Kathryn Purkis and Sam Dingle
18 July 2011
10 June 2013
5 November 2013
14 November 2013
18 November 2013
24 February 2014
Injunctions in the Channel Islands might not involve celebrities, but that doesn’t mean there’s no drama involved.
Injunctions have been a hot topic on the mainland recently, but, perhaps due to the disappointing absence of bed-hopping Premiership footballers in the Channel Islands, as far as the authors are aware there have been no privacy-driven injunctions sought as yet in Guernsey and Jersey - either that or they have worked.
The courts of both islands have long recognised a party’s customary law right to final injunctions. In Guernsey the LawReform (Miscellaneous Provisions) (Guernsey) Law (1987) has given a statutory footing to interim injunctive relief. In Jersey this remains a matter of customary law.
Making a Clameur
That the remedy has longevity is illustrated by the Clameur de Haro, a type of ancient Norman injunction peculiar to the Channel Islands. The Clameur is raised by a claimant dropping to their knees at the site of the alleged wrongdoing in the presence of two witnesses and proclaiming: “Haro! Haro! Haro! A l’aide mon Prince, on me fait tort.” (“Hear me! Hear me! Hear me! Come to my aid, my Prince, I am being wronged.”) They follow this with a recital of the Lord’s Prayer in French and then Grace. This has the immediate effect of a prohibitory injunction.
If there is room for the Clameur today at all it is in the domestic setting - typically boundary disputes or family matters.
Nowadays, in both Jersey and Guernsey, the grounds on which an injunction will be granted are essentially the same as in England and Wales. Regard is paid at the interlocutory stage to the familiar American Cyanamid principles, and with all the same obligations of full and frank disclosure pertaining, as was underscored in one of the decisions in the Jersey case FG Hemisphere Associates v DR Congo (2010).
In Jersey it is possible to obtain ex parte relief on the papers, although a hearing in chambers is usually required by the court in matters of any complexity. This means the necessary orders can be obtained swiftly.
There is a full suite of injunctive remedies available on both islands. Injunctions around jurisdiction challenges are not uncommon and anti-suit injunctions are available. Winnetka Trading Corporation v Bank Julius Baer & Co Ltd (2009) was an appeal to the Guernsey Court of Appeal (CoA) against an anti-suit injunction granted by the Royal Court on the basis of a purported exclusive jurisdiction clause.
The CoA overturned the decision and distinguished a line of recent English authority that suggested there is little or no distinction between exclusive and non-exclusive jurisdiction clauses, making new law for Guernsey.
Given the offshore context, there is unsurprisingly a fair amount of case law on both islands concerned with freezing injunctions and search orders. Mirror freezing injunctions are often obtained in support of proceedings taking place in another jurisdiction, but where the defendant’s assets are located in one of the islands and there is a real risk of dissipation.
As in London, it is eminently possible to couple these orders with the usual disclosure provisions or, if warranted, gagging orders restraining, for the necessary time, disclosure of the fact of the injunction having been obtained.
The reference to gagging orders brings us neatly to the issue of the so-called superinjunction - a gagging order made in the context of enforcing privacy rights and so restraining publication.
The European Convention on Human Rights was extended to Jersey and Guernsey in 1953 and more recently was given domestic effect by way of the islands’ respective human rights laws, which came into force in 2006. These put human rights on a similar footing to those in England and Wales, with the convention’s principles having direct effect, and also jurisprudence of the European Court of Human Rights being of direct application.
By contrast, the decisions of the High Court of England and Wales may be regarded as persuasive, but not necessarily so if the islands’ courts think it is desirable to develop the local law in a different way.
At first blush one might therefore think that any debate on the islands about the extent of the right to a private and family life under Article 8 of the convention, and how it may be held in the balance with the right to freedom of expression under Article 10, would be held on the same ground as in England and Wales, but with potential for a different outcome. In practice, however, as the raft of relevant English cases are themselves either based on or consistent with European case law principles, it is likely that any variation in outcome would only be in the interpretation of fact or the application of discretion - for example, in a decision as to whether there remained any reasonable expectation of privacy to protect.
It would be wrong to think that this debate will never arise in Jersey or Guernsey and that it is the mainland media that will do the damage to those with reputations to protect. Prominence in the community here means that reputation is very important.
Worth a thought in this context is the fact that the islands have their own print media, but are not subject technically to the jurisdiction of the courts of England and Wales. But there is no need for concern, not only because of the respect such media would afford High Court decisions, but also given the common legal approach and the availability of mirror relief.
Kathryn Purkis is a partner and Sam Dingle is an associate at Collas Crill