioners in other jurisdictions who have sought advice on Guernsey law will be aware that it is not always possible to obtain a clear opinion. It remains to be seen whether the “aids to navigation” set out in Morton will enable Guernsey legal practitioners to be more precise in their advice in future.